Thomas Maina Muya v Republic

proof of penetration because it may have been broken through other means; that the appellant’s consent was not sought before the production of the P3 form by PW5; hence Section 77 of Evidence Act was not complied with; that PW4’s evidence cannot be relied upon because he had to be detained in custody before he testified when he was declared a hostile witness. Counsel relied on the decision in Sunjila v R Court of Appeal at Tanga in which the court held that if evidence is wrongly received and is acted upon, the appellant should be acquitted; lastly that the court did not consider the appellant’ alibi. In opposing the appeal Ms. Rugut, learned counsel for the State argued that the offence was proved; that penetration occurred 4 weeks before arrest; that the fact that there were no injuries does not mean that there was no penetration took place but it was due to the lapse of time; that the P3 was produced by a Clinical Officer pursuant to Section 77(3) of the Evidence Act and there was no need to call Dr. King’ori from Nakuru; that the court rightfully rejected the alibi; that PW1 identified the appellant and the court believed her pursuant to Section 124 of the Evidence Act. This is a first appeal and it behoves this court to closely examine all the evidence tendered before the trial court, analyze it and arrive at its own determinations. The court should of course bear in mind that it neither heard nor saw the witnesses and the trial court was best placed to weigh the demeanor of the witnesses. The prosecution case was as follows: PW1 P.W.K. a girl aged 12 years was sent by her sister to get socks for the child from the grandmother’s home at Arasa; that she entered a hotel to take some water when she found a tall black man who denied having water but instead pulled her to a room, removed her clothes lay her down, defiled her after he removed his trousers and pant and lay on and inserted his penis in her vagina; that the man threatened to kill her if she told anybody; that the mother got suspicious and asked what happened to her and she told her she had been defiled by the appellant; she was taken to the hospital and the mother reported to the police station. PW2 A N M, the mother of the complainant heard people talking that they used to see the appellant with complainant; she asked PW1 about it and PW1 informed her that she had been defiled by the appellant. PW2 reported to Subukia Police Station and PW1 was taken to Hospital and the appellant charged. According to PW2, the appellant had been defiling PW1 for a while. PW3 S K K the father of PW1, received a call from PW2 who told him to proceed to [particulars withheld], Market where he would get PW1 with Thomas Maina. The appellant proceeded to Subukia but did not trace PW1 but found his younger child who informed him that PW1 left with an uncle. He reported to the police and went to wait where the appellant used to repair radios; that PW1 arrived there but left. He followed her home where he interrogated her about her relationship with the appellant and she admitted to having been defiled by him at a lodging 2 weeks earlier. He reported to the police who interrogated PW1 and called the appellant. PW4 Benson Muriuki who owns Malindi Subukia Lodge recalled that on 5/1/2014, the appellant went to the lodge, paid for room No.1 where he wanted to rest. He denied seeing the appellant with anybody; that the police went to the lodging with a girl who claimed to have been defiled there. The prosecution applied to have PW4 declared a hostile witness and requested to cross examine him. After a while the prosecutor applied to have him detained for 8 days because he was not telling the court what was in his statement. PW5 Milka Cherop, a Clinical Officer at Solai Health Centre produced the P3 form on behalf of Dr. King’ori. The Doctor found that the hymen was missing but there were no other injuries. The appellant was also examined and no abnormality found. PW6 PC Peter Kalungo recalled that the appellant was summoned to the police station, was detained and on 3/2/2014 and the complainant took the police to Malindi Lodging where she alleged to have been meeting the appellant and that the owner of the lodging confirmed having seen the girl with the appellant. When called upon to defend himself, the appellant gave sworn testimony in which he denied the offence

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and alleged that the complainant’s father and his wife had an affair and they promised to fix him; that at the police asked him for Kshs.80,000/= which he did not have. To prove an offence of defilement under Section 8(1) of the Sexual Offences Act, the prosecution needs to prove the following: 1. Penetration; 2. The age of the victim; 3. The perpetrator of the offence. Penetration is defined under Section 2 of the Sexual Offences Act “penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” It is the defence case that the prosecution was fraught with contradictions. I have considered the submissions of counsel on the issue of contradictions. What is clear is that it is not known exactly when PW1 first had an encounter with the appellant when she was allegedly defiled. She talked of having been defiled a month before they closed school when she had been sent to get socks from her grandmother’s place. In fact PW2 confirmed that the incident occurred in December 2013. It is clear from the evidence that it is on 5/1/2014 that PW1’s parents started following up on the rumors they had heard of PW1 being seen with the appellant. In fact its clear from PW1’s testimony that PW1 did not meet the perpetrator once but several times as one Susan allegedly used to send her to the appellant. Although she talked of having been defiled once, the evidence gathered by the investigating officer and other witnesses is that the appellant and PW1 had been seen several times and it was confirmed by the owner of the lodging that the appellant was a regular customer at this lodging and hence once used Room 1 which PW1 identified as the place she was defiled. This is an offence that was not discovered soon after the occurrence and the fact that the witnesses could not recall the exact dates cannot exonerate the perpetrator from culpability if the court believes the testimony of PW1. PW1 told the court that she was 12 years old, having been born on 12/7/2002. PW2 confirmed that fact and the birth certificate was produced in evidence. PW1 was not a stranger to the appellant. She knew the appellant before. She said one Susan used to send her to the appellant to get money and further that the appellant used to buy her chips. The appellant did not deny knowing the complainant. In his defence, he alleged that he was framed because the complainant’s father (PW3) had an affair with his wife. However, I find that allegation to be too farfetched. It is not PW3 who made these allegations against him. Besides PW1, 2 & 3 testified and the appellant never put the said allegation to them in form of questions. I find the defence was an afterthought and not believable. The next question then is whether there was penetration. PW1 is the only witness to the incident. She testified on oath after a voire dire examination by the court and she was found to understand the oath and possessed sufficient intelligence to understand the proceedings. PW1 narrated to the court what happened to her once she was in the lodging with the appellant; that the appellant removed her clothes and his, lay on her, put his penis in her vagina and defiled her. The narration of these details by PW1 was not challenged and it was too detailed for PW1 to be imagined or couched. I do not believe that PW1 was couched to tell the court those details. Under Section 143 of the Evidence Act, a fact can be proved by the evidence of one witness. Besides, the trial court invoked Section 124 of the Evidence Act. There is no longer a requirement of corroboration in a Sexual Offence. If the court believes the victim, it can proceed and convict based on the testimony of the witness. The defence relied on the case of Peter Ochachi v Republic CRA.81/2007 where the court said that an

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offence of defilement required corroboration. That is a court of concurrent jurisdiction and I am not bound by that decision. In Michael Odhiambo v Republic Cr.280/2004 J. Musinga observed that “corroboration in my view is a matter of practice but not a mandatory legal requirement.” In the case of Kassim Ali v Republic CRA.84/05, the court of appeal held as follows as regards medical evidence. “The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.” In this case, it must be appreciated that by the time PW1 was examined by the doctor the offence had occurred much earlier. Even if another occurrence was on 5/1/2014, no evidence of sexual intercourse could have been found as of 3/2/2014 when PW1 was examined by the doctor. The only evidence available was that PW1’s hymen was broken. Whereas it is true a hymen could have been broken under different circumstances, yet the trial court believed PW1’s testimony that she was defiled. The missing hymen must be a direct consequence of the penetration. I am satisfied on the evidence of PW1 and the doctor’s findings that there was penetration and PW1 identified the appellant as the perpetrator. Before I analyze the other grounds, I need to deal with the evidence of PW4. The defence counsel argued that the court should not have relied on the evidence of PW4 who had been remanded in custody after being declared a hostile witness and that she should have only have been cross examined on his statement; that he was not a refractory witness who could have been dealt with under Section 152 of the Criminal Procedure Code. The record shows that the prosecutor applied to cross examine PW4 under Section 153 of the Criminal Procedure Code. PW4 was cross examined for a while and he admitted that on 5/1/2014 when the appellant hired a room at his lodging he saw a girl coming out of the said room but he did not take any action. It is after this that the court remanded PW4 after which he came and testified. I do agree with the defence that the trial court erred in invoking Section 152 of the Criminal Procedure Code which deals with a refractory witness. It was considered in the CRA.240/2008 Republic v Musyoka Miriti. The court dealt with the procedure of taking evidence of a hostile witness. See page 4 of the judgment – “The second error committed is the manner in which PW1 was declared a refractory witness. Section 152 of the Criminal Procedure Code sets out who a refractory witness is and also gives guidance on how to handle such a witness. It provides as follows: “152 (1) whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence (a) Refuses to be sworn; (b) Having been sworn, refuses to answer any question put to him, or (c) Refuses or neglects to produce any document or thing which he is required to produce; or (d) Refuses to sign his deposition, without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days, and may in the meantime commit that person to prison, unless he sooner consents to do what is required of him. (2) If the person, upon being brought before the court at or before the adjourned hearing, again refuses to do what is required of him, the court may again adjourn the case and commit him for

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the same period, and so again from time to time until the person consents to do what is so required of him. (3) Nothing contained in this section shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it.” It is clear from the above section (152 of CPC) that PW1 was not a refractory witness for the basic reason that the prosecutions complaint was not that she refused to answer questions put to her. She was accused of retracting her statement to the police. She was a hostile witness. The procedure adopted by the learned trial magistrate was wrong especially the decision to remand the witness in custody. Where the prosecution wishes to show that its witness has retraced previous statements made by him to the police, the prosecutor must apply to cross examine his witness as to such previous statements made by him to the police, the prosecutor must apply to cross examine his witness as to such previous statement. In such circumstances the court must ensure that the provisions of Section 153 and Section 154 of the Evidence Act are observed. The witness will then be cross examined by the defence. The purpose of such cross examination by the prosecution may extend, not only to establishing that the witness retracted his previous statement. The prosecution will be at liberty to cross examine their witness as to his credibility accuracy and veracity among other things. If the prosecution succeeds in shaking the credibility and injuring the character of its witness, the witness will be treated as a hostile witness. The court of appeal in Maghanda v Republic (1986) KLR255 at page 257 discussed the manner in which the evidence of a hostile witness should be treated by a trial court. The court held: “Halima was called to testify for the prosecution. She was declared a hostile witness. The magistrate said that therefore her evidence could be safely disregarded for, being the appellant’s girlfriend, it was but natural that she would testify as a defence witness. The first part of the magistrate’s statement strictly was a misdirection. The evidence of a hostile witness must be evaluated, in particular if it tends to favour the accused though it may not necessarily be acted upon by the court.” The court will therefore ignore PW4’s testimony after he was released from remand. During cross examination of PW4 when the prosecution declared him hostile, he did admit that indeed he saw a girl come out of the room that the appellant had hired on 5/1/2014; a fact he had denied earlier on. In my view, the admission by PW4 that the appellant hired a room in his lodging and he saw a girl come out of that room was corroborated by PW1’s evidence that she was at the said lodge in room No.1 with the appellant where she was defiled. Whether PW5’s evidence was properly taken; PW5 was working as a Clinical Officer with Dr. King’ori at Subukia Health Centre. She testified that the said doctor had been transferred and could not be traced. The court went ahead and received her evidence without asking the appellant whether or not he objected to the said evidence of the Clinical Officer. I do agree that indeed the court erred by not inviting the appellant to state whether to object or not to PW5 testifiying. In any event, the appellant never raised the objection at that time. Under Section 33 as read with Section 77 of the Evidence Act, a Medical Report can be produced by another officer who has worked with the author of the report or knows his signature writing. In this case, PW5 had worked with Dr. Kingori, knew his handwriting and signature. PW5’s evidence cannot be ignored by the court just because the appellant was never asked whether to object or not. The appellant has not demonstrated how the said evidence prejudiced him. After carefully analyzing all the evidence on record, I am satisfied that PW1 was defiled. It seems that the appellant was preying on this little girl. It matters not whether PW1 behaved like a grown up or not as the defence counsel’s submission. She was only 12 years old and was being taken advantage of. In a

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case of defilement, consent is not a requirement. I am satisfied that the appellant defiled the complainant. The findings of the Doctor were that the hymen was missing and hence there was penetration. As noted above, however, the hymen could have been perforated through other means like sports. The appellant raised the defence of alibi that he was at work on 5 th January, 2014. In Kiarie v Republic (1984) KLR 739 the court held that “an alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge, does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable…” The burden always rests on the prosecution to prove its case beyond reasonable doubt. As earlier noted, the exact date when PW1 was first defiled was sometime in December 2013. It seems that the appellant continued to take advantage of PW1 and was with her on 5/1/2014 at PW4’s lodging. The alibi did not dislodge PW1’s evidence that she was defiled by the appellant. I find the appellant’s alibi is an afterthought PW1 & 4 placed the appellant at the scene of crime. The upshot is that I find that the trial court did arrive at the correct finding and I do confirm the conviction and sentence. The appeal is devoid of merit and I dismiss it. Dated, Signed and Delivered at NYAHURURU this 14th day of November, 2017. …………………. R.P.V. Wendoh JUDGE PRESENT: Mr. Mutembei - Prosecution Counsel Soi - Court Assistant Appellant - present Mr. Waiganjo- for appellant

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