REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL APPEAL NO. 52 OF 2015 SHEM VILORY OCHIENG........................................APPELLANT VERSUS REPUBLIC………………………………………..RESPONDENT (From the original conviction and sentence in S.O.A case No.135 of 2014 of the Chief Magistrate’s Court at Busia by Hon. H.N Ndung'u (Miss) – Chief Magistrate) JUDGMENT SHEM VILORY OCHIENG the appellant, was convicted for the offence of defilement contrary to section 8(1) (3) (sic) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on 13th December 2012 at [particulars withheld] village of within BUSIA County, he intentionally and unlawfully caused his penis to penetrate the anus of B.N.O, a child aged 12 years. He was sentenced to serve 20 years imprisonment. He has appealed against both conviction and sentence. The appellant was represented by Mr. Wycliffe Okutta, learned counsel. He raised three grounds of appeal as follows: 1. That the learned trial magistrate erred in law and in fact by over-relying on inadmissible evidence. 2. That the learned trial magistrate erred in law and in fact by admitting impugned proceedings as evidence. 3. That the learned trial magistrate erred in law and in fact by shifting the burden of proof on the identity of the perpetrator to the appellant. The state opposed the appeal through Mr. Owiti, the learned counsel. The facts of the prosecution case were briefly as follows: On 13th of December 2012 at about 8 p.m the appellant requested some Vaseline petroleum jelly from the complainant. When she took it to him, he grabbed her, covered her mouth and took her to a place where he defiled her. The appellant contended that he did not commit the alleged offence.
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This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32. The charge was erroneously drafted. It ought to have read contrary to "...section 8(1) as read with section 8(3) ..." My perusal of the record indicate that the appellant understood the charge before pleading to it. He thereafter participated in the trial and was at all times represented by counsel. He was not prejudiced in any way and the defect is curable under section 382 of the Criminal Procedure Code. For an offence of defilement to be proved, three ingredients must be proved beyond reasonable doubts. In the case of FAPPYTON MUTUKU NGUI vs. REPUBLIC [2012] eKLR the court enumerated them in the following terms: The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. (Emphasis mine) B.N.O was taken for age assessment and in a report dated 23 rd January 2013 her age was estimated to be 11years. This assessment is in agreement with the age she gave to court at the time of trial. When she testified on 5th August 2015, she gave her age as 13 years. This was two years after the date of the alleged offence. The age of the complainant was therefore established. Before I embark on the analysis to establish whether the other ingredients were proved or not, I wish to first address some of the grounds raised. These are the contention that the learned trial magistrate erred in allowing inadmissible and impugned evidence. The learned trial magistrate allowed the production of the evidence of J A who was reported deceased and that of V M who could not be traced. This was done under the provisions of section 34 of the Evidence Act which provides as follows: (1) Evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceeding or at a later stage in the same proceeding, for the purpose of proving the facts which it states, in the following circumstances— (a) where the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or where his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable, and where, in the case of a subsequent proceeding— (b) the proceeding is between the same parties or their representatives in interest; and (c) the adverse party in the first proceeding had the right and opportunity to cross-examine; and (d) the questions in issue were substantially the same in the first as in the second proceeding. (2) For the purposes of this section— (a) the expression “judicial proceeding” shall be deemed to include any proceeding in which evidence is taken by a person authorized by law to take that evidence on oath; and (b) a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused.
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The evidence of B.N.O (PW2) on 5th August 2015 was that J A her sister, was deceased. This was not challenged. Although there are conflicting dates on the burial permit, this ought to have been raised at the trial so that an explanation could be sought from the maker. It cannot be an issue at this stage. I am therefore satisfied that the prosecution established a basis for the previous evidence of the two witnesses to be relied on at the trial now in issue. When a superior court orders a retrial, it is usually on erroneous procedure used. Had the evidence been impugned, the appeal would have been allowed. I accordingly dismiss the first and the second grounds of appeal. The proviso to section124 of the Evidence act provides as follows: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. Although the evidence of the complainant under this proviso does not require corroboration, I find that it was corroborated by the evidence of J A. This witness told the court how they went looking for the complainant after she was informed that she was missing from where she was supposed to sleep. She further corroborated the complainant’s evidence when she told the court that the appellant had send her for the Vaseline petroleum jelly. OMAR OSUNDWA (PW4) the clinical officer who examined the complainant, found a small tear and the reddening of the labia minora. He also found swelling around the anal area. This in my view corroborated the contention of the complainant. She said that the appellant attempted to penetrate her per vagina but when this was not forthcoming, he penetrated her per anus. The defence contended that the complainant is not to be believed. This is because initially she did not disclose her ordeal and had indicated that she was from the toilet. In my view, we cannot declare her a liar on this basis. This was a child who was in a dilemma whether or not to reveal the sexual encounter. She was prompted to do so by the pain. Was the appellant identified as the perpetrator? My answer to this question is a resounding yes. The complainant’s evidence and that of J A identified him as the culprit. There was no room for any doubts. Though the appellant through his counsel contended that the burden of proof was shifted to the appellant, my perusal of the record does not reveal any such instance. Section 8 (3) of the Sexual Offences Act provides as follows: A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. The appellant was sentenced to the only available legal sentence. From my analysis of the evidence on record, I find that the appeal lacks merit. I accordingly dismiss it. DELIVERED and SIGNED at BUSIA this 29th day of November, 2017 KIARIE WAWERU KIARIE JUDGE
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