REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU CRIMINAL APPEAL NO. 61 OF 2016 JOHN LOLIM.................................APPELLANT VERSUS REPUBLIC..................................RESPONDENT JUDGEMENT The appellant was charged with the offence of defilement contrary to section 8(1) (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 27 th day of August 2014 in Isiolo County within Eastern region, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of J K a child aged 11 years. He was charged with an alternative count of committing an Indecent Act with a child contrary section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 27 th day of August 2014 in Isiolo County within Eastern region, the appellant intentionally and unlawfully touched the vagina of J K, a girl aged 11 years old with his penis. The appellant was convicted and sentenced to serve 20 years imprisonment. The appeal raises three grounds namely: 1. That the learned trial magistrate erred in both law and fact by convicting and sentencing the appellant herein relying on contradicting, inconsistent and uncorroborating evidence. 2. That the trial court failed in matter of law and fact by not observing that the age of the minor was not accurately proved. 3. That the trial court erred in law and fact by according to PW 1 a second chance as an intermediary in this instant matter which amounts to re-testifying. The appellant through his written submissions submitted that the offence of defilement is only ascertained by penetration which is always proved by a clinical officer with a report that the hymen was broken bearing in mind that not only penetration can cause the same. The appellant submitted that the evidence of PW1 contradicted the evidence of PW 7. PW 1 testified that she had come from the forest to look for firewood and found her children at home. PW 7 testified that on the 27th day of August 2014, the complainant had been sent in the company of another girl to fetch water. When the complainant was released by the appellant person, she proceeded home and her mother asked her why we had taken long.
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He further submitted that the words “to go under the tree” had a different meaning other than its normal meaning. PW 2 testified that the complainant asked her that they go under a tree and as they were coming from fetching water, they met Lorim. PW 1 alleges to have gotten information from M E who was not present during the said incident and from C A, PW 2, who testified that the complainant refused to tell her what had happened and warned her against telling anyone. The appellant submitted that the complainant warned PW 2 not to say that she was in the company of a stranger and not of the action of defilement because she did not see. The appellant further submitted that the proper age of the complainant was not ascertained. It was alleged that the complainant was 11 years and 16 years. It was also submitted that PW 1 testified twice, the second time as an intermediary of the complainant which was unprocedural. The state conceded the appeal. Mr . Odhiambo submitted that there were procedural irregularities in the trial. The minor gave unsworn evidence and the appellant did not cross-examine her. Secondly, the mother of the complainant was used as an intermediary and the appellant was not given a chance to crossexamine so as to test the veracity of her evidence. Mr . Odhiambo prays for a retrial. This being a first appeal, the court has to evaluate the evidence afresh. PW 1, C N testified that she comes from Alamash and sells charcoal and has four children. On the 27th August 2014 at about 6.00 p.m having come from the forest to look for firewood her small child M E told her that the complainant had been taken to the bushes near the river. She sought to know what had happened and that the complainant told her that a person took her from the river to the bushes, told her to remove her clothes and defiled her. The person had first told her to sweep the place where he defiled her. The complainant told her that the person was Lorim, the appellant. She asked A who was with PW3 what happened and she confirmed what the complainant had told her. It was her evidence that PW3 is mentally unstable. PW 1 testified that she told her husband what had happened and he informed their neighbours. The appellant was arrested the following day. She took PW3 to hospital where she was examined and found to have been defiled. PW 2, C A, a minor, gave unsworn evidence. She testified that she knows PW3 whom she plays with and fetches water with. On that day as they came from fetching water with PW3, they met Lorim. Lorim asked PW3 they go under a tree and asked PW 2 to go behind another tree and collect firewood. When PW3 came back, she asked her what Lorim had done to her but PW3 refused to tell her and warned her against telling anyone. She testified that J appeared to be annoyed and her clothes were dirty. She knew Lorim before when she used to see him at his home in Alamash but they moved. PW 3 was the complainant. She testified through her mother PW 1 as the intermediary. PW 3 pointed out the appellant as the person who had defiled her. She testified that when she was defiled, she was with C and they were from fetching water. She testified that it was the first time the appellant had defiled her. She told her mother what had happened and she was taken to hospital after the incident. PW 4, DAVID NJORE testified that he stays at Alamasha and works with Community Self Help Group. On 28th August 2014, he was informed that J who is mentally handicapped had been defiled by one John Lorim. He went with other young men from the area to look for Lorim and found him where they usually collect sand. He asked Lorim whether he had defiled J and Lorim became annoyed and threatened them with a knife. He testified that they took Lorim to the AP camp and then to Isiolo Police Station. PW 5, DAUDI DABASO a Clinical Officer from Isiolo County Referral Hospital. He produced a P3 form as exhibit which had been filled by one Mohamed Duba. He had known him for over 13 years and was conversant with his handwriting. Examination of the complainant revealed that she had a broken hymen and a foul smelling discharge. The broken hymen could suggest consistency of the defilement allegation. It was his evidence that as the examination was done several days after the date of defilement some evidence would have disappeared. PW 6 NO. 226368 CPL MAMO HAPPI attached at the AP Camp in Isiolo. On 30th August 2014
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members of the public brought a suspect said to have defiled the complainant and he rearrested him. Upon interrogating the suspect, he agreed that the complainant was his wife and it was not the first time that he had defiled her. He was informed that the complainant was under 18 years. Thereafter, he escorted the suspect to Isiolo Police Station. He testified that the suspect he arrested was the appellant. PW 7, PC CYRUS WAHOME testified that on 30th August 2014 the complainant accompanied by her mother went to the Isiolo Police Station. They informed him that on 27th August 2014 the complainant was defiled after going to fetch water, in the company of another girl. After the incident, the complainant told her mother what had happened and the person who had defiled her. The mother with the help of members of public looked for the suspect and arrested him and he was taken to Shambani AP camp and later Isiolo Police Station. PW 7 investigated the case and charged the appellant. The complainant was taken to hospital and was treated. The complainant’s age was assessed and he produced the assessment report as an exhibit. He identified the appellant as the suspect brought to the station from Shambani AP camp. The appellant in his defence tendered unsworn evidence. He testified that he comes from Chuvyure and is a sand loader. On 30th August, 2014 he left home at 6.00 a.m and went to work at Epidy until 10.00 a.m, when two people asked him to alight while at Alamasha. The people asked him to accompany them to their home where they found some elders. The complainant’s father asked him if he had defiled his daughter to which he denied. The people were not satisfied and he was taken to the police station and booked in the cells. On 1st September 2014 he was charged in court. The issue for determination is whether the prosecution proved its case beyond reasonable doubt. Mr Odhiambo conceded to the appeal. PW 1 is the complainant’s mother. She was told by her daughter, PW 3 as to what had happened. PW 2 was a minor whose age is not stated. She was in standard one. The trial court ruled that since PW 2 gave her evidence not under oath, she was not to be cross-examined. That is a wrong approach. Once a witness testifies, his/her evidence has to be subjected to crossexamination. The witness gave unsworn evidence because she did not understand the meaning of taking oath. That cannot rule out cross-examination to verify the truthfulness of her evidence. At times witnesses are affirmed and not sworn. Such witnesses who are affirmed are cross-examined. The fact that a witness does not swear through the Holy books does not rule out cross-examination by the accused or his/her counsel. The trial court observed as follows: “Since PW 2 has not been sworn, the court will dispense her from being cross-examined by the accused. The court warns itself that her evidence is not under oath. The same is explained to the accused.” PW 3, the complainant testified through her mother who was appointed as an intermediary. The prosecution made a request as follows: “Since it is difficult to extract any evidence from the complainant due to her mental status, I seek that the court can allow her just to point the person who committed the offence against her.” Court: Application for the complainant to point the assailant through the intermediary who is her mother allowed. The record of the trial court shows that immediately the above request was granted, the intermediary asked her daughter in Turkana language as follows: Intermediary: “Can you be able to point the person who defiled you?’
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The complainant then pointed at the appellant. The record of the trial court continued with the question by the intermediary being responded to by the complainant. The complainant was also not sworn. Mr. Odhiambo observed that the complainant was not sworn. No attempt was made by the trial court to find out if she knew the meaning of an oath. The age assessment report dated 02.04.15 shows that the complainant was about sixteen (16) years old. At least the trial court could have used the intermediary to find out whether PW 3 could have been sworn. Once again, PW 3 was not cross-examined. The P3 form indicates that the complainant was 12 years old. The charge sheet indicates that she was 11 years old. The age assessment indicates that she was about 16 years old. She was a second born in a family of seven children. She was old enough to testify under oath through the assistance of intermediary and thereafter be subjected to cross-examination. In the case of SULA V. UGANDA [2001] 2.EA, THE SUPREME COURT OF UGANDA observed as follows on child witnesses: “Although an accused person is not liable to cross-examination if he chooses to give unsworn testimony, the law does not prohibit the cross-examination of a child witness who has not given sworn testimony because she did not understand the nature of oath. A child witness who gives evidence not on oath is liable to cross-examination to test the veracity of his/her evidence. The COURT OF APPEAL IN KISUMU IN CRIMINAL APPEAL NO. 326 OF 2010 H.O.W V. REPUBLIC; [2014] EKLR stated as follows: The first such matters and which is the main one is on point of procedure which in law, we feel fundamentally prejudiced the entire case and the appellant. This is that the complainant, J.S. who was a minor was taken through voire dire examination and this was proper in law for whatever evidence was given on age, she was not above twelve (12) years in age. The learned trial Magistrate found as a result of voire dire examination that she did not know the normal duty of telling the truth and its normal consequences. She was ordered to give unsworn statement and she did so. That evidence seriously implicated the appellant, but at the end of it, for some reasons unrecorded, it was not subjected to cross-examination by the appellant who was present in court. There was no indication or any record to show that the appellant was afforded an opportunity to cross-examine this witness and no reasons were recorded as to why that procedure was not done. Unfortunately the appellant was unrepresented and clearly could not apprehend his right to cross-examine the witness. He clearly relied on the trial court which had a duty to invite him, at the end of the witnesses’ evidence in chief to crossexamine the witness, which invitation did not come forth in respect of this witness. We can find no reason for this serious omission except that we think perhaps the court erroneously felt that as an accused person who gives unsworn evidence is not to be cross- examined so would any witness who gives unsworn evidence not be cross-examined. Of course that was a misapprehension of the law. An accused person who chooses to give unsworn statement in his defence does so as a result of the provisions of the Criminal Procedure Code which protect him from being cross-examined if he chooses to give unsworn statement in his defence. It must be appreciated that the accused person cannot in law be charged with the offence of perjury in respect of a statement he gives in defence of himself in a criminal case brought against him. That protection is not available to a witness in a criminal case. Section 208 of the Criminal Procedure Code is clear on this aspect .The above authority cited the case of NICHOLAS MUTULA WAMBUA V. REPUBLIC CRIMINAL APPEAL NO. 373 OF 2006 (MOMBASA) where the court stated: “The second point we wish to discuss is whether or not a child witness, who gives evidence not on oath is liable to cross-examination. There appears to be a widespread misconception that a child witness who is allowed to give evidence without taking oath because of immature age, should not or cannot be cross-examined… It would appear that misconception arises from a view that because accused persons are not cross-examined whenever they make unsworn statements in the defence, child witnesses who did not take the oath should be treated in the
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same way. Such a view is oblivious of the peculiar protection given to an accused person in the form of a right to make an unsworn statement with no liability to be cross-examined.” That thinking is expressed in Section 208 of the CPC which governs hearing of Criminal proceedings in the Magistrate’s courts. It provides that during the hearing, the accused persons or his advocate may put questions to each witness produced against him. Accordingly, all prosecution witnesses are liable to be cross-examined in order to test the credibility and the veracity of the witness. The trial courts should always observe that requirement of the law in criminal trials to obviate an otherwise stable case from being lost on that omission.” The only direct evidence is that of PW 3. The witness was not cross-examined. PW 2, a minor did not witness the incident. She only stated that she saw the appellant who went with PW 3. When PW 2 asked PW 3 what had happened, PW 3 refused to tell her. PW 3 stated that she felt nothing when she was defiled. According to PW 3, there was no noise or screams. The medical evidence indicates that PW 3’s hymen was broken. There was no any other findings on PW 3. Given the evidence on record, I do agree with the prosecution that the conviction is not safe. The two crucial witnesses were not subjected to cross-examination. Their evidence remains unchallenged. PW 3 was simply guided to point out at the appellant. The procedure used by the trial court not to allow PW 2 and PW 3 to be cross-examined was improper. The trial was not fairly conducted. The appellant was charged under section 8(1) (2) of the Sexual Offences Act. The trial court found him guilty as charged but indicated that the sentence was not less than 15 years as the complainant was mentally challenged. This was in reference to section seven (7) of the Sexual Offences Act. The trial court did not find the appellant guilty of the offence under section 7 of the Sexual Offences Act but as charged under Section 8 of the same Act. Given the circumstances of this case, I do find that the appeal is merited and is hereby allowed. The appellant was convicted on 12.10.15. He has by now served over three (3) years imprisonment. I find no good reason to order a retrial. The appellant is hereby set free and shall be at liberty unless otherwise lawfully held. DATED AT EMBU THIS …………..……DAY OF SEPTEMBER, 2017. S. J. CHITEMBWE JUDGE DATED, SIGNED AND DELIVERED AT MERU THIS 5TH DAY OF OCTOBER 2017. A MABEYA JUDGE. IN PRESENCE OF: ………………………………… for Appellant ……………………………….... for Respondent. ………………………….……….Court Assistant
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