REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU HCCRA NO. 24 OF 2017 RASHID ADAN………….APPELLANT VERSUS REPUBLIC ………....... RESPONDENT (Being an appeal from the original conviction and sentence in the judgment of Hon. S. Muigai(CM) at Isiolo Court in Criminal Case No.532 of 2015 on 7th February, 2017). JUDGMENT The appellant was charged with the offence of defilement contrary to Section 8(1) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that the appellant on the 23 rd day of August, 2015 at [particulars withheld] area of Merti sub-county within Isiolo County of Eastern Region, intentionally and unlawfully caused his penis to penetrate the vagina of S.K a girl aged 15 years. The trial court convicted the appellant and sentenced him to serve fifteen(15) years imprisonment. The grounds of appeal are that:1. No birth certificate or age assessment report of the complainant was produced. 2. The complainant went for medical examination after a period of seven(7) months from the date of defilement. 3. The offence was reported to the police after a period of four(4) months. 4. No D.N.A examination was done to connect the appellant with PW1’s pregnancy. 5. The trial court erred in law by failing to consider the appellant’s age. 6. The appellant’s alibi defence was not adequately considered. Mr. Nyakwera appeared for the appellant. Counsel submit that PW4, a Clinical Officer, did not explain how the complainant’s age was estimated to be 15 years. It was just alleged that the complainant was born one year after the American Embassy bomb blast in 1998. Although the complainant alleged that she was taken for age assessment, the report was not produced. It is further submitted that the case was reported four (4) months after the incident. The complainant
page 1 of 3
delivered on 24/04/2016 and no DNA test was conducted on the paternity of the child. The complainant was taken for medical examination after seven months. Mr. Odhiambo, Prosecution Counsel, conceded the appeal. Counsel submit that the issue of defilement came about when the lady became pregnant. The report was done very late. The P3 form only stated that the complainant’s hymen was broken. No DNA test on the child was conducted. The child was born while the case was ongoing. The complainant did not report to any of her parents. This is a first appeal and the court has to evaluate the evidence and make its own findings. PW1 was the complainant. She stated that she was fifteen(15) years old. Sometimes in August, 2015, she was sent to take water to where her mother was grazing animals. She was carried on a motorbike by the appellant. On the way the appellant told her that he loved her. He wrestled her on the other ground and defiled her. They then went on to where her mother was. She felt embarrassed and decided not to tell her mother. It is PW1’s evidence that in September, 2015 her father went to her school. It was alleged that she was pregnant. She was taken for pregnancy test and was found to be pregnant. She delivered a baby boy in April, 2016. PW2 KG J is PW1’s father. In November, 2015 he heard from neighbours that her daughter was pregnant. PW1 was taken to Bassa Hospital and it was confirmed that she was pregnant. PW1 told him that it was the appellant who had defiled her. PW3 NUR SIME was the area chief. The matter was reported to him on 26/11/2015 by PW2. The elders discussed the issue and resolved to handle it out of court but he decided to report to the police. PW4 MATOYE ALI is a Clinical Officer. He was stationed at Merti Health Centre. He produced the P3 form for PW1. The P3 form was filled on 29/11/2015. The P3 form was filled by his colleague SABRA JILO, a Clinical officer. The complainant’s age was opined to be 15years. The history was indicated to be that PW1 was born one year after bombing of the American Embassy in 1998. Therefore, PW1 was born in 1999. PW1 was in class 1 in 2007. She repeated twice. PW5, PC CYRUS TINDI was stationed at the Merti Police Station. The case was assigned to him for investigation. The appellant was taken to the Police Station by the Assistant Chief and village elders. He re-arrested the appellant. PW1 was referred to Merti Health Centre. The appellant denied defiling PW1. On 24/4/2016 PW1 delivered a baby boy. In his sworn evidence, the appellant testified that he is a boda boda operator. He testified that he remembers carrying PW10 on his motorbike but did not defile her. On 27/11/2015 he was called by the Chief and informed that he had defiled PW1. He was arrested and later charged at the Isiolo Court. The evidence shows that the alleged defilement occurred on 23rd August, 2015. It was reported to the police on 28/11/2015. It is the evidence of PW1 that she could not remember the exact date in August, when the appellant carried her. She felt embarrassed and did not tell her mother. PW1 took the whole case casually. It is her evidence that she was left with her mother at the grazing place but did not inform her. She kept quiet about it until when her father went to the school in November, 2015. She knew she was pregnant. Mr. Odhiambo conceded the appeal. It is his submissions that the incident was reported to the police after the girl became pregnant. PW1 delivered while the case was ongoing. The age of PW1 was estimated to be 15 years. No age assessment form was produced. The assessment was not done by a dentist or medical Doctor but by a Clinical Officer who did not testify. A document indicated as age assessment was produced. It indicates that PW1’s date of birth was one year after the American Embassy bombing in 1998. The Clinical Officer indicated that the date of birth is in 1999. It is clear that the document produced as age assessment report did not undergo a proper medical age assessment. The Clinical Officer was simply informed that PW1 was born one year after the bomb blast. He computed the age from 1999 to 2015 and came up with 16 years. He then estimated the age as 16
page 2 of 3
years. There is other information that PW1 joined standard one when she was eight years. It’s not clear why a proper age assessment was not done. I do find that the complainant’s age was not properly assessed. The prosecution did not prove that PW1 was fifteen (15) years. It is evident from PW1’s evidence that she knew she was pregnant. She opted not to report the matter to her mother. It is not clear whether the alleged incident of defilement was her first time to have sex or not. It is possible that PW1 was sexually active. Her evidence is quite doubtful. It is doubtful that she could be defiled, kept quite and show no signs that she had been defiled. There is no evidence that the appellant used to threaten the complainant. The complainant simply stated that she was embarrassed. The complainant’s proper age was not established. The only logical conclusion can be that PW1 had a sexual relationship with the appellant. When she became pregnant she decided to allege that she was defiled. I do agree with the prosecution Counsel that the conviction is not safe. There is doubt that PW1 was under 18years old. According to PW5, PW1 delivered at home with the assistance of a mid-wife. It is quite clear that PW1 knew what she was doing. I do find that the case was not proved beyond reasonable doubt. In the end, the appeal is merited and is hereby allowed. The appellant shall be set at liberty unless otherwise lawfully held. DATED AND SIGNED AT EMBU THIS …….….DAY OF SEPTEMBER, 2017. S. J. CHITEMBWE JUDGE DATED, SIGNED AND DELIVERED AT MERU THIS 9TH DAY OF NOVEMBER 2017. A. MABEYA JUDGE
page 3 of 3