REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA CRIMINAL APPEAL NO.112 OF 2013 GRIVIN WANZALA……………………………….....APPELLANT VERSUS REPUBLIC………………………………………RESPONDENT JUDGEMENT 1. This is an appeal arising from the Judgement in S.P.M. Criminal Case No.522 of 2012 where the appellant Grivin Wanzala had been charged with the offence of defilement contrary to Section 8(1)(3) of the Sexual Offences Act. The particulars of the offence were that on the 24 th of June 2012 at [particulars withheld] East District within Bungoma County, he intentionally and unlawfully caused his penis to penetrate the vigin of J.N. a child age 14 years. 2. A plea of not guilty was entered. The Prosecution called a total of 5 witnesses. The end result was that the appellant was convicted and imprisoned to a jail term of 20 years. 3. The appellant being aggrieved by the conviction and sentence appealed to this Court. His grounds of appeal may be summarized as follows; • The police violated his rights for keeping him in the police cells for more than 24 hours with no explanation. • The trial Court relied on immaterial factors. • The case was not proved to the required standard • The Court misdirected itself. • The case was speculative, with conjecture, it was discredited, fabricated, lacked probative value and was unconstitutional. • His alibi was rejected. 4. The Case for the Prosecution was that on the 24 th of June, 2012 at around 5p.m. the appellant took the minor aged 14 to his house threatened her, removed her clothes and had sex with her between 5 and 8 p.m. Later the same night having been seen with the minor, by the minor’s brother he ran away with the minor to his grandmother’s where he slept and had sex with the minor most of the night. 5. PW1 the minor gave an account of how the appellant forced her to have sex with him in his house behind a shop on the 24th of June, 2012 between 5p.m. and 8 p.m. Later when seen by her brother who took away the appellant’s bicycle the appellant grabbed her hand and together they went to his grandmother’s where they spent the night and had sex most of the night. It was her testimony that the
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appellant threatened and forced her to have sex with him. She later reported the matter to Makhele A.P. Camp and was taken to Webuye district hospital. 6. PW6 M B brother PW1 went to look for PW1 who had been sent by their mother to the posho mill and had not returned on by 9p.m. 24/6/2012. He found the appellant with PW1. He interrogated the appellant and decided to arrest him. The appellant ran away leaving his bicycle behind. PW1 ran away with him. The witness took the bicycle home with him and the following day the owner of the bicycle in the company of the appellant and others went for the bicycle when he arrested the appellant and took him to the A.P. Camp. PW1 was later taken to hospital. She informed him that she had sex with the appellant. 7. PW3 M W PW1 and PW2’s mother recalled that on 24/6/2012 she sent PW1 to the posho mill. When PW1 failed to return, she sent PW2 to look for her. PW2 returned with a bicycle and told her of his struggle – with the appellant and how the appellant had escaped with PW1. PW1 return home the following day and on being questioned told her that she had sex with the appellant. They took PW1 to Webuye hospital, arrested the appellant and took him to Makhele A.P. camp. 8. PW4 Johnstone Masai a Clinical Officer at Webuye District hospital produced a P3 form on behalf of his colleague a Mr. Otieno. He testified that PW1 was seen at their hospital on 25/6/2012 at 6.42p.m. after having been assaulted by a known person. On examination she had pain under the umbilical cord, her vagina was tender with whitish discharge. Diagnosis revealed sexual assault / defilement. He also produced an age Assessment giving the age of PW1 as 15 years. 9. PW5 CPL Consolata Lugonzo of Webuye Police station testified that on the 26/6/2012 at 10a.m. she received PW1 and her mother at the crime Office. They had been escorted by A.P. Officers. The Appellant was in toe. Both were taken to hospital. She further testified that the Complainant informed her that stayed with the appellant. 10. In his defence the appellant opted for an unsworn statement and had no witnesses. He gave an alibi that on the 25th June 2012 he had been sent by his mother to her home where he met two boys who led him to Makhele A.P. post where he stayed until the 26th. 11. In its judgement the trial Court believed the evidence of the minor although it does not state the reason for such a belief and based on that the trial Court went ahead to convict the appellant. That as it may this is the first appellant Court and it has the duty to re-consider the evidence, examine and analyse the same inorder to arrive at an independent opinion. 12. The evidence of PW1, PW2 and PW3 is that PW1 was sent to the posho mill and did not return as expected. PW2 and PW3 testify that PW2 was sent to look for her when he found her with the appellant who escaped with her. PW1’s evidence corroborated that of PW2. PW2 stated that he questioned the Appellant who started shaking, he attempted to arrest the appellant who ran away followed by PW1. In her testimony PW1 narrates succinctly how she linked up with the appellant went to his house and upon being threatened she had sex with him from 5p.m. to 8p.m., thereafter as he ran she followed him and he took her to his grandmother’s place where they spent the night and had sex most of the night. The above piece of evidence is corroborated in the sense that PW2 saw the two together and on interrogating the appellant he escaped with PW1 in toe. PW4 the Clinical Officer certifies that PW1 had sex as her vagina was tender. 13. Even though there was no eye witness. The proviso to Section 124 of the evidence Act allows the Court to rely on the evidence of an alleged victim of Sexual assault. On reading the evidence of PW1, the
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Complainant, I find the same to be credible, she was clear and categorical. She spent time and appears to have known the appellant well. She repeated the same testimony to her mother, the police and the Court. Her evidence was fortified by that of PW2 and PW4. The trial Court found PW1’s age to have been between 12-15 years. PW1 gave her age as 14 and the medical assessment place her age at 15. The age bracket makes no difference in terms of sentence as it attracts the same punishment. 14. It is my view that there was evidence to the required standard. Placed before Court that; 1. The Complainant was a minor 2. She was defiled 3. That the defiler was the appellant. 15. I find that the appellant’s alibi was an afterthought, baseless and unreliable and like the trial Court I would similarly reject the same. 16. As for violation of the appellant’s rights he did not address the Court on the same - in any event this is not the forum. He is at liberty to pursue the claim in a different set up if he so wishes. 17. In his written submissions the appellant raised issues not addressed in his grounds of appeal. He raised the fact that no spermatozoa was found in the Complainant, this is not a necessary ingredient of the charge facing the appellant. Spermatozoa may or may not be found in a complainant this is not fatal more so against other evidence placed before Court. 18. The appellant further stated that the charge sheet was defective as the O.B. number therein differed with that of the P3 form. It was brought to the Court’s attention by the State that the appellant was making reference to a different P3 unrelated to the Case which indeed the Court confirmed. 19. As for section 211 of the Criminal Procedure Code I find that the trial Court complied with the same and indeed the appellant chose to give an unsworn statement. 20. As for the witnesses. The appellant was of the view that the arresting Officer ought to have been a witness. The calling of witnesses is the decision of the Prosecution. I see no fault on their part in failing to call the A.P. Officer who initially arrested the appellant. 21. As for the conviction. I have considered the initial copy of the judgement which was signed by the Magistrate and note that in convicting the accused the trial Court relied on Section 8(1)(3) of the Sexual Offences Act this ground therefore has no basis. 22. In urguing his appeal the appellant alleged to have been a minor at the time of the alleged offence. He asked for time to produce a birth Certificate but failed to do so. In an attempt to produce a borched P3 form, a birth Certificate dropped from the appellant’s bunch of documents and came to the Courts attention, the same gave his age as 16 now and 13 at the time of Commission of the offence. Noteworthy is that in mitigating before the trial Court the appellant had informed the Court that he was born in 1992. This was on 9th of September 2013 placing him then at 21 years. Yet at the appeal he informed the Court that he was born in 1995. The upshot of this age issue is that in the absence of a birth certificate to show that he was a minor during the commission of the offence and against his own statement in mitigation and the borched birth certificate I form the opinion that the appellant was indeed an adult and the assertion of being under age is a desperate attempt to subvert the cause of Justice.
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23. For all the reasons above stated the appeal must fail. It is dismissed. DATED and DELIVERED at BUNGOMA this 5th day of October, 2017 ALI-ARONI JUDGE
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