REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL APPEAL NO. 27 OF 2016 JOSEPH OKUMU..........................................APPELLANT VERSUS REPUBLIC..........................................................REPUBLIC (From the original conviction and sentence in S.O.A case No. 130 of 2015 of the Chief Magistrate’s Court at Busia by Hon. Washika Wachira– Senior Resident Magistrate) JUDGMENT The appellant, JOSEPH OKUMU, was convicted for the offence of defilement contrary to section 8(1) (3) (sic) of the Sexual Offences Act No.3 of 2006 and for the offence of committing an indecent act with a child contrary to section 11 of the Sexual Offences Act No. 3 of 2006. The particulars of the offences were that on 31st August 2015 at [particulars withheld] location, CHAKOL Division of BUSIA County, he intentionally and unlawfully caused his penis to penetrate the vagina of E.A, a child aged 14 years. Alternatively he caused his penis to come into contact with the vagina of E.A. He was sentenced to serve 20 years imprisonment in count 1 and 10 years in the alternative count and the sentence was ordered to be held in abeyance. He has appealed against both the conviction and the sentence. The appellant was in person. He raised the following grounds of appeal: 1. That the learned trial magistrate erred in law and in fact by convicting him in disregard of the breach of his constitutional right to fair trial. 2. That the learned trial magistrate erred in law and in fact by convicting him on contradictory evidence. 3. That the learned trial magistrate erred in law and in fact by convicting him relying on hearsay and circumstantial evidence.
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4. That the learned trial magistrate erred in law and in fact by admitting exhibits contrary to the law of evidence. 5. That the learned trial magistrate erred in law and in fact by convicting him in disregard of the defence. The state opposed the appeal through Mr. Owiti, the learned counsel. He only conceded the issue of conviction on both substantive and the alternative charges. The facts of the prosecution case were briefly as follows: On 31st August 2015, the appellant interacted with the complainant by sending her for errands. Subsequently he asked her to meet him on the road. When she met him, he took her to a cassava plantation and defiled her. After the act, he gave her Kshs.100/=. He told her not to tell anybody but on reaching home she reported to her eldest brother. The appellant was arrested and charged. In his defence the appellant denied any involvement in the offence. 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 has revealed that the appellant understood the charge before pleading to it. He subsequently participated fully in the trial. I make a finding that he was not prejudiced in any way and that the defect is curable under section 382 of the Criminal Procedure Code. Before addressing the grounds raised by the appellant, I wish to comment on the issue of conviction where there is an alternative charge. The right procedure is that if the trial court finds that the prosecution has established sufficient evidence for conviction in respect of the substantive charge, then it proceeds to convict and indicate on the record that it makes no findings on the alternative charge. An alternative charge is not a second count. It is simply an alternative where the prosecution is saying: if he did not commit the offence in the substantive charge, then he committed the offence in the alternative charge. However, if the prosecution proves the alternative charge and not the substantive charge, the court proceeds to convict and acquit the accused on the substantive charge. In the instant case, the learned trial magistrate erred in convicting the appellant on both the substantive and the alternative charges and subsequently sentencing him on both. I will revert to this issue later. The appellant made a claim of his constitutional rights in respect of fair trial were breached. He did not elaborate in which instances these rights were breached. My perusal of the record did not in any way reveal any breach of appellant’s right to fair hearing. This ground is therefore dismissed. Though the appellant contended that the trial court relied on hearsay and contradictory evidence to convict him, I find no contradictions on record and that the evidence of E.A was direct evidence. Her evidence was corroborated by that of the clinical officer that there was defilement. In spite of the contention by the appellant that the medical evidence was produced in contravention of the Evidence Act, I find nothing in support thereof. The complainant identified the appellant as the culprit in the defilement. This was a person known to her. The two had an interaction before the appellant invited her to meet him at a rendezvous. He subsequently defiled her. I have no reason on the record to come to a different finding on the identity of the defiler.
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In his defence the appellant said: I did not do anything. It is all lies. This in my view amounts to mere denial. When taken together with the evidence on record, I find that it was displaced by the prosecution evidence. The prosecution therefore proved their case in the substantive charge to the required standards. 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 herein was sentenced to serve 20 years imprisonment in the substantive charge. This is the minimum sentence provided for. I cannot therefore interfere with this sentence. As earlier observed, the appellant was erroneously convicted and sentenced in the alternative charge. I accordingly quash the conviction and set aside the sentence therein. To that extent only does the appeal succeed. DELIVERED and SIGNED at BUSIA this 7th day of November, 2017 KIARIE WAWERU KIARIE JUDGE
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