REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAPENGURIA CRIMINAL APPEAL NUMBER 30 OF 2016 (From original conviction and sentence in criminal case number 103 of 2016 of the Principal Magistrate’s Court at Kapenguria) RICHARD FELIX ::::::::::::::::::::::::::::::::: APPELLANT VERSUS REPUBLIC ::::::::::::::::::::::::::::::::::::::::: RESPONDENT JUDGEMENT RICHARD FELIX, the appellant herein, was charged in the first count with the offence of Defilement, contrary to section 8(1) as read with Section 8(4) of the Sexual Offences Act number 3 of 2006. The particulars of this offence are that on the 24 th day of January, 2016 at [Particulars withheld] , in Pokot South, within West Pokot County, the appellant did cause his penis to penetrate the vagina of N A a girl aged 17 years. In the alternative to this offence he faced a charge of Indecent Act with a child, Contrary to section 11(A) of the Sexual Offences Act number 3 of 2006. The particulars of this offence being that on the 24 th day of January, 2016 at [Particulars withheld] in Pokot South, within West Pokot County, the appellant intentionally and unlawfully touched the breasts and the buttocks of N A a girl aged 17 years. The second count is of Assault causing actual bodily harm, contrary to section 251 of the Penal Code. The particulars of this offence are that on the 24.1.2016 at [Particulars withheld] , the appellant unlawfully assaulted N A (N.A) thereby occasioning her actual bodily harm. The prosecution case is that at the time of the alleged offences, that is on 23.1.2016, the complainant herein was aged 17 years, having been born on 10.6.1999. Richard Felix, the appellant herein was well known to her as he’s her neighbour in [Particulars withheld]. Prior to the incident in this case, the appellant had allegedly on unspecified date gone to the house of the complainant and demanded to have her as his wife. Complainant parents were not present then but appeared later and found the appellant. They chased him away. On 23.1.2016 at about 4.00pm the complainant in this case who gave evidence as PW-1 went to Muruny River alone. She was washing when the appellant appeared in company of his brother Solomon. The appellant requested the complainant to fetch water for him in the river. The complainant declined telling
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him to do it himself. The appellant got raged by the refusal and told her she must do it. Solomon interjected telling his brother to leave her alone. The appellant did not heed his brother’s plea. He, the appellant accosted the complainant. He held her by the lesso from behind and wrapped it on her neck. He threatened to show her something different for refusing to fetch water for him. The complainant told him not to do anything but to release her. He refused. He reminded her of the earlier incident where her parents chased him away. He threatened to draw her in the river. He then said he’ll beat her. She asked him to take her home to her parents and he threatened to kill her if that was the only way her parents could understand what he meant. He squeezed her neck threatening to kill her. She screamed for help. Solomon tried to assist her by kicking the appellant. He however was also scared of him and ran away after that. Complainant was left alone with him. He kicked her and fell her to the ground. He held her by the neck, got hold of her leg and removed her inner garments. She still struggled with him. He twisted her, injuring her shoulder bone. After that she fell unconscious. PW2, the complainant’s uncle was on 13.1.2016 at 6.30pm resting at home. He lives in [Particulars withheld]. He heard a scream, sounding like it was of a young person. He called D (PW-3) who is a brother to the complainant. They followed the screams to the river. They found the complainant sitted and the appellant standing while armed with a stick. There was moonlight and were able to see and recognize him at about 9.00pm. PW-3 told the appellant to sit down and he refused. According to the complainant at this point she had just regained consciousness. She found herself nude. She had been defiled and there was blood spread all over, from her private part. The appellant was seated beside her. She told PW-2 that the appellant had defiled her from about 5pm up to that time. She said she had been defiled twice. PW-2 called KPR (Kenya Police Reservists). They appeared and arrested the appellant. He was taken to Ortum. Complainant was taken to Ortum Hospital. Her P-3 form was however filled at Kapenguria County Hospital on 24.1.2016 by Jacob Kipchumba. It was produced by PW-4 on his behalf. It was observed that she had pain in the abdomen and upper back. She had swelling of right elbow and must have sustained it in the cause of struggle a few hours before she was seen. The injuries could have been caused by a blunt object. Examination on her genitalia revealed normal external genital, normal hair distribution, blood stains on the external genitalia, with no obvious tears. The officer opined that there was evidence of penetration. There was no obvious discharge and no evidence of venereal infection. PW-5 investigated the case and had the appellant charged with the offences. The appellant in his defence stated that the charges are not correct. On 24.1.2016 was on a Saturday. He woke up and went to Sebit. He bought 30 chicken and took them to Ortum. He sold them and proceeded back home at 8pm. After he had slept, at 11pm, a KPR knocked on his door. He was arrested and taken to Ortum Police Post. He denied the offence and alleged that he was framed as he had a land dispute with the family of the complainant. The trial magistrate weighed the evidence and found the appellant guilty of the offences in the main counts. On the first count he was sentenced to serve 15 years imprisonment, and on the 2 nd count 6 months imprisonment; sentences to run concurrently. The appellant dissatisfied with the said conviction and sentence, appealed to this court on the following grounds:1. That he pleaded not guilty at the trial. 2. That prosecution evidence was inconsistent and contradictory. 3. That the element of the offences were not proved beyond reasonable doubt. 4. That his defense was not weighed and if weighed would have warranted him an acquittal.
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5. That the evidence was insufficient to warrant a conviction. 6. That reasons for dismissal or rejection or his defence were not given. 7. That the prosecution witnesses were incredible. I have re-evaluated the entire evidence, the grounds of appeal and the submissions by both sides. The prosecution called 3 eye witnesses who are all relatives. PW-2 is an uncle to the complainant while PW-3 is her brother. Their evidence is not consistent. The evidence of PW-1 suggests by the time PW-2 and PW-3 got to the scene she was still unconscious. She saw them at the scene when she regained consciousness. PW-2 and 3 in their evidence does not however suggests that. PW-2 said he found the complainant crying at the scene. PW-3 as well stated she was crying. She also stated she was naked and had blood spread all over from her private part. PW-2 and PW-3 did not allege such. She’s alleged to have told PW-2 and PW-3 that she was defiled twice from about 5.00pm up to about 9.00pm. However it is doubtful how she had known that given that she said when her inner garment was removed she fell unconscious and regained it after she had been defiled and the two witnesses appeared. The complainant alleged initially the appellant was with his brother Solomon, who even tried to rescue her from the appellant. No attempt was made to call the said Solomon as a witness. There’s even no evidence that he recorded a statement. The KPR who allegedly arrested the appellant at the scene was not called as a witness. He would, if called, told us what the initial complaint was about and what was the condition of the complainant’s clothes at the time and where they went. The complainant could not explain how she was penetrated, where and with what. She was unconscious if at all that happened. The medical evidence is also not clear on the issue of penetration. No injury was noted at all on her genitalia. Everything was normal apart from the blood stains. This then raises the question of where the blood stains came from. The stains were not examined to confirm that for real they were blood stains, and from who. If the appellant was framed as he alleged, the blood could have been spread around the complainant’s genitalia from any other source. The charge sheet indicates the offence took place on 24.1.2016. The complainant in her evidence stated it was 23.1.2016. PW-2 talked of 13.1.2016 while PW-3 talked of 23.1.2016. The date was not settled by the time of closure of the prosecution case. The discrepancies and the gaps in the prosecution case suggests as claimed by the defence that this is a fabricated case. The trial magistrate erred in weighing the evidence on its surface value, and not going deep into the details. If he had gone beyond the surface, he would have noted the discrepancies and gaps in the prosecution case which reveals that penetration of the complainant’s vagina by the accused penis was not even proved. The sum of the foregoing considerations is that the prosecution case is unreliable and could not safely lead to a conviction in any of the offences preferred against the appellant. I accordingly find the appeal merited. It’s allowed, conviction and sentences and quashed. The appellant be released forthwith unless otherwise lawfully held. Judgment read and signed in open court in presence of the State prosecutor, M/S Kiptoo and the appellant, this 1st November, 2017. S. M. GITHINJI JUDGE 1.11.2017
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