Ann v Republic

2. That the learned trial magistrate erred in law and fact by convicting me the accused cum appellant withstanding the grudge undertones. 3. That the learned trial magistrate erred in law and fact by convicting me the in the accused/appellant albeit the evidence was suspect and insufficient as well as uncorroborant. 4. That the learned trial magistrate erred in law and fact by convicting me the accused/appellant yet medical evidence was meager and faulty. 5. That the learned trial magistrate erred in law and fact by convicting me accused/appellant despite incomplete investigation. 6. That the learned trial magistrate erred in law and fact by convicting me accused/appellant albeit my defence was concert strong.” (sic) 4. By his written submissions the Appellant has pointed out that the evidence of the minors was contradictory and incredible as to the occurrence and the circumstances of the incidents of defilement. Moreover, he urges that there was bad blood between him and his in laws who testified in the case, out of their alleged envy because the Appellant stood to benefit from his wife who had secured a wellpaying job in Saudi Arabia. 5. He points out that no neighbour or independent witness was called to testify. He took issue with medical evidence in the form of the P3 and PRC forms with regard to dates, signature and hospital stamps. In the Appellant’s view he raised a plausible defence to the offences. He urges the court to set aside the conviction. 6. The appeal was opposed by Miss Gikonyo on behalf of the DPP. She supported the evidence of the minor complainants terming it consistent, and corroborated by medical evidence. She pointed out that one of the witnesses (PW3) was the Appellant’s own sister who arranged to have the minors taken away from the Appellant, and that during her evidence the Appellant did not suggest the existence of any grudge during cross-examination. 7. In his response the Appellant through written (Swahili language) and oral submissions appeared to raise new issues. He also reiterated alleged defects in the dates of and absence of hospital stamp on the PRC forms and medical reports. In reiterating the alleged family grudge he claimed that is evident from the fact that though offences were committed in Kiambu, he was charged in Naivasha. He further attacks PW3’s evidence as a fabrication to escape refunding money she owed the Appellant in respect of remittances made by his wife from Saudi Arabia. 8. This court is obligated to review the evidence of the trial and to draw its own conclusion. In Pandya -VsRepublic [1957] EA 336 the Court of Appeal for Eastern Africa set out the duty of the first appellate court as follows:“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/2547/eng@2017-10-05 2

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on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 9. At the trial, the prosecution adduced evidence through five witnesses. The gist of the prosecution case was that V.W.N aged 10 (PW1) and her sister T.W.N. aged 5 (PW2) were the biological daughters of the Appellant, and his wife G.W. In the material period the family resided at [particulars withheld] Kiambu County. G.W. left the country sometimes in April 2014 to work in Qatar or Saudi Arabia hence PW1 and PW2 remained in the care and custody of the Appellant. It is the prosecution case that subsequent to his wife’s departure, the Appellant did on several occasions defile his two daughters in the family home. 10. Although the maternal grandmother and the Appellant’s sister, one G lived close by, the children dared not confide in them out of fear. Matters came to a head on 9/3/2015 when the Appellant rang his wife’s sister R N S (S – PW3) demanding money allegedly through S remitted by his wife in Qatar. He became violent and chased away the minor girls forcing G to summon the girls’ maternal uncle one Z to collect the children. 11. PW1 and PW2 were taken to PW3 at Gilgil. PW3 noted a skin infection on PW2 and also that her gait seemed abnormal. On being questioned, the girls confided in PW3 concerning the goings on with their father. The matter was reported to police on the same date. The minors were referred to Gilgil sub-county hospital for examination and treatment. On examination, vaginal bruising, inflammation of their external genitalia and broken hymen were noted by medical personnel. In addition PW1 had a prurient vaginal discharge while PW2 had a foul smelling vaginal discharge. The Appellant was traced in Kiambu and arrested by Gilgil Police. 12. In his unsworn defence statement, the Appellant stated that the complainants were his biological children with his wife. That the wife’s family, particularly Z and PW3 were initially opposed to their marriage because the Appellant was from a humble background. Nonetheless, his wife being on his side, the couple had married and moved from Gilgil to settle in Kiambu. He stated that he and his wife agreed in April 2014 that the latter should travel to Saudi Arabia to take up a job as a househelp. When the wife left the two children remained in his care. 13. That in June 2014 his wife advised him that she had remitted some Shs 25,000/= to him through PW3, with whom he had a chilly relationship. When he went to collect the money, PW3 was hostile, threw him out and subsequently the Appellant thwarted efforts by PW3 and her siblings to take the children away from him to their maternal grandmother. Eventually on 9/3/2015 one of them, Z took away the children in the Appellant’s absence. He was arrested on 13/3/2015. He said that this case was motivated by the in-laws’ desire to separate him from his family so that he does not benefit from the wife’s income. 14. There is no dispute as to the relationship between the Appellant and the two complainants. There was ample evidence through the minors’ oral evidence, baptism cards and age assessment reports that the PW1 and PW2 were aged 10 and 5 years respectively in the material period. Equally, it was not in dispute that the two complainants were residing in the family home at Kiambu under the care of the Appellant in the material period after their mother took up a job in Saudi Arabia or Qatar. 15. Two related issues in dispute are whether PW1 and PW2 were defiled in the material period, and by the Appellant. Firstly, PW1 and PW2 gave detailed consistent evidence on this score and did not waver under cross-examination. The fact that their maternal relatives or neighbours did not notice or learn https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/2547/eng@2017-10-05 3

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from the witnesses about their ongoing defilement does not detract from the girls’ evidence. Indeed PW2 said that at one point she attempted to confide in her paternal grandmother who exhorted her to keep the “secret”. At the same time, the girls testified that the Appellant threatened to kill them if they reported what was going on in the home. 16. In addition to oral evidence by PW1 and PW2 medical evidence presented, namely the P3 forms completed on 10/3/2015 [Exhibit 1a and 2a) confirm that penetration had indeed occurred. Not only was there inflammation of the girls’ external genitalia, there was bruising of the vagina walls, breaching of the hymen and evidence of vaginal discharge. The doctor who completed the P3 forms was not in any way related to PW3, who was the first person to learn from the girls about the defilement. 17. These P3 forms were produced in court on behalf of the examining doctor one Dr. Rakwah, by a colleague, Dr. Salim Self (PW4). The Appellant raised no objection to the production when asked by the court. Regarding the PRC forms [Exhibit 2a and 2b], PW4 explained in cross-examination that these were completed when the girls presented at Gilgil hospital even though they bore no hospital stamp. He admitted that there was an error on one PRC form showing the date as 9/3/2014 but stated that the date of examination was clearly shown as 9/3/2015. 18. For my part I have perused the medical records tendered at the trial. With regard to the PRC form in respect of PW2 [Exhibit 2B] the same bears the name and code of the medical facility, namely Gilgil and is duly signed and dated. There is an error in entering the date when the minor was presented in hospital (10/03/2013) but the date of examination and signature thereon clearly reads 9th March 2015. Secondly the date of entry of laboratory results in respect of swabs, urine, etc taken from the minor given is 10/03/2015 and the portion is countersigned. 19. Concerning the complainant V W N (PW1), the PRC form (Exhibit 2A) reflects presentation as 10/3/2014, but the name of the facility, date of examination, signatures and recording of laboratory results coincides with the details in Exhibit 2B. PW4 explained that while doctors preparing the P3 form relies on part on the PRC forms, such doctors will also physically examine the patient before completing the P3 forms. 20. Thus even if the court were to ignore the entire contents of the two PRC forms, the P3 forms which were both completed on 10/3/2015 reflect the same injuries in the former. Given the pressure on medical attendants particularly nurses and doctors in district hospitals, it is reasonable to expect that clerical errors will be made, and in this case errors in date of presentation at hospital cannot be basis of dismissing the entire contents of PRC forms that are really treatment notes in respect of the complainants. 21. Secondly, it is clear from PW3 and PW5 that the report to police was made on 9/3/2015, the same day when the complainants were admittedly taken from the Appellant’s custody. The Appellant’s argument that the erroneous dates on the PRC forms is evidence of fabrication is not persuasive in this case. Nor can such a clerical errors be the basis upon which to dismiss what to my mind is credible oral and medical evidence of sustained sexual assault on PW1 and PW2. 22. If, as the Appellant asserted the relationship between him and his in-laws, particularly PW3 were frosty, it is difficult to find a reason why his own children would make up such grave complaints against him. And, if there was any dispute concerning remittances from his wife between the Appellant and PW3, this was not put to her during cross-examination. 23. At any rate she could not, if at all so involved with the Appellant, have made up the medical evidence before the court or procured PW1 and PW2 to make serious false allegations of the worst nature a girl child can make against her father. In his final submissions the Appellant has added one more plank to https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/2547/eng@2017-10-05 4

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the grudge theory, namely the fact of his being charged in Naivasha rather than Kiambu Court. The record of the trial shows that when the prosecution explained the reason to the court on 17/6/2015 and invoked Section 71 of the Criminal Procedure Code, the Appellant made no objection. 24. During the hearing PW3 and PW4 gave reason why the decision was made to charge the Appellant before the Naivasha court: The children were living with their maternal relatives in Gilgil and it was felt best for their interest to not to be forced to travel to Kiambu to give evidence before a court in Kiambu where their father lived. Those are good reasons and indeed Section 71 of Criminal Procedure Code admits in such circumstances for the arraignment of an accused person before a court outside the local limits of the place where the offence was committed. The Appellant did not thereby suffer any prejudice. 25. The Appellant’s defence at the trial was totally displaced by the prosecution evidence. In my own view the trial court properly considered the evidence before it and the conclusions reached with regard to the main counts cannot be faulted. The trial court however erred in so far as it also found that the alternative counts had also been proved even though no consequent conviction was recorded. Having convicted the Appellant on the two main counts the court could not properly proceed to consider and make findings on the alternative counts. 26. Those findings in respect of the alternative counts must be set aside, which I hereby do. Be that as it may, the court correctly proceeded to sentence the Appellant on the first count of Defilement contrary to Section 8 (1) as read with 8 (2) of the Sexual Offences Act while holding in abeyance, sentencing in respect of the second similar count. In light of the foregoing, this appeal has no merit and is dismissed in its entirety. DELIVERED AND SIGNED AT NAIVASHA, THIS 5TH DAY OF OCTOBER, 2017. C. MEOLI JUDGE In the presence of:Miss Amboko for the DPP C/C - Barasa Appellant - present https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/2547/eng@2017-10-05 5

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