High Court 2685 of 2017

contradictory and pointed to a pre-arranged scheme to adduce evidence only in a manner that incriminated the appellant. i. (vi) That the learned trial magistrate erred in both law and facts by failing to appreciate the passionate and cogent defense of the appellant which by far outweighed the prosecution’s evidence. 4. Further with leave of the Court he filed amended grounds of appeal raising the issues that the evidence by witnesses was doubtful and suspect, that the charges were not properly drafted and his defence was not challenged by the prosecution. 5. The State opposed the appeal and filed a response to the submissions and prayed that the appeal be dismissed. The appellant appeared in person while the State was represented by Mr. Sitati the prosecution counsel. 6. This is the first appeal and the Court has a duty to analyse the evidence and come up with its own independent finding bearing in mind that the trial magistrate had the opportunity to see and assess the demeanor of witnesses and leave room for that. This as was held in the case of Okeno -V- R 1972 E.A. 32. 7. P.W.1 S. M. (Minor) pupil Lower [particulars withheld] School in class one. After a voir dire examination, the Court found that he understood the meaning and nature of oath and ordered that he be sworn. He was duly sworn and gave evidence on oath. He gave evidence that on 3 rd October, 2013 he was at the home of J W. While there J held Kaburu . Kaburu cut ‘ugali’ in the house of his grandmother. J entered the bedroom and K sat on the chair. Then Kaburu called J to come and then they started to have sex while on the chair. They were having sex on a plastic chair inside the house with the door closed but the witness looked through a hole and saw what was happening. Kaburu then left and went to his home. The witness informed K and his grandmother. He testified that he knew Kaburu before as his home is not far. In cross-examination the witness testified that he had told Judy not to touch Kaburu. 8. P.W.2 P. W. is the complainant’s mother. She testified that on 3rd October, 2013 she left the complainant at home at 7.30 a.m. and went to do casual jobs. The complainant was 15 years old as she was born in 1997 as per the birth certificate exhibit 1 which shows date of birth as 22 nd July, 1997. She left the complainant J with S who is also her son. 9. On returning home she met J. asleep and one Muriuki told her to ask S.M. what happened. M (P.W.1) told her that Kaburu had gone there and ate food then defiled J. while sitting on a plastic chair. P.W.2 checked the complainant and saw bloodstains on her genitalia. She decided to report to the Police. She was referred to Baricho Health Centre where upon being examined she was referred to Kerugoya for further medication. She was admitted for two days. A P.3 form was filled. P.W. 2 was able to know Kaburu who was implicated by M. She told the Court accused is known as Augustus Mugo but Kaburu is the alias name. He identified him as the accused in this case. 10. P.W. 3 Dennis Senelwa is a clinical officer attached to Kerugoya District Hospital. He produced the P. 3 form for J.W. the complainant herein. He testified that she complained of having been defiled by a person well known to her. The patient was a mentally retarded girl. She had a laceration of one centimeter on the right labia minora which was actively bleeding. There was bleeding from the posterior, the area between the anus and the vagina. The conclusion was that there was vaginal penetration. He produced the treatment notes and the P. 3 form as exhibit 2 and 3. 11. P.W. 4 Patrick Ithili is the investigating officer who testified that he received a report from the complainant’s mother alleging that the complainant was defiled. The complainant could not express herself as she was mentally challenged. He commenced investigations. He found that the complainant was aged 16 years as per the birth certificate exhibit 1. He visited the scene. The incident was witnessed by S. M. who was able to see what was happening through a hole. P.W. 4 confirmed that it was possible to see what was happening inside the house through a hole. He arrested the suspect and found that he had

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been to the house on that day. The child was defiled during the day. He further told the Court that the complainant was mentally challenged and could not express herself. He produced a report from the Psychiatrist exhibit P 4. 12. This is the evidence which was tendered by the prosecution. The evidence was not shaken. The witnesses were reliable. The witness who testified on the incident P.W.1, S.M, a minor, who was a pupil in class one and did not know his age saw it all. Though a minor, his testimony was corroborated, firstly by the testimony of the investigating officer who visited the scene and found that it was possible for a person outside the house to see what was happening in the sitting room through a hole. The investigating officer confirmed that the accused had gone to the home on the material day. Secondly the testimony of S. M. (P.W.1) was corroborated P.3 that there was evidence of penetration. Thirdly the evidence of P.W.1 is corroborated by the testimony of P.W.2 the complainant’s mother who upon receiving the report examined the complainant and found that she had bloodstains on her genitalia. The appellant was well known to P.W. 1 and 2 a fact which was not denied by the appellant. There was therefore no possibility of mistaken identity. I find that the evidence adduced was cogent and the trial magistrate was right to base a conviction on evidence. 13. The defence raised was not plausible. He alleged a dispute with one C K who forced the complainant to lodge the complaint. He said he was framed. This was a departure from what he put to P.W.2 the complainant’s mother during cross-examination where he alleged she was using her child to make money. He also denied that it was the child who demanded sex from him as she is mentally retarded. The appellant did not put to the P.W. 2 that she was used by C K to frame her. I am of the view that the defence is an afterthought and is a mere sham. Though he had indicated he had one witness, he never called the witness. There was no doubt that it is the appellant who defiled the complainant. 14. The appellant raised the ground that the trial magistrate erred in both law and facts in convicting him on reliance of evidence by the prosecution witnesses which remained totally doubtful and a suspense one. In his submission he states that the complainant did not testify nor was she observed by the Court to confirm that she had any mental problem as was alleged by the prosecution witnesses. 15. From the record, the trial magistrate was informed that the complainant was mentally unstable. The court ordered that she be examined. A report was filed and was produced as exhibit 4. The report relates to J W W and she was examined on 19 th November, 2013. The report concludes that “the complainant has a mental retardation. She cannot give evidence in a court of law.” The report is signed by Doctor Thuo J. N., Consultant Psychiatrist. Upon production of the report the trial magistrate declared the complainant a vulnerable witness and ordered that she would not give evidence. Section 31 (1) and (2) of the Sexual Offences Act provides:“A Court, in criminal proceedings involving the alleged commission of a sexual offence, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is(a) the alleged victim in the proceedings pending before the court; (b) a child; or (c) a person with mental disabilities. The court may, on its own initiative or on request of the prosecution or any witness other than a witness referred to in subsection (1) who is to give evidence in proceedings referred to in subsection (1) declare any such witness, other than the accused, a vulnerable witness if in the court’s opinion he or she is likely to be vulnerable on account of:(a) age;

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(b) intellectual, psychological or physical impairment; (c) trauma; (d) cultural differences; (e) the possibility of intimidation; (f) race; (g) religion (h) language; (i) the relationship of the witness to any party to the proceedings; (j) the nature of the subject matter of the evidence; or (k) any other factor the court considers relevant Section 31 (4) makes provision for protection to be given to vulnerable witnesses who have been declared so by the Court. Sub-Section (4) (e) provides: “Upon declaration of a witness as vulnerable (a) …… (b) ….. (c) …… (d) ……. (e) Any other measure which the court deems just and appropriate. The trial magistrate ordered that the witness would not give evidence. This was proper as the medical report which was presented in Court indicated that the witness did not have a mental capacity to allow her give evidence in Court. I hold that the trial magistrate was not at fault to order that the complainant would not testify. The law allows a magistrate to make an appropriate order to enable the court receive evidence material to the case and protect the rights of the victim. 16. The appellant further faults the conviction on the ground that the trial magistrate erred in both law and facts in convicting him on unproperly drafted charges and neither were they proved to the required standards. He submits that if at all the complainant was a vulnerable witness with a mental disability, then the charges ought not to have been the way it was drafted. He relies on the Case of Sigilai & Another -V- R (2004) 2KLR 480. 17. For the State it was submitted that the charges were properly drafted and proved accordingly. That what the Court has to consider is the age of the minor, whether defilement was proved beyond any reasonable doubts and who committed the crime/perpetrator. The above ingredients were proved beyond any reasonable doubts giving a water tight case against the Appellant resulting to his conviction and sentence. 18. The accused was charged under Section 8 (1) (4) of the Sexual Offences Act. The section provides: “(1) Any person who commits an act which causes penetration with a child is guilty of an

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offence termed defilement. (4) A person who commits the offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 19. The prosecution proved that the complainant J.W.W. was a female who was born on 22 nd July, 1997 as per the birth certificate exhibit 1. In October, 2013 the complainant J.W.W. was aged sixteen years. As such the age of the girl as stated in the particulars of the charge was proved. Age of the complainant in sexual offences is a key ingredient as it determines the section and sub-section which an accused person is to be charged under as well as the sentence to be meted. All what the prosecution is required to proof was that the complainant was aged sixteen years. It is the age of the complainant which determines the sentence to be imposed. In the case of Hilary Nyongesa -V- Republic (Eldoret Criminal Appeal No. 123/2009 Muilu J. (as she then was) stated as follows: “Age is a critical aspect in sexual offences that it has to be conclusively proved……..And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.” I agree with that statement which is a persuasive decision. The prosecution discharged its burden to proof the age of the complainant. 20. The second ingredient is penetration. That is to say, whether the accused committed an act which causes penetration with the minor. The prosecution proved that there was penetration. The evidence by P.W. 1 is that he witnessed the appellant having sex with the minor while sitting on plastic chair. The report was made the same day to the Police. The complainant was examined by P.W. 3 a clinical officer who filled the P3 form exhibit 3 and treatment notes. P.W. 3 found that there was evidence of penetration (I have analysed the evidence above). Penetration is defined under Section 2 of the Sexual Offences Act as follows: “Penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” Penetration is proved by the evidence of the complainant and must be corroborated by medical evidence. Medical evidence corroborated the evidence of P.W. 1 that the complainant was defiled. The treatment notes exhibit 2 shows that the complainant who was admitted at Kerugoya District Hospital on 3 rd October, 2013 and on examination she had fresh injuries in her genitalia which were bleeding. The P.3 form exhibit 3 states that the complainant who was mentally retarded had laceration on right labia minora and bleeding from posterior forcet, a fresh wound which was bleeding. The conclusion was that there was vaginal penetration. The prosecution discharged the burden to proof that there was penetration. 21. The third ingredient is the perpetrator. There was no dispute as to who the perpetrator was. The appellant did not deny that P.W. 1 and 2 knew him very well. The P.W. 1 knew him. The offence was committed in broad daylight eliminating any possibility of mistake. Section 134 of the Criminal Procedure Code provides that the charge must disclose the offence with the necessary particulars to enable the accused prepare his defence. It is provided:“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. The charge was properly drafted and disclosed the law under which the appellant was charged and the necessary particulars were disclosed. Contrary to the submission by the appellant the offence was disclosed and particulars disclosed as held in Sigilai & Another -V- R Supra where it was held that:

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“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence charged should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable an accused person to prepare his defence to the charge.” From the above analysis of the charge under which appellant was charged, the offence was stated, the particulars were properly given and the Section of the punishment was disclosed. I therefore hold that the charge as drawn was proper. 22. The appellant is saying that due to the medical report which was produced as exhibit showing that the complainant was mentally retarded, a different section of the law should have been used. I find that Section 8 of the Sexual Offences Act, supra is the proper section under which the appellant was charged. Section 19 of the Sexual Offences Act deals with prostitution of persons with mental disabilities which is not the offence disclosed by the facts of this case. The appellant could also have been charged under Section 146 of the Penal Code which deals with defilement of idiots and imbeciles. Under the provision it is stated that “circumstances not amounting to rape” (emphasis mine). However no prejudice was occasioned as the offence charged was disclosed and proved. There was nothing to prevent the State from charging the Appellant under the Sexual Offences Act. It was therefore proper for the prosecution to charge the appellant under the Sexual Offences which has provision for rape and defilement. 23. The charge was properly drafted and all the ingredients of the charge disclosed and proved beyond any reasonable doubts. 24. The appellant further on his 3rd ground faults the trial magistrate for rejecting his defence that was not challenged by the prosecution. In his submissions he states that he opted to give unsworn defence. The prosecution did not challenge his defence. That the Court failed to ascertain whether there was a land dispute. That he had no burden to proof his innocence. 25. The State Counsel submits that whether there was a grudge between the Appellant and C K is neither here nor there as the said C K was not the complainant. That the complainant would have not benefited by implicating him falsely. That the allegation was an afterthought. 26. The appellant gave unsworn defence. The only way the prosecution could have challenged the defence was through cross-examination. The prosecution had no opportunity to challenge the evidence as the accused exercised his right to give unsworn defence. The evidence to implicate the appellant was by a minor, P.W. 1. He is a minor. It was unlikely for such a child to implicate him falsely. The witness would not have known of land disputes. The appellant was known to him. As submitted by the State, this allegation of grudge was made at defence stage and was not put to witnesses. This raises doubts as to whether he had such a dispute. There was no dispute between appellant and P.W 1 and 2. They had no reason to implicate him and let a perpetrator go scot free. I find that this defence is not plausible and the trial magistrate was right to reject it. It was a weak defence, an afterthought and extremely far-fetched as submitted by the State Counsel. 27. The P.W. 1 saw the appellant commit this beastly offence. It was possible for the appellant to commit the offence while sitting on plastic seat. Medical evidence corroborated the testimony of P.W.1 that there was contact between the male sex organ and the genital organs of the complainant. The appellant in a sitting position could defile the complainant without removing his trouser. It is possible he unbuttoned or unzipped his trouser when he penetrated the minor. The P.W.1 described that J was sitting on the appellant when he defiled her. The reason the appellant made the minor to sit on him was to facilitate defilement. The evidence was weighty and reliable and dislodged the defence. 28. The P.W. 1 and 2 testified that the appellant was known as Kaburu. They identified him in this Court as the perpetrator. In his defence he never denied that he was well known to the witnesses. He also never denied that he was also known as Kaburu. I find that the identity of the perpetrator was not in dispute.

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29. The appellant faulted the evidence of the clinical officer for failure to give his registration number, his years of practice or specialization. That there was nothing to show the clinical officer was an expert in the said field. 30. From the record, P.W. 3 was the clinical officer. The appellant did not object to his evidence. The appellant was given a chance to cross-examine the clinical officer. He never challenged the qualifications of the clinical officer during cross-examination. The issue of qualification of the clinical officer was addressed in the Court of Appeal in the case of AGM -V- Republic (2014) eKLR where it was stated:“A crucial issue raised in the Memorandum of appeal relates to qualification of the clinical officer who testified as P.W. 7. We have examined the record of appeal and it is apparent when the P.W. 7 testified on 20th November, 2001 he stated that he was a clinical officer. No objection was raised by the appellant as to the competence of P.W. 7 to give evidence…….” The appellant ought to have raised the issue before the trial court which he never did. In any case the evidence of clinical officer is not taken in isolation but has to be considered alongside other material and relevant evidence adduced to support the charge and in reaching its final decision. In Timothy Kioko & Another -V- Republic (2013) eKLR, it was stated: “The complaint here seems to be that P.W.3 the clinical officer, was not competent to fill P.3 form since he was not a registered clinical officer. We note first that the appellant did not timeously object to the production of the P. 3 form. Indeed the form was produced with his concurrence. It is therefore a little late to object to it on appeal. Further the appellant does not point out why on appeal he suddenly makes the allegation that P.W. 3 is not a registered clinical officer. The objection should have been raised and dealt with during trial.” Further in Abdikadir Isaak Mohamed -V- Republic (2013) eKLR, it was stated: “A look at the record shows that he was a clinical officer. This to me was sufficient information to establish his qualification. If the appellant was in doubt of his qualification he ought to have cross-examined the witness on this issue. The qualification and expertise of P.W.1 cannot be questioned at this stage.” In Kyalo Kiswii v Republic [2015] eKLR the Court of Appeal held that a clinical officer is qualified to give medical evidence stated: “The issue of whether or not a clinical officer is a competent person to give medical evidence was settled by this Court in Raphael Kavoi Kiilu v Republic [2010] eKLR (Criminal Appeal No. 198 of 2008). In that appeal, it was alleged that a clinical officer was not qualified under the Evidence Act to give medial evidence in matters relating to sexual offences. The Court held that a clinical officer was in fact, authorized under the Clinical Officers (Training, Registration and Licensing) Act and therefore is fit to give medical evidence…………..We agree with this proposition. A clinical officer, being authorized under the Clinical Officers Act is an authorized person who can render medical services, and further can give medical evidence under section 77 of the Evidence Act. Nothing therefore turns on this ground of appeal as well”. Refer to Erick Onyango Ondeng’ v Republic [2014] eKLR “………..PW5 is a clinical officer who testified on behalf of his colleague Alfred Toronke who examined and treated PW2 at Matuu District Hospital. In our opinion a clinical officer is qualified to fill in a P3 form. This is an area of his competence………….” In regard to the above authorities, P.W. 7 was qualified to produce both the P3 form and the treatment notes.

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31. The appellant ought to have raised the issue before the trial magistrate. As it stands, there is nothing to show that P.W.3 was not a qualified clinical officer as he stated in the trial court. There is no basis for raising the issue on appeal. The ground must fail. 32. All in all I find that the evidence adduced against the appellant was overwhelming. The charge was proved beyond any reasonable doubts. A lawful sentence was passed on the Appellant. I am of the view that the appeal lacks merits. I dismiss it. Dated and delivered at Kerugoya this 5th day of October, 2017. L. W. GITARI JUDGE Read out in open court, appellant present, Mr. Sitati for the State, Court assistant Naomi Murage this 5 th day of October, 2017. L. W. GITARI JUDGE 5.10.2017

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