High Court 2768 of 2017

5. The brief facts of the case are that the complainant T W N is a girl child aged ten (10) years and a pupil in class five at [particulars withheld] Primary School. On 3rd October, 2013 at about 8.00 p.m. the complainant was in the house doing homework when the appellant who she knew as Chomba went to the house and told her to remove her clothes. The complainant refused but the appellant forcefully removed her underpants and he lay on her on the sofa set. The appellant removed his trouser and penetrated her vagina with his penis. The appellant warned her not to tell anybody or he could kill her. The complainant was alone in the house as her parents were in the kitchen which was separate from the main house. As the appellant defiled the complainant, one Charles met them. The appellant told him he would reward him with a goat and a radio. Later Charles reported to the complainant’s mother on Saturday. The mother took the complainant to Kianyaga Sub district hospital. The matter was then reported to the Police and she was issued a P. 3 form which was filled. The complainant knew the appellant before as he is his neighbor. The appellant was arrested and charged. 6. P.W. 2 C G M a boy aged thirteen years a pupil in class seven (7) at All [particulars withheld] Academy testified that on 3rd October, 2013 at about 8.00 p.m. he was sent to the shop to buy sugar. As he passed by his grandfather’s house he met the appellant lying on top of the complainant who was lying on the sofa set. The appellant put on his underpant and trouser on seeing P.W. 2. The complainant had removed her clothes. The complainant entered her bedroom. P.W. 2 followed the complainant and asked her what she was doing whereupon she told him the appellant was doing bad manners “tabia mbaya”. The appellant told P.W. 2 not to defame him in the village and promised to give him a goat and a radio. The appellant left pretending to be going to the kitchen. The following day P.W. 2 reported to the parents of the complainant. 7. P.W. 3 J W N is the complainant’s mother. She testified that on 4th October, 2013 C G (p.w.2) reported to her that he had met the complainant and appellant having sex. She called the complainant and asked her whether what P.W. 2 told her was true. The complainant confirmed. P.W. 3 took the complainant to hospital. She was examined and given medicine. The doctor gave her a letter to take to Kianyaga Police Station. She was issued a P. 3 form which the doctor filled. 8. P.W. 4 Stephene Ngigi a clinical officer testified he examined the complainant and found that the hymen was torn with bruises. He found that there was penetration. He filled a P. 3 form which he produced as exhibit 1. 9. P.W.5 Cpl Geoffrey Mungathia attached to Kianyaga Police Station is the investigating officer. He testified that he received the report of defilement from the complainant who was accompanied by her mother. He issued her with a P. 3 form. He then visited the scene. On 16th October, 2013 he arrested the appellant from his home which is about 300 metres from the complainant’s home. 10. The appellant gave unsworn defence and told the Court that he is innocent and knows nothing about the charge. 11. The evidence adduced by the prosecution witnesses was cogent. The complainant and P.W. 2 knew the appellant well before the incident as they are close neighbours. The appellant did not allege anything that could have made P.W. 1 and 2 to implicate him falsely. The evidence of P.W. 1 the complainant was corroborated by P.W.2. The evidence was corroborated by the medical evidence adduced by P.W. 4 the clinical officer who told the court that there was penetration in the complainant who was aged ten years. The appellant gave a defence of alibi which he raised at the defence stage. The defence was rejected and rightly so as there was evidence of P.W. 1 and P.W. 2 that he was indeed at the scene of this crime. The defence was an afterthought. 12. The appellant faults the trial magistrate for relying on identification/recognition of proof circumstances prevailing at the same which did not exist. 13. The State submits the claim is far fetched, misguided, misleading but also an afterthought. Nowhere in the proceedings did the complainant (P.W.1) state that the lights were off. Her evidence was quite clear that after finishing her home work, she switched on the T.V. to watch. She could not have been

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doing the homework in the darkness. She never switched off the lights. It is as she watched the T.V. that the appellant went to the room and defiled her. She never stated that the lights were off when P.W. 2 found the two doing bad manners. The fact that P.W. 2 saw them means there was light. P.W. 2 engaged in a discussion with the appellant who promised him a goat and radio so that he could not defame him in the village. I find that this ground is far-fetched. The issue of light in the room was never an issue during the trial. The appellant cannot raise it at this stage. I find that there was sufficient light in the room which enabled P.W. 1 and 2 to see and recognize the appellant. This ground is without merits. The two minors knew the appellant before even by name. The issue of short memory or power of observation does not arise. The J. Haydon evidence case and Materials 2nd Edition Butter Worth London 1984 is not relevant. Similarly Regina -V- TurnBull 1976 3 ALR 445 quoted by appellant is not relevant. Circumstances in this favoured positive recognition by the two minors P.W. 1 and 2. In the case of Peter Musau Mwanzia -V- Republic (2008) eKLR the Court of Appeal dealt with the issue of recognition and stated: “In the well known case of R –V- Turnbull (1976) 3 All E.R. 549 at page 552, it was stated: “Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger………………. Such knowledge would not be for a long time but must be for such time that the witness, in seeing he suspect at the time of the offence, can recall very well having seen him earlier on before the incident.” The witnesses confirmed that the appellant is their neighbour who is known as Chomba and there was sufficient light to recognize him. 14. The appellant faulted the Court for relying on the evidence of the Clinical Officer P.W.4. He submits that the clinical officer relied on treatment notes authored by one Miano who is alleged to have examined P.W. 1. The clinical officer did not explain why Miano could not be present in Court to explain his findings. The testimony by P.W. 4 is that the findings on the P. 3 form are his. He examined the complainant and personally filled the P.3 form and signed it. He produced the treatment card which he also relied on to fill the P.3 form. Though the complainant was initially treated by Miano, P.W. 4 stated he examined the complainant and formed his own opinion. He relied on lab and physical examination. P.W. 4 was a qualified clinical officer. He was qualified to fill and produce the P. 3 form and the treatment card. The appellant never challenged the treatment card. There was no prejudice. The evidence on record shows that the complainant was treated first even before the matter was reported to the Police. After treatment, the mother was told to go and report to the Police which she did. The treatment card shows that she was told to report. The prosecution proved beyond any reasonable doubts that the complainant was treated at Kianyaga Sub-District Hospital. This is the practice, the patient is treated first and the P. 3 form is then filled. The P.W. 4 was qualified under Section 77 of the Evidence Act. The evidence by P.W. 4 is direct and sufficiently proved the issue in dispute as I will show below. 15. The appellant submits that the evidence tendered does not meet the required threshold and consequently penetration being a key component of defilement is not admissible and should fail. I am of the view that the evidence of P.W.4 proved beyond any reasonable doubts that there was penetration. The evidence of P.W.4 affords corroboration to the evidence of P.W. 1 that she was defiled. Section 124 of the Evidence Act allows Court to convict on the evidence of a victim of sexual offence if it is satisfied that the witness is truthful. The Court must record the reasons for believing the witness. If the Court does not record the reasons, then the evidence should be corroborated. The evidence of the complainant was corroborated by the medical evidence and is therefore credible and reliable to convict the appellant. Based on the evidence of P.W. 4 there is no doubt that there was penetration. 16. The appellant faults the charge sheet and states that it was defective. The record shows that on 14th

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November, 2003 the prosecution applied to amend the charge sheet to read Section 8 (1) and (2) of the Sexual Offences Act. The charge was read to the appellant and he denied the charge. The amended charge sheet was proper. The statement of offence was stated and the particulars necessary to enable the appellant understand the nature of allegation. Section 8 (1) and (2) of the Sexual Offences Act provides: “(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.” “(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” As such the charge was not defective. 17. The appellant faulted the trial magistrate for failing to conduct voire dire examination on P.W. 1 and P.W. 2. Section 19 of the Oaths and Statutory Declarations Act provides that where the Court is receiving the evidence of a child of tender years, it must form the opinion that he is possessed of sufficient intelligence to understand the duty to speak the truth. It is provided: “Where in any proceedings before any court or person having by law or consent of parties, authority to receive evidence, if any child of tender years called as witness does not in the opinion of the court or such person understand the nature of the Oath, his evidence may be received though not given on oath if in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence in any proceedings against any person for any offence, though not given on oath……………” Section 124 of the Evidence Act provides: “Not withstanding the provisions of Section 19 of Oaths and Statutory Declarations Act, where the evidence of the alleged victim admitted in accordance with that Section on behalf of the prosecution in proceedings against any person for an offence the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the Court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings the Court is satisfied that the alleged victim is telling the truth.” 18. A child of tender years is defined under Section 2 of the Childrens Act as follows: “A child under the age of ten years.” 19. From the record, P.W. 1 stated that she was ten (10) years old while P.W. 2 was aged 13 years. The record shows that the trial magistrate did not conduct voire dire examination on P.W. 1 and P.W. 2. The Court has to determine the consequences of not conducting the voire dire examination. In a recent decision of the Court of Appeal in the case of Maripett Loonkomok -V- Republic (2016) eKLR stated: “It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterated what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case. See James Mwangi Muriithi v R, Criminal Appeal No. 10 of 2014…………… It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination. It follows from a long line of decisions that voir dire examination on children of

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tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that; “In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge…….the court may still be able to uphold the conviction.” The P.W. 1 and 2 were children of tender years going by the above authority. However, the Court held that failure by the trial magistrate to conduct voire dire examination was not fatal to the case if there is sufficient independent evidence to support the charge. I am of the view that there was sufficient evidence to support the charge. The P.W. 1 and P.W. 2 testified to the fact of defilement. The medical evidence adduced by the P.W. 4 the Clinical Officer supported the charge. He is an independent witness who examined the complainant and confirmed that there was penetration. 20. The appellant submits that age of the complainant was not proved. From the judgment of the trial magistrate, she addressed the issue and found that the age of the child who was in class five would be between 9 and 10 years. She took judicial notice of the age. The P.W. 4 who examined the complainant stated that he assessed her age to be ten years. The question which the Court has to determine is whether the age of the complainant was proved. The birth certificate was not produced. This was not fatal. The prosecution had to lay evidence before the Court to proof age of the complainant which is crucial as sentencing is determined by the age of the victim. I am of the view that the prosecution laid evidence before the Court with the production of the P. 3 form and the testimony of P.W. 4 that the complainant was ten years. The appellant did not dispute the age of the victim. In the case of Joseph Kieti Seet -VsRepublic [2014]eKLR, H.C. at Machakos, Criminal Appeal No. 91 of 2011, the learned Mutende, J., held as follows: “It is trite law that the age of a victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni -versus- Uganda, Court of Appeal Criminal Appeal No. 2 of 2000. It was held thus: “In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…………..” The foregoing holdings are applicable in the instant case in various ways. At the trial, P.W. 2, the complainant herein stated that she was 12 years old. Both P.W. 3 and P.W. 4 who were the complainant’s biological parents stated that the complainant was aged 12. On the other hand the charge sheet indicated that the complainant was aged 12 as well the P3 form that was produced in court as P. Exhibit 1. Furthermore, the trial court which had the opportunity of seeing P.W.2 did not doubt her age. P.W.2’s age was also not set on a borderline. I would have no reason to doubt that that was her age.” The complainant in this case testified that she is ten years old. This was confirmed by P.W. 3 her mother and the clinical officer P.W. 4. The magistrate expressed herself that she saw the complainant and was satisfied that she was in the age bracket of nine to ten years. She did not have doubts on the age of the complainant. I am of the view that the age of the complainant was proved to be ten years. 21. The appellant further submits that the evidence had discrepancies in the prosecution evidence. He states that the testimonies of P.W. 1, 2 and 3 were contradictory. In the case of Erick Onyango Ondeng’ v Republic [2014] eKLR the Court of Appeal held:“Nor do we think much turns on the alleged contradictions on the time of commission of the

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offence. The trial court, after hearing all the evidence accepted that the offence was committed at “about 7 pm” in accordance with the evidence of PW2. As noted by the Uganda Court of Appeal in TWEHANGANE ALFRED VS UGANDA, Crim. App. No 139 of 2001, [2003] UGCA, 6 it is not very contradiction that warrants rejection of evidence. As the court put it: “With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” The fact that PW1 had not recorded that the appellant had threatened to kill her, whether or not PW 2 had knocked on the door or found anybody in the kitchen are minor contradictions. The contradiction of PW3’s names between Joyce Wambui and Joyce Wamuyu was proven to be typographical error since all her other details were the same. The discrepancies were minor. As held above minor contradictions should be ignored if they do not lead to an inevitable conclusion that the witnesses are not truthful. Indeed where evidence of witnesses is consistent word for word, it would raise doubts as it would tend to suggest the witnesses had planned the evidence to give. The evidence did meet the threshold to prove that the complainant was defiled. 22. The appellant raised the ground that crucial witness was not called. The appellant has not indicated which crucial witness was not called to testify. Even so, the court of appeal held in the case of Erick Onyango Odeng’ v Republic [2014] eKLR as follows: “In BUKENYA & OTHERS VS UGANDA (supra), the former East Africa Court of Appeal held that the prosecution has a duty to call all the witnesses necessary to establish the truth even though their evidence may be inconsistent; that the court itself had the duty to call any person whose evidence appears essential to the just decision of the case;………… While fully in agreement with the above statement, it should be remembered that the context in which it was made is that of a case in which the evidence called is barely adequate. In the present case, the proviso to section 124 of the Evidence Act (Cap 80) which provides that, in the absence of any requirement by provision of law, no particular number of witnesses shall be required for the proof of any fact. In this appeal, it is not clear to us what value the evidence of Violet would have added to the evidence of PW2, which the court found trustworthy, as well as the medical evidence. In our opinion, violet would have been a peripheral witness as she was said to merely have happened by when the appellant was with PW2 on a different occasion. The proviso to Section 124 of the Evidence Act therefore allows the court to convict on the sole evidence of a victim of a sexual offence if it is satisfied that the victim is being truthful. Accordingly, the prosecution need not call all witnesses who may have information on a fact. Failure to call a witness will only be fatal if the evidence presented by the prosecution is insufficient to sustain a conviction and contains gaps which could have been filled by a witness who was not available. In this case, the evidence of PW1 was consistent that it was the appellant who had defiled her and her medical evidence also proved that she had been defiled. The appellant raised the ground that the prosecution did not discharge the burden of proof. The prosecution had the burden to proof the charge and its particulars beyond any reasonable doubts. In Stephene Nguli Mulili v Republic [2014] eKLR the Court of appeal stated: “On the issue of whether the prosecution discharged its burden of proof, it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP v WOOLMINGTON, (1935) UKHL 1where the court eloquently stated that the “golden thread” in

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the “web of English common law” is that it is the duty of the prosecution to prove its case…………… In reference to this Lord Denning in MILLER V MINISTRY OF PENSIONS, [1947] 2 LL ER 372 stated: “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” The appellant in the supplementary grounds did not fault the trial magistrate for rejecting his defence. This inevitably means that the trial magistrate was right to reject his defence and to believe as she did the testimony of P.W. 1 and P.W. 2 on the fact of defilement. I am of the opinion that the evidence adduced was sufficient and proved the charge beyond any reasonable doubts. Based on the charge and the age of the complainant, the sentence imposed was proper. I am of the view that the appeal is without merits and so 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 prosecuting counsel for the State court assistant Naomi Murage this 5th day of October, 2017. L. W. GITARI JUDGE 5.10.2017

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