P N W v Republic

court, that it is only this latter court that had the advantage of seeing and hearing the witnesses. The law in this regard is found in the case of R versus Okeno 1972 EA32 at page 36 where it was stated: An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrates’ findings can be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witness. The complainant testified that she was 15 years old as at 1 st September, 2011 when she gave her evidence in court. She testified that she was the first born in a family of six and that the appellant was her father. According to her, the appellant started defiling her in 2003 while she was in class III. This, he used to do whenever her mother was away. It was her evidence that she reported her father’s conduct to her mother who in turn passed this information to her maternal grandparents. The appellant paused in his behaviour for a while but he is alleged to have resumed his illicit habits in 2004 and continued defiling the complainant until the year 2008 when she gathered courage started resisting his sexual advances. In the year 2010, the complainant informed her cousin, D W (PW6), what her father had been doing to her. The said W, on her part, wrote a letter to her (D’) mother informing her what the complainant had told her. She also testified that when she informed her mother, the latter called her parents to check her out and confirm whether she had been defiled; however, it is only her maternal grandmother who examined her. It would appear that action against the appellant was taken only after she informed her cousin for it is only then that the appellant was arrested and subsequently arraigned in court. The complainant also admitted that she had a boyfriend with whom she had made love on several occasions. Although the defilement began in 2003, she stated that it was only on 19 th January, 2011 that she went to hospital for examination. Sometimes in January, 2011 she read a love text message on her father’s phone; she told her mother about it but it is was her evidence that this information was never a source of any disagreement between them. As a matter of fact, they continued living with the appellant and only left when the complaint against the appellant was raised with the police. The complainant’s mother, E W (PW2) testified that the appellant was her husband whom she married in 1994 and that the complainant was their first-born child. It was her evidence that the complainant was aged 15. According to her it was her sister, E W (PW3), the complainant’s aunt, who informed her about the appellant’s defilement of the complainant. It is then that she confirmed this information from the complainant herself; but even then, she did not check her out because, as she testified, she was sickly herself. Contrary to the evidence given by the complainant, she testified that she differed with the appellant as a result of a text message from a woman which she found in the appellant’s phone sometimes in December, 2010. She admitted that the appellant’s complainant was taken up by her sister E W (PW3), who had picked a grudge with the appellant because of his relationship with her (the complainant’s mother) and worse still, after she married him. According to her, her sister was against her marriage to the appellant from the very beginning. E W (PW3) herself testified that on 7th January, 2011 she found a letter in a house written by her daughter, D W, telling her that the complainant was being defiled by the appellant and she was in need of help. The complainant’s mother was her sister and therefore the appellant was her brother-in-law.

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She also testified that the complainant’s mother knew of this defilement. She denied fabricating a story against the appellant because she had no grudge against him. She also denied being opposed to her sister’s marriage to the appellant. It was also her evidence that at one point, her mother (the complainant’s grandmother) had to examine her when it was reported that she had been defiled; however, the grandmother did not record a statement with the police. Her daughter D W W (PW6) testified that she got a chance to talk to the complainant when her family went to visit their grandmother at Karatina on 12th December, 2010. It is then that the complainant told her that her father had been defiling her since the year 2004. She then wrote a letter to her mother explaining what the complainant had told her. She informed the court that she recorded her statement with the police on 2nd June, 2012 pong after the trial had commenced. Her mother informed her that she was the one who reported the complainant’s case to the police. The investigations officer, Esther Kingori (PW4) testified that she received the complainant’s complaint on 14th January, 2011. According to her, when the complainant reported the matter to her mother she informed her grandparents who decided to hush up the issue. She established that the complainant’s mother was aware of this defilement since the year 2008. The officer referred to a P3 form in respect of the complainant but admitted that she was not aware whether the findings on it disclosed any offence. The P3 form itself was filled by Dr Muturi but was produced in court on his behalf by Dr. Wamboi Njoroge (PW5) who testified that at the time the P3 form was filled on 26 th of January, 2011, the complainant was aged 15. According to her, her general physical condition was fair but there was no mention, in the P3 form, of whether she had sustained any injuries or the state of her hymen. A vaginal swab did not reveal any yeast cells, or spermatozoa. The doctor testified that the complainant was examined on 19th of January 2012. The appellant was put to his defence and he opted to give sworn evidence. He admitted that the complainant was his daughter and his first-born child with E W (PW2). According to him, his wife’s sister, E K (PW4) did not want him to marry her and even threatened to have her brothers beat him up if they did not separate. On 19th of January 2011, while he was at Nanyuki where he used to work, his father called him and told him that his family had left home. He denied having defiled his daughter. His father, J W (DW2) confirmed that he called his son from Nanyuki when he realised that his wife and children had left. He denied that he was aware why the appellant was arrested and charged. This was the evidence that the trial court was confronted with and the learned magistrate was persuaded that it was sufficient to sustain the conviction of the appellant. In concluding her judgment, she stated thus: I am satisfied that the prosecution has proved the case against the accused person to the extent that even if there was no immediate evidence of penetration there is evidence of indecent acts committed against the child over the years. The case is proved against the accused beyond any shadow of doubt. I find him guilty as charged and he is convicted under section 215 C.P.C As can be noted at first glance, the grounds upon which the appeal is based are in broad and general terms; the appellant could have done better if he had been a little bit more specific. However, I notice that he filed his petition in person though he was eventually represented at the hearing. When his counsel rose to address the court, I understood him breakdown these grounds and particularise them into five specific grounds the first of which was that the charge sheet was fatally defective in the sense that the words “who commits an indecent act or an act which causes penetration” were omitted from the particulars of offence. He also contended that those particulars ought to have included the words “a female person under the age of 18 years”. He cited article 50(2) of the Constitution which requires an accused person to be informed of the charge with sufficient information. Counsel also cited the High Court decision in Kamunya versus Republic (2009) 1EA182 where Ojwang and Warsame, JJ, (as they then were) interpreted section 77(2) of our previous constitution to mean that any criminal charge brought

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against a person must state explicitly the nature of the offence as charged; in that respect the statement must refer to the specific law that creates the offence for it is only then that the criminal wrong-doing being communicated to the accused as was then required by section 77(2) (b) of the Constitution emerges. In the particular case which the learned judges were dealing with, the charge sheet did not make any reference to section 4(2) of the Firearms Act, which they found was the specific law that created the offence in the first account which the appellant was charged with. By reason of this omission, the learned judges held that particular count not to be a proper charge; accordingly, the charge sheet was held to be fatally defective. The charge sheet was also found lacking because, although the accused person was charged with trafficking in a narcotic drug, it did not specify the conduct of the accused person that would constitute trafficking in the sense in which the accused person was charged. The Court adopted the Court of Appeal decision in Madline Akoth Barasa and Another versus Republic, Criminal Appeal No. 193 of 2005 where it was held that: “…for the charge sheet to disclose the offence of trafficking the particulars of the charge must specify clearly the conduct of an accused person which constitutes trafficking…” Following this decision, the learned judges held that the charge sheet lacked the detail and specificity required under section 77(2)(b) of the Constitution, section 134 and 137(a) of the Criminal Procedure Code (cap. 75). The learned counsel for the appellant also relied on the Court of Appeal decision in Achoki versus Republic EALR (2000) 283 where an appellant’s conviction was quashed because, according to the Court, the particulars of the offence of attempted rape upon which he was convicted did not state that the attempted carnal knowledge was unlawful and was without the consent of the complainant. It was the court’s opinion that in view of this omission, the charge did not disclose an offence known to law. This interpretation was followed by this Court sitting at Nyeri in Criminal Appeal No. 319 of 2008, Charles Kagunda Kinyua versus Republic (Makhandia, J. as he then was); Criminal Appeal No. 55 of 2009, Erasmus Wachiuri Wachira versus Republic) (Sergon, J) and Criminal Appeal No. 206 ‘B’ of 2010, Joseph Toro Mwangi versus Republic (Sergon, Wakiaga, JJ) which counsel for the appellant cited in support of his arguments against the charge sheet. The second ground upon which the appellant’s counsel relied in the prosecution of the appellant’s appeal was the question of voire dire examination. According to the learned counsel, it was improper for the order a voire dire examination to made before hearing the witness. Counsel was concerned that it was the prosecutor who informed the trial court of the complainant’s age before her evidence was taken on oath. Thirdly, counsel argued that there was no evidence of penetration or sexual intercourse and without this evidence, there was no proof that the offence of incest had been committed. Related to this argument was the submission that the relationship between the complainant and the accused person was not proved; there was neither a birth certificate produced nor a DNA test undertaken to prove that the appellant was the complainant’s child or that they were blood relations. Fourthly, it was argued on behalf of the appellant that the prosecution witnesses were not credible and in particular, the evidence of the complainant contradicted that of her own mother. These contradictions suggested that the witnesses were not credible and in this regard, the learned counsel cited the case of Kiilu versus Republic (2005) 1KLR 174 in which Court of Appeal cited with approval the decision in Ndungu Kimanyi versus Republic (1979) KLR 282 where it was held that it is unsafe to accept the evidence of a person who is not straightforward or raises suspicion about his integrity. Again, counsel argued that the person who brought out the issue of the appellant’s incestuous conduct only recorded her statement after the trial had taken off and after the investigations officer had already testified. The learned counsel also submitted that despite the fact that the learned magistrate held that failure to call

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one of the crucial witnesses for the prosecution attracted an inference that had she been called her evidence would have been adverse to the prosecution case, she still proceeded to convict the appellant. The learned magistrate was also faulted when she concluded that the intimacy between the appellant and his daughter had reached a level whereby they were jealous of each other yet there was no evidence to support such finding. Again, though she established that there was no evidence of sexual intercourse the learned magistrate still convicted the appellant. Finally, counsel submitted that section 200(3) of the Criminal Procedure Code was not complied with when the magistrate who concluded the trial took over the case from the previous magistrate. As I understood him, this vitiated the appellant’s trial to his detriment. Counsel for the state opposed the appeal and all he said in response to the submissions by the appellant’s counsel was that the complainant was cogent in her evidence and that the doctor testified that the complainant’s hymen was broken. This latter submission was obviously misleading as the doctor never gave such testimony. Upon consideration of the evidence and the respective counsel’s submissions I find that there is some merit in some of the grounds that the appellant has raised. To begin with there is blatant material contradictions amongst literally all the prosecution witnesses; the most prominent of these inconsistencies is apparent in the evidence of the complainant and her mother. The complainant testified that in January, 2011, she read a romantic message sent to the appellant’s phone apparently by a woman. She disclosed this information to her mother. Her evidence was that nothing turned on this message as far as the relationship between her parents was concerned. She is recorded to have said: At no time did my mother and father differ over SMS messages. But her own mother was categorical that the text message was the bone of contention between the appellant and herself. This is what she said in answer to questions put to her in cross-examination: True we differed with the accused over an SMS from a woman. It was December, 28 th 2010. True we took our property and moved away from the accused. The contradiction between the two witness is clear but what is equally important to note is that the complainant’s mother deserted the matrimonial home together with the children, including the complainant not necessarily because the appellant is alleged to have been defiling the complainant but because the appellant was suspected of engaging in extra-marital affairs. The second aspect of this inconsistency in the evidence of the complainant and her mother is that that while the complainant testified that she informed her mother of the appellant’s conduct as soon as he started defiling her in 2003 and that her grandparents were also informed such that even her maternal grandmother took the step of checking her out to confirm whether indeed she had been defiled, the mother gave a different account of this crucial evidence. Her version was that she was informed of the defilement by her sister E W (PW3) and this was almost at the same time that the appellant was arrested and subsequently charged. She testified thus: My sister in Nairobi, E W took up this matter. She has differed with the accused since I got married there. She is the one who reported the defilement to me. True, there was a time she wanted me and the accused to separate. If the complainant’s mother is taken at her word, she only knew of the defilement of the complainant when her sister, E W, (PW3) informed her in 2010 or 2011. This necessarily implies that either the complainant was untruthful when she testified that she had reported her father’s conduct to her mother who in turn reported it to her grandparents or that for 8 years she was allegedly persistently defiled, she never informed her mother or any other member of her family. It might also be that she was never defiled

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by the appellant as alleged or at all. Esther Wanjiru herself compounded matters even further. First, despite her own sister testifying that she (Esther) had all along not been in good terms with her husband, she contradicted this evidence and insisted that there was no grudge between her and the appellant. She said, “the accused is also my friend as a husband to my sister…I was not opposed to him marrying my sister.” Secondly, although the complainant’s mother testified that she only came to learn of her daughter’s predicament from Esther Wanjiru, the latter testified that her sister was aware of the appellant’s behaviour towards his daughter. E W (PW3) also testified that her own mother, the complainant’s grandmother checked the complainant out to confirm whether she had been defiled as early as 2003 when the latter was in class III. But it is not clear from the evidence given by this witness whether the complainant’s grandmother made any finding with respect to the allegations that had been made against the appellant. She did not record any statement and so her evidence was never taken. Going by the answers this witness gave in cross-examination, it is also not clear whether she recorded any statement herself. This is what she said: I recorded a statement. It is not dated. I did not record a statement. With all these contradictions, it is not clear who amongst these three prosecution witnesses who, for all intents and purposes, were key witnesses, was telling the truth. When witnesses contradict each other the way they did in the trial against the appellant their credibility is questioned. Where, as was held in Ndungu Kimanyi versus Republic (ibid), the credibility of any prosecution witness is in doubt, it is not safe to convict on such evidence. I would follow the reasoning in that case where it was held that: The witness upon whose evidence it is proposed to rely should not make an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore unreliable witness which makes it unsafe to accept his evidence. Again, it is not for the trial court to sample out which of the evidence given by the prosecution witnesses is truthful and which one has to be discarded. It is trite that the legal burden of proof is always on the prosecution and it has to prove its case beyond all reasonable doubt. Where witnesses contradict each other, it is not for the trial court to speculate which of them is telling the truth. Apart from the question of credibility of the witnesses, the only other conclusion the trial court can come to, at the very least, is the contradictions are a manifestation of doubt the benefit of which is always given to the accused person. There is also merit in the submission by the learned counsel for the appellant that the conviction of the appellant was not supported by evidence. In the first place, it has already been demonstrated the evidence by some of the key witnesses failed the credibility test and was also mired in doubt. There is yet another witness whom the learned magistrate herself held to be key but was not called to testify. This potential witness was the complainant’s maternal grandmother. The complainant and her aunt, Esther made reference to her in their evidence and testified that she is the one who checked the complainant out when she first reported that she had been defiled. More importantly, the learned magistrate held that she must have been aware whether the complainant had in fact been defiled or not. This is what the learned magistrate said of the complainant’s grandmother: The grandmother of the girl was aware but was not made a witness and that evidence should be considered as negative to the prosecution case. What the learned magistrate was effectively saying was that had the complainant’s grandmother been called her evidence would have been adverse to the prosecution case and she was entitled to draw that inference from the prosecutions’ failure to call her as one of its witnesses. In all probability, the only negative inference that could be drawn in these circumstances was that the complainant had not been defiled or if she had been defiled then she might have been defiled somebody other than the appellant. It follows that it was a contradiction of sorts when, despite her negative inference

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informed by the prosecution’s failure to call the complainant’s grandmother, she proceeded to convict the appellant. A more stronger reason against upholding the learned magistrate’s judgment is apparent in the judgment itself. The learned magistrate found as a fact that the medical evidence provided did not prove sexual intercourse. Although she qualified this statement by saying that, there was no proof of sexual intercourse at the time of examination, there was no evidence on record to suggest that there was sexual intercourse at any other time. In the evidence given by Dr Wambui Njoroge there was no hint that the complainant had been defiled; on the contrary she said that according to the findings in the P3 form which she presented in court and was admitted in evidence, the state of the hymen was not given and therefore it was not clear whether it was broken or not. It was also not clear whether the complainant had suffered any injuries on her genitals suggestive of penetration or attempted penetration. A vaginal swab did not yield any positive results either. Section 20(1) of the Sexual Offences Act under which the appellant was charged reads as follows: 20. (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. According to this section, the offence of incest may be committed through an indecent act or an act which causes penetration. In the charge against the appellant, it is the latter act that was alleged and which was particularised in the particulars of the offence. It follows that if there was no proof of penetration as defined under the Act, then the charge against the appellant was not supported by evidence. It can also be safely concluded that if the medical evidence could not provide any proof of penetration then there was no basis to convict the appellant. The other grounds of appeal which are of no consequence having concluded, as I have done, that the conviction of the appellant was unsafe. I am, however tempted to say something, about two of these grounds as I conclude; these are defect in the charge sheet and the non-compliance with section 200(3) of the Criminal Procedure Code. I must state at the outset that there is no much substance in these grounds. As far the charge sheet is concerned, my reading of the particulars of the offence is that they were sufficiently specific as not to leave any doubt on the material acts complained of. The charge sheet was generally consistent with the provisions of section 134 of the Criminal Procedure Code which states: 134. Offence to be specified in charge or information with necessary particulars 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 or information was framed as follows: CHARGE: INCEST BY MALE CONTRARY TO SECTION 20(1) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006 PARTICULARS OF OFFENCE:

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P N W: On diverse dates between year 2004 and 2010 at [particulars withheld] area in Nyeri District within central province, intentionally and unlawfully did an act by causing your penis to penetrate the vagina of A N N aged 14 years who to your knowledge is your daughter. In my humble view, this charge captured the statement of the offence and the acts complained of to the extent that it generally complies with section 134 of the Criminal Procedure Code. I entirely agree with all the decisions cited by the appellant’s counsel and, as a matter of law, I am bound by several of those decisions given by the Court of Appeal on what the charge should constitute and in particular the use of particular words in the particulars of the offence. However, I am not convinced that the charge in respect of the appellant omitted any particular words and thereby prejudiced the appellant in his trial. Counsel urged that the particulars should have contained the words: “who commits an indecent act or an act which causes penetration”. I agree that the words ‘indecent act’ or ‘an act which causes penetration’ have been adopted by the relevant provision but they are used in disjunctive rather than in adjunctive sense. This means that the charge is perfectly in order if it is framed in such a way that the particulars are focused on “an indecent act” rather on “an act which causes penetration” or vice versa depending on the available evidence. In other words, regardless of whether the particulars include both the impugned acts of indecent act and the act which causes penetration, what matters at the end of the day is the consistency between the particulars alleged and those established in evidence. As far as I understood the prosecution case, it was based on ‘an act which causes penetration’ and not on ‘an indecent act’ and therefore the omission of these latter phrase was not fatal to the charge. If the state was satisfied that it had evidence supporting the allegation of ‘the act of penetration’ there was no reason why it should have included in the particulars the words referring to commission of ‘an indecent act’ just for the sake of it. My humble opinion is that the manner in which this particular provision is drafted effectively places an accused person in an embarrassing position to the extent he is not clear whether he was to defend himself against ‘committing an indecent act’ or he has to fend off the allegations of ‘committing an act which causes penetration’. Nevertheless, applying it as it is in its present state, this law still leaves the prosecution with burden of proving that both or either of these acts has occurred. Whichever the case, it must be certain that the particulars are consistent with the evidence given. Counsel also urged that the particulars should have contained the words “a female person under the age of eighteen”. The short answer to the learned counsel is that the age of the complainant was specified and reference to her as the daughter of the appellant could not have meant anything else other than she was a female person born of the appellant. All in all, I am unable to see any error or irregularity in the charge sheet which, in the words of section 382 of the Criminal Procedure Code, occasioned a failure of justice. By the same token if there was a legitimate apprehension of miscarriage of justice because of such an error or irregularity there is no evidence that the issue was raised at the earliest opportunity possible as is required by this particular provision of the law. I note that the appellant was ably represented throughout the trial by a learned counsel who must be assumed to have been aware of the appropriate step to take if there was any reason to object to the form the charge sheet took. As to whether section 200(3) of the Criminal Procedure Code was complied with, the record suggests that it was. Although the typed record shows the case was placed for hearing before the late Hon. S.A. Okato on 12th March, 2012 and who, after complying with section 200(3) of the Code, directed the case to proceed from where his predecessor had reached, the original hand-written record shows that these directions were given by Hon. W. Juma who conducted the proceedings of that date and presided over the rest of the trial. What appears to have happened is that there was an error in the recording of the coram by the court assistant. He or she indicated the magistrate before whom the case was placed to be Hon. Okato when in fact, it was Hon. Juma.

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If the appellant’s appeal was only based on these last two grounds, it would have failed; however, it succeeds on more meritorious grounds which I have considered and for reasons I have given. Accordingly, the appellant’s conviction is quashed and the sentence meted out against him set aside. He is, therefore, set at liberty unless he is lawfully held. Signed, dated and delivered in open court this 6th October, 2017 Ngaah Jairus JUDGE

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