Richard Lepuyapui alias Kolele v Republic

gave the reason for being charged as that TL’s mother had propositioned him for a sexual relationship and when he declined she threatened him with dire consequence. It is important to state that the appellant did not cross examine TL’s mother on that allegation. 5. This court is required, as the first appellant court, to examine and analyze the trial court’s evidence with a view to reaching an independent conclusion. 6. On the first ground of appeal appellant submitted that the prosecution failed to prove its case on the criminal standard of proof because TL did not testify. 7. The trial court noted in the proceedings as follows:“COURT: I have to put this on record – the minor victim TL attended court today. The prosecutor attempted to put her on the stand. However the minor is not able to talk hence cannot testify.” Indeed TL did not testify at all during the trial. 8. Did her failure to testify compromise the prosecution’s case? In my humble view it did not. There is ample evidence that shows firstly TL was brutally defiled and secondly that it was the appellant who defiled her. 9. Firstly the doctor’s evidence is very vivid of the injury TL endured. The defilement not only left TL with serious injuries in her anal area and thereby compromised the integrity of the rectum but also there was evidence of penetration of the hymen. Her parents found her bleeding so much that her face was also bloody. 10. Secondly TL when her parents first found her injured said that it was mzee who defiled her. It is clear from TL’s father’s evidence that he knew Mzee referred to the appellant who was their neighbour. Both parents stated that after the incident the appellant ran away from his home. That evidence was not subjected to cross examination by the appellant and must therefore be taken to be uncontradicted. In this court’s view the appellant running away from his home for two years, when he was arrested, was an indication of a guilty mind. 11. The evidence of the brothers of TL, though unsworn, corroborated each other. They both stated that the appellant gave them sweets and thereby persuaded them to go away from their parent’s house leaving TL in the company of the appellant. 12. The trial magistrate, it should be noted, should have considered whether TL was a vulnerable witness and if so appoint a intermediary for her as provided under the Sexual Offences Act. This was the finding in the case M.M. V REPUBLIC 2014 eKLR where the court stated:“It is difficult for a child or indeed a victim of sexual attack to publicly relive the most traumatic and humiliating experience of their lives in order to get justice, more so, if they have to be subjected to the rigors of daunting and intimidating cross-examination. The thinking behind the enactment of section 31 was, in our view to moderate these traumatic effects in criminal proceedings. It is clear from section 31(2) and 32 that, first and foremost it is the duty of the prosecution to ascertain the vulnerability of the witness and to apply to the court to make that declaration before appointing an intermediary. In addition, the court, as we have earlier observed, can on its own motion, through voir dire examination, declare a witness vulnerable and proceed to appoint an intermediary. Any witness (other than the one to be declared vulnerable) can likewise apply to the court for the declaration. The application must not be granted merely because the victim is young or too old or appears to be suffering from mental disorder. The court itself must be satisfied that the victim or the witness would be exposed to undue mental

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stress and suffering before an intermediary can be appointed.” An intermediary is defined in section 2 of the Sexual Offences Act as: “Intermediary” means a person authorized by a court, on account of his or her expertise or experience, to give evidence on behalf of vulnerable witness and may include a parent, relative, psychologist, counselor, guardian, children’s officer or social worker.” 13. The fact the trial court did not appoint an intermediary does not mean the prosecution’s case fails. No not at all. The case M. M. V REPUBLIC (supra) had this to say where the trial court failed to have the child victim of sexual assault testify directly or through an intermediary:“Any requirement that insists on a child victim of defilement, irrespective of his or her age to testify in order to found a conviction would occasion serious miscarriage of justice. What fair hearing would a child victim aged six (6) months, like that in the case of Robinson Tole Mwakuyanda V Republic HC Cr. Appeal No. 227 of 2007, get if the courts were to insist on the evidence of such a child, who on account of his/her tender age cannot speak.” 14. In my view where a child victim does not testify but there is sufficient, independent evidence that can lead to conviction the prosecution’s case does not fail. 15. The appellant faulted prosecution for failing to prove the age of TL. Contrary to that submission however that prosecution did prove that TL was 7 years old when she was defiled was erroneous. The mother so stated and so did the doctor who produced the P3. Nothing therefore turns on that submission by the appellant. 17. On ground four the appellant submitted that the trial court did not consider his defence. The appellants defence was that the charges were actuated by a threat made by TL’s mother. Appellant did not at anyone time deny he was at TL’s parent’s home when TL was defiled. Accordingly the trial court was right in rejecting that defence and similarly I too reject it. 18. On the sentence the appellant’s appeal fails because of the provisions of section 8(2) of the Sexual Offences Act. The sentence under that section is for life. 19. Accordingly appellant’s appeal against conviction and sentence is dismissed. The trial court’s conviction is upheld and the sentence is confirmed. DATED and DELIVERED at NANYUKI this 4TH day of OCTOBER 2017. MARY KASANGO JUDGE CORAM: Before Justice Mary Kasango Court Assistant – Njue/Mariastella Appellant: …………………………………………… For the Respondent: …............................................. COURT Judgment delivered in open court.

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MARY KASANGO JUDGE

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