Lawrence Kariuki Njeru v Republic

attempted defilement. 6. That the learned Trial Magistrate erred in law and in fact in sentencing the Appellant to thirty five (35) years on the first count contrary to the provisions of the law without any justification. 7. That the learned Trial magistrate erred in law and in fact by shifting the burden of proof to the Appellant. 8. That the learned Trial Magistrate erred in law and in fact in failing to consider the inconsistencies in the evidence of character exhibited by PW2. 9. That the learned Trial Magistrate erred in law and in fact when he dismissed the Appellant’s defence without giving any credible reason. The Appellant has urged this court to allow the Appeal by quashing the conviction and setting aside the sentence against him. The appeal was disposed of by way of written submissions and both the Appellant and the Respondent filed their submissions. On the part of the Appellant, it was submitted that the main prosecution witness (PW2) gave contradictory evidence whereby she testified as both prosecution and defence witness. That being the main witness and the only person who was present at the scene where the crime is purported to have been committed, gave evidence in support of prosecution’s case but later recanted her earlier statement on oath when she testified as a defence witness. It was submitted that while testifying as a defence witness, she stated that she was locked up in the cells and forced to give evidence linking the Appellant to the offence and that during cross-examination by the prosecution, she stated that her earlier evidence that she had given was false. That the trial court directed that she be charged with perjury having admitted giving false information to a public officer and in view of the aforegoing the Appellant contended that her credibility was thrown into doubt and the court ought not to have relied on it. It was further submitted that the court was under duty to disregard the evidence of PW2 in its totality as her conduct only meant that no part of her evidence could be the basis of convicting the Appellant. That the other witnesses in the trial relied on the information contained in the recanted testimony by PW2. In support of the submissions herein above, the Appellant relied on the case of Isaiah Nandi Sore v Republic (2016) eKLR. The Appellant further submitted that the repairer ought to have been called as a witness as he was present at the scene of the crime. That PW1 who was not at the scene relied on the evidence of the repairer which evidence was never tested as he was not called as a witness and therefore, the evidence by PW1 was at best hearsay. On the failure to call the painter as a witness, the Appellant relied on the case of Peter Sambaye Kitinga v Republic (2014) eKLR wherein the court relied on the case of Bukenya vs Uganda (1972) E.A 549 where the court held that “failure to call these crucial witnesses created a big gap in the prosecution witness.” Counsel for the Appellant faulted the trial magistrate for relying on the case of Thiong’o Vs Republic (2004) eKLR and distinguished it from the circumstances of the case herein, in that, the principles in that case applied in a case where an accused person made a confession which was not the case herein. That in this case, PW2 who recanted her evidence was not an accused person and therefore, the above case was not applicable as recanted testimony by a prosecution witness is not a retracted confession in law. It was further submitted that the learned Magistrate relied on circumstantial evidence which was based on the evidence of PW2 which she recanted and that, in a case dependent on circumstantial evidence, the prosecution must show that the circumstances from which the inference of guilt is to be drawn must be

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proved beyond reasonable doubt which was not the case here. He relied on the case of Joan Chebichii Sawe –vs- Republic (2003) eKLR and averred that the prosecution did not tender adequate evidence to justify the guilt of the Appellant because the evidence before the trial court was inconsistent, contradictory and generally unreliable. It was averred that the case herein was based on mere suspicion rather than evidence and to support this contention, the case of Mary Wanjiku Gichira –vs- Republic Cr. Appeal No. 17 of 1998 was cited in which the court stated:“Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence.” The Appellant contended that the trial magistrate shifted the burden of proof to him to prove his innocence and he never made a finding on the appellant’s defence before convicting him. That there is nothing on record to show why the learned magistrate did not consider the accused’s defence and especially the evidence of DW2 who had earlier testified as PW2. On sentence, the appellant submitted that the same was illegal and unjustified because the learned magistrate gave no aggravating reasons to warrant the same. That the sentence was excessive and contrary to Article 50(2) (p) of the Constitution which provides that the accused is entitled to the benefit of the least severe of the prescribed punishments for an offence. On the part of the Respondent, it was submitted that the main witness in the trial being PW2 did not give contradictory evidence but her evidence was credible, clear and concise. That in addition, his evidence was corroborated by that of PW3 as well as the medical evidence, which clearly showed that there was indeed an attempt to defile the child of PW1. That the evidence that PW2 sought to give during the hearing of the defence case was an afterthought because if she was locked up in cells as alleged, she should have complained to the necessary authorities which she did not. On whether the case was proved beyond reasonable doubt, it was submitted that the evidence of PW1, PW2 and PW3 is clear that the Appellant did attempt to defile the child of PW1. The medical evidence produced by PW3 does show that there were bruises on the vagina openings of the child and bleeding around the same region, which was corroborated by the evidence of PW2. In response to grounds No. 4 and lA of the Appeal, it was submitted that the witnesses who testified in the lower court were enough and their evidence was overwhelming against the Appellant. The case of Allan Ochieng Okeyo & Ano vs Republic (2015) eKLR was cited. The Respondent further contended that the learned magistrate applied the principles in the case of Thiong’o –vs- Republic (2004) eKLR correctly with regard to PW2 who later retracted her statement during the defence hearing. The learned Counsel for the Appellant also cited the case of Republic v Lemunga Tompoi (2016) eKLR wherein the case of Parvin Singh Dhalav vs Republic Cr. Appeal No. 10/1997 was quoted in which the Court of appeal stated:“A confession requires corroboration unless the court is for cogent and solid reasons satisfied that the confession though not corroborated cannot but be true.” On circumstantial evidence, the Respondent relied on the case of Republic -vs- Michael Muriuki Munyuri(2014) eKLR in which the case of Abanga alias Onyango -vs- Republic CR.A. 32 of 1990 (UR) was quoted wherein the Court of Appeal laid down the principles to apply in order to determine whether circumstantial evidence adduced in a case is sufficient. That in the case herein, there isn’t enough circumstantial evidence to link the Appellant to the offence as charged. On grounds 6, 7 and 9 of the Appeal, it was submitted that the learned magistrate did not shift the burden of proof to the appellant but rather there was overwhelming evidence to support the conviction and the sentence. That the sentence meted on the appellant was both legal and justified as the law provides for a minimum sentence.

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I have considered the grounds of appeal, the submissions made by the learned counsels and the record of the lower court. This being a first appeal, it is the duty of this court to re-evaluate the evidence and come to its own conclusion on the evidence that was adduced before the trial court. The court should, however, consider the fact that it neither saw nor heard the witnesses testify. See the case of Okeno vs Republic (1972) E.A 32. PW1’s evidence was that she left the house at 8 a.m. to work. She left the child with the house help (PW2) who had been given instructions not to allow anybody in the house unless PW1 had authorized. PW1 told PW2 that she would send a person to repair a kitchen sink and store which had a problem. She called PW2 to inform her that the repairer would be in the house at 11.00 a.m. but instead he went there at about 1 p.m. PW1 later called the repairer who confirmed that he had arrived. He told her that PW2 had left the house using the back door and on being advised to look for her by PW1, the repairer found her at the gate talking to a person whom he did not see as he was facing away from him. At the time, the house help PW2 was carrying the baby using a lesso. The repairer left the house after completing the work. On returning home in the evening, PW1 sought to know from PW2 whether any person entered the house during the day and she said it was only the repairer. When PW1 was changing the diaper of the child (F W, she realized her diaper had been tampered with, in that it, had a stain of blood and, the lining of her private parts were reddish. On asking PW2, she said she did not know anything about it. PW1 reported the matter to the police and when PW2 was interrogated, she admitted that her boyfriend (the appellant) had come into the house. PW1 sought for more information from PW2 who told her that her (PW2’s) boyfriend had gone to house at around noon and at some point, he sent her for credit and when she came back she found the child on the floor while the Appellant was standing near the baby but before she could ask him anything, the repairer rang the bell and she went to open for him. PW2 told the court that on 11th September, 2014, the Appellant sent her a message that he would come to visit her at her place of work which he did and while there he sent her to the canteen to buy credit for him which was a distance of 20 minutes walk from the house. She left the Appellant in the house with the baby and told him to check on her. The baby was sleeping on the sofa. When PW2 came back, the baby was on the floor and on checking her, she noticed something was amiss, she tried to make the baby walk but she could not walk properly the way she used to. Almost immediately thereafter, the repairer rang the bell and she opened the gate for him, he entered through the rear door and the Appellant left through the main door. It was her evidence that the child’s condition looked abnormal because when she changed the diaper her vagina was reddish. PW1 came later in the evening and when she was changing the child’s diaper she realized something was amiss and asked her whether any person visited the house other than the repairer. She lied at the first instance because she was afraid but she later opened up to PW1 and told her what had happened. She stated that it was only the Appellant and the repairer who went to the house on the material day and the repairer went to the house after the incident. PW3 is the medical doctor who examined the child. He confirmed that the child had been sexually assaulted. He noted that the child had bruises on the vagina openings, she was bleeding around the same region and there was no full penetration as the hymen was still intact. He sent the minor to the police station where a P3 was issued which he filled the following day. He produced it as an exhibit. PW4, confirmed that a case of attempted defilement was made at Itabua police station by PW1 involving one F W minor aged 2 years. He arrested the suspect on the 13th September, 2014. PW5 was the investigating officer in the case. She investigated the same, arrested the Appellant and charged him with the offence of attempted defilement. She produced a copy of the birth certificate of the child. The court has evaluated the evidence on record. The Appellant has raised nine grounds of Appeal in his

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amended petition of Appeal which I propose to collapse into five grounds as hereunder. 1. The learned magistrate erred in law and in fact in convicting the Appellant based on circumstantial evidence that was unreliable. 2. The learned magistrate erred in law and in fact in relying on the evidence of PW2 which was contradictory and uncorroborated. 3. The learned magistrate erred in sentencing the Appellant to 35 years which sentence was contrary to the law. 4. The learned magistrate erred in law and in fact in dismissing the Appellant’s defence and shifting the burden of proof to the Appellant. In determining the Appeal before me, I remind myself of the critical ingredients forming the offence of defilement as follows; 1. The age of the complainant. 2. Proof of penetration 3. Positive identification of the assailant. See the case of Charles Wamukoya Karani –vs- Republic (Criminal Appeal No. 72 of 2013). On the first ground, the age of the complainant was proved by the birth certificate and there was no dispute about that. I will consider the other two ingredients together. On the first two grounds of appeal, there is no doubt that there was partial penetration. This is supported by the evidence of PW5 who examined the child. The question that has to be answered is, who did it? The appellant submitted that the learned magistrate erred in convicting him based on circumstantial evidence which was unreliable as he relied on the evidence of PW2 which was contradictory and uncorroborated. PW2 when testifying as a prosecution witness gave a detailed account of what transpired on the material day when the offence was committed. She told the court that on that day, it was only the Appellant and the repairer who visited PW1’s house. She stated that at some point, she left the baby with the Appellant who sent her to go and buy airtime for him. She left behind the baby who was sleeping on the sofa and on coming back, she found the baby was lying on the floor on her back. She took the baby and noticed that something was amiss. The baby could not walk properly the way she used to. He stated that the Appellant was uneasy and anxious. During this period the baby looked abnormal because when PW2 changed her diapers the private parts (vagina) looked abnormal. PW2 also testified as a defence witness and admitted that the Appellant went to visit her on the material day and she believed it was not possible for him to have done that. She claimed that she was tortured and forced to implicate the Appellant. Her evidence confirmed that it was only the Appellant and the repairer who visited the house of PW1 on that day and that the repairer entered the house through the rear door while the appellant left through the front door. She said she was carrying the baby all along when the repairer was in the house. The learned magistrate relied on the evidence of PW2 to convict the Appellant. Did he err in doing so? In my considered opinion, he was right. This is because a serious evaluation of the evidence of PW2 would reveal that the details that she gave were so graphic to be untrue. She was so particular about the time and the chronology of events as they unfolded on that particular day. She could vividly remember

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the time when the Appellant arrived in the house and when he left and the particular door that he used to exit the house. She even remembered the amount of credit that she was sent by the Appellant, where she left the baby sleeping and what position she found her in when she returned to the house. She even checked the baby and found that there was something amiss and to be specific, her vagina was reddish. She was able to observe the demeanor of the Appellant and saw that he looked anxious and she suspected he had attempted to defile the baby. In my view a person telling lies would not have given such exact details. Though she claimed that she was tortured to give evidence against the Appellant, it is on record in her evidence that, she opened up to PW1 and told her the truth. At that point, the police had not even been involved. It is also noted that between the time when the offence was committed and when she testified as DW2 a long time had lapsed and she had not complained to any person that she was tortured to implicate the Appellant. I find that her evidence as a defence witness was an afterthought and I dismiss it. PW2’s evidence was corroborated by that of PW3 and the learned magistrate was right in convicting the Appellant. The identity of the Appellant cannot be an issue at this point after the court’s analysis of the evidence of PW2 as herein above. She stated very clearly that the repairer went to the house after she had gone back to the house to find the appellant having attempted to defile the baby. She was clear in her evidence that it was only the appellant and the repairer who visited the house of PW1 that material day and the repairer arrived after the act and from the time he arrived, the baby was on PW2’s back throughout. She did not suggest at any given time that the repairer could have been a suspect. The Appellant in a bid to discredit the evidence of PW2 submitted that the trial magistrate recommended that she be prosecuted for perjury. Though it has been submitted that she was charged, no evidence was availed to court to prove that she was found guilty of the said offence. No proceedings were also availed as prove that she was so charged and therefore this court’s observation on the probative value of PW2’s evidence as prosecution witness is founded. In the premises aforesaid, I find that though the prosecution’s case was based on circumstantial evidence, the chain of events leads the court to no other explanation other than the guilt of the Appellant. On whether the learned magistrate erred in dismissing the appellant’s defence, I find that the evidence of PW2 was strong enough to displace the Appellant’s defence and the burden of proof was not at all shifted to the Appellant as there is sufficient evidence on record for the prosecution. The Appellant has also appealed on the ground that the sentence was contrary to the law and there was no justification. In support of this ground, the appellant has relied on Article 50 (2) (p) of the Constitution. I have perused the said provision and it states as follows:Every accused person has the right to a fair trial which includes the right– “to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.” This submission was obviously done in misapprehension of the law and it’s clearly not applicable to the appeal herein as the law has not been changed between the commission of the offence and the sentencing. The Sexual Offences Act provides for the minimum sentence that can be meted out on an accused person but it does not provide for the maximum. Before I conclude, it’s important to mention that PW2 did not give a confession. As rightly submitted by Counsel for the Appellant, a confession can only be given by an accused person and not by a witness. What PW2 did was to recant her evidence which this court has already found was an afterthought on her

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part. Having analyzed the Appeal as I have done hereinabove, there are no grounds for interfering with the findings by the learned magistrate. Accordingly I dismiss the Appeal. It is so ordered Dated, Delivered and Singed at Embu this 2nd day of October, 2017. ……………………..……. L. NJUGUNA JUDGE In the presence of ……………………..………for the Appellant …………………………….for the Respondent

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