REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CRIMINAL APPEAL 36 OF 2015 J N K..................................................APPELLANT VERSUS REPUBLIC......................................RESPONDENT JUDGMENT The Appellant J N K was charged with the offence of Defilement Contrary to Section 8(4) of the Sexual Offences Act No. 3 of 2006. The allegation was that on the 3 rd day of October, 2012 at [particulars withheld] Embu County, intentionally and unlawfully caused his genital organ penis to penetrate the genital organ vagina of M K a minor aged 16 years. In the alternative charge he was charged with committing an indecent assault with a child contrary to Section ll(l) of the Sexual Offences Act no 3 of 2006. The particulars are that on the 3rd day of October, 2012 at [particulars withheld] within Embu County, unlawfully and indecently touched the genital organ, vagina of M K with his penis. The Appellant was convicted in the main count and sentenced to serve fifteen (15) years imprisonment. He has appealed against both the conviction and the sentence. The Appeal proceeded by way of written submissions. On the part of the Appellant, submissions were made as follows: That the learned Magistrate did not warn himself of the danger of relying on a single witness and that the prosecution did not call any witness to corroborate the evidence of PW1. It was also submitted that the prosecution did not call material witnesses to prove the case against the Appellant despite the provisions of Section 153 of the Evidence Act. He relied on the case of Bukenya & others versus Uganda (1972) EA 549 cited in Criminal Case No 21 of 2015. It was further submitted that the Magistrate misguided himself in Law and in fact by convicting the Appellant based on the evidence of witnesses whose credibility was in doubt. The Appellant averred that the Magistrate failed to consider material contradictions in the evidence tendered by the prosecution witnesses and especially with regard to the age of the complainant. He also contended that his defence was not considered and that the Magistrate failed to consider that the loss of hymen was not conclusive prove of penetration.
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On the part of the Respondent, it was submitted that under Section 24 of the evidence Act, the trial court can convict the accused in a prosecution involving sexual offence, on the evidence of the victim, alone if it believes the victim to be truthful and records the reasons for the belief. On failure to call vital witnesses, the court was told that the prosecution does have the discretion as to whom they wish to call as witness and the court was referred to the case of Julius Kalewas Mutunga Versus Republic criminal Appeal No 31 of 2005 (unreported) which was quoted in the court of Appeal case of J W A versus Republic (2014) eKLR. With regard to the age of the complainant it was submitted that though there was a minor error on the certificate of birth, the mother to the complainant stated her current age. On the medical evidence, it was submitted that the same corroborated the evidence of the complainant on what transpired on the 3/10/2012 when she was defiled by the Appellant. The court was also told that the defence of the Appellant was considered by the trial court and the same found not be credible. As the first Appellant court I am under duty to re-evaluate the evidence adduced in the lower court. PW1 the complainant, was on 3/12/2012 at about 6.40 pm walking from school to her home. She was in the company of another girl who arrived her home first. She continued walking alone and caught up with J N (the Appellant) who was her school mate and in form four then. They walked together discussing school issues and on reaching a place called [particulars withheld], he pulled her towards the bush, knocked her down, removed her under pant and bicker and forced his penis into her vagina and thereafter he went away. She continued walking home and on the way she met her neighbor one A M who asked her why she was crying and she revealed to him what had happened. He accompanied her home and he informed her mother that she had been defiled. PW2 is the mother to the complainant. It was her evidence that on 3/10/2012 her daughter went home from school in the company of A M. The said A M said how he met the complainant crying and on asking her she said she was defiled by the Appellant who was her school mate. She called the school principal who advised her to report the matter to the police which she did. The doctor was not available then and on the following day, she took her daughter back to hospital. She was examined and several tests were done. She produced the certificate of birth for the complainant as an exhibit. PW3 is the doctor who examined the complainant. On examination, she appeared calm, had a bruise on the right leg. He assessed the degree of injury as grievous harm while the nature of injury was defilement. The hymen was broken or not present, underwear and biker were stained with blood and discharging. On cross examination, he stated that the findings on the victim showed epitherrial sexual activity. PW4 the investigating officer, took the complainant to hospital for treatment and charged the Appellant with defilement. The court has considered the evidence on record, the grounds of Appeal and the submissions, by the respective parties. The Appellant has raised seven (7) grounds of Appeal which I propose to consider together and in doing so, this court shall be guided by the critical ingredients constituting the offence of defilement which are: 1. Age of the complainant 2. Penetration 3. Identity of the assailant. On the age of the complainant, it is the Appellant’s contention that there were material contradictions on
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the evidence tendered by the prosecution in that regard PW1 stated that she was 16 years while her mother stated that she was 19 years old. The investigating officer produced a birth certificate which shows the complainant’s age as 16 years. The court notes that going by the certificate of birth which was produced as an exhibit, the date of birth is clearly shown as 3/4/1996 which put the age of complainant at 16 years as at the date of the offence. The complainant herself gave her age at 16 years. It is highly likely that the mother made an error in stating her age as 19 years. In any event, the certificate of birth is more likely to give exact age of the complainant. But that notwithstanding, I would like to borrow the wisdom of the court in the case of Francis Omuroni Versus Uganda (Criminal Appeal No. 2 of 2000) which was cited in the case of Uganda Versus Magidu Otieno (criminal decision case no 0097 of 2010) where the court of Appeal held. “In a defilement case, medical evidence is paramount in determining the age of the victim and that the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medial evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense which are relevant in cases where it is too obvious to every person below the age by mere observation and common sense.” It is therefore clear that based on the evidence of PW1 and the certificate of birth the age of the complainant was 16 years. On the issue of penetration, the evidence of PW1 is clear on how she was defiled by the Appellant as they both walked home from school. The Appellant has raised the issue of the danger of relying on the evidence of single witness and on the credibility of the complainant’s evidence. I would like to note that under Section 124 of the evidence Act, a trial court can convict the accused person in a case under Sexual Offences Act on the evidence of the victim alone if it believes the victim is truthful and records reasons for the believe. In the case herein the evidence of the complainant was corroborated by that of the doctor, who upon examination of the complainant noted that the hymen was broken though he could not establish whether it was lost one year before or 6 months before and without those findings in the forms he could not confirm penetration. He further stated that from the physical examination of the forms alone, one couldn’t tell if there was penetration. But he went further to state that the findings on the victim show epitherrial cells which occur in a sexual activity. On cross examination, he confirmed that according to a performer and lab tests, penetration on the victim occurred. The court notes that the complainant was treated early morning the following day and she had not changed her clothes and had also not taken a shower and therefore her evidence must have been corroborated by that of the doctor. I find her evidence credible. On the contention that the prosecution failed to call material witnesses, am persuaded by the submission by Counsel for the Respondent that the prosecution has a discretion as to who they wish to call as witnesses see the case of Julius Kalewas Mutunga Versus Republic (Criminal Appeal No 31 of 2005) (unreported) which was quoted in the court of Appeal case of SWA Versus Republic (2014) eKLR where the court held; “As a general principle of Law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive.” In this case, the Appellant did not state that there was such a motive in the prosecution’s failure to call other witnesses. On the contention that the Magistrate did not consider the Appellant’s defence, I note that indeed he did consider it but in essence it was a mere denial and in the light of evidence of PW1, the same is not credible.
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Therefore, I find that the evidence adduced by the prosecution was sufficient to sustain the conviction and I cannot fault the decision by the learned Magistrate. The order that commends itself to me is that the Appeal is hereby dismissed. It is so ordered. Dated, Signed and Delivered 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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