Joseph Makau Zakayo v Republic

the police station. Subsequently she was taken to hospital for treatment. 6. PW4 Dr. Christopher Wahinya adduced in evidence a P3 he filled after examining the Complainant. Her hymen was ruptured with fresh lacerations. 7. PW5 No. 731130 Corporal Purity Katui boarded a bus christened “Superhighway”. She saw a girl she identified as the Complainant inside who was sitting alone on the rear left seat. She saw the conductor who was collecting fare sitting with her at one point in time. Thereafter, while at the police station she saw the Assistant Chief, Nzeluni, Kitheka Kilonzo taking the same girl to the police station. She was wearing a black jacket that the suspect was wearing. She took the girl to hospital for examination. On 1st November, 2015 the Appellant was arrested and charged. 8. When put on his defence the Appellant denied having committed the offence. He testified that while discharging his duties as a conductor the Complainant a person he did not know approached him seeking a job. It was late, between 4.00 – 5.00 p.m. therefore he decided to take her home. Being a married man he introduced her to his mother who offered her a place to sleep. The following day in the cause of his duties he saw the Assistant Chief with the girl. He continued with his work until the time he was arrested. 9. DW2 Anastacia Mwende the mother of the Appellant stated that he requested her to provide the Complainant with a place to sleep and she took her to a neighbours home where she spent the night. DW3 Esther Nzena testified that she accommodated the girl on the material night. 10. The Appeal was canvassed by way of written submissions that I have taken into consideration. 11. This being the first Appellate Court, my duty is to analyze and re-evaluate evidence adduced at the Lower Court and come up with my own conclusions on evidence adduced without overlooking the conclusions of the trial Court. I must also remember that I did not have the opportunity of seeing or hearing witnesses who testified. (See Okeno vs. Republic (1972) EA 32). 12. The Prosecution was duty bound to prove: • The age of the Complainant. • The act of penetration. • That the Appellant was the perpetrator of the act. 13. The Prosecution adduced in evidence a Birth Certificate in respect of the Complainant. She was born on 8th November, 1998. In the case of Kaingu alias Kasoma vs. Republic, Malindi Criminal Appeal No. 504 of 2010 the Court of Appeal stated that: “The age of the minor is an element of a charge of defilement which ought to be proved by medical evidence.Documents such as baptism cards, school leaving certificates in my view would also be useful in this regard.” In the case of William Odhiambo Siara vs. Republic (2014) eKLR KSM HCR.C No. 77 of 2012, it was stated thus: “…….It is notable that documents like birth certificates, baptismal cards or school admission papers will indicate date of birth and unless they are shown to have been made at the time when the prosecution was launched, are material corroborating evidence.An age assessment by a Doctor would be useful, but it should be borne in mind that any such assessment is a medical approximation.” Rule 4 of the Sexual Offences Rules of Court provides that” “When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school document……”

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14. The age as proved by the Birth Certificate was established. Therefore I find that the Complainant was a child aged 16 years and 4 months old. Penetration is defined by Section 2 of the Sexual Offences Act thus: ““penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;” 15. On examination by the Clinical Officer the Complainant’s genitalia had notable interference. The labia majora and minora were hyporemic. The hymen was ruptured with fresh lacerations. There was a presence of fresh smelling whitish discharge. The officer remarked that there was evidence of vaginal penetration. 16. The Prosecution sought to prove that the person responsible for the act of penetration was the Appellant. This was however denied by the defence. The duty was upon the Prosecution to prove this particular fact beyond reasonable doubt. In her testimony her testimony the Complainant denied having been defiled by the Appellant and implicated one Francis, a person she referred to as her friend.It was her testimony that she indulged in sexual intercourse on the 6th July, 2015 but not on the 8th July, 2015. Part 1 of the P3 (Medical Examination Report) indicates 8th July, 2015 as the date of the alleged offence.The Clinical Officer who filled the P3 form failed to approximate the age of injuries sustained by the Complainant therefore she could not be doubted following the allegation that she was defiled on 6th July, 2015 but not on 8th July, 2015. 17. The Complainant ran away from home following a disagreement with her mother (PW2). She sought refuge at the home of the Appellant per her evidence and that of the defence. In her examination in chief the Complainant stated that she was coerced by the Sub-chief to lie that the Appellant had defiled her. No application was made by the Prosecution to suggest that she deviated from the statement that she recorded. 18. She was found inside a PSV motor-vehicle by PW3. She had covered herself with a jacket that was stated to belong to the Appellant. As correctly found by the learned trial Magistrate there was no sufficient evidence to prove that indeed the jacket belonged to the Appellant. 19. In reaching her verdict the trial Magistrate stated thus: “………the prosecution evidence when each fact is taken individually to prove beyond reasonable doubt that indeed the accused had carnal knowledge of the complainant on the night of 8/7/2015.The evidence is also sufficient to render the defence of the accused not true.” Direct evidence adduced by the Complainant did not support the Prosecution’s case as to the fact of the Appellant having committed the act of penetration of the Complainant genitalia.The defence put up may have been unconvincing but the trial Magistrate should have appreciated the fact that the burden of proof in Criminal Cases lies with the Prosecution.It does not shift to the defence.(See DPP vs. Woolmington (1935) UK 45; Festus Mukati Murara vs. Republic (2013) eKLR); and the standard of proof is beyond reasonable doubt.(See Miller vs. Ministry of Pensions (1947) 2 ALL ER 372). 20. The defence put up by the Appellant could have been wanting but the evidence adduced by the key witness did not support the particulars of the offence regarding the perpetrator of the offence. In the premises, the verdict the trial Court came up with was a misdirection. Consequently, it was unsafe to convict on evidence adduced. Based on the conclusions reached I allow the Appeal by quashing the conviction entered and setting aside the sentence imposed. The Appellant shall be released forthwith unless otherwise lawfully held. 21. It is so ordered.

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Dated, Signed and Delivered at Kitui this 13th day of July, 2017. L. N. MUTENDE

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