M K v Republic

arrested the Appellant and charged him. The Complainant was subjected to medical examination. Her hymen was found missing. Hence this case. 6. When put on his defence the Appellant denied having committed the offence. He stated that he was framed by the Sub-chief because he found him with his wife inside their house. The Sub-chief wrote a letter asking his wife to join a women’s group that she did not. However, she begun staying out until late. He went away to take care of his brother’s animals. The Sub-chief took advantage of the fact and started sleeping at his home. In May, 2013 he went home at 11.00 p.m. and caught them. The Sub-chief managed to run away. On 5th May, 2013 his wife ran away and went to her parent’s home. Thereafter the Sub-chief went and arrested him. 7. The Sub-chief with the lady from World Vision arrested him on allegations that he was staying with his daughter. The girl was examined but nothing was detected. 8. The learned trial Magistrate considered evidence adduced and reached a finding that the incident happened. He dismissed the defence put up. 9. At the hearing, the Appellant canvassed the Appeal by way of written submissions. He stated that his rights were violated having been in custody for five (5) days. 10. That the Complainant denied having been defiled by the Appellant and mention one Mutati as the person who used to sleep with her after her mother left. 13. He argued that the age of the Complainant was not ascertained. That the Complainant allegedly informed her aunt M of what was happening but the said M was not called as a witness. Similarly, the Administration Police Officer who arrested him was not called as a witness. 12. The State through Mr. Wanjala, learned State Counsel opposed the Appeal. He submitted orally that the evidence of the Complainant that she was defiled was corroborated by evidence of PW2 and PW6 the Doctor who found that she was sexually active, evidence that was not challenged by the Appellant. That the Appellant was arrested on the 14th May, 2014 and charged at the earliest on 19th May, 2014 and the sentence passed was legal. 13. 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). 14. It is not in dispute that the Appellant was arrested on the 14th May, 2014, a Wednesday and arraigned before Court on the 19th May, 2014, a Monday. Article 49(1)(f) of the Constitution stipulate thus: “(1) An arrested person has the right— (f) to be brought before a court as soon as reasonably possible, but not later than–– (i) twenty-four hours after being arrested; or (ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;” The appellant’s rights were breached. However, a trial cannot be declared a nullity based on the fact that the Appellant’s rights were violated. He is at liberty to access the Civil Court for reparation of the wrong. 15. To prove the case the Prosecution had the duty to prove:

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• The age of the Complainant. • The act of penetration. • That the perpetrator of the act was the Appellant. 16. It is stated in the particulars of the offence that the Complainant was aged fourteen (14) years old. The Complainant was subjected to voire dire examination where she stated that she was fourteen (14) years old. The learned trial Magistrate Court opined that she was competent to give sworn testimony. PW2 her mother also stated that she was fourteen (14) years old. The Clinical Officer who examined her estimated her age as 14 years old. 17. In Stephen Nguli Mutili vs. Republic (2014) eKLR it was stated thus: “From the facts of the case we note that the Complainant gave testimony that she was 13 years at the time of the offence. PW2 and PW3 corroborated the same. The Diagnostic HIV Testing and Counseling Patient/Client Card, the General Outpatient Card and the P3 Form, which were all presented as exhibits stated the complainant’s age as 13 years. Therefore applying the law to the facts of the present appeal, we are satisfied that the complainant’s age was proved to the required degree. This view is fortified by the fact that during trial the defence did not question the age of the complainant as offered before court.” 18. The Appellant is the Complainant’s father. The Complainant stated her age. Her evidence was corroborated by that of her biological mother. The P3 form indicated her age as 13 years old. This evidence was not disputed by the Appellant. I therefore find that indeed she was aged 14 years old. 19. Complainant was examined by PW6 Daniel Mulwa, a Clinical Officer some nine (9) days later, this was on the 18th May, 2014. The significant result he found was that the hymen was missing which was an indication that the Complainant was engaging in sexual intercourse. This was proof of penetration though it could not be stated when the penetration first occurred. 20. In her testimony the Complainant stated that the Appellant started defiling her in 2013. He would tell her to remove her pants and engage in coitus with her. That on the 10th May, 2014 he had sexual intercourse with her. The following day the 11th May, 2014 her aunt M went to see them and she informed her. The matter was reported to the police and he was arrested. On cross examination she stated that she was aware the Appellant was sick but on examination she was not sick herself. She stated that since her mother left she used to sleep with Mutati and he would defile her on the days that she would sleep at their house. Sometimes she used to sleep with her grandmother. 21. PW2 recounted that one day the Appellant returned home while drunk and asked for a mat to sleep in the kitchen. On that night she found the Appellant sleeping with the Complainant who did not have a pant. She suspected that they had slept together but when she asked the Complainant she denied. This act prompted her to take the Complainant to sleep with the grandmother. 22. PW2 alluded to what allegedly happened in 2014. She took no action following her suspicion. It is in evidence that she separated with the Accused but the duration was not given to establish if indeed she was at home at the alleged time. 23. Prior to the Appellant being arrested PW1 is alleged to have told her aunt M what happened. M is the one who was stated to have informed PW2 and PW3, the Sub-chief who is alleged to have had an affair with PW2. 24. PW3 Vincent Nyerere caused an Administration Police Officer to arrest the Appellant after allegedly receiving a report from M. When the Complainant was interrogated she denied having been defiled by the Appellant. PW4 Agnes Munyao a representative of World Vision that sponsors the Complainant learnt of the incident from her Chairman and joined PW3 before the Appellant was arrested.

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25. M was not called as a witness to confirm if indeed she received any report from the Complainant of the alleged defilement. In the case of Keter vs. Republic (2007) 1 EA 135 the Court held: The prosecution is not obliged to call a superfluity of witnesses but only such witnesses that are sufficient to establish the charge beyond any reasonable doubt.” However, in the case of Bukenya & Others vs. Uganda (1972) EA 549 the Court stated thus: “(i) The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent; (ii) That the court has a right and the duty to call witnesses whose evidence appears essential to the just decision of the case. (iii) Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.” 26. This is a case where at the outset the Complainant denied having been defiled by the Appellant. She stated on cross examination that she was engaging in sexual intercourse with another individual. As a person PW2 suspected the Appellant and the Complainant were engaging in sexual intercourse. At the point of being examined the Clinical Officer found the Complainant to be sexually active but it could not be stated who actually penetrated her and broke her hymen. This kind of evidence behooved the Prosecution to call M to establish if indeed the Complainant made any report to her as alleged. Failure to call her should have prompted the Court to find that her evidence may have been adverse to the Prosecution case. 27. From the foregoing, it was unsafe to find the Appellant was the perpetrator of the act of penetration of the Complainant. In the premises, the Appeal has merit. The conviction against the Appellant is quashed and sentence imposed set aside. The Appellant shall be set at liberty forthwith unless otherwise lawfully held. 28. It is so ordered. Dated, Signed and Delivered at Kitui this 12th day of July, 2017. L. N. MUTENDE JUDGE

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