Republic of Kennya v Republic & 1 other

evidence in the prosecution’s case especially with regard to claim that the complainant was alleged to have obtained a torn hymen during the attempted defilement when the complainant herself testified that she had previously engaged in sexual intercourse before the date she was alleged to have been defiled by the appellant. 8. The appellant also took issue with the trial court’s failure to note the complainant’s testimony to the effect that she was beaten by her parents in order to force her to say that she had been engaged in sexual intercourse. 9. In reply to the appellant’s submissions, Miss Ouko for the state submitted that there was sufficient evidence to prove that the appellant committed acts which would cause penetration. She also submitted that the age of the complainant was proved by the complainant herself and her father who testified that she was 15 years old. It was the state’s submission that the appellant did not contest the age of the complainant during the trial. 10. On identification, Miss Ouko submitted that the appellant was well known to the complainant who positively identified him as her defiler as the incident took place in broad daylight at 1 p.m. 11. This is a first appeal and my duty is therefore to re-evaluate and re-analyze the evidence tendered before the lower court afresh with a view to arriving at my own independent conclusion while bearing in mind the fact that I neither heard nor saw the witnesses testify. See Okeno vs Republic (1982-88) KLR 1136. 12. In a more recent case of Collins Akoyo Okemba & 2 Others vs Republic [2014] eKLR, the Court of Appeal stated as follows on the duty of the first appellate court: “It is a duty to re-evaluate, re-analyze and re-consider the whole evidence in a fresh and exhaustive way before arriving at its own independent decision.” 13. Taking a cue from the above decisions, I have perused the lower court record and noted that, the prosecution witnesses tendered evidence as follows: 14. PW1, FSM (name withheld) testified that she was 16 years old and in form two. She stated that on the material day (19th July 2013) at about 12 p.m., the appellant went to her home where he found her cooking vegetables. He then removed her panties and put her on the bed that was in the kitchen before unzipping his trouser and having sexual intercourse with her. Her step mother (PW4) then arrived at the scene and raised an alarm after which the appellant ran away. The appellant was however arrested later on the same day and escorted to Kilgoris Police Station. When re-called for further cross examination, PW1 admitted that she was beaten at home and forced to testify against the appellant. 15. PW2 was PM (name withheld) the father of PW1. His testimony was that on the material day he heard screams emanating from his home thereby prompting him to rush home but shortly thereafter the appellant arrived on a motorcycle. The appellant informed him that people had gathered at the roadside and on going to the road, PW2 was informed that the appellant was caught in the act of defiling his daughter (PW1). 16. PW3 JACOB CHERUIYOT was the clinical officer who on 20 th July 2013 examined the complainant. He stated that her hymen was freshly torn and confirmed that there was penetration. He produced a duly filled P3 form and the initial treatment notes which were marked as Pexhibits 2 and 3 respectively. He estimated the complainant’s age to be 15 years. PW4 CYNTHIA NASISHOstated that on the material day, she was at home when she went to the kitchen, and knocked at the door but nobody opened. No sooner had she entered the kitchen than the appellant who was on bed ran out followed by the complainant. The appellant then boarded his motorcycle and sped away only to return later to find out what had happened. They interrogated he complainant who confessed that she was the appellant’s lover and that she had engaged in sexual

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intercourse with the appellant on two previous occasions.On cross examination, PW4 stated that she concluded that the appellant ran away when he saw her because he must have done something wrong. 17. PW5 DAVID NYAIYOMA testified that he also heard screams on the material day and on going to the scene, he found that the appellant had been arrested by a huge crowd on allegations that he had been found with the complainant in the kitchen. He stated that the appellant denied having done anything to the complainant. 18. PW6 was P.C. Masoud Rashid. He investigated the case and issued the complainant with P3 form. 19. When placed on his defence the appellant gave a sworn statement in which he stated that he had a dispute with the Maasai Community over the price of milk that he used to take from them and that on the material day, PW4 called him on phone and told him to pass by her home to collect milk which he did but later on, he met PW4 at the road where she asked him why he had not been collecting milk. PW4 demanded the money that the appellant owed her and he (appellant) asked for more time to pay after which he boarded his motorcycle and rode away but no sooner had he left than PW4 started screaming and saying that the was taking off with her money. 20. The screams attracted a huge crowd including PW2 and PW3. Later PW1 came from school and she was beaten and forced to confess that the appellant was her lover. They were later frog-matched to Kilgoris police station before being taken to the hospital for medical examination. He stated that the doctor was bribed to prepare a false medical report. 21. DW2 BILLY BUSUGU testified that he also heard screams and on going to the scene, he was told that the appellant owed a lady some money for milk for which he sought time to repay. He assisted the appellant to load his motorcycle with milk before leaving the scene Analysis and determination 22. I have carefully analyzed the evidence presented before the trial by both the prosecution and the defence. I have also considered the rival submissions made on appeal and I note that the main issue for determination is whether the ingredients of the offence of defilement namely; the age of the complainant, penetration and the identity of the appellant, were proved beyond reasonable doubt. 23. On the age of the complainant, I find that the same was established to be 16 years. PW1 and her father (PW2) testified that she was 16 years old. PW3, the clinical officer estimated her age to be 15 years. I therefore find that there was sufficient proof of age even though the birth certificate was not availed in court. Courts have on several occasions, held that proof of age in sexual offences does not necessarily connote the production of a birth certificate. In the case of Francis Omuroni vs Uganda CA No. 2 of 2000 it was held. “In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…” 24. Turning to identification of the appellant, it was not disputed by the appellant that he was at the scene of the alleged incident at the time the complainant was said to have been defiled. 25. The issue that was in contention, however, was whether or not the appellant defiled the complainant.According to the appellant, he had gone to the home of PW2 to collect milk only for him to be set up and framed for defiling the complainant. The appellant attributed his woes to a milk debt that he owed PW4. 26. From cursory glance at the prosecution’s case, one gets the impression that the same is formidable and watertight, however, a critical and in-depth analysis of the whole evidence presented to the trial court

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shows that there were certain questions or aspects of the case that were left unanswered which questions leave a lot to be desired and create reasonable doubt in my mind as to whether the offence of attempted defilement or defilement, as it were, was proved to the required standards. I say this because offences under the Sexual Offences Act are serious felonies that attract very stiff, mandatory penalties upon conviction and by virtue of this fact alone, the burden placed on the prosecution is a notch higher than that in other cases. 27. As a starting point, all the evidence tendered by the prosecution witnesses clearly pointed to the offence of defilement and not attempted defilement.The law and settled judicial precedents as well as scholarly works have the following to say on the subject of attempted offences: 28. Section 388 of the Penal Code defines “attempt” as follows: “388 (1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. (2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. (3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.” 29. The above section brings out the two main ingredients of an attempt offence; the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention. 30. From the above provisions, this court is at a loss as to why the prosecution opted to charge the appellant with the offence of attempted defilement and not defilement when the evidence presented clearly pointed to defilement. To my mind, the scenario that presents itself lends credence to the appellant’s claim that he was framed up in an attempted defilement case as it appears that the police were either not sure of what had actually transpired or were under pressure from some forces to charge the appellant with a defilement case anyway. 31. Coupled with the mix-up on the correct charge to prefer against the appellant, was the complainant’s own admission, when re-called for further cross-examination that she was beaten in a bid to force her to record a statement implicating the appellant in the case. The complainant had the following to say during further cross-examination. “When I went home I had (sic) found you had been tied. I was beaten at home. That is why I stated as I did. You have issues with the lady who testified as a witness.” 32. On re-examination by the prosecutor the complainant stated. “Accused had come to take milk. I was beaten at Ogwedhi by the police. My father was present.” 33. From the above extract of the complainant’s testimony, it is clear that she was beaten and forced to state that she had been defiled. The complainant also confirmed that there was bad blood between the appellant and PW4 (the other only lady who testified in the case) and therefore one cannot rule out the claim that the case against the appellant was a set up to settle old scores as was confirmed by the complainant. Of great interest to this court is why the police had to beat the complainant to extract a “confession” from her in the form of a statement implicating the appellant if they already had cogent

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evidence against the appellant. What was the motivation for the beating when the complainant was already a victim of a serious crime of defilement? 34. That the complainant was beaten in order to get her to speak is a fact that was also confirmed by PW4 during cross examination when she said: “I never saw the girl being beaten at Kilgoris police station. But her father caned her once and she spoke everything.” 35. The above testimony of PW4 confirms that the complainant was put under extreme pain and pressure, through beating, to say that she had been defiled. 36. I therefore find that the trial court misdirected itself when it dismissed the appellant’s version that the complainant was coerced to say that she had been defiled in the face of clear evidence from the complainant and PW4 that she was caned as a way of getting her to admit that she had been defiled. The trial court erred in failing to address its mind to the complainant’s testimony that she was forced to implicate the appellant in the case. 37. One can however, say that apart from the complainant’s own evidence that she was defiled, which evidence she recanted when she said that she was put under duress, through beatings to say that she had been defiled, there was medical evidence pointing towards defilement. I however find that the medical evidence was not only self-contradictory, but was also contradicted by the evidence of PW4. PW3 the clinical officer had the following to say in his evidence in chief: “she stated that she had been defiled by an adult. The offence was committed on 18 th July 2013…They were arrested on second attempt. I examined the girl. The external genitalia was normal. Her hymen was freshly torn. It was rugged and tender.” 38. PW4 on the other hand stated as follows on the complainant’s previous sexual intercourse encounters: “She was interrogated and she admitted to have been Joseph’s lover and Joseph had even bought her a phone. She said she had sex with her (sic) on 2 occasions. It was the third time they were having sex.” 39. The ordinary dictionary meaning of the word hymen is: Noun –“ a membrane that partially closes the opening of the vagina and whose presence is traditionally taken to be a mark of virginity” From the above definition of hymen, it is clear to me that its presence connotes virginity in which case, if it was true that the complainant had engaged in previous sexual intercourse before the date of the alleged offence, then it follows that she was not a virgin at the time of her alleged attempted defilement and as such, the issue of her hymen being freshly torn could not have arisen. The doctor’s report and evidence was therefore not consistent with the testimony of PW3 and PW4 to the extent that the complainant had engaged in sexual intercourse with the appellant on other occasions prior to the events of 19th July 2013. 40. Another contradiction that did not escape the courts attention was the allegation that appellant ran away upon being caught, by PW4, in the act of defiling the complainant. PW4 testified that she concluded that the appellant must have been running away because he had done something wrong. PW2 on the other hand testified that he heard screams from his home and rushed there to find out what was amiss but that no sooner has he found out what was wrong than the appellant arrived on a motor cycle and that it is the appellant who informed him of a gathering at the roadside. The question that arises from the above scenario is how the appellant could come back to the same home of PW2 where he had just escaped from upon being caught in the act of defiling PW1. 41. Having regard to the contradictions in the evidence tendered by the prosecution witnesses, which I

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have highlighted hereinabove, including the fact that the complainant recanted the evidence she had tendered in court and statement before the police on the basis that she had been coerced to admit that she had been defiled, I am not satisfied that the prosecution’s case was proved to the required standards. Under the above circumstances, it was not safe to convict the appellant. 42. Consequently, I allow the instant appeal, quash the conviction and set aside the sentence imposed on the appellant. The appellant shall be set at liberty forthwith unless he is otherwise lawfully held. Dated, signed and delivered in open court this 13th day of July, 2017 HON. W. A. OKWANY JUDGE In the presence of: • Mr. Otieno for the State • Mr. Okenye for the appellant • Omwoyo court clerk

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