REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA CRIMINAL APPEAL NUMBER 81 OF 2014 CORAM: JUSTICE S.M GITHINJI (From original conviction and sentence in criminal case number 857 of 2013 the Principal Magistrate’s Court at Sirisia) MARTIN KIBET PARTEGA :::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT JUDGMENT MARTIN KIBET PARTEGA appealed to this court against conviction for an offence of Defilement contrary to section 8(1) and (3) of the Sexual Offences Act no. 3 of 2006. The particulars of this offence are that on the diverse dates of 17 th and 19th day of November, 2013 at [paticulars withheld]in Cheptais District within Bungoma County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of F C a child aged 14 years. The prosecution case is that by 17.11.2013, the complainant was aged 14 years, having been born on 9.2.1999. She was a pupil at [paticulars withheld] School. She was living with her parents PW-2 (father) and PW-4 (mother) in [paticulars withheld]. On 17.11.2013 at about 8.00pm the appellant went to their home. He wanted to buy milk. He used to buy milk from PW-4, at the place. PW-4 told him the milk was finished. PW-2 heard this deliberation from the house and was able to recognize the voice of the appellant of which he knew very well. PW-4 sent the complainant to the home of the grandmother, who is called A to find out whether she had milk. As she went to the place, the appellant followed her. He lured her to accompany him to his home to harvest maize together. She agreed. They went to a house where there was nobody else apart from both of them. They shared a bed. The appellant undressed her by removing her pant. He also removed his. He used his penis to penetrate her vagina. After the sexual intercourse they slept. On 18.11.2013 in the morning they woke up and had breakfast. At night they had sexual intercourse. The following morning on 19.11.2013 at about 8.30am the accused escorted her. When they got near a river they parted ways. Meanwhile the parents were looking for the complainant. They had even reported to the village elder and the sub-chief. On 19.11.2013 at about 11.00am, mother M got the complainant near river [paticulars withheld] and led her to her mother (PW-4). PW-2 took her to Kipsigon Police Station where they reported the incident. She was examined the same day by PW-6 at Kopsiro Health Centre. The Clinical
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Officer noted that she had inflammation of the right lower limb, hymen was broken with tenderness of labia minora – inner lining of vagina. There was no discharge; she was not pregnant and was syphilis and HIV negative. It was concluded that she had been penetrated within 72 hours. The P-3 form was thus filled. Her age was assessed and she was found to be 14 years then. On 12.12.2013 PW-3 who is a member of village vigilante community policing was informed of presence of the suspect at [paticulars withheld] Market. He went there. When the appellant saw him he escaped. Members of the public helped and he was arrested. He was escorted to Kipsigon Police where he was rearrested. He was well known by PW-1, PW-2 and PW-4. He was positively recognized by them and was charged. The appellant in his unsworn testimony denied knowledge of the complainant. He alleged that on 13.11.2013 while at home he was called by unknown persons. They asked him to go to Kipsigon Police Station. He went there on 12.12.2013 at 2.00pm. He was told he owned someone a debt. Later PW-2 went to the place. The two used to do potato business together. PW-2 demand for his money from the appellant. The appellant indicated that he had paid him. PW-2 retorted that they will meet elsewhere. On 16.12.2013 the appellant was charged with a strange offence. The amended grounds of appeal are that:1. The case was not proved beyond reasonable doubt. 2. The evidence was not well analyzed and the court arrived at an erroneous decision 3. The prosecution evidence was contradictory. 4. The evidence of PW-2, PW-4 and PW-6 did not corroborate the evidence of PW-1. 5. The age of complainant was not established to be 14 years old then. 6. The appellant’s defense was wrongly dismissed as illogical and nonsensical. 7. The sole evidence of a minor was wrongly relied on. 8. The charge was defective. Mr. Were argued the appeal for the appellant and Mr. Akelo opposed it on behalf of the state. Mr. Were submitted that PW-4 was a child of tender years given that she was aged 14 years by the time she offered evidence. Voire dire was not conducted, of which aim, as held in the case of Samuel Warui Karimi versus Republi,c Criminal Appeal number 16 of 2014, is to guarantee right to a fair trial. PW-1’s age was even not properly established as the Clinical Officer never gave evidence on how he ascertained her age. It was also averred by the appellant that the charge was defective given that there is no Section 8(10) and (3) as carried in the charge sheet. Mr. Akelo in response agreed that voire dire was not conducted. He however submitted that a general medical practitioner is capable of assessing the age. He urged this court to cure the defect in the charge sheet under Sections 382 of the CPC. It was his position that prosecution case was not contradictory. He urged this court to dismiss the appeal. On issue of failure to conduct a voire dire I wish to distinguish the facts in the case of Samwel Warui Karimi versus Republic, Criminal Appeal number 16 of 2014, in which the complainant was aged 12 years while in the current appeal she was aged 14 years. Though the holding was that a child of tender
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years is the one aged 14 years and below and there was therefore a need for a voire dire, after evaluating the evidence of PW-1, of which she gave on oath, giving a vivid lengthy account of what happened, and remaining impressively firm after the lengthy cross-examination by the appellant, I do find that the omission is a procedural technicality. It did not prejudice the appellant in anyway and is curable under Article 159(1) (d) of the Constitution, which states that:“Justice shall be administered without undue regard to procedural technicalities...” The omission in the procedure is a procedural technicality. The complainant said she was 14 years old. Her evidence was corroborated by the evidence of her father who indicated she was born on 11.12.2013 and was 14 years old. This evidence, even in absence of the age assessment report would be reliable evidence on age. However it was made better by the evidence of PW-6 who confirmed the age through an age assessment process. The charge is not defective as claimed by the appellant. The original charge in the lower court file indicates the right section, that is Section 8(1) and (3) of the Sexual Offences Act. It is only that there was a typographical error on the charge sheet in the record of appeal. Prosecution witnesses evidence is one. The witnesses well corroborated each other, making it strongly reliable and convincing beyond doubt as true. I believe this is the reason why the appellant could not point out the alleged contradictions in the prosecution case as there are none. This is a case that was well investigated, evidence well adduced, save for the omission of the voire dire, and well weighed in the judgment. The conviction was proper. The appeal lacks merit and is accordingly dismissed. Judgment read in the presence of the state counsel, court assistant and the appellant this 17 th day of July 2017. S. M. GITHINJI JUDGE
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