Wilbert Nyongesa Simiyu v Republic

6. The appellant’s unsworn defence admitted going to the minor’s home at 4.30am upon invitation by the child’s father but says he was very drunk. He was shown the boys’ bedroom where he slept, then at daybreak when he wanted to leave for work IA went to his stepmother while crying that the appellant had defiled him. As far as the appellant was concerned he had done nothing as he was drunk. He decided to wait for PW2 to explain himself, but when the latter arrived, he was not allowed to talk and he was subjected to beatings until a village elder intervened and advised that they report the matter to police. 7. J B N (DW2) confirmed that the appellant was staying in the house belonging to PW2 and that he used to sleep in the boys’ bedroom. He also stated that when he parted company with the appellant, the latter went to PW2’s house in a drunken state. This was the same evidence by A M A (DW3)-essentially, they were not with the appellant in the room that night. 8. The trial magistrate found that the child’s age was properly assessed and that the observation by the clinical officer regarding the shiny state of the child’s anus was proof that he had been sodomized. The trial magistrate also held that the appellant was the culprit as he was well known to Pw1 and infact slept in the same room with him. 9. The decision is challenged on grounds that the trial magistrate disregarded material contradictions in the prosecution witnesses evidence which in any event did not discharge the burden of proof. 10. MR. ANWAR who appeared for the appellant submitted that the charge of defilement was not proved as the issue of penetration was never established. He poked holes at the evidence which claimed the minor was defiled, saying the medical findings indicated that there were no tears or bleeding, although the clinical officer concluded there was sodomy. 11. It was his contention that if what Pw2 and Pw3 said about IA bleeding from the anus and the blood stained bedsheets was true then this could have been confirmed by the medical examination – yet it found to the contrary. He also questioned the credibility of the clinical officer saying whereas he claimed to have examined the victim 2 days after the offence - which would place the date of the incident at 18/10/2012, the charge sheet read 20/10/2012. He also wondered why I (who was inside the house and purportedly heard the minor screaming), never testified as a prosecution witness and prosecution preferred to call the child’s father who was not even present at all. 12. In opposing the appeal, MR. AKELLO submitted on behalf of the state that penetration was proved as the appellant confirmed he was defiled and felt pain and bled. He also argued that the mere fact that there were no tears or bleeding did not mean the child was not defiled. He urged the court to dismiss the peal saying it had no merit. From the evidence presented at the trial, there was no doubt that the appellant and the minor shared a room on the night in question – this much was confirmed even by the appellant’s own defence witnesses. That gave him an opportunity to be with the child. Did the evidence prove that the child had been defiled? Unfortunately the prosecutor and the trial court gave a very vague presentation as to what exactly took place in that room – leaving room for speculation and second guessing. What did Pw1 mean when he said the appellant defiled him? One can only glean from the record that he removed his trouser and under pant, and removed the minors as well……..then did what? - Rub himself against IA, pull his penis, insert his finger into the anus? What did the appellant do? The next thing referred to is that the minor felt a lot of pain and he screamed – but again it is not stated with clarity what caused the pain – was it penetration, was it wild uncontrolled rubbing of the genitalia? It would really have been helpful if the trial court had received such details regarding the acts committed by the

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appellant. Sec. 8(1) of the Sexual Offences Act defines defilement as an act which caused penetration with a child. Penetration is further defined to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person” 13. Unfortunately the clinical officer’s evidence was not very helpful – what was the significance of the clean shiny anus – did it signify interference, penetration or no penetration - what made him conclude that there was evidence of sodomy? It is significant that Pw1 never referred to any bleeding, yet Pw3 claimed the child was bleeding from the anus and Pw2 said the bedsheets were blood stained. This was dislodged by the medical evidence, and unfortunately the blood stained bedsheet was never taken to police or presented in court as exhibit. Without evidence of penetration, the offence of defilement was not established. I must say this is one very unfortunate case which was poorly investigated and poorly prosecuted; and the conviction on the charge of defilement was unsafe and is quashed. However the evidence confirms from what the minor described, and what Pw3 state that he found the minor naked and crying while the appellant was only in his underpant – but was an indecent act committed with minor. The Sexual Offences Act Section defines an indecent act as “an unlawful intentional act which causes – a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration. 14. Unfortunately, none of this was established with. Consequently, the conviction was unsafe and is quashed. The sentence is set aside and the appellant set at liberty forthwith unless otherwise lawfully held. Delivered and dated this 13th day of July, 2017 at Bungoma. H.A. OMONDI JUDGE.

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