REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL APPEAL NO. 1 OF 2017 TITUS WABWIRE MAKOKHA..................................APPELLANT VERSUS REPUBLIC......................................................................REPUBLIC ( From the original conviction and sentence in SOA No.52 of 2015 of the Chief Magistrate’s Court at Busia by Hon. J.N Maragia– Resident Magistrate) JUDGMENT TITUS WABWIRE MAKOKHA, the appellant herein, was convicted for the offence of defilement contrary to section 8(1) (3) (sic) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on 21st March 2015 in BUSIA County, he intentionally and unlawfully caused his penis to penetrate the vagina of C.B.O, a child aged 13 years. He was sentenced to serve twenty years imprisonment. He has appealed against both conviction and sentence. The appellant was in person. He raised four grounds of appeal that I have summarized as follows: 1. That the learned trial magistrate erred in law and in fact by relying on hearsay and contradictory evidence. 2. That the learned trial magistrate erred in law and in fact by convicting the appellant on the basis of evidence that had not proved the offence. 3. That the learned trial magistrate erred in law and in fact by disregarding the appellant's defence. The state opposed the appeal through Mr. Obiri, the learned counsel. The facts of the prosecution case were briefly as follows: While the parents of C.B.O were away, the appellant went to their home and defiled the complainant after sending another child on an errand. The appellant denied that he committed the offence and pleaded an alibi. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence
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adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32. The charge was erroneously drafted. It ought to have read contrary to "...section 8(1) as read with section 8(3) ..." From the record, the appellant understood the charge before pleading to it. He subsequently participated fully in the trial. I make a finding that he was not prejudiced in any way and the defect is curable under section 382 of the Criminal Procedure Code. When the mother of C.B.O returned home from a funeral at about 3 p.m, C.B.O's cousin aged 7 years reported to her what had transpired while she was away. The report was to the effect that the appellant went to the home and send him away to call Mama Lavender. This was after he had prevailed upon the complainant not to go where the appellant was calling her behind a toilet. When he returned C.B.O informed him that the appellant had defiled her. This was after taking her into the house. When she (C.B.O's mother) checked her daughter, she found a whitish discharge. M.O (PW2) is a seven years old boy. He testified that Wabwire went to their kitchen and beckoned C.B.O to follow him. He asked him for some water and after that he send him to call Mama Lavender. When he returned, C.B.O informed him that he (Wabwire) had defiled her. He said he knew Wabwire but he was not the appellant. It was only after he was stood down for what the prosecutor said was for him to refresh his memory that he purported to identify the appellant as the offending Wabwire. This was a dangerous approach to such a serious case. One can be justified to conclude that he was stood down for coaching. The prosecution did not attempt to reconcile his earlier contention and what he was telling the court. Without reconciling this obvious contradiction, it was prejudicial to base a conviction on his evidence. Whereas C.B.O's testified that these children knew the appellant very well, when M.O later purported to identify the appellant, he said he had seen him on that day only. This evidence of M.O painted him as a witness who was described by the court of appeal in the case of NDUNGU KIMANYI vs. REPUBLIC [1979] KLR 283, (MADAN, MILLER and POTTER JJA) in the following terms: The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence. It was unsafe to rely on his evidence. The complainant's age was placed between 13 years (according to her mother) and 15 years according to the age assessment report. For a child of this age to have sexual liaison with an adult, there would be obvious signs of the same. When she was examined except for the absence of a hymen, dirty whitish discharge and some infection, there was no other positive finding. The medical examination did not indicate the approximate age of the perforation of the hymen. The appellant was not examined for a possible link to the infection. The upshot of the foregoing analysis I make a finding that the conviction was unsafe. The same is quashed and the sentence set aside. The appellant is accordingly set at liberty unless if otherwise lawfully held. DELIVERED and SIGNED at BUSIA this 18th day of July, 2017 KIARIE WAWERU KIARIE
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JUDGE
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