High Court 4489 of 2017

prosecution and never shifts to the accused. He cited the decisions in Sawe v Republic [2013] eKLR, Mark Oiruri Mose v Republic [2013] eKLR and Dominic Kibet Mwaren v Republic [2013] eKLR in support of his proposition. 5. The Appellant is of the view that the child was coached as she used terms and knew of acts within the adult realm. He further states that he was not medically examined in order to connect him with the offence. His case is that his alibi defence was not considered urging that he had no obligation to prove his alibi. He relies on the finding in Osiwa v R [1989] KLR 469 to support this assertion. 6. The Appellant submits that his constitutional rights under Articles 35(1)(a) & (b), 49 and 50(2)(j) of the Constitution were violated as the prosecution did not honour its duty to disclose to him all the statements and exhibits to be used in the trial and that he was not brought to court within 24 hours of arrest. The Appellant also submits that the sentence passed was harsh. Consequently the Appellant urges the court to allow his appeal. 7. The Respondent opposed the appeal and asked the court to uphold the conviction and sentence. It is the Respondent’s position that the prosecution proved its case beyond reasonable doubt and that the law requires prove beyond reasonable doubt and not the standard urged by the Appellant of beyond a shadow of doubt. 8. The Respondent submits that the ingredients of Section 20(1) of the Sexual Offences Act were proved as it was established that the Appellant who is a male penetrated the complainant whom he knew to be his daughter. According to the Respondent, it was established that the Appellant and the victim were father and daughter and the Appellant also admitted this relationship. Further, that PW2 and PW4 testified that the victim walked with difficulty and the medical evidence proved that there was penetration as the labia minora and the labia majora were inflamed and the hymen compromised. 9. The Respondent further submits that the trial court warned itself of the likelihood of a frame-up as it noted the hostility between the Appellant and PW2 who is the Appellant’s former wife and also the mother of the child. It is the Respondent’s view that the victim gave evidence and the trial court noted that there was no doubt that the child had told the truth. Also, that the testimony of the victim was corroborated by the other witnesses and the conviction was on both the strength of the direct evidence and the medical evidence. 10. The Respondent opines that the medical evidence was produced in accordance with sections 33 and 77(1) of the Evidence Act as the prosecution had sufficiently laid the basis for the production of the evidence in that manner. On this point reliance was placed on the Court of Appeal decision in Chaol Rotil Angela v Republic [2001] eKLR. 11. On the allegation of infringement of constitutional rights, the Respondent contends that the Appellant has not stated the rights violated nor given particulars of the alleged violations. Further, that the Appellant had the opportunity to cross-examine all the witnesses although he elected not to cross-examine the victim. Also, that he has not demonstrated that the alleged violation occasioned him injustice nor that the same cannot be adequately compensated by damages. 12. As for the sentence, the Respondent submits that the same was legal as the law provides for two scenarios; one where the sentence is not less than ten years and the other being life imprisonment if the victim is a child as was the case here. 13. In response to the contradictions in the dates and the age of the child the Respondent asserts that the same are minor immaterial errors curable by Section 382 of the Criminal Procedure Act. Further, that the errors did not occasion any injustice nor were they pointed out during the trial. It is the Respondent’s position that in any case there was only one Sunday in all the dates referred to by the witnesses. 14. In criminal cases the prosecution is charged with the responsibility of proving their case beyond reasonable doubt. This onus does not shift to the accused person. The trial court found that the

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prosecution had discharged its onus. The duty of this court at this juncture is to re-evaluate, re-assess and re-analyze the evidence afresh in order to reach its own conclusion. In doing so, this court should be alive to the fact that the trial court had the opportunity and the advantage of observing the demeanor of the witnesses-see Okeno v R. [1972] E.A. 32 and Pandya v R. [1957] E.A. 336. 15. The question is whether sufficient evidence was adduced by the prosecution to support the conviction. The court will also consider if indeed the Appellant’s trial rights were violated as alleged. 16. The constitutional issue raised takes precedence. The Appellant alleges lack of supply of information by the prosecution. A perusal of the trial court record does not indicate that an order for the supply of witness statements to the Appellant was issued or that the statements had been supplied. The record does, however, indicate that the Appellant participated in the trial as evidenced by the cross-examination of the witnesses. He even took plea a second time having requested to be refreshed of the charges facing him. I am therefore of the view that if indeed there was failure to provide the Appellant with the evidence before the trial, then the said failure did not occasion any prejudice or injustice to him. I must, however, add that the requirement to supply an accused person with the evidence before the commencement of the trial is a constitutional imperative and it is important that the court record shows compliance with this requirement. 17. At the trial the prosecution lined up four witnesses namely the complainant, her mother, a clinical officer and a police officer who testified as PW1, PW2, PW3 and PW4 respectively. PW1 was subjected to a voir dire examination on account of her apparent tender age and the trial court reached the conclusion that the child did not understand the nature of an oath and would give unsworn evidence. 18. In her testimony, PW1 S. N. A. stated that she was eight years and in standard one. She stated that her mother was H. I. and her father, whom she identified in the dock, was Etoi. According to her narrative, she had gone to visit with her grandmother on a Sunday. At night her father took her and removed her skirt. He then made her lie on her mother’s bed and lay on her chest and abdomen. It was her testimony that he inserted his penis in her vagina and raped her. PW2 was not present. The Appellant then took her to the bar and salon. She later informed her mother (PW2) of the incident and she was taken to the hospital. 19. PW2 H. I. testified that on 1st September, 2015 upon the insistence of the complainant she took her to visit her grandmother, B. B is the Appellant’s mother. The grandmother insisted that the child be left with her for three days which she did. She told the court that she had separated with Appellant at the time. On the third day she returned to pick PW1 only to notice that she walked with difficulty and upon enquiring found out that she had been defiled by the Appellant. The child reported to her that the Appellant had inserted his penis in her vagina. PW2 then reported the matter to the police who advised her to take the child to hospital where the child was treated. The Appellant was subsequently arrested and charged. PW2 further testified that her daughter was aged 7 years and produced a birth certificate in proof thereof. On cross-examination she stated that the child informed her that she slept with her grandmother but the Appellant took her when the grandmother was not around. 20. PW3 Caleb Baraza a clinical officer testified that on 2nd September, 2015 at about noon, S. N. A., a seven year old child was brought in on allegation of sexual assault by her father. She had been attended by a clinical officer by the name Doris who referred the patient to Dr. Lusamaba. PW3 stated that he was familiar with the handwriting and signatures of the clinician and doctor as he had previously worked with them before they were transferred. On examination, it was found that the labia minora and the labia majora were inflamed and the hymen was broken thus showing that there was penetration. He confirmed that the P3 form was filled on 2 nd September, 2015. He also stated that the conclusion of penetration was reached upon examination which revealed the swelling and compromised hymen. He stated that in addition to the conventional treatment the minor was given psychological counselling. The witness produced the P3 form as an exhibit. Upon cross-examination he explained that the patient was treated by all three medical personnel including him, and that he could not tell the person who had defiled the child and neither was the Appellant brought to him for examination. 21. The final witness was PW4 Police Constable Zinesta Makau who stated that on 1 st September, 2015

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she was on duty at Adungosi Police Station when PW2 escorted the complainant to the Station. The child was unable to walk well. She took over the matter after the case was minuted to her for investigations. They had come with treatment notes and were issued with a P3 form which was filled in on 3 rd September, 2015. PW4 established that the child had been defiled by her biological father, as confirmed by the birth certificate. She had the Appellant arrested and charged. During cross-examination PW4 denied that the Appellant had been framed by PW2. She also denied tracing the child for purposes of having her record a statement against him stating that the Appellant was only charged after evidence had been gathered. It was the evidence of PW4 that the incident occurred on 30 th August, 2015 and was reported on 1st September, 2015. 22. The defence featured the Appellant as the only witness. He testified that he was a boda boda rider. That on the material Sunday he woke up and found the child and his mother sitting outside. The Appellant enquired why the child had not gone with PW2 and was informed by his mother that the child was to be taken to the salon. He then offered to take her to the salon. He took the child to the salon and left for Malaba. On returning he found that the child had already left for home. He left for town and at about 2.00 p.m. his mother who is the grandmother of the child called to inform him that the child walked ‘badly’. He went home only to find that PW2 had taken the child to hospital. He followed them there but found they had left for his mother-in-law's home where he could not go. He was arrested on that night. The Appellant stated that he had a fall-out with PW2 who had left him to suffer alone with the child. He vehemently denied defiling his own child. On cross-examination he confirmed that the complainant was indeed his daughter and that he did not live with PW2, the mother of the child. He also confirmed that he took the child from his mother’s house to the salon and passed a chang'aa den that was on the road. His evidence was that the child was healthy at that time and he was not present when PW2 went for her. 23. The trial court cautioned itself on the possibility of trumped up charges due to the hostility it discerned between PW2 and the Appellant. After assessing the evidence the court concluded that the Appellant committed the offence. Consequently, the court convicted and sentenced him accordingly. 24. I have looked at the law that the Appellant is said to have breached. The offence has three ingredients: a male perpetrator, an indecent act or one that causes penetration with a female, and knowledge by the male person that the female is within the consanguinity parameters defined by that provision. In the present case, there is no doubt that the Appellant is male and knew that the complainant, a female, was his daughter. The Appellant acknowledges the existence of this relationship. The bone of contention is the allegation of penetration and the identification of the perpetrator. 25. One of the Appellant’s grounds of appeal is that the production of the evidence did not conform to the provisions of the Evidence Act. I take it that the Appellant is challenging the manner in which the medical evidence was adduced by PW3 and the manner in which the same was received by the court. It is noted that PW3 neither treated the complainant nor filled the P3 form for her. 26. Section 77 of the Evidence Act allows the use of a report by a government analyst, medical practitioner, ballistics expert, document examiner or a geologist as evidence. The court may presume that the signature on such document is genuine. The court may summon the author of such document and examine him as to the subject matter thereof. In view of that provision the Appellant is therefore not allowed to challenge the production of the P3 form per se. I am therefore in agreement with the Respondent that the production of the documentary medical evidence is provided for by the Evidence Act. 27. The next issue is whether the production was done in the manner envisaged by the law. Section 77(3) requires the summoning of the author of the report if the court decides that it is necessary to do so. Section 33 of the Evidence Act provides for production of statements “made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.” Among the circumstances under which such a statement can be produced is if it is “made in the course of business.” Of course such a statement can only be produced if it is admissible in the first instance.

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28. In the instant case PW2 testified that the authors of the documents he intended to produce had been transferred. Further, that he had worked with them and was familiar with their handwriting. A basis for the production of the documents by a person other than the authors had thus been laid. However, the prosecutor ought to have explained why he found it difficult to secure the attendance of these witnesses in court. A transfer is of itself not sufficient ground for failing to avail the maker of a document in court especially where the document is likely to generate intense cross-examination. It is the duty of the prosecutor to demonstrate to the court that securing the attendance of a witness would delay the matter or involve unnecessary expense. Nevertheless, I find that the production of the treatment notes and the PW3 form complied with the requirements of the Evidence Act. I also note that the Appellant cross-examined PW3 and was thus not prejudiced by the act of PW3 producing the documents as exhibits. 29. According to PW3, the examination of the complainant established penetration. This conclusion was reached based on the treatment notes dated 2nd September, 2015 that indicated that there was penetration as the patient was not walking properly, the genitalia was inflamed and the hymen was broken. The medical evidence was uncontroverted. Based on the medical evidence and the other evidence on record, the trial court cannot be faulted for reaching the conclusion that the complainant had indeed been defiled. 30. The only question that remains to be answered is whether the Appellant was connected to the offence by the evidence adduced by the prosecution. The trial court believed that the child was telling the truth and found that her evidence was corroborated by other witnesses. That the Magistrate could convict on the strength of the evidence of the child alone is not in dispute. Section 124 of the Evidence Act requires corroboration, by other material evidence, of the evidence of a victim of crime who is a child of tender years except in sexual offences where if the “only evidence is that of the alleged victim, the court shall receive the evidence and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 31. The meaning of the proviso to Section 124 was expressed by the Court of Appeal in Mohamed v Republic [2006] 2 KLR 138 as follows:“It is now settled that the Courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.” 32. The reason recorded by the trial court for believing the evidence of the victim was that the evidence was not only corroborated but the Appellant was her father and she bore no ill will against him. In the trial court’s opinion “[d]espite the fact her parents had separated the victim still loved her father and no wonder she was happy and insisted on visiting her paternal grandmother even when her mother had tried to stop her from going there.” Save for the fact that the court must have observed the demeanour of the witnesses, the statement that the child loved her father is not on record and PW2 never testified that she tried to stop the visit. The said statement by the trial court should not have therefore formed the basis for reaching the conclusion that the child was truthful. 33. The trial court also found that the Appellant alone had the opportunity to be with the child and therefore circumstantial evidence pointed to his guilt. 34. According to the decision in the landmark case of the East African Court of Appeal in Kipkering Arap Koskei & another v R (1949) 16 EACA 135 for guilt to be inferred from circumstantial evidence the “... the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt, …” 35. The Court of Appeal in Daniel Muthomi M’arimi v Republic [2013] eKLR adopted, with approval, the finding in Abanga alias Onyango v Rep CR. A. No. 32 of 1990 (UR) on the test to be applied before a conviction based on circumstantial evidence can be entered. The test is as follows: “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:

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(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 36. The trial court reached the conclusion that it is only the Appellant who had the opportunity to commit the offence. However, the investigating officer never visited the scene so as to give the court a clear picture of the layout of the scene of crime. In a case like this, where the only evidence is that of the victim of crime, corroborative evidence would be found by making a visit to the scene. The child could have pointed to the investigator the bed she was allegedly defiled on. The investigator could have also established the distance of the site of the crime from the surrounding houses. 37. It is also noted that the prosecutor did not bring out certain points clearly. The incident was alleged to have taken place at 9.00p.m. when the child's grandmother was away. There was need to find out whether the grandmother of the child and the Appellant were indeed the only persons living in that homestead. This was important as some of the witnesses had testified that the incident took place during the day. 38. The complainant stated that the offence occurred on a Sunday night when she was not in school but no dates were mentioned. The Appellant in his defence, without mentioning the date, testified that on a Sunday morning, he found the child and his mother seated outside. As the court put substantial weight on the call made to the Appellant by the grandmother of the child, then the 'opportunity' the Appellant would have had with the child ought to have been during the time he took her to the salon since he was arrested the very night. 39. The issue is further compounded by the testimony of the other witnesses which presented different possible dates that do not add up. PW2 clearly told the court that she left her daughter at her grandmother's place on 1st September, 2015 and picked her after three days, which would mean either on 3rd or 4th September, 2015, depending on whether or not the first and last days were inclusive. None of those dates fell on a Sunday as per the calendar for the year 2015. It was her evidence that the report to the police was made after she picked the child. Her testimony was contradicted by PW4’s testimony to the effect that the incident was reported on 1 st September, 2015. This would be the same day the complainant was dropped to visit the grandmother, and if that was the day, then the offence would have taken place during the day between the time of being dropped and picked up, apparently on the same day. The evidence of PW4 does not therefore tally with PW2’s testimony at all. The charge sheet on the other hand indicates that the offence occurred on 31 st August, 2015. Interestingly the P3 form issued on 1 st September, 2015 by the police indicates that the date of the offence was on 30 th August, 2015 at around 17.00 hours. The treatment notes also indicate the date of the offence as 30th August, 2015. It even gets more confusing as PW4 stated that the complainant was taken to the Police Station on 1st September, 2015 together with her medical notes. 40. The Respondent urges the invocation of Section 382 of the Criminal Procedure Code to cure the discrepancies on dates stating that the issue was not raised during the trial and that the Appellant was not prejudiced nor was there a miscarriage of justice. Further, that there was only one Sunday among the dates mentioned meaning that the crime could have only occurred on that Sunday. The Respondent’s proposition would result in changing the contradictory testimony so as to engineer the evidence to read that the offence occurred on a Sunday. That would indeed result in injustice to the Appellant as he will end up be convicted on contradictory evidence which can only lead to the conclusion that he may never have committed the offence. The problem does not lie in the charge sheet but with the contradictory evidence adduced by the witnesses. It is my finding therefore that any thread of evidence that may have connected the Appellant to the crime was dismantled by the contradictions as to the date and time of the

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offence. 41. The court did put weight on the call made by the grandmother to the Appellant. It also ought to have interrogated the curious fact that she must have been the first person to be with the child after the alleged incidence but only noticed that the child had a strange walk at 2.00p.m. long after the Appellant had taken her to the salon and brought her back home. 42. There are some gaps in the prosecution case that the evidence of the grandmother of the child may have helped to iron out. In Edward Shivanji Makanga v Republic [2015] eKLR the Court held that “[f]ailure to call a witness will only be fatal if the evidence presented by the prosecution is insufficient to sustain a conviction and contains gaps which could have been filled by a witness who was not available.” 43. In the case at hand the grandmother of the child was never called as a witness. The court stated that she could not have been called to testify against her own son. This finding by the court was not based on any evidence. There is no evidence that a statement was recorded from this witness. There also no evidence on record that witness was summoned but refused to attend court. The mother of the Appellant was a compellable witness and there is no evidence to show that she was not competent to testify. The prosecution ought to have availed the witness or given cogent reasons why the witness was not called to testify. This aside, the presence of the grandmother as a prosecution witness was also crucial in establishing whether the Appellant had the opportunity of committing the crime. 44. Sexual offences attract stiff custodial sentences whose effect is to shatter the lives of those found guilty. Whereas, Section 124 of the Evidence Act provides that an accused person can be convicted for a sexual offence if the evidence of a child is truthful, it is always important for the prosecution to avail all the evidence to the court. Investigations must be thorough and all leads must be followed. An accused person should never be locked away for life based on poor investigations. 45. The kind of evidence adduced against the Appellant in this case did not meet the threshold for reaching the conclusion that he actually had sex with his daughter. The contradictory nature of the evidence adduced, as to the date and time the offence was committed, leave room for doubts as to the culpability of the Appellant. The benefit of doubt ought to have gone to him. Owing to the contradictions in the evidence of the prosecution witnesses and the failure to call a material witness, I find the Appellant's conviction unsafe. 46. The result is that this appeal succeeds. The conviction is quashed and the sentence set aside. The Appellant is set free forthwith unless otherwise lawfully held. Dated and signed at Malindi this 27th day of June, 2017 W. KORIR, JUDGE OF THE HIGH COURT Dated, signed and delivered at Busia this 12th day of July, 2017 K. W. KIARIE, JUDGE OF THE HIGH COURT

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