REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL APPEAL NO. 22 OF 2016 JOEL NG'ATIA MALIANZO.......... APPELLANT VERSUS REPUBLIC................................... RESPONDENT (From the original conviction and sentence in Criminal case No. 1048 of 2012 of the Chief Magistrate’s Court at Busia by Hon. M.A Nanzushi– Senior Resident Magistrate) JUDGMENT JOEL NG'ATIA MALIANZO, 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 28 th May 2012 in BUSIA County, he intentionally and unlawfully caused his penis to penetrate the anus of E.W, a child aged 5 years. He was sentenced to serve life imprisonment. He has appealed against both conviction and sentence. The appellant was in person. He raised five grounds of appeal that I have summarized as follows: 1. That the learned trial magistrate erred in law and in fact by disregarding the violation of the appellant's rights. 2. That the learned trial magistrate erred in law and in fact by relying on circumstantial evidence. 3. That the learned trial magistrate erred in law and in fact by relying on hearsay and contradictory evidence. 4. That the learned trial magistrate erred in law and in fact by ignoring the appellant's defence. The state conceded the appeal through Mr. Obiri, the learned counsel. The facts of the prosecution case were briefly as follows: When the complainant's mother discovered that she was bleeding from her anal orifice, she enquired what could have happened. This is when the complainant informed her that she was defiled. She took her and others to where she was defiled. This was inside a telecommunication booster station. Inside the booster station, where the complainant said she was defiled, some blood was seen. The appellant was the one manning the booster station.
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The appellant denied any involvement in the offence. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence 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. I have noticed that 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 this matter came up for hearing on 28th September 2015, the learned trial magistrate declined to grant an adjournment to the appellant due to the absence of his counsel. The court observed that the case was previously adjourned because of the same reason. He cannot claim that he was denied his right to be represented by a counsel. His counsel had a duty to inform the court of his predicament if any. This was not done. This ground lacks merit and is dismissed. The appellant contended that the learned trial magistrate erred in relying on circumstantial evidence. In the case of MOHAMED & 3 OTHERS vs. REPUBLIC [2005]1KLR 722 Osiemo Judge explained what circumstantial evidence is as follows: Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for reasonable inference of the occurrence of the fact at issue. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Having said what circumstantial evidence is, the next issue is whether such evidence is as good as direct evidence or is in another category altogether. In the case of REPUBLIC vs. TAYLOR WEAVER & DANOVAN [1928]21 CRIMINAL REVISION 20 it was said: Circumstantial evidence is very often the best evidence of surrounding circumstances which by intensified exam is capable of proving proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. From the above decision, it is abundantly clear that circumstantial evidence is as good as direct evidence if not better. The court relying on circumstantial evidence is enjoined to analyze such evidence before making a finding in the following manner as was stated in the case of REPUBLIC vs. VERONICA WANJUE NJUE [2014] eKLR as follows: A Court relying on circumstantial evidence must be satisfied that: (a) the incriminating acts are incompatible with the innocence of the accused or the guilt of any other person. (b)The incriminating facts are incapable of explanation upon any other reasonable hypothesis than that of his guilt. Before drawing the inference of the accused’s guilt – from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. In the instant case I will endeavour to establish whether it was safe to rely on circumstantial evidence or not. The evidence on record established that the complainant was defiled. This is what the evidence of T A (PW4) indicated. The complainant (PW2) testified of how the appellant defiled her in the anus. When
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she cried he covered her mouth with his hand. The complainant's mother (PW1) testified that after the appellant was arrested, he was asked to open the booster area compound. When he did so, the complainant took them to point where she said she was defiled on a carton box. The carton box had blood stains. The appellant alleged the blood stains belonged to his girlfriend. The carton box with blood stains was taken for analysis. The report was produced by Corporal Mary Boke (PW6). Though there was no success in generating DNA profile from the carton stained with blood, we cannot conclude that the blood was there by coincidence. This is where she pointed out to be the spot where she was defiled. The evidence of Inspector Seroney Saina (PW6) was that the complainant picked out the appellant at an identification parade. Though the state through Mr. Obiri, the learned counsel conceded the appeal, I find that the conviction was safe. The prosecution did discharge the onus of prove. I did not find instances where the trial court relied on hearsay evidence. The defence of the appellant was considered before it was dismissed. During the trial, the age of the complainant was given by various witnesses as five years. This included her mother, the clinical officer and the investigating officer. No official document was however tendered in evidence to prove her age. In the case of FAPPYTON MUTUKU NGUI vs. REPUBLIC [2012] eKLR Judge Joel Ngugi observed: I would be prepared to clarify that “conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean that there has to be a formal age assessment report or the production of a birth certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases. In this particular case, I am prepared to hold that available evidence shows that the victim was less than eleven years old, which is the threshold for triggering a charge under section 8(2) of the Sexual Offences Act. In the instant case make a finding that since the complainant's age was not challenged at the trial, the observations by the various witnesses and the trial court means that that was her age and not twelve years as the appellant has contended. Section 8(3) of the Sexual Offences Act provides as follows: A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. The appellant was tried under the wrong sub-section. However it was therefore erroneous for trial court to mete out a sentence not provided under the sub- section he was charged. I will therefore substitute the sentence meted out with the one provided for under section 8(3) of the Sexual Offences Act. He will serve twenty years imprisonment from the date of the sentence by the learned trial magistrate. To that extent only does his appeal succeed. DELIVERED and SIGNED at BUSIA this 18th day of July, 2017 KIARIE WAWERU KIARIE JUDGE
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