Luke Shindikha v Republic

5. After carefully analyzing the evidence placed before him, the learned trial magistrate reached the conclusion that the prosecution had proved the charge of defilement beyond any reasonable doubt. The appellant was accordingly convicted of the same and sentenced to 20 years imprisonment as by law provided. The Appeal 6. The appellant being aggrieved by both conviction and sentence filed this appeal on 13.2.2015. He set out 3 substantive grounds of appeal but after he brought an advocate on board the petition of appeal was amended on 21.06.2017. The amended petition of appeal was premised on the following grounds;1a). The trial Magistrate erred in law and fact in failing to appreciate the ingredients [of the offence] of defilement. 1b). The trial Magistrate erred in law and fact in failing to appreciate the fact that the conviction was based on the evidence of a sole witness. 1c.) The trial magistrate erred in law and fact in failing to consider the appellant’s alibi 2. That the trial magistrate convicted me without considering that the age of the complainant was never ascertained 3. That the trial magistrate erred in law and fact by convicting me without considering that I was not medically tested to ascertain if indeed it was me who committed the alleged crime. 4. That the trial magistrate rejected my alibi defence which was cogent and sufficient. 4A.) The age of the accused was not ascertained(sic) 5A. The conviction was against the evidence on record 7. It is the appellant’s prayer that the appeal be allowed, conviction quashed and sentence passed by the subordinate court be set aside. Duty of this court 8. As this is a first appeal, this court is under a duty to give the appellant a thorough rehearing of his case, the only caution being that it has no opportunity of seeing and hearing the witnesses who testified during the trial. This caution means two things. One is that where the findings of the learned trial Magistrate are based on assessment of the demeanor of witnesses, those findings should not be interfered with because it is only the trial court that had the opportunity to observe the witnesses for their demeanor during the hearing. The second is that it is a big thing for an appellate court to overturn the findings of a trial court unless it is clear that the facts of the case do not support the findings or that the trial court applied the wrong principles in reaching its conclusions. These principles have been stated over and over again by the courts. For guidance see the case of Okeno – vs – Republic [1972] EA 32. The Prosecution Case 9. The prosecution case is brief. On 16.07.2014 at about 6.00am, the complainant, a girl aged 12 years

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was on her way to school when she met the appellant who offered to give her a ride on his bicycle. She refused the offer for a bicycle ride, but he persuaded her to accompany him to his house and promised to marry her. She went with him to his house and the two slept together until the following morning at about 11.30am when the appellant chased her away. During the night, they engaged in sex several times. 10. When The complainant was thrown out of the house by the appellant she went straight home and on being asked by her father, Z, where she had been she told him where she had been. Before his daughter returned home Z had made several enquiries as to where she could be. Z took his daughter to the village elder where he reported the matter before proceeding to Matete Police station and later to Matete Health centre. Z produced his daughter’s birth certificate xxxxxxx as PExhibit 2. From the Certificate of Birth, the complainant was born on 28.6.2002. 11. At Matete police station, the report of the incident was received by Number 83762 PC Caroline. After the complainant gave an account of what had befallen her on 16.07.2014, at the hands of the appellant, PC Caroline booked the report before sending her to Matete Health Centre for medical check-up and treatment. PC Caroline later issued a warrant for the arrest of the appellant. The appellant was arrested by number 245881 APC Sitienei on 29.7.2014 after the appellant was identified to him by both the complainant and Z. On being taken to Matete Police Station, the appellant was handed over to PC Caroline who preferred the charge of defilement against the appellant. 12. Salama, a Clinical Officer at Matete Health Centre examined the complainant under OP Number 11393/14. The examination revealed a broken hymen and healed tears on her vagina. There was also some foul smell and some whitish discharge on her vagina. Urinal analysis showed the presence of spermatozoa. Pregnancy and HIV tests were negative. The duly filled P3 form was produced as PExhibit 1(a) the initial treatment notes as PEXh.1 (b). Salama further testified that the foul smell could have been as a result of sexual intercourse. The Defence Case 13. The appellant gave an unsworn testimony and denied committing the offence. He also denied any knowledge of the complainant. He stated and that he saw her for the very first time in court. He also raised a defence of alibi, saying that he was not at home on 16.07.2014 as he had gone to harvest sugarcane at an undisclosed location. He alleged that he returned home on 28.07.2014 when he was arrested. The appellant did not call any witnesses Submissions 14. The appellant’s written submissions are dated 21.6.2017. Counsel for the appellant submitted that there is no evidence on record to sustain the conviction of the appellant and urged the court to allow the appeal. 15. The appeal was opposed. Mr. Juma prosecution counsel submitted that all the ingredients of the offence of defilement were proved by the evidence on record and asked the court to affirm the conviction and sentence by the learned trial court. Issues for Determination 16 After carefully analyzing all the above evidence, the submissions and the judgment of the learned trial Court evidence as well as the grounds of appeal and the law, the following issues arise for determination:a) Whether the complainant’s age was proved b) Whether there was penetration and c) Whether the prosecution proved that it was appellant who defiled the complainant and caused the penetration

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d) Whether the prosecution proved its case against the appellant beyond any reasonable doubt Analysis and Determination 17. Issues (a)(b) and (c) above constitute the ingredients of the offence of defilement. The first issue is of particular importance because it is the age of the complainant or victim which determines the extent of the punishment to be meted out to an accused. In this case was the age of the complainant proved? 18. When the complainant testified she told the court that in July, 2014 when she was defiled, her age was 12 years. During her testimony, she identified the certificate of Birth S/N/ xxxxx – PMFI 2 which showed that she was born on 28.06.2002. Z produced the said certificate of birth to confirm the complainant’s date of birth. There is therefore no doubt in the mind of this court that the age of the complainant was clearly proved through documentary evidence. There could be no better proof than the certificate of birth through which the complainant’s date of birth is clearly indicated 19. During cross examination of both the complainant and Z, there was no suggestion from the defence that the said documentary evidence could be untrue. This court therefore accepts that evidence which remained uncontroverted throughout the trial. The appellant’s contention in ground 2 and 4A of the appeal that he complainant\s age was not ascertained could not be further from the truth. That complaint is accordingly rejected. 20. The second issue for determination is whether there was penetration. Section 2 of the sexual offences Act No. 3 of 2006 defines penetration as either being partial or complete insertion of a male genital organ (penis) into the female genital organ (vagina). There was in my considered view, a good reason for that definition because in many instances of defilement the act of penetration is never completed either because the perpetrator is caught in the act or he is usually in a hurry to leave lest he is caught in the act. 21. In the instant case, the complainant testified that on the 16.07.2014, she went to the appellant’s house and they slept in the same bed during the night and had sexual intercourse several times. When she was taken to hospital on 17.07.2014, she was examined by Salama who established that her hymen was broken and she also had spermatozoa in her urine. She was also giving off a foul smell. Salama was categorical that the complainant had been defiled. Although the appellant denied committing the offence, I have no reason to doubt the medical evidence given by Salama to the effect that the parameters of defilement, namely broken hymen, presence of spermatozoa and foul smell were present. I find no merit in the appellant’s alibi defence that he was not in the area where the offence against the complainant was committed. In my considered view that defence was an afterthought that has been firmly displaced by the prosecution case against him. 22. The final issue for determination is whether the prosecution proved beyond doubt that it was the appellant who defiled the complainant. The complainant testified that she knew the appellant before as he used to accost her along the way as she walked to school. On this material day they met at around 6.00am and went to his house. They stayed together that whole day and throughout the night when they engaged in sex several times. It is true that there was no eye witness to the fact that the complainant walked together to the appellant’s house on 16.7.2014. For this reason I am aware of the inherent danger of relying on the evidence of that single witness to convict the appellant. However, from the evidence on record, I have formed the considered opinion that the complainant was a truthful witness and the fact that it was in the morning no issue of mistaken identity could arise. The record does not reflect the slightest suggestion that the complainant was a liar. She told both Z and PC Caroline what had happened to her when she was with the appellant. Having come to the conclusion that the complainant was a truthful witness, and bearing in mind the proviso to Section 124 of the Evidence Act, cap 80 laws of Kenya I am satisfied that the conclusion by the learned trial Magistrate that the appellant was the defiler was well founded. I accordingly affirm the same as I also reject the appellant’s alibi defence which I find too weak to be of any consequences in the face of the very strong evidence against him. Conclusion

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23. In Conclusion I am satisfied that the prosecution proved its case against the appellant beyond any reasonable doubt and that the conviction of the appellant is fully supported by the evidence on record. 24. I therefore find no merit in the appeal and dismiss the same on both conviction and sentence. Right of appeal to the Court of Appeal within 14 days from today. Orders accordingly Judgment delivered, dated and signed in open court here at Kakamega on this 5th day of October 2017 RUTH N. SITATI JUDGE In the presence of;……Mr. Momanyi holding brief for Athung’a…………….for Appellant ……Mr. Ng’etich(present)…………………………………for Respondent ……Polycap Mukabwa……………………………………….Court Assistant

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