Enock H. Okoyana Murambi v Republic

unproven extraneous matters when justifying use of a wrong name on an accused person and also when creating reasons why prosecution’s took 10 months from date of alleged offence completion of investigation and the date accused was eventually arrested and charged despite legal authorities that such delays are sufficient to acquit one accused.(sic) 3. That the learned trial magistrate greatly erred in law in finding that PW1 was a witness of truth on whose sole evidence she could safely convict the accused when in fact her own record of evidence contains very numerous not less than seven (7) incidences of lack of truth in PW1’s testimony. 4. That the learned trial Magistrate totally erred in law and fact by purporting to warn herself of the danger of convicting on un corroborated evidence of a single witness in sexual offences when in fact there were innumerable examples and incidence to prove that such warning was misplaced, and the evidence of PW1 should have been dismissed from the word go. 5. That the learned magistrate further gravely erred in law and fact when she purported to have found corroborative evidence which either did not exist, was not proved and/or does not amount to corroboration in sexual crimes. 6. That the said court erred in law and fact when it arrived at a conclusion of guilt[y] by shifting the burden of proof onto the accused to prove his alibi, instead of convicting on basis of prosecution proving its case beyond reasonable doubt. 7. That the time taken to write the judgment was excessive. 8. That the said court further erred in law and fact when it concluded that prosecution had proved the age of the complainant beyond reasonable doubt, and by allocating its own age on PW1 (15 years) which had not been raised and/or canvassed by anyone. 9.That the sentencing court erred in sentencing accused to 15 years which is manifestly excessive and illegal. 5. It is the appellant’s prayer that his appeal be allowed, conviction qushed and sentence set aside. Duty of this court 6. This being a first appeal this court’s duty is to evaluate the evidence afresh, analyse it and come up with its own findings bearing in mind the fact that it neither saw nor heard the witnesses during trial. Total reliance will be given to the evidence on record as captured by the learned trial magistrate during the said trial. See Okeno – vs – Republic [1972] E.A 32 and Mohammed Rama Alfani & 2 others – vrs – Republic Criminal Appeal No. 223 of 2002. It is to be remembered that failure to properly reevaluate the evidence on record would be a serious omission on the part of this court. The Prosecution Case 7. During the trial the prosecution called five (5) witnesses amongst them E.A, the complainant who after being taken through a voire dire examination was found fit by the trial court to give evidence upon being affirmed. In her evidence she told the trial court that at the time of the incident she was fourteen (14) years of age. It was on the 8.1.2009 at about 4.00pm while she was collecting firewood when the accused grabbed her, dragged her into his sugarcane plantation and defiled her. She claims to have been rescued by one Fridah John (PW3) and she was later taken to hospital by her mother where she was examined and a P3 form filled together with a treatment booklet. The matter was reported to the police and she was issued with the P3 form. She produced documents which were marked for identification and later produced as exhibits. 8. She was cross-examined by Mr. Shilenje and she reiterated her earlier testimony and explained how

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appellant defiled her. She added that she could not flee because the accused could have cut her with the panga he had. 9. PW2 Akwali Japheth Maloba the Clinical Officer examined the complainant 5 days after the said incident. He estimated the age of the complainant to be fifteen (15) years. The complainant was presented to him with a history of having been sexually abused by a person known to her. He explained that the patient was put on post exposure prolaxis to prevent HIV infection. It was concluded in the report that the complainant had been defiled and that there was forceful vaginal penetration. His estimation of the girl’s age was informed by the Baptismal certificate which was made available to him during the examination. PW3 was declared a hostile witness by the trial court. 10. PW4 No. 89353 PC Eric Mutuma investigated the case herein. He testified that during investigations he received the complainant’s baptismal card and had the complainant’s age assessed by Dr. Vuhya. He testified that he did not do anything else concerning the case. 11. PW5 was Francis Wasike, Clinical Officer from Webuye District Hospital. He testified that he examined the complainant on the 9th January, 2009 and that she complained of having been raped by someone known to her. He explained to the trial court the examinations he took the complainant through and produced the treatment clif/booklet and the post rape care form as PExhibit 1 and 3 respectively. 12. After hearing these witnesses the trial court was convinced that a prima facie case had been established against the appellant and put him on his defence. The Defence Case 13. The appellant gave a sworn statement and called one witness. In his defence, he claimed that he was not the per son charged and convicted because the name of the accused in the charge sheet was different from his own name as shown by his national identity card. He further testified that on the day he was alleged to have committed the offence he was on a bus travelling from Nairobi to Kakamega after visiting his son Bonventure Okoyana Murambi who testified as DW2. The appellant produced some mutilated bus tickets to support his alibi defence. The appellant also contended that for ten (10) months, the police did not arrest him, despite the allegation by the complainant that she reported the incident to the police the same day it occurred. However, the appellant stated that he had no grudge with the complainant, though he said he had a grudge with the complainant’s father. DW2 supported the appellant’s testimony that between 5th and 9th January, 2009, he (appellant) was visiting Dw2 in Nairobi. Both the appellant and DW2 urged the court to set him free on the basis that the prosecution had no sufficient evidence to warrant a conviction of the appellant. Submissions 14. Counsel for the appellant submitted that the appellant was wrongfully convicted because the name of the accused in the charge sheet was not appellant’s name. He also submitted that the complainant was not a truthful witness and that her evidence should have been totally discarded by the trial court. Further, counsel submitted that the complainant’s evidence needed corroboration because of the strict nature of the offence facing the appellant. It was also counsel’s submission that the age of the complainant having not been proved was enough to set the appellant free. Learned counsel was also of the view that the judgment of the learned trial Magistrate was replete with errors which should work in favour of the appellant. 15. Regarding sentence, counsel submitted that the sentence imposed upon the appellant was excessive. He urged this court to consider reducing the sentence on humanitarian grounds. 16. Mr. Jamsumba Onyango, counsel for the respondent conceded the appeal on grounds that the age of the complaint was not proved to the required standard. Counsel also submitted that there was no proof of penetration.

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Issues of Determination 17. It is now firmly established that a case of defilement will succeed only if the following ingredients are present. a. Proof of the age of the complainant b. Penetration c. The fact that it is accused and no-one else who caused the penetration. Determination 18. This court has carefully reconsidered and evaluated the evidence afresh as it is required to do and has also carefully considered the submissions and the law. It is trite that in any criminal trial the burden of proof is always on the prosecution and never shifts to the accused. In this regard Section 124 of the Evidence Act is worthy noting since it provides that “where the evidence of an alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.” 19. The safety valve to this requirement for corroboration is the proviso to Section 124 of the Evidence Act to the effect that “provided that where in a criminal offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” It is thus clear that in cases of sexual offences, the trial court can convict on the basis of the evidence of the victim so long as the court is satisfied that the witness is a truthful witness. 20. Now, I go back to the issues. The first issue is whether the age of the complainant was proved for lack of an age assessment report and/or birth certificate. Because of the strict nature of sentences for sexual offences, it is of utmost importance that the age of the victim is proved beyond doubt. Courts have held that in rural areas where parents never seem to be in a hurry to obtain birth certificates, documents such as baptismal cards, school leaving certificates can be used to prove the age of a minor. In this regard, I rely on the persuasive authority in the case of Rua Ngao Mwatuma – Vs – Republic Malindi HCCRA No. 21 of 2012 reported in [2014] eKLR. 21. In the instant case, there was proof of age through the production of the baptismal card which gave the complainant’s date of birth as 12th July, 1994. The card is dated 19th June, 1996. In my considered view, that evidence of the baptismal card sufficiently proved the complainant’s age. 22. The next issue for determination is whether there was penetration. Section 2 of the SOA defines penetration in the following terms. “Means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 23. From the above definition, the penetration need not be complete, and there is a good reason for this provision because defilers and rapists do no usually have time for deep penetration. What they seem to drive at is to have sexual access to the victim, no matter how brief or superficial. PW5, Francis Wasike testified and stated that though the complainant looked normal, the hymen was missing and there was tenderness in the vagina. PW5 concluded that the complainant had suffered forceful sexual intercourse, and I am satisfied that there was penetration as shown in the P3 from the medical treatment notes and the post rape care form. 24. The appellant raised a defence of alibi, but after a careful consideration of the same, I have reached the conclusion that the bus receipts produced by the appellant were a fraud, and that the alibi defence did not dislodge the prosecution case against him.

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25. Regarding sentence meted out to the appellant I find that the same is not only legal but it is also lawful. I find no reason to interfere with the same. 26. For the above reasons, I find no merit in the appeal and the same is hereby dismissed in its entirety It is so ordered. Judgment delivered, dated and signed in open court this 12th day of October, 2017 RUTH N. SITATI JUDGE In the presence of;Mr. J.B. Shilenje…………………for Appellant Mr. Ngetich……………..….…for Respondent Mr. Polycap Mukabwa……….Court Assistant

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