Erick Wafula Wekesa v Republic

She identified the P3 form in court. 10. Dr. Justice Jalondi's evidence was that she was conversant with the handwriting of Dr. Sarah Karanja having worked with her for two and a half years. She produced the P3 form prepared by Dr. Karanja. She stated that the minor had a history of defilement and upon examination, the she was found to have an old broken hymen and an infection. 11. The investigating officer, PC Julius Githemba, attached to Menengai Police Station stated that on 16 th November 2012 at 6.00pm he was at the station, when the complainant, the minor, her mother and an Administration Police Officer from Kiamunyi Chief's Camp made the report. He testified that that the mother complained that the minor disappeared on 12 th November 2012 and that on 16th November 2012, she received a call from the chief, and went to the chief's office where he found the accused and the complainant in his office. He stated that the accused told him that the minor was his wife. He stated that the minor was aged 13 years, and that the P3 form indicated that she was born on 9th September 1999. He charged the accused with defilement. 12. At the close of the prosecution case, after evaluating the evidence, the trial Magistrate was satisfied that a prima facie case had been established and put the accused on his defence. He complied with the provisions of Section 211 of the Criminal Procedure Code.[7] The accused elected to give sworn evidence. He never called any witness. 13. In his sworn defence, the appellant stated that he asked for his wages from his employer, Councillor Waweru, but he did not pay him, that he went to the chiefs office, where he saw his employer's car coming out of the office. He also stated that he saw the investigating officer in the chief's office. He stated that he asked for his money, but, they took him to a room and took away his Ksh. 12,000/= and his identity card, then he was later charged. He stated that he had never seen the complainant before. 14. In his judgement, he learned magistrate analysed the prosecution evidence and the above defence and concluded that the appellant was guilty on the main count and sentenced him to serve 20 imprisonment. 15. Aggrieved by the said verdict, the appellant appealed to this court seeking to quash the conviction and sentence. The appellant cites the following grounds; namely:a.That the medical examination evidence was not inclusive and credible to warrant a safe conviction given that (i) section 36 (1) of the Sexual Offences Act[8] was not adhered to, (ii) age assessment certificate was not produced; (iii) that PW1 was diagnosed HIV positive yet he is negative. b. That the person whom the matter was reported to was not called to testify. c. That the Trial Magistrate failed to observe that there existed a grudge between him and his boss, and that his boss as not called as a witness. d.That the burden of prove was shifted to him contrary to sections 107 and 109 of the Evidence Act.[9] e. That the Hon. trial Magistrate erred in law when rejecting his defense. 16. The appellant filed written submissions the crux of which is that this appeal has been pending in court for a long time, that the prosecution failed to summon a crucial witness, and that, he urged the court to reduce the sentence. 17. Learned counsel for the DPP Mr. Omutelema argued that the evidence was overwhelming, that the minor was aged 13 years and 2 months, and, that penetration was proved. He also submitted that there was evidence that the appellant detained the minor or 3 days and that he had sexual intercourse with her. Counsel submitted that the minor's evidence was sufficiently corroborated by the P3 form and the evidence of the clinical officer that her hymen was broken, and that she had an infection. Further, he submitted that the appellant's defence was considered and rejected. Determination. 18. Upon carefully evaluating the evidence and the parties submissions, I find that the following issues fall for determination, namely:a. Whether the offence of defilement was proved to the required standard. b. Whether the prosecution erred in failing to call key witnesses. c. Whether the minor's age was proved as the law requires. a. Whether the offence of defilement was proved to the required standard. 19. Section 8(1) of the Sexual Offences Act[10] provides that "A person who commits an act which causes penetration with a child is guilty of an offence termed defilement." This section provides the key elements of the offence of defilement. These are “Penetration,” and “Child.” The act defines “penetration” as partial or complete insertion of the genital organs of a person into the genital organs of another person. Therefore, an important element of defilement is penetration. The other element is that the person must be a child. The act defines a child as “child” has the meaning assigned thereto in the Children’s Act.[11] The Children's Act defines a "child" as any human being under

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the age of eighteen years. 20. Before I exit the definitions it is important we bear in mind the category of persons defined in Section 2 of the act as ‘vulnerable person’ which means a child, a person with mental disabilities or an elderly person and ‘vulnerable witness’ shall be construed accordingly. 21. The minor testified as follows:- “……. I go to [Particulars Withheld] Primary School, I am 13 years. On 12/11/12 at around 9am I had a dispute with my mum because I had made a mistake because I had refused to go to school to do exams...I left home to go to the road, while I was walking I met the accused on the road, he followed me but ....he asked my why I looked miserably (sic), I explained to him how I had a dispute with my mum. He told me he can give me accommodation for a day. He indeed gave me accommodation in his house, I slept there. In the morning he woke up at around 5.00am, he had not done anything that night. The following day, he had left at around 5.am, he came at around 2.00pm, he told me that he was going to collect milk... He locked the gate with a padlock. I could not get out. There were some Turkeys that were so harsh I could not even get out. He came back at 7.00pm very drunk. I lied to him there was a funeral at our home. I wanted to leave, he refused to open, that night he forced me to sleep without clothes, I refused, he left at around 9.00pm. In the Boma there was someone who lived there. He is a councillor. He threatened to throw me out of his house if I did not remove, he pulled my trouser, he slept on me, he had sex with me. I started bleeding, he told me it is usual for girls to bleed. He slept with me for 3 nights. I did not seek assistance because he kept on locking the door. I could not get out. On Thursday in the morning I woke up, the councillor came in his house, h asked me what I was doing in the house, he asked me if I was his wife, the accused told him I was his wife. The councillor told me to go home. I went, the accused followed me, later councillor followed me. The accused went to chief to report. I was taken to PGH. I recorded my statement at the police. I was given the P3.” That is all” 22. The minor's testimony reproduced above is that the appellant had sex with her. This evidence was not rebutted. In fact, the appellant went to the chief and reported that his employer had chased his "wife" referring to the minor. This evidence was corroborated by Dr. Justice Jalondi's who produced the P3 prepared by Dr. Sarah Karanja. She stated that the minor had a history of defilement and upon examination, the she was found to have an old broken hymen and an infection. 23. The above evidence weighed against the appellant's defence, leaves me with no doubt the appellant did not rebut the allegations against him. His defence did not address these key allegations. He instead stated that his employer did not pay him, and that the investigating officer and the chief took his Ksh. 12,000/=. He stated that he saw the complainant in court for the first time.The learned Magistrate weighed this defence against the prosecution evidence and did not believe it. It is my finding that the evidence tendered sufficiently proved the offence against the appellant and irresistibly pointed to the appellant's guilty. b. Whether the prosecution erred in failing failed to call key witness(es). 24. The appellant argues that his employer, the councillor was not called as a prosecution witness. My understanding is that he is inviting this court to draw an adverse inference for the said failure. Mr. Omutelema, for the DPP argued that there was overwhelming evidence to support the conviction. 25. The above argument brings into memory the provisions of section 143 of the Evidence Act[12] which provides as follows:- “No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact” 26. Addressing the question of alleged failure by the prosecution to call witnesses in a criminal trial,the Court of Appeal in Julius Kalewa Mutunga vs Republic[13] expressed itself as follows:- “…As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive.” 27. A similar position was repeated by the Court of Appeal in Alex Lichodo vs Republic.[14] Perhaps the leading authority on this issue is the case of Bukenya & Others vs Uganda[15] where the East African Court of Appeal held that:i. the prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. ii. The court has the right, and the duty to call any person whose evidence appears essential to the just decision of the case. iii. Where the evidence called barely is adequate the court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.

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28. In the above case, the court was categorical that the prosecution is not expected to call a superfluity of witnesses. The adverse inference will only be made by the court if the evidence by the prosecution is not or is barely adequate. Accordingly, it will not be inferred where evidence tendered is sufficient to prove the particular matter in issue or the entire case. 29. Perhaps, I should emphasize that the rule in Jones vs Dunkel[16] which outlines the circumstances under which an adverse inference may be drawn where a witness is not called is grounded on common sense. The prosecution has discretion to assess the importance that the testimony of a witness would play, or would likely have played in relation to the issue concerned. 30. The unexplained failure by a party to give evidence or call a witness or tender certain documents may, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party’s case. The failure to call a witness or tender documents can allow evidence that might have been contradicted by such witness or document to be more readily accepted. Further, where an inference is open from the facts proved, the absence of the witness or documents may be taken into account as a circumstance in favour of the drawing of the inference. But the absence of a witness or document cannot be used to make up any deficiency in the evidence. Thus it cannot be used to support an inference that is not otherwise sustained by the evidence. The rule cannot fill gaps in the evidence or convert conjecture and suspicion to inference.[17] 31. Whether the failure to call a witness or tender a document gives rise to an inference depends upon a number of circumstances. In Fabre vs Arenales[18] Mahoney J. said that the significance to be attributed to the fact that a witness did not give evidence depends in the end upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. There are circumstances in which it has been recognized that such an inference is not available or, if available, is of little significance.The foregoing position was cited with approval by Miler JA in Hewett vs Medical Board of Western Australia[19] and also the same position is stated in Cross on Evidence.[20] 32. The rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict depends on the issues in the case as thrown in the pleadings or by the course of the evidence in the case. No inference can be drawn unless evidence is given of facts requiring an answer. This position was upheld in the following cases, namely; Schellenberg vs Tunnel Holdings, [21] Ronchi vs Portland Smelter Services Ltd[22] and Hesse Blind Roller Company Pty Ltd vs Hamitovski[23] and its also reiterated in Cross on Evidence.[24] 33. When no challenge is made to the evidence of witnesses who are called, as in this case, the principle in Jones vs Dunkel cannot be applied to make an inference in respect of other witnesses who could have been called to give the same evidence.[25] A look at the record shows that minor's and the Doctors evidence are largely unchallenged. The witness who is said not to have been called was to corroborate testimony already presented. It has not been shown that the evidence on record has gaps which needed further clarification. As explained in Cross on Evidence,[26] the rule does not require a party to give merely cumulative evidence. In order for the principle to apply, the evidence of the missing witness must be such as would have elucidated a matter. [27]The appropriate inference to draw is a question of fact to be answered by reference to all the circumstances of the case. 34. Upon evaluating the evidence, I find that this is not a proper case for the court to make an adverse inference on account of the failure to call the councillor because the appellant did not even in the slightest manner point out any gaps that the "missing" witness would have filled. 35. It is established law that a conviction can be based on the testimony of a single witness, a position that was ably captured in Anil Phukan vs State of Assam[28] as follows:- “A conviction can be based on the testimony of a single-eye witness and there is no rule of law or evidence which says to the contrary provided the sole eye witness passed the test of reliability in basing conviction on his testimony alone” 36. This position was also reiterated by the Court of Appeal of Tanzania in Ahmad Omari vs The Republic[29]and the Court of Appeal of Uganda in Okwang Peter vs Uganda[30] which held:- “Subject to certain well-known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness in respect to identification especially when it is known that the conditions favouring correct identification were difficult. In such circumstances what is needed is other evidence, whether it is circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from possibility of error” 37. It is always competent to convict on evidence of a single witness if that evidence is clear and satisfactory in every respect. The law is also clear that there is no particular number of witnesses required for proof of any fact.[31] I find no reason to make adverse inference in the circumstances of this case. c. Whether the minor's age was proved as required. 38. In his grounds of appeal, the appellant states that an age assessment report was not produced. In defilement cases, age of the victim is crucial.[32] Indeed in Hilary Nyongesa vs Republic[33] the court stated that:- “Age is such a critical aspect in Sexual Offences that it has to be conclusively proved…And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.”

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39. In John Cardon Wagner –vs- Republic,[34] the court held that:- “In defilement cases, the age of the complainant is proved by either medical evidence or through other evidence since the sexual offences act have different categories of ages and sentences of different ages…” 40. In Musyoki Mwakavi –vs- Republic[35] held that:- “…apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense…”. 41. In the case of Francis Omuroni vs Uganda,[36] it was held thus:- “In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”. 42. The minor gave her age as 13 years as at the time she testified in court. PW2 and PW3 and the P3 form also gave her age as 13 years. The child's certificate of dedication produced in court shows that she was born on 9th September 1999. The Post Rape Care form also indicates her date of birth as 9 th September 1999. Our superior courts have severally stated that age of a minor in defilement cases can be proved by oral evidence, medical records or by birth certificate. With the foregoing evidence on record, I find her age was sufficiently proved. 43. In any event, the Children's Act ages as follows:- "age" where actual age is not known means apparent age. Conclusion. 44. Upon re-evaluating the evidence, I am satisfied that the prosecution proved the offence to the required standard. It is my finding that the learned Magistrate correctly analysed the evidence and properly convicted the appellant. In the circumstances, I find no reason to fault the learned Magistrates findings. 45. Regarding the sentence, Section 8 (2) of the Sexual Offences Act[37] provides that "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 less than twenty years." The sentence imposed is the mandatory sentence provided under the law, hence, this court has no discretion to interfere with it. It follows that this appeal on both conviction and sentence fails and the same is hereby dismissed. 46. Right of appeal explained. Signed, Delivered and Dated at Nakuru this 3rd John M. Mativo Judge [1] Act No 3 of 2006. [2] Ibid. [3] {1972) E.A, 32at page 36. [4] See Pandya vs Republic {1957}EA 336. [5] See Shantilal M. Ruwala vs Republic {1957} EA 570. [6] See Peter vs Sunday Post {1958}EA 424. [7] Cap 75, Laws of Kenya. [8] Act No. 3 of 2006. [9] Cap 80, Laws of Kenya. [10] Supra. day of October 2018.

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[11] Cap 141, Laws of Kenya. [12]Cap 80, Laws of Kenya. [13] Criminal Appeal No. 31 of 2005 [14] Criminal Appeal No. 11 of 2015-Visram A, Karanja W, and Mwilu P. JJJA. [15] {1972}E.A.549. [16] {1859} HCA 8; {1859}101 CLR 298, 308, 312. [17] See Schellenberg vs Hesse Tunnel Holdings Pty Ltd {P2000} HCA 18 [18] {1992} 27 NSWLR 437, 449-450,Priestly and Sheller JJA agreeing) [19] {2004} WASCA 170 [20] 7th Edition, Page 1215, by Heydon J D. [21] Cubillo (No. 2) 355 [22] {2005} VSCA 83 [23] {2006} VSCA 121 28 [24] Supra at page 1215 [25] See Cross on Evidence, Supra. [26] Supra. [27]See Payne vs Parker, 202 Cubillo )No. 2) 360. [28]{1993} AIR 1462. [29] Criminal Appeal No. 154 of 2005, Ramadhani C.J, Munuo JA and Mjasiri J.A. [30] Criminal Appeal No. 104 of 1999. [31] See Section ..... Evidence Act, Cap 80, Laws of Kenya. [32] Citing Eric Nyaga Shanjera vs Republic, Nakuru HCCR Appeal No. 263 of 2013. [33] High Court Cr Appeal No. 123 of 2009, Eldoret. [34] High Court Criminal Appeal No. 404 of 2009 ( Nairobi). [35] High Court Criminal Appeal No. 172 of 2012. [36] Criminal Appeal no 2 of 2000- Court of Appeal. [37] Supra.

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