REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA CRIMINAL APPEAL NO. 36 OF 2015 (Arising from Original SRM’s Kimilili Criminal Case No. 70 of 2014) E O O....................................APPELLANT VERSUS REPUBLIC.......................RESPONDENT JUDGEMENT The appellant E O O was charged with the offence of defilement of a child contrary to section 8(1) as read with section 8(2) of the sexual offences act No. 3 of 2006. The particulars of the offence were that between the month of December, 2013 and January 21 st, 2014 in Mt. Elgon District within Bungoma County, intentionally and unlawfully committed an act with his penis which caused penetration into the genital organ (vagina) of M A a child aged 8 years. The evidence before the trial court was that the complainant M A a minor aged 8 years old is a sister to M the wife of the appellant E O O. They live in the same house together with the appellant’s child called D who is 4 years old. Being in the same house the complainant testified, the appellant used to remove his clothes then did tambia mbaya to her by removing the things he used to urinate and putting in her thing she uses to urinate.. It happened daily when the appellant’s wife leaves them at home. The appellant ordered her not to make noise. On 21.1.2014 at night police came and she was taken to the police station and later to the hospital. Pw2 Patrick Otiba who works with an NGO dealing with women and children issues was on 21.1.2014 at Kaptama centre where he met people who informed him that the complainant had been defiled. He was informed by members of the public that they had checked the complainant and seen bruises on her private parts. He informed the OCS and the appellant was arrested. Pw3 Dr. Edward Simiyu who examined the complainant and found she had gonorrhea and her hymen was raptured. He filled the p3 form which he produced as exhibit 1. Pw4 P.C. Joan Ocholla visited the home on 22.1.2014 where they found the appellant with the minor and arrested him. The wife of the appellant was not there then. The appellant upon being put on his defence gave unsworn evidence. He stated that he is a business man at Abom area in Kabrooru. On 27 th December a person called him to buy maize at Chesamisi bar he declined. In January he was called by one Otiba and he was arrested. He denied the complainant is an in-law to him. It is upon this evidence that he was found guilty poof the offence of defilement, convicted and sentenced to life imprisonment. He the preferred this appeal on the following grounds: that he was not allowed to cross examine witnesses, the learned trial magistrate considered extraneous factors, he was not conversant with the language of the court; that there was no corroboration of the complainant’s evidence and the court convicted him on the weakness of the defence rather than the strength of the prosecution evidence. M/s Njeru for the state opposed the appeal. Counsel submitted that the appellant was given opportunity to cross examine witnesses but opted not to; that he understood the Kiswahili language and gave his evidence in Swahili, the age of the complainant was proved by evidence of the complainant. Counsel submitted that both the complainant and the appellant were examined and found to have a diseased for which they were treated and finally that his alibi defence was considered and found without merit. From the evidence and submissions, the issue which led themselves for determination in this appeal are (a) was penetration proved and (b) whether failure to cross examine the complainant was fatal for the prosecution evidence. It is worth noting that the burden of proof in criminal charges is beyond reasonable doubt. It is not for the accused to defend himself but it is for the prosecution to bring to court concrete evidence to prove that indeed the accused committed the offence he/she is being charged with. As to what constitutes the burden of proof beyond reasonable doubt the case of Miller Vs Minister of Pensions [1947] 2 ALL ER 372 – 373 Lord Denning stated:
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“That degree is well settled. It needs not reach certainly, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.” The appellant submits that he was denied a chance to cross examine the complainant. Cross examination is very critical in criminal proceedings as it serves to test the credibility of the evidence adduced by the complainant. Cross examination has long been described as being, quite aptly in our view, “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” Per Judge S.C. Sarkar in Sarkar’s Law of Evidence (India, Pakistan, Burma and Celylon) 9 th Edn. P.1120. Only after testimony has been interrogated and confronted through the crucible of cross examination can it be entitled to the tag of veracity. This is more critical when the evidence relied on is of a single witness. The three key ingredients that make up the offence of defilement is proof of age, penetration and whether penetration was by the accused. It is the evidence of the complainant that she was infected with gonorrhea. But a closer look at the medical report does not disclose any disease known as gonorrhea. Though it indicates that the hymen was raptured and it is well known that hymen can be raptured in many forms. The age of the complainant was stated to be 8 years by the complainant. Though no age assessment was done or birth certificate produced, I am satisfied that age was proved. Mutende J in Musyoki Mwakavi –vs- Republic High Court Criminal Appeal No. 172 of 2012 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…”. In the case of Francis Omuroni vs Uganda,[20] 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...” The prosecution evidence was purely tied to the evidence of the complainant. The prosecution in this case relied on the evidence of a single witness. Under this provision to Section 124 of the evidence Act the trial magistrate would convict on the evidence of a single witness but must satisfy for reasons to be recorded that he believes the witness and that what the witness is saying the truth. The learned trial magistrate in respect to the complain in her Judgment observed. “In my opinion and studying the demeanor of the child, I believe that she was actually defiled by the accused. She appeared so scared of the accused. I also ask where her sister was all the time when this matter was instituted. If indeed she had the custody of her sister of tender age and is subjected to such treatment by her husband, then she should have come forward and shed light on the matter. Surely I do not see why a child of 8 years would wish to frame an adult for having defiled her for whatever reason. Secondly, the accused does not dispute living with her sister Inlaw the complainant but he has not demonstrated even through Cross Examination why the complainant might have framed him for whatever reason. His wife could have also been a vital witness in favour if his Defence but it is not clear why she did not come forward to shed any light on the matter. Surely a child is penetrated in the custody of a male adult whose wife was away all along. She points out on the male adult as the defiler. Why would she do so especially at such a tender age? She also told the court that the police arrested the accused at night when he was still in a vest. He also says that Oteba (Pw2) had tricked him and that’s when he was arrested but this has also been brought out in cross examination. He should have put Mr. Oteba to task why he decided to frame him. Further I do not see the connection between Pw2 and the complainant who is a minor which could have made them conspire to frame the accused with the said offence. I am alive to the fact that the child’s evidence was not subject to Cross Examination but this was a decision the court arrived at after seeing the demeanor of the complainant. She was so terrified of the accused and I still believe that she could have not answered the questions as put to her during Cross examination by the Accused.” The learned trial magistrate in the above analysis was alive to the gaps in the prosecution case in particular the lack of evidence of the complainant’s sister; the person the complainant reported the defilement to and the impact of lack of Cross examination of the complainant in the prosecution evidence. The existence of these gaps in the prosecution case showed that the prosecution did not prove the charge beyond reasonable doubt. I find these gaps were fatal to the prosecution case. I therefore find that the prosecution did not establish its case beyond reasonable doubt, I allow the appeal and set aside the sentence of life imprisonment imposed. The appellant to be set at liberty unless otherwise lawfully detained. Dated and Signed at Bungoma this 5th day of October, 2018. S.N. RIECHI JUDGE.
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