REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CRIMINAL APPEAL NO. 76 OF 2014 DUNCAN BORIGA OTUKE..................APPELLANT VERSUS REPUBLIC.............................................RESPONDENT (Appeal from the original conviction and sentence of Hon. S.N Makila – RM dated 5th December, 2014 at the Chief Magistrate’s Court at Kisii in Criminal Case No. 2171 of 2013) JUDGMENT 1. The appellant, DUNCAN BORIGA OTUKE, was charged and convicted of the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act. The particulars of the offence were that on 14 th May 2013 within Kisii County, he intentionally and unlawfully had an act of penetration to the genital organ of AB, a girl aged 5 years using his penis. 2. The thrust of this appeal is that he was convicted on the basis of mistaken identity and that the prosecution did not prove all the elements of the offence of defilement. The State counters that the appellant was properly identified as the perpetrator and that the prosecution proved all the elements of the offence. 3. As this is a first appeal, I am required to re-appraise all the evidence and reach an independent conclusion as to whether I should uphold the appeal bearing in mind that I neither heard or saw the witnesses testify (see Okeno v. Republic[1972]EA 32). 4. The child (PW 2) testified on oath after a voire dire. She recalled that on the material day, she was going to her grandmother’s place when the appellant approached her and asked whether he could escort her. She refused but the appellant threatened her with a knife, undressed her, forced her to the ground and proceeded to insert his penis in her buttocks. He told her not to scream. He left her there. PW 1 did not tell her grandmother what happened but told her mother (PW 3) later on. 5. PW 3 recalled that on 14 th May 2013, she sent PW 2 to her grandmother. She returned home crying and bleeding. PW 2 told her that a man had threatened to harm her and then sexually assaulted her. She took PW 2 to hospital where she was examined and treated. 6. PW 1, a clinical officer, who produced the P3 form on behalf of his colleague, told the court that examination of the genital area revealed a physical laceration in the form of a small tear in the interior and exterior area of the anus. The wounds were painful and had turned septic. 7. The investigating officer, PW 4, confirmed that she received PW 2 and PW 3 at the police station when the incident of defilement was reported. She issued the P3 form and escorted PW 2 to the hospital for examination. She told the court that PW 2 identified the appellant at the police station. 8. The appellant elected to remain silent in his defence. 9. I have reviewed the entire evidence and I am satisfied that indeed PW 2 was defiled. Her testimony was clear on the fact that an act of penetration took place. Her testimony was also corroborated by the medical evidence and the testimony of PW 3 who saw her in a state of distress and pain immediately after the incident. The singular issue for determination in this appeal is whether it is the appellant who perpetrated the felomous act.
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10. In her evidence in chief, PW 2 stated that she had never seen the appellant before the incident although she identified the appellant as the person who sexually assaulted her. In cross examination, she stated that, “Eunice (who) confirmed to me that it was you who defiled me. She told my mother.” She further identified the appellant as a neighbour who used to walk around or near their home. 11. PW 3 stated that she never knew the appellant before the incident and that she was seeing him for the first time in court. She told the court that she was informed by Eunice that it is the appellant who defiled PW 2. 12. In my view this evidence was contradictory and insufficient to identify the appellant. PW 2’s testimony was contradictory in that she stated that she never knew the appellant yet she also stated that he was a neighbour. If indeed he was a neighbour, PW 3, as the adult, would have known him. Further, if PW 2 knew him, then she would have informed PW 3 of his identity and named or described him. 13. Both PW 2 and PW 3 referred to one Eunice Kwamboka as the person who had seen the appellant at the locus in quo. She was not called as a witness and no explanation was given for this. This court is therefore entitled to draw an adverse inference in favour of the appellant. Likewise, the chief of the area who would have confirmed that the appellant was from the area was not called. 14. The trial magistrate stated that PW 2’s testimony on the identity of the appellant remained fair and unwavered even during cross examination and the fact that the incident took place in broad daylight buttressed the issue of identification. The trial magistrate did not take into account the contradictions in the evidence and the failure to call essential witnesses by the prosecution. Moreover, the identification of the appellant by PW 2 when he was already under arrest in the circumstances I have alluded to undermined the prosecution case. This is a case where in order to dispel any doubt as to identification an identification parade ought to have been mounted. 15. The conviction is unsafe for the reasons I have outlined. The appeal is allowed. The conviction and sentence quashed. The appellant is set free unless otherwise lawfully held. Dated and delivered at Kisii this 3rd day of August 2018. D.S MAJANJA JUDGE Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions. Appellant in person.
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