REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIVASHA CRIMINAL APPEAL NO. 124 OF 2015 (Being an Appeal from Original Conviction and Sentence in Criminal Case No. 1646 of 2013 of the Chief Magistrate’s Court at Naivasha – E. Kimilu, SRM) J A A.................................................................APPELLANT -VERSUSREPUBLIC...................................................RESPONDENT JUDGMENT 1. The Appellant herein was charged with Incest contrary to Section 20 (1) of the Sexual Offences Act. In that on the 18th day of July, 2013 at [particulars withheld] in Naivasha Sub-County, within Nakuru County, he did cause his genital organ, namely penis, to penetrate the genital organ namely vagina of S.K. a girl aged 15 years, who to his knowledge was his daughter. He denied the charges but following a full trial, he was found guilty and convicted. He was sentenced to life imprisonment. 2. He now appeals to this court, based on four amended grounds of appeal, viz:- “1. THAT, the learned trial magistrate erred in law and in fact when she allowed another medical practitioner to adduce medical evidence on behalf of her colleague without invocation of Section 33 of the Evidence Act. 2. THAT, the trial magistrate erred in both law and facts to have convicted the Appellant yet failed to appreciate that penetration as per the medical evidence did not conclusively connect the Appellant to the offence. 3. THAT, the trial magistrate erred both in law and in fact by convicting the Appellant based on evidence which was otherwise contradictory and uncorroborated. 4. THAT, the trial magistrate erred in both law and fact not to have found that the Appellant’s defence created a reasonable doubt as to oust the prosecution’s case. 5. ………………” 3. In support of his grounds the Appellant filed written submissions. All the grounds challenge the evidence upon which the conviction was based. Regarding the first ground, the Appellant submits that the court erred in admitting medical evidence by way of a P3 form tendered through a witness other than the author of the document. That this was in breach of Section 33 and 77 (3) of the Evidence Act, and it was prejudicial to the Appellant. 4. Concerning the second ground, he argues that the medical evidence did not prove penetration as there was no indication of spermatozoa, discharge or blood in the complainant’s genitalia. Further that the mere fact that the complainant and the Appellant were both HIV positive did not prove any sexual activity between the two. 5. In support of the third ground, the Appellant highlighted evidence by the complainant and her mother concerning an attempted defilement prior to the material date, evidence that the complainant’s mother witnessed the material assault and finally, the failure by the prosecution to tender at the trial the clothes worn by the complainant on the material date. According to the Appellant there were material contradictions in the evidence of the complainant and her mother. 6. He placed reliance on the decision of Erick Onyango Ondeng -Vs- Republic (2014) eKLR to submit that grave and unexplained contradictions in the evidence of a witness ought to result in the rejection of the evidence. He therefore urged the court to reject the evidence of the complainant and her mother. Finally, he complained that the trial court took no heed of his defence, which in his opinion created doubt in the prosecution case.
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7. The Appeal was opposed by the DPP through Mr. Mutinda who reiterated and supported the evidence of the complainant, her mother and the medical evidence. He stated that penetration was proved. 8. The duty of the first appellate court was succinctly stated in Pandya -Vs- Republic [1957] EA 336 as follows:- “On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 9. This is what the court must bear in mind on this appeal. The prosecution called five witnesses. The total sum of their evidence was that the Appellant was husband to J.K. (PW2) and was cohabiting with her at [particulars withheld] , Naivasha in the material period. Also living with the couple was their daughter (though not sired by the Appellant) S.K. (PW1). 10. In the material period, PW1 was aged 15 years and a student at M. Primary School. There were also two younger children living with the couple in their two roomed house which had a separate kitchen. On the evening of 18th July, 2013 PW1 was making supper for the family. The mother was away at work. At about 7.00pm the Appellant came home drunk. He called PW1 into the room used by the parents as sitting room-cum-bedroom partitioned by a curtain. When PW1 answered the summons, the Appellant forced her on the bed and took off her underwear before lowering his own trouser. He then proceeded to have sexual intercourse with PW1. 11. Meanwhile PW2 had abandoned an earlier request to the Appellant to pick her up and instead taken a boda boda home. On arrival, she saw Appellant’s bicycle outside the room. She entered the bed-cum-sitting room and seeing no one there flipped aside the separating curtain. She was met by the scene of the Appellant having sex with PW1. When PW2 spoke out, the Appellant released PW1 to leave and remonstrated with PW2 not to have any ‘imaginations’ as to what had happened. 12. PW2 followed PW1 to the kitchen and learned about the events preceding her arrival. Later PW2 visited home of a colleague who manned the [particulars withheld] dispensary. She gave PW2 a referral note to Naivasha District Hospital. On the next day, PW2 pretended to go to work and was dropped off by the Appellant. She however returned home and took the daughter to Naivasha District Hospital for treatment and later made a report to PC Cherono (PW4 erroneously referred to as PW5). 13. Eventually the P3 form was completed. It was produced in court by Jane Wambui Njoroge (PW3 erroneously referred to as PW4), on behalf of Dorcas Osoro, a colleague of the author at the Naivasha District Hospital. Urinalysis revealed pus cells, suggesting infection. The complainant had tenderness in the lower abdomen and redness on her genitalia. The hymen was torn but no spermatozoa or blood was seen. The tests revealed that she was also HIV positive. 14. In an unsworn defence statement, the Appellant stated that he resided at [particulars withheld] Naivasha. That on the date of his arrest, the 22nd July, 2013 he went to work. He was later arrested. He denied the offence stating that on the evening of the 18 th July, 2013 his bicycle developed problems on his way home and he therefore instructed his wife PW2, to use boda boda services as he was unable to pick her up. Thus PW2 arrived home ahead of the Appellant. He eventually got home and the evening passed uneventfully. He said that PW1 was his daughter and that she and her siblings had been confirmed to be HIV positive. He claimed that during their cohabitation, PW2 had concealed from him her HIV positive status and had been opposed to PW1 using anti-retrovirals. That he was himself HIV positive. 15. There is no dispute that the complainant is the daughter, though not biological, of the Appellant. That her mother PW2 was the Appellant’s wife and the family lived together at [particulars withheld] in the material period. There is hardly any dispute on the question of the complainant’s age. She was 15 years old per the oral evidence and the birth certificate tendered in court. 16. By his submissions and his defence in the lower court the Appellant challenges the assertion that he defiled the complainant on the material night, and particularly the oral and medical evidence to that effect. 17. I have reviewed the testimony of the witnesses. There is consistent oral evidence by PW1 that the Appellant summoned her to his sitting-cum-bedroom and forced her on the bed, where he penetrated her. PW1’s evidence was graphic and was not shaken in crossexamination. Besides, PW2 said she arrived home to find the Appellant in flagrante delicto. PW2 was cross-examined twice, first after her initial testimony and on a second occasion when the Appellant had her recalled for the purpose. The witness remained consistent. 18. The fact of a report on a previous sexual assault or such attempt on the minor by the Appellant was confirmed by both PW1 and PW2. This in no way diminishes the credibility of the evidence of the witnesses concerning the material attack. Neither is there any significant contradiction on the aspect as would render the evidence of the witnesses unbelievable. 19. In Erick Onyango Ondeng -Vs- Republic (2014) eKLR the Court of Appeal stated about contradictions that: “As noted by the Uganda court of appeal in Twehangane Alfred –Versus- Uganda, Criminal Appeal No. 139 of 2001, (2003) UGCA 6 it is not every contradiction that warrants rejection of evidence. As the court put it: with regard to contradiction in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore contradictions unless
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the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.” (Emphasis added) 20. In order for a witness’s evidence to be rejected the contradiction must be material and grave, pointing to deliberate untruthfulness by a witness. Reviewing the evidence by PW1 and PW2, I cannot find such contradictions, nor any reason why PW1 and PW2 would invent the incident of 18th July, 2013 and set up a man whom they knew as father and husband, respectively, for almost ten (10) years. The trial court after setting out the evidence believed the testimony by PW1 and PW2. The trial magistrate further observed that: “The medical officer who examined PW1 confirmed that there was penetration and hymen was torn. PW1 had pus cells after urinalysis was done which means she has infections” sic 21. Both the PRC and P3 Form (Exhibit 2A and 2B) not only confirm penetration but also document the clinical observations in respect of the complainant’s genitalia as follows: “Has marked redness on labia minora and around the vaginal orifice. Hymen torn.” Additionally PW1 had tenderness in the lower abdomen. 22. The absence of spermatozoa or discharge in the genitalia does not negate the possibility of penetration as the Appellant has argued in his submissions. Penetration is complete without spermatozoa being deposited in the victim’s genitalia. Section 2 of the Sexual Offences Act defines penetration as: “Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 23. The Court of Appeal in Kenya adopted the definition of penetration as stated in the case of Erick Onyango Ondeng’ -Vs-Republic NAI CR. Appeal No. 5 of 2013 [2014] eKLR from Twehangane Alfred -Vs- Uganda Criminal Appeal No. 139 of 2001, (2003) UGCA 6 where the Court of Appeal of Uganda observed regarding penetration that: “In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.” 24. The complainant’s injuries were observed a day after the material date. The fact that a clinical officer other than the one who examined PW1 produced the medical records does not diminish their value. This evidence was allowed after the prosecution made an application to produce the records through the witness. The record shows that the Appellant stated that he had no objection to the application. And the Appellant, contrary to his present complaints, did cross-examine PW3 at some length. 25. Section 77 (3) of the Evidence Act with which the Appellant appears familiar, allows for the procedure adopted by the court. Besides, at no time did the Appellant demand that the maker of the P3 form be called to produce it. His present complaint on the matter to my mind is an afterthought. His defence, equally, raised matters not canvassed with PW1 and PW2, in particular the fact that he arrived home after PW2 on the material date: all he had suggested to PW2 on the second cross-examination session is that he was away “at the time of ……… the offence” 26. Nothing turns on the failure by police to produce in court the clothes worn by the complainant at the time she was defiled. All in all, I cannot find any reason to fault the findings of the trial magistrate that the evidence before her was overwhelming and displaced the Appellant’s defence, itself a mere denial. The upshot of the foregoing is that I find no merit in this appeal and will accordingly dismiss it. Delivered and signed at Naivasha, this 20th day of February, 2018. In the presence of:Miss Gikonyo for the DPP Appellant – present C/C – Quinter <span times\\="" new\\="" roman,="" times,="" serif;"="">JUDGE
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