Philip Ltipayon Surmat v Republic

appeal filed in court on 14th May, 2014. At the time of hearing of the appeal, the appellant submitted 9 amended/supplementary homemade grounds of appeal to the effect:1. That, the learned trial magistrate erred in both law and fact by failing to note that the charge sheet was defective despite being amended by the prosecution. 2. That, the learned trial magistrate erred in matters of law and fact by failing to note that the prosecution case was not proved beyond reasonable doubt. 3. That, the learned trial magistrate erred in both law and fact by failing to note that the evidence produced was contradictory, inconsistent and uncollaborated. 4. That, the learned trial magistrate erred in both law and fact by convicting the appellant with a count that does not exist. 5. That, the appellant’s defense was rejected without giving cogent reasons. 6. That, the learned trial magistrate erred in both law and fact by not noting that the complainant herself denied being touched by the appellant. 7. That, the learned trial magistrate erred in both law and fact by not noting that the prosecution witnesses were coached on what to testify to the court by their teacher. 8. That, the learned trial magistrate erred in both law and fact by not noting that the complainant had a secret relationship with PW3 which led him to plant the whole issue to the appellant. 9. That, the learned trial magistrate erred in both law and fact by not noting that there existed a grudge between the appellant and the teachers. 7. The appellant prays that the appeal be allowed, the conviction quashed and the sentence of 10 years set aside. The Prosecution Case 8. From the six (6) prosecution witnesses named above, the prosecution case is as follows: On the night of 25 th and 26th May, 2013, PW1, and her friend PW2 had been sent to fetch chairs for a music competition in their school. On their way, they met with the appellant who was their teacher. The appellant told PW1 that he wanted to have a word with her, so he held her hand and together they went to the appellant’s 3 roomed house. The appellant took PW1 to the bedroom and told her he loved her and wanted to have sex with her. PW1 declined the suggestion but the appellant tried to touch her breast. PW1 pushed the appellant’s hand away. During that brief moment, both PW1 and the appellant had their clothes on, and both were sitting on the appellant’s bed. 9. Before the appellant could do anything more, SS (PW3) and ELL (PW4) announced their presence at the house. PW3 told the court that on the material day, he had been informed that girls were going to the appellant’s house and he decided to lay a trap to confirm if the allegations were true. He testified further that on the evening in question, he saw the appellant and PW1 entering the appellant’s house. He and PW4, went towards appellant’s house and found the door closed. After a while, and following a knock on the door by ELL, the appellant opened the door. PW3 entered the house and saw PW1 sitting on the appellant’s bed. PW3 asked PW1 to get out of the house and she did so, but left appellant inside the house. 10. On the 27th May, 2013, PW3 reported the incident to Madam M, PW4. PW4 confirmed receiving a report of the incident from PW3 and his friend E, PW5. On the same Monday, 27th May 2013, PW4 summoned PW1 among other girls and interrogated them concerning the allegation at the appellant’s house on the night of 25th and 26th May, 2013. PW1 gave the story to PW4. Thereafter PW4 summoned parents of PW1 and also reported the incident to the education officer. 11. Number 65611 CPL Benson Sindani who testified as PW6 received the report of the incident on 28th May, 2013. The report was made by PW4 at about 8.00am through a phone call. CPL Sindani together with PC (W) Winnie went to the school and on further investigations, it transpired that the appellant had tried to defile PW1. After recording the statements of PW3 and PW5 CPL Sindani visited the appellant’s house but did not find the appellant. As he (CPL Sindani) was leaving the village, he met with the appellant on the way and arrested him. The appellant was identified to CPL Sindani by other teachers. The appellant was subsequently charged with the offence of defilement. 12. At the close of the prosecution case, the appellant was put on his defense. He gave sworn evidence as DW1 and also called his brother, Tyson Lusurmat, as DW2. In his testimony, the appellant testified that on the material night, some male students from neighbouring houses went to his house to watch television. He left the boys at the house as he went to the club with some contractors. On returning to his house at about 10.00pm, he found a group of children near his plot. Though he left them there as he entered his house, the children followed him, among them PW3 and PW5. Both PW3 and PW5 sought to know from the appellant who else was in the house, and as they asked, they also peeped into the bedroom. He asked the two to leave since he did not understand what they were talking about. The following morning, he left for Laisamis for Jubilee celebrations. 13. During cross examination, the appellant stated that children from the neighbourhood usually went to his house, both boys and girls and that PW1 usually took her mother’s phone to his house for charging. The appellant stated that PW1 had been couched to frame him but stated he had no grudge with her. He however stated he had a grudge with PW3 over PW3’s memory card which had been lost at his

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(appellant’s) barber shop. The appellant also testified that he had a grudge with PW4 as she was covering up her own son over a pregnancy. DW2 told the court that PW1, PW2 and some other girls went to appellant’s house looking for beads for celebrations, and that those girls were not among the young people who were watching a movie in the appellant’s house. The Duty of this Court 14. The law demands that as the first appellate court, I must analyze and evaluate the evidence afresh with a view to reaching my own conclusions in the matter. I have however to remember that this court does not have the privilege of seeing and hearing the witnesses who testified during the trial, and to make an allowance for the same. This court has also to remember that the appellant expects it to rehear his case, and to make no conclusions until and unless the evidence has been given a thorough analysis. Generally see Oururi versus Republic [2013] eKLR and Okeno versus Republic [1972] EA 32. Also see Martin Nyongesa Wanyonyi versus Republic [2015]eKLR Submissions 15. During the hearing of the appeal, the appellant wholly relied on his written submissions filed together with the amended supplementary grounds of appeal. He contended that the charge sheet was defective because whereas the occurrence book shows the report was made on 28th May, 2012, the charge sheet shows that the incident took place on 25 th May, 2013. In his view this discrepancy in dates has caused a miscarriage of justice. 16. The appellant also submitted that the prosecution failed to prove its case against him beyond any reasonable doubt as by law required. He further contended that the evidence adduced by the prosecution was a mere sham and that by relying on it to convict him, the trial court caused a miscarriage of justice. 17. Further, the appellant submitted that the case against him was a frame up by teacher M (PW4) with whom he was in conflict as she was herself trying to cover up her son who was facing a pregnancy case. 18. It was also appellant’s submissions that the prosecution case was full of contradictions and inconsistencies and remained uncorroborated throughout the trial; and more particularly as regards the question of whether PW1 saw the appellant on the night of the alleged incident or not, and also as to whether the incident took place between 8.00pm – 9.00pm or 1.00am – 2.00am. The appellant also submitted that it was not clear whether the three girls entered the appellant’s house or whether as stated by DW2, the “three girls came to collect their phone. They did not enter the house. I passed the phone through the window. Then they left.” 19. Finally, the appellant submitted that he was charged with a non-existent charge since PW1 was clear in her testimony that he only attempted to touch her breasts. The appellant submitted that the offence of attempted defilement was thus not proved. The appellant urged this court to allow his appeal. 20. Prosecution counsel, Mr. Namiti opposed the appeal and submitted that there was overwhelming evidence on record in support of the case against the appellant. Counsel submitted that the appellant made sexual advances to PW1 by touching her breasts and that both PW3 and PW5 found the appellant and PW1 inside the appellant’s house. Counsel also submitted that the weight of the prosecution evidence was such that it dislodged the appellant’s contention that there was a grudge between him and PW4, an allegation which the trial court termed an afterthought. 21. Regarding the appellant’s contention that only relatives testified against him, counsel submitted that the law does not discriminate against relatives being the only witnesses in any particular case. He relied on the provisions of section 125 of the Evidence Act and urged this court to make a finding that the appellant’s complaint has no basis as long as the said witnesses were competent witnesses. Section 125 of the Evidence Act provides:- “125(1) All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause. (2) A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them.” 22. From the above provisions, even a mentally disordered person is a competent witness so long as he understands the questions put to him and gives rational answers to those questions. 23. Finally prosecution counsel submitted that the age of the complainant, PW1, was proved through documentary evidence, being the birth certificate which was produced as Pexhibit 1, and in this regard that the sentence of ten (10) years imprisonment imposed by the trial court was both lawful and legal. Counsel urged the court to dismiss the appeal. Issues, Analysis and Determination 24. Section 9(1) and 9(2) of the Act under which the appellant was charged reads as follows:- “9(1) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.

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(2) A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.” 25. The issue that arises for determination is therefore whether, as concluded by the learned trial court, the appellant committed an indecent act with PW1. The reason for the finding by the trial court on this issue is found at page 32 of the proceedings and it reads: “In respect of the alternative count the complainant was categorical that the accused person attempted to touch her breasts but she managed to move his hand away. I take note that the accused person was a teacher at the school where the complainant went. He was well aware that she was a pupil at the school. He also added that he was working as a voluntary children officer though it is not clear if he had any formal education on children rights. I am of the considered opinion that by working with the children department he had the opportunity to know about the children right one of them being the right to education and the right to being protected. The accused person being a teacher at the school where the complainant went therefore had a duty to protect her. The act of holding her hand and taking her into his bedroom shows that he was in total disregard of the right to protect the complainant. The attempt to touch her breast is in my opinion an indecent act committed against a child. While the accused ought to have protected her. As earlier stated in this judgment an indecent act means an unlawful intentional act which causes any contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration. Under this definition close touching the breasts of another person amounts to an indecent act. I therefore find that the accused person committed an indecent act with a child and in this case the complainant who at the time was about 17 years old. I find that the prosecution has been able to establish the ingredients of the offence of indecent act with a child as required in law. I find the accused person guilty of the alternative count and I hereby convict him as such under section 215 of the CPC.” 26. I will consider the above reasoning in light of the provisions of Section 2 of the Act which defines “Indecent act” to mean an unlawful intentional act which causes:– “(a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration. (b) Exposure or display of any pornographic material to any person against his or her will.” 27. What the above definition requires is contact between any part of the body of a person with the genital organ, breasts or buttocks of another. In the instant case, the prosecution evidence must show that the appellants hand or genital organ (penis) touched either the breast or buttocks of PW1. An analysis of the evidence on record only shows that the appellant’s hand touched PW1’s hand, and his efforts to touch PW1’ s breasts were thwarted by PW1 when she pushed away the appellant’s hands. It is my considered view that a failed attempt to touch PW1’s breasts did not amount to a contact between the appellant’s hand and PW1’s breasts. PW1, in part of her evidence in chief stated: - “He told me that he wanted to speak with me he held my hand and I left L behind. He took me to his gate. It was a wooden gate. He told me that he wanted us to talk but I refused. He held my hand and took me to his house. His house has three rooms………………….He took me to the bedroom. He told me that he loved me and that he wanted us to have sex. He wanted to hold my breasts but I managed to move his hand away. As he was trying to touch me, he still had his clothes on. I also had my clothes on. We were sitting on the bed. Before he could have sex with me, some two people came to ask who was in the house………” 28. Clearly the appellant was waiting for the right moment to commit the offence, but he did not. I find that the learned trial court, it its endeavor to convict the appellant with the offence went beyond his scope and considered extraneous matters such as the appellant having the opportunity to work with the children’s department, and thus being aware of children’s rights such as the right to education and protection, and further the fact of the appellant being a teacher. It is my considered view that such sentiments or remarks would have been excellent remarks in helping the court determine the gravity of the sentence to mete out to the appellant, but not as a basis for a conviction. 29. It is for the above reasons that this court must interfere with the findings of the learned trial court; it has been held that an appellate court will only interfere with a trial court’s findings if it is clear to the appellate court that the trial court’s findings are based on a misrepresentation, of the evidence, or it is shown that the trial court acted on wrong, principles in making the findings. 30. In this regard, see Tyson George, Ngowa Versus Republic court of Appeal at Malindi [2017] eKLR 31. In the instant case, I am satisfied that the learned trial court misapprehended the evidence in reaching the conclusion that the offence of committing an Indecent Act contrary to section 11(1) of the Act had been proved beyond any reasonable doubt. Conclusion 32. From all the foregoing, I find that the appellant’s appeal has merit. The same is accordingly allowed. The conviction is hereby quashed and the sentence of ten (10) years imprisonment is set aside unless otherwise lawfully held. The appellant shall be released from prison custody forthwith. It is so ordered. Judgment written and signed at Kapenguria

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R. N. SITATI JUDGE Judgment delivered, dated and countersigned at Meru on this 25 th day of July, 2018. ALFRED MABEYA JUDGE

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