REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CRIMINAL APPEAL NO. 30 OF 2018 LAMECK NYABUTO........................APPELLANT VERSUS REPUBLIC.......................................RESPONDENT (Being an appeal from original conviction and sentence of the Chief Magistrate’s Court at Kisii in Criminal Case NO.18 of 2017 before: Hon. S.N. Makila- S.R.M.) JUDGMENT 1. The appellant, Lameck Nyabuto, was charged with the offence of defilement contrary to section 8(1) as read with section8(2) of the Sexual Offences Act, 2006. The particulars of the offences were that on 12th July 2016 in Kisii Central within Kisii County unlawfully and intentionally caused his penis to penetrate the vagina of WK a child aged 4 years. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 2. The prosecution called five (5) witnesses to prove its case. The trial court after conducting voire dire examination came to the conclusion that the minor gives unsworn testimony. Pw2, the complainant, recalled that she was playing when she was approached by the appellant, whom she knew as LK, to go to his house. She told court that “He undressed me and did bad manners to me. He used his thing and put it in my (point’s vagina) I felt pain. He used his thing for urinating on me. I bled a bit and I cried.” 3. Pw1 and Pw3 are the parents of the complainant. Pw1 testified that she realized that Pw2 was missing around 5:00-6:00 p.m. and was informed by her playmates that Pw2 had gone with the appellant. She proceeded to the appellant’s house and found Pw2 fully undressed on the appellant’s bed while the appellant had removed his trouser halfway. Pw1 was bleeding and crying. She raised an alarm and proceeded to Ibeno District hospital and later to Keumbu Hospital. Pw3 testified that they went with Pw1 to the appellant’s home after being informed by her playmates of the complainant’s whereabouts. He told court he found the complainant naked and the appellant was defiling her. 4. The clinical officer at Keumbu Sub County Hospital, Pw4, testified that the complainant had a history of defilement. Vaginal examination revealed that the hymen was torn with bruises on the right side of labia minora. On laboratory examination, urinalysis showed pus cells and epithelial cell. The complainant was given antibiotics and post exposure drugs to prevent HIV/AIDS. He testified that the examination was consistent with the allegation of defilement. Pw5 received a call from a member of the public regarding a child who was defiled at [particulars withheld] and was further informed that the suspect had been arrested. Pw5 took both the suspect and the complainant to Keumbu District Hospital. He told court he recorded witness statements and charged the appellant based on the evidence gathered. 5. The court found the appellant with a case to answer and accused gave sworn testimony. He testified that he was a mason prior to his arrest, and that on 12th July 2016 he was at home. He asked Pw3 to pay him, instead of paying the amount due, Pw3 accused him of defiling his daughter. He told the court that he was framed for the crime. 6. At the close of the hearing, the trial court found that the prosecution had proved its case against the appellant and convicted him of the offence of defilement sentencing him to serve life imprisonment. 7. He now appeals against the conviction and sentence on the basis of the grounds set out in the petition of appeal filed on 30th May 2018. The grounds may be summarized as follows; that the trial was conducted without taking into consideration that he did not understand the proceedings, the trial court failed to interpret the proceedings as required by section 198 (1) and (3) of the Criminal Procedure Code; that the prosecution did not prove its case to the required standard; and that his defense was not considered by the trial court. 8. At the hearing of the appeal the appellant relied entirely on its written submissions and asked the court to reduce his sentence. On the other hand the state counsel, Mr. Otieno made oral submissions opposing the appeal. He argued that the complainant was aged 4 years and the appellant was found in the act by Pw1. He submitted that the complainant was found in the appellant’s house undressed. He further argued that Pw2 testified that the appellant defiled her. On the issue of sentence he testified that the appellant was sentenced to life imprisonment after the age of the child was proved to be 4 years. He therefore sought to have the appeal dismissed.
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9. I have considered the appellant’s written submissions, oral submissions by the State counsel and the petition lodged by the appellant. I recognize that as a first appellate court I have a duty to consider all the evidence afresh, evaluate it independently and reach my own conclusions having regard to the fact that I neither heard nor saw the witnesses (See Okeno v Republic [1972] EA 32). 10. I will now proceed to examine the trial court’s record and the grounds raised by the appellant challenging the conviction and sentence. I will first begin by examining whether the trial court failed to give the appellant a fair hearing as the appellant submitted that evidence was given in a language he did not understand. Article 50 (2) (m) of the Constitution provides that: “Every accused person has the right to a fair trial, which includes the right(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial.” 11. Section 198 (1) of the Criminal Procedure Code states that “whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open court in a language which he understands.” In the case of Bernard Wachira Kamonye v Republic [2008] eKLR the Court of Appeal observed that:- “This case [Diba case] which was decided way back in 1986, lays down the principle that either the name of the person interpreting the proceedings to an accused person be recorded or at least the nature of the interpretation be record. (sic) The “nature of interpretation” can only be by showing the language of interpretation and as the learned Judges there pointed out:- “-- The practice of recording, if not the name of the interpreter, at least the nature of the interpretation, has been standard practice in these courts for many years. --.. ” 12. After examining at the trial court’s record I find that when the charges were read to the appellant, though the court record does not indicate the language used when the charge was read to the appellant, but it appears that he understood the charges against him as he responded that the charges were not true. Had the appellant not understand what was happening, he would have complained to the court and this would have been captured in the proceedings. On 1st March 2018 the court heard oral evidence from Pw1, Pw2 and Pw3 and the court noted the nature of interpretation by recording the languages as English/Kiswahili/Ekegusii. The trial court took the evidence on Pw4 and Pw5 on 13th April 2018 and recorded the language to be Swahili/Ekegusii. The appellant during trial cross-examined Pw1, Pw2, Pw4 and Pw5 and this indicates that he understood the charge and the nature of the proceedings against him. He elected not to cross-examine Pw3. 13. In his submissions the appellant submitted that the prosecution case was marred with contradictions. He argued that the evidence of Pw1 contradicted that of Pw3, as Pw3 testified that they proceeded to the appellant’s home in company of Pw1, while the testimony of Pw1 does not reveal that she was in company of Pw3. I do not find that the evidence of Pw1 and Pw3 were in the slightest contradictory. Evidence of Pw3 was simply more elaborate in regard to the people that entered the appellant’s house. In any case, there are bound to be contradictions and inconsistencies in the evidence based on what each witness observed. The Court of Appeal in Erick Onyango Ondeng’ v Republic NBA CA CRA No. 5 of 2013 [2014] eKLR observed that: “With regard to contradictions 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 minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 14. The main issue for determination in this appeal is whether the prosecution proved, beyond reasonable doubt, that the appellant defiled the complainant. In order to prove its case under section 8(1) of the Sexual Offences Act, the prosecution must show that the appellant did an act that amounted to penetration of a child. “Penetration” under section 2 of the Act means, “ the partial or complete insertion of the genital organs of a person into the genital organs of another person.” I would now consider whether the prosecution proved its case to the required standard, beyond reasonable doubt. 15. Pw2 gave clear testimony that the appellant “did bad manners” to her, she explained that the appellant “used his thing and put it in my (point’s vagina)”. The evidence of Pw1 was also corroborated by the testimony of Pw3 who testified they found the child naked and the appellant was defiling her. Pw1 who was also at the appellant’s house testified that she found that the appellant had undressed the complainant who was on his bed defiled. The medical evidence presented by PW 4 also indicated that there had been penetration. Pw4 testified that the complaint’s hymen was torn and that she had bruises on the right side of labia minora. This evidence corroborated the evidence of Pw1, Pw2 and Pw3. 16. On identification the appellant was a person well known to the complainant and her parents. The appellant is PW2 cousin and a nephew to Pw1 and Pw3. Further the appellant was caught in the act defiling the complainant. 17. In its decision the trial court found that the age of the complainant to be 4 years. The trial court observed as follows: “The complainant in this case was aged 4 years at the time of the offence. Pw5 produced a mother and child health booklet as P. exhibit 4 which shows that the complainant was born on 26.7.2012. The said P. exhibit 4 confirms that indeed the minor/complainant was aged 4 years when the incident herein occurred. I am convinced that the complainant’s age was proved beyond reasonable doubt.” 18. The age of a child is a question of fact and according to the charge sheet, it was stated that she was aged 4 years. The child’s mother, Pw1
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also confirmed that the child was born on 26th July 2012. The trial magistrate was correct in its finding to hold that the child was 4 years. 19. The appellant also complained that the trial magistrate did not consider his defense. The trial court considered the appellant’s defense. The records indicates as follows, “ The accused in his defense alleged that he had been framed with these charges over an unpaid debt by the complainant’s father (PW3) who had refused to pay the debt. The accused during cross-examination said that he never saw the complainant on the material day. Is this not a contradiction to his cross-examination of PW1where he insinuates that the PW1 slapped him? The accused person’s defense did not hold any water. The same was a mere denial without tangible explanation. The accused did not say how much was owed to him by the complainant. 20. I have considered the appellant’s defense and find that it did not dent the prosecution case as the testimony of Pw1, Pw2, Pw3 and Pw4 were credible and consistent. The trial court who saw the said witnesses observed that PW1 remained firm in her testimony even during cross-examination and that the appellant was positively identified by the complainant, the appellant was a person known to her. 21. The trial court sentenced the appellant to life imprisonment pursuant to section 8 (2) of the Sexual Offences Act which provides that a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. I affirm the conviction. I have considered the appellant’s appeal on sentence and the Court of Appeal’s decision in Jared Koita Injiri v Republic [2019] eKLR where the Court of Appeal after considering the Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic, SC Pet. No. 16 of 2015observed as follows; “In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis. …. Needless to say, pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic (supra), we would set aside the sentence for life imposed and substitute it therefore with a sentence of 30 years from the date of sentence by the trial court.” 22. The appeal is hereby allowed only to the extent that the sentence of life imprisonment is quashed and substituted with that of 30 years’ imprisonment to run from the date of arraignment, that is, 10th May 2017. Dated, signed and delivered at Kisii this 4th day of July 2019. R.E. OUGO JUDGE In the presence of; Appellant In Person Mr. Otieno Senior Prosecution Counsel Office of the DPP Rael Court Clerk
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