Kevin Omondi Agan v Republic

15. It was the evidence of PW4 that there was whitish deposit on the clitoris of the Complainant. He also said that there were signs of forceful penetration. 16. PW4 made it clear that his findings were similar to those recorded by his colleague, in the treatment notes. 17. I have perused both the Treatment Notes and the P3 Form. 18. On the treatment notes, there is a clear record as follows: “There are signs of penetration.” 19. Thereafter, under the sub-heading “VE”, the following information was recorded; “- Some whitish deposits evident around the clitoris, labia (external genitalia). - Some signs of forceful penetration evident such as hypercolouration of the labia. Rape (Domestic Rape) Sexual defilement.” 20. It is the last 2 words “Sexual defilement”, which the Appellant describes as being in a different hand-writing from the other information contained on the treatment notes. 21. I note that in the said treatment notes, it was recorded that the Complainant had reported that she had been raped by a relative, who was known to her. 22. As the age of the Complainant was indicated on the treatment notes as being 6 years, the law presumes that the Complainant was incapable of giving her consent to a sexual act. 23. Rape connotes the penetration of the sexual organ of another person, without the consent of the said person. Therefore, the offence of rape is committed when a person who is capable of giving consent, is penetrated without his/her consent. 24. If the Complainant of the sexual penetration is a minor, the offence committed against him/her is defilement. 25. It does not matter that the doctor or any other medical officer who examined the Complainant, had described the sexual penetration as Rape. Such a description cannot convert the offence from one of defilement to one of rape. 26. Once the Vaginal Examination revealed the presence of penetration of the minor’s sexual organ, the evidence was sufficient proof of the offence of defilement. 27. In the P3 Form, the Clinical Officer indicated that; “There was no discharge seen or blood from the vaginal orifice.” 28. As far as the Appellant was concerned, that piece of evidence was at variance with the information on the treatment notes. 29. A closer look at the P3 Form reveals that the Clinical Officer had expressly stated as follows; “There was some whitish deposits evident around the clitoris labia (external genitalia). Some sign of forceful penetration such as hyper colouration of the labia.” 30. That part of the P3 Form is a clear reflection of that which is in the treatment notes. 31. It is to be noted that the Clinical Officer described the clitoris and labia as being external genitalia. 32. I find absolutely no contradiction between the evidence of whitish deposits being found on the Complainant’s external genitalia, and the evidence that there was no discharge or blood from the Complainant’s vaginal orifice.

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33. That which is deposited on the outer genitalia does not need to have come from inside the vagina. 34. The hyper colouration was on the labia. But however minimal the penetration, the offence would already have been committed; that is because defilement occurs when there has been either a complete or a partial penetration. 35. In this instance, the medical professional testified that there had been forceful penetration. 36. The Appellant has expressed doubts about the alleged penetration, because; “It is only usual that if a minor is defiled, there should be blood which is caused by the forced penetration.” 37. Logically, the Appellant’s argument makes sense. However, in so far as it relates to the case before me, the said argument is nothing more than a theoretical assessment. 38. The witness should have been questioned about the absence of blood on the Complainant’s genitalia. He would then have had to explain the position. And his explanation would have been useful in enabling the court make an informed determination. 39. As the witness was not questioned about the absence of blood on the Complainant’s genitalia, I hold the considered view that the Appellant’s submission is a hypothetical one. 40. There is no factual foundation upon which the court can conclude that whenever a minor was defiled, there must be bleeding. 41. It therefore follows that, just because there was no bleeding, the court cannot presume that the Complainant was not defiled. 42. PW1 is the Complainant’s aunt. She is a sister to the Complainant’s mother. 43. Meanwhile, the Appellant is a brother to PW1’s husband. 44. The Appellant’s mother testified that the Complainant lived with PW1. However, she also said that all her grandchildren, including the Complainant, used to sleep in her house. 45. JK (DW5) is the Appellant’s father. He testified that the Appellant’s house was within the same compound as the parents’ house. 46. On the material day, the Appellant had his breakfast at the house of PW1. 47. In effect, the Complainant and the Appellant were not strangers. They were relatives, and they lived within the same compound. 48. The Appellant’s mother testified that the Appellant and PW1 were not in good terms, after DW5 had objected to the intention of the Appellant, to marry the Complainant’s mother. 49. In my considered opinion that piece of evidence is inconsistent with the truth. I so hold because on the very day when the Complainant was defiled, the Appellant had gone to the house of PW1, early in the morning, and that is where PW1 served him tea. 50. It would not make any sense for the Appellant to have breakfast served by PW1, if the two were not on good terms. 51. I also find that the alleged bad relations between PW1 and the Appellant was imply an afterthought, because it was only introduced by the Appellant’s mother, who testified at DW5. 52. If indeed, there had been bad blood between PW1 and the Appellant, it would have been expected that the Appellant should have given to PW1, an opportunity to comment on the matter. 53. But the Appellant made a conscious decision that he would not cross-examine PW1. 54. More specifically, the fact that the Appellant was given breakfast by PW1 on the same day when the Complainant was later defiled, is a clear pointer at the absence of any bad blood between PW1 and the Appellant. 55. The Appellant did not even question PW1 on her evidence concerning the age of the Complainant. 56. Although, ordinarily, the prosecution is expected to lead evidence to prove the age of the Complainant, in a case of defilement, I find that in the circumstances prevailing in this case, there was no need for strict proof. I so find because the age of the Complainant was specified in the Treatment Notes and on the P3 Form, which were admitted in evidence without any questions being raised. 57. That fact, coupled with the evidence of the Complainant’s guardian, and also because the Appellant and the Complainant knew each other very well, leads me to find that the decision not to raise any question about the Complainant’s age was informed by the fact that the Appellant knew the Complainant to be of the age about which PW1 testified.

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58. In the case cited by the Appellant, MARK OIRURI MOSE Vs REPUBLIC, CRIMINAL APPEAL NO. 295 OF 2012, the Court of Appeal noted thus: “However, having said as above, we still think, even if the evidence of the Complainant was expunged because of that omission, the trial court still had the evidence of her mother, the evidence of her grandmother, and the evidence of Victor, the Clinical Officer upon which the appellant could still have been convicted as there was clearly evidence of penetration of the victim’s vagina with the appellant’s penis and the evidence of her age being six years was not challenged.” 59. The Appellant went into the house where the Complainant was. Inside the said house, there was electric lighting, and the lights were on. Therefore, the Complainant saw the Appellant clearly. 60. This was a case of recognition. 61. There was absolutely no room for any mistaken identification. 62. The Appellant led the Complainant outside the house and it is there that he defiled her. I find that there is no doubt about the identity of the person who committed the act of defilement upon the Complainant. 63. In that respect, the evidence of the Complainant was corroborated by the evidence of Sharon, who found the Appellant in the act. 64. If the Appellant’s Defence was accepted, it would imply that he was not at the scene of crime at the material time. 65. But the question which arises is with regard to the place where he was. 66. The Appellant said that between 7.20p.m and 9.00p.m he was at a bar. He then took Edwin Ouma (DW3) home, using a motor-bike. 67. He then joined Edwin for supper, at Edwin’s house. 68. Thereafter, he ferried a visitor from the home of Edwin’s mother, and took the said visitor to Kibigori. 69. The Appellant reached Kibigori at about 10p.m. He then talked with his girlfriend (DW7), until about 11p.m when he persuaded her to accompany him back to his house. 70. The Appellant and his girlfriend got home at about midnight, and they spent the rest of the night together. 71. On his part Fredrick Sombe said that he was with the Appellant at Makutano Junction Bar, on the material night. 72. Whilst the Appellant said that he left the bar at 9p.m, DW2 said that the Appellant left the bar at 8.30p.m. 73. On the other hand, Edwin (DW3) said that he and the Appellant left the bar at 9p.m. But he also said that he and the Appellant watched the 9p.m news together, at DW3’s house. 74. DW4, K, is the mother of the Appellant. She said that the Appellant and Edwin arrived at her house at 8.30p.m. 75. If, as DW4 said, the Appellant only left her house at 9.00p.m, it would follow that at 8.30p.m, the Appellant was not at the bar, as he had already reached his mother’s house. 76. And as the Appellant would then be at his mother’s house until 9p.m, he cannot have, simultaneously, been at Edwin’s house watching news and having dinner. 77. It is even more confusing when J, (who is the Appellant’s father) said that the Appellant had supper with him on the material night, and that it was not until 9.30p.m that they parted ways. 78. In fact, during cross-examination DW5 (Joshua) said that the Appellant only left home at around 10p.m. 79. MA (DW6) is a “sister” to the Appellant. She said that the Appellant was “like a brother” to her. 80. On the material night, DW6 had supper with the parents of the Appellant, at about 8.30p.m. 81. She stated quite categorically, that no one else was present at the house at that time. 82. As the learned trial magistrate noted;

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“It is absurd that the accused was at 3 different places at the same time.” 83. Therefore, I share the views expressed by the trial court, that the evidence adduced by the Defence was intended to mislead the court. However, the court clearly saw through the conspiracy. 84. Furthermore, as the Appellant was recognized by the Complainant and also by S, he was firmly placed at the scene of crime. In the circumstances, I find that the conviction was well founded. The same is upheld. 85. As regards the sentence, I find that the Appellant has failed to demonstrate how the trial court allegedly flouted the principles of sentencing. 86. The Appellant was accorded an opportunity for mitigation, and he told the trial court that it could do what it pleased. 87. The trial court then sentenced the Appellant to Life Imprisonment. The said sentence was in accordance with the provisions of Section 8(1) of the Sexual Offences Act. In the result, the sentence is lawful. 88. In conclusion, there is no merit in the appeal: It is therefore dismissed in its entirety. DATED, SIGNED and DELIVERED at KISUMU this 22nd day of January 2019. FRED A. OCHIENG JUDGE

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