REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG'A CRIMINAL APPEAL NUMBER 56 OF 2017 BETWEEN SAMUEL WANYOIKE MUIRURI..............................................................................APPELLANT AND REPUBLIC....................................................................................................................RESPONDENT (An appeal from the original conviction and sentence in the Senior Principal Magistrate's Court at Kigumo Cr. Case No. 491 of 2016 delivered by Hon. A. Oganda, R.M. on 5th July, 2017). JUDGMENT 1. The Appellant was charged with the offence of defilement contrary to Section 8(1) (2) of the Sexual Offences Act. The particulars of the offence were that on the 17 th of March, 2016 at [particulars withheld] Village, Ichagaki Location in Murang'a South Sub County within Murang'a County he intentionally caused his penis to penetrate the Vagina of E.W.W., a child aged 8 years. He was further charged with an alternative count of committing an indecent act with a minor contrary to Section 11(1) of the Sexual Offences Act in that he indecently touched the vagina of E.W.W., a child aged 8 years. 2. He denied both charges and the matter proceeded to full trial. He was subsequently found guilty of the main count and sentenced to life imprisonment. He was aggrieved by the decision and sought an appeal against both the sentence and conviction. He raised (5) grounds of appeal that I have distilled into one ground: that the case was not proved beyond a reasonable doubt. Summary of evidence 3. I will interrogate the evidence afresh and arrive at a finding independent of that of the trial court as is the duty of the first appellate court. The summary of evidence is given while I am conscious of the fact that I was not able to observe the demeanor of the witnesses. These two principles I am to bear as established by the authority in Okeno v Republic [1972] eKLR. 4. The prosecution called seven witnesses to establish its case. PW1, E.W.W., was the complainant in the case and she gave an unsworn testimony. She testified that she was aged eight (8) years at the time of the defilement. This was established by the birth notification card, exhibit 1, produced by PW7, PC Mercy Adisa of Maragua Police Station. It was PW1's testimony that on the material day she was in the company of two of her friends PW3 J.W. and PW4 T.K. They were heading home from school at about 3.00 pm. They were accosted by a man who wore dreadlock styled hair. He invited them to go see his motorcycle which according to the man was off the road and inside the thicket. They obliged and followed him. As they went further into the thicket that was nearby he turned and ordered them to sit down. When they sat he told PW4 to leave. He left and the man went on to grab PW1 and PW3 by the wrist. PW3 managed to wiggle herself loose and ran off. The perpetrator was left with PW1 and he proceeded to defile her. PW6 confirmed this by producing a P3 Form filled by Mr. Mwangi. The perpetrator then stood up and left PW1 lying down ordering her not to tell anyone. 5. Meanwhile, PW3 and PW4 ran and informed PW2, M.W.N, and PW5, S.N.M., the mother and father to PW1 respectively. PW5 who had just come from work got on his bicycle at about 4.30 pm and went to look for his daughter. He rode heading to PW1's school and calling out her name. As he rode, she emerged from a thicket. Her school uniform was soiled and her hair had grass in it. She was shocked and looked like she was in great pain. He took her to hospital and later filed a report with the police. 6. PW6, Charles Kamau Kamotho, a Clinical Officer at Maragua Hospital produced into evidence the P3 form as exhibit 3 and treatment notes as exhibit 2. These were filled by Mr. Mwangi, also a Clinical Officer who examined the complainant. It was his finding, in the course of treatment, that the complainant's hymen was broken. Further, that a high vaginal swab done showed that there were no spermatozoa
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present but puss cells were present. 7. PW1 along with PW3 and PW4, T.M., a classmate to PW1 gave a description of the perpetrator. They went by his dreadlock styled hair to narrow down on the Appellant. This was because he was a regular visitor at a nearby farm and was a casual laborer who tended to cattle. He was tracked after a while from a tip-off. He was arrested and thereafter charged accordingly. 8. In defence, the Appellant gave an unsworn statement. He testified as DW2 and called the area chief as DW1. It was his narrative that he learned that there were people baying for his blood because they had heard that he had defiled a girl. DW1 on his part testified that the Appellant reported to him that there were people who wanted to lynch him on allegations that he had defiled a girl. Determination 9. The appeal was canvassed vide Zoom Video Conference. The Appellant who was in person relied on written submissions filed on 1 st September, 2020. The Respondent on the other hand was represented by learned State Counsel, Miss Gichuru who opposed the appeal. 10. It was the submission of the Appellant that there were inconsistencies in the testimony of PW1, PW3 and PW4. He submitted that while PW1 noted that the perpetrator grabbed her from the road, PW3 and PW4 stated that he led the three of them into the bush. He had them sit down and ordered PW4 to leave but PW3 also escaped. He also submitted on the failure to consider that other factors could have been at play to cause her hymen to break. As well that, the failure to subject him to a medical examination meant that the conviction was not safe. He urged that the court acquits him. 11. On her part, Miss Gichuru submitted that all the elements of the offence charged were proved and that therefore the conviction was safe. She also submitted that the Appellant's defence was weak and did nothing to shake the case of the prosecution. Lastly, she urged the court to dismiss appeal. 12. The paramount issue for determination in my view is whether the Appellant was properly identified. It is largely the issue with glaring discordance with the rest of the evidence. The Appellant was identified on suspicious and disjointed circumstances that warrant a closer scrutiny. 13. The Appellant was identified by the prosecution witnesses, namely PW1,3 and 4 as a man who had a dreadlock styled hair. It was on the basis of this that he was tracked down and arrested. PW1 testified further to knowing the perpetrator. PW2 testified that the Appellant was the only man in the village with this kind of hair. However, PW5 attested to there being another man identified as Kimani who wore his hair that way. 14. The Appellant was arrested by PW5, PW1's father. It is clear that they relied on the identification evidence of PW1, PW3 and PW4 in so doing. The two (2) children who witnessed the abduction and the unfortunate victim were the only persons who saw the perpetrator. However, their testimony was solely reliant on the fact that the Appellant had dreadlocks. The question must therefore be whether the identification was safe. 15. From the totality of the identification evidence, the same was by dock identification which ought to be properly scrutinized. There are parameters for safe dock identification. For instance, in the case of Gabriel Njoroge v Republic (1982-88) 1 KLR 1134, the Court held that dock identification of a suspect is generally worthless unless other evidence is adduced to corroborate it. As such, it is dangerous to rely exclusively on the dock identification of a witness without material corroboration. Further, in Amolo v Republic (1991) 2 KAR 254 the court said: “The reason for the Court’s reluctance to accept a dock identification is part of the wider concept, or principle of law that it is not permissible for a party to suggest answers to his own witness, or, as it is sometimes put, to lead his witness”. 16. A perusal of the trial court record turns up empty. The only evidence that ties the Appellant to the offence is that of PW1, PW3 and PW4. It was their testimony that the only memory they have of the person who accosted them is the dreadlocks. The attempt to give any other solid identification elements was lacking. Therefore, the evidence rested on the fact that this man was handpicked owing to the fact of his hairstyle and he was further roped into the case because he was known by the family. 17. In my view, I fault the singular description of the Appellant by his hair style as an insufficient mode of identification, more so because it was evidenced that there was another man in the area who had dreadlocks. He was merely profiled by fate of circumstances. In any case, an opportunistic defiler with similar hairstyle could also have stalked PW1. 18. In the upshot, I find that in the absence of evidence of a positive identification of the Appellant, it beats logic to delve into whether other elements of the offence were established. True, PW1 may have been defiled, but there is insufficient evidence that the Appellant was the perpetrator. His culpability could not be ascertained was insufficient. I thus make a safe conclusion that the prosecution failed to prove their case beyond a reasonable doubt. The conviction of the Appellant was unsafe. I quash the same, set aside the sentence and order that he be forthwith set free unless otherwise lawfully held. It is so ordered. DATED AT MURANG’A THIS 3RD DAY OF DECEMBER ,2020. G.W.NGENYE-MACHARIA JUDGE
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In the presence of: 1. Appellant in person. 2. Mr. Waweru for the Respondent.
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