REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE CRIMINAL APPEAL NO. 90 OF 2019 (Being an appeal from the decision of V. Karanja (SRM) in Criminal Case No. 66 of 2019) NICKSON WAFULA KITININDI.............APPELLANT VERSES REPUBLIC...............................................RESPONDENT BETWEEN REPUBLIC.............................................PROSECUTOR VERSES NICKSON WAFULA KITININDI.............ACCUSED JUDGEMENT 1. The Appellant was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on diverse dates between 1st December, 2018 and 12th day of March, 2019 Trans-Nzoia County intentionally caused your penis to penetrate into the vagina of NCS a child aged 17 years. 2. The alternative count was Committing an indecent act with a child contrary to Section 11(1) OF the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between 1 st December, 2018 and 12 th day of March, 2019 within TransNzoia County intentionally caused the contact between your genital organ namely penis and the genital organ namely vagina of NCS a child aged 17 years. 3. The Appellant was convicted and sentence to 15 years’ imprisonment hence this appeal which raises several grounds. Before looking at them it is necessary to summarise the evidence as presented during trial. 4. PW1 NCS, the Complainant said that she lived with her sister and that she was 17 years old as per the certificate of birth which she produced for identification. She said that she was a student at [particulars withheld] and she used to help her sister who operated a hotel business. 5. When she was in form one her sister opened for her a business of roasting maize and that the Appellant was her customer. In November, 2018 they started a relationship and by January, 2019 he was her boyfriend. In the cause of time they had sexual intercourse in the Appellant’s house but she did not inform her sister. 6. She went on to state that she went to Kakamega where she lived in the street as a street girl or chokora. Later the Appellant called her to go to Bungoma where they met and rented a house and they lived for 2 weeks and that they engaged in sexual activity regularly. The Appellant later left for work at Sunkeen and he did not go back to the Complainant. 7. Later he went with the Police Officers and was escorted to Kitale Police station and the Complainant taken to the hospital where upon examination she was found to be 4 months pregnant. 8. On cross examination she said that she did not have relatives nor boyfriend in Kakamega but she went to look for work. She insisted that she was his first boyfriend.
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9. PW2 VCS stated that she was a business lady operating an hotel called Masaba for the last 6 years and that the Complainant was her sister who was in form 2 at [particulars withheld] Secondary school. She said that she disappeared from home on 25 th February, 2019 after leaving for school in the morning. She said that she called the school and she was told that she had not reported and she went to Kitale Police station where she made a report. 10. She went to the school and she was told that the Complainant was a friend to the Appellant and they stated looking for him at Sunkeen where he informed them that the Complainant was at Bungoma. Together with the police the Appellant led them to Bungoma where they found the complainant and they took her to the hospital where she was examined and found to be 2 months pregnant. She said that she had warned him that the Complainant was a pupil but he still proceeded with the relationship. 11. PW3 JOHN KOIMA, a clinical officer from Kitale County hospital produced the P3 form on behalf of DR. KEGODE who examined the Complainant and found that she was 2 months pregnant. Her hymen was torn and old looking. He concluded that there was penetration. 12. PW4 PC PURITY NABWIRE from Kitale Police station on behalf of her colleague P.C UMAZI who investigated the matter testified that it was PW2 who brought the report to the station having suspected the appellant to have a love affair with the appellant. The police travelled to Bungoma where they arrested the Appellant. The Complainant confirmed that she had sexual intercourse with the Appellant regularly. She went ahead to produce the Complainants birth certificate which showed that she was 17 years old. 13. On cross examination she said that she did not know whether the Complainant had rented the house or the Appellant. 14. The Appellant was then placed on his defence where he gave unsworn evidence denying the charge. He said that he was confronted by some people on 13th March, 2019 and accused of taking away a school child. He was taken to Bungoma where the Complainant was and both were escorted back to the police station. 15. He admitted that she knew where the Complainant worked as he was a customer in that hotel. He denied the offence and insisted that he was arrested in Trans-Nzoia while the complainant was arrested in Bungoma. ANALYSIS AND DETERMINATION 16. Both the Appellant and the Respondent have filed written submissions which this court has perused and does not find it necessary to reproduce them here save to state that they each pull away from each other and in support of their positions. 17. This courts duty is to re-evaluate afresh the evidence on record and come up with a fresh and independent finding noting that unlike the trial court it did not have the chance and opportunity to see the witnesses and their demeanour. The court in the case of Okeno V. Rep. (1972 EA 32) stated that: “An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R [1957] EA 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala v R [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] EA 424.” 18. The grounds to be considered for the offence of defilement are generally threefold, namely, the age of the Complainant, the identity of the perpetrator and penetration. 19. In the matter at hand the issue of the Complainant’s age was not disputed as the same was proved by the production of the certificate of birth which showed that she was born on 10th July, 2002. She was therefore 17 years old as at the date of the offence. 20. On the question of penetration, the evidence of the Clinical Officer and by extension doctor Kegodes report showed that she was 2 months pregnant as at the time of examination. Clearly there was penetration. 21. Was the Appellant the perpetrator as found by the trial court? The evidence by the minor was to the effect that they were friends and had engaged in sexual activity together more than once. They did so in Trans-Nzoia as well as Bungoma. At some point the Complainant ran away from home and went to stay in the streets of Kakamega as a street urchin popularly called chokora. 22. There was no any other eye witness to the incident. There was no evidence that the appellant stayed with the Complainant in same house either in Trans-Nzoia or Bungoma. There was no evidence of the arresting officer to show that they found the Complainant in the house rented to her by the Appellant. Neither is there any evidence tendered on behalf of the landlord with whom the Appellant rented the house at Bungoma where the appellant was found. 23. The above conclusions in my view cast doubt on the evidence as presented by the Respondents. The court in such single witness in matters dealing with sexual offences is generally guided by the provisions of Section 124 of the Evidence Act in particular the proviso thereof which requires the court to convict if the evidence is believable. The said Section provides as follows: “Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declarations Act, where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an
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offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 24. In this regard, this court casts doubt on the credibility of the Complainant and the evidence at large. There was no evidence that the minor was school going. There was nothing to suggest that she was a form two student at St. Patricks secondary school. This was necessary since from her own evidence she was aiding her sister at the hotel and she had her own business of roasting maize. 25. More significantly she said that she was a street urchin in Kakamega town till the period the appellant rented a house for her in Bungoma. Being a street urchin, one can conclude that she may or may not have engaged herself in some sexual activity which resulted in the pregnancy. 26. The pregnancy should have been subjected to DNA exercise. The results would have concluded the paternity issue. By admitting that she engaged herself in casual sex with the Appellant would lead one to conclude that she could as well lead her to do so with other men. It is therefore imperative for the Respondent, not necessarily in this case but in other cases where the victim is pregnant to carry out DNA exercise which now is not very difficult to obtain. 27. This court in view of the above sentiments casts doubt on the credibility of the complainants’ evidence. The Appellant although he gave unsworn evidence which had not much probative value, cannot be said to have been with the Complainant. In fact, PW2 stated the area chief and herself had warned the Appellant that the Complainant was a student. In the absence of the chiefs evidence the same remains as such. 28. In the premises the appellant is granted a benefit of doubt, the appeal is allowed and the Appellant set free unless lawfully held. Dated, signed and delivered in open court at Kitale this 4th day of March, 2020. _____________ H. K. CHEMITEI JUDGE 4/3/2020 In the presence of:_ Ms Kagali for the Prosecution Appellant – present Court Assistant – Kirong Judgement read in open court.
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