Republic v Laban Wambugu Waruguru & 1 other

2. Being aggrieved by their conviction and sentence, the appellants filed this appeal. 3. This Court, as the first appellate court is duly bound to reconsider afresh the trial court’s evidence and arrive at its own independent conclusion. The duty of the first appellate court was considered in the case Eliud Waweru Wambui v Republic [2019] eKLR as follows:"It is required to and must be seen to be seen to have, consciously and deliberately subjected the entire evidence to thorough scrutiny so as to arrive at its own independent conclusions on the factual issues in contention, and to determine on its own, the guilt or otherwise of the appellant, the only limitation to its task being a remembrance that it is without the advantage, enjoyed by the trial court, of seeing and observing the witnesses as they testified, for which it must make due allowance.” 4. The prosecutions’ case is that Laban and Willy locked three boys in their house and sodomised them. One of those boys, JMM stated that they followed Laban and Willy. He further stated: "All three of us followed them when we reached their door, he pushed us inside their house and locked their house.” 5. That witness as did the other two boys proceeded to very graphically described how they were each sodomised. 6. The mother of the MSM, one of the three boys stated that on 14th March, 2016 she was telephoned by a lady neighbour at 6 pm and was informed that her son MSM on arriving home from school locked himself in the toilet and was crying. The mother of MSM on arriving home coaxed him to come out of the toilet. On inquiring from MSM the mother was informed of how he and two other boys were sodomised. MSM informed his mother that he was experiencing pain at his anus. 7. Prosecution led evidence which showed that it was as a result of MSM informing his mother of what was done to him that his mother contacted mothers of the other two boys and the matter was reported to the police. 8. Laban and Willy in their defence denied the charge. Willy stated that the charges were brought against him because of conspiracy (Fitina). He did not elaborate on this. Laban stated that the charges were “fabricated”. Without elaborating Laban stated that pastors of the surrounding churches to the one he belonged to had previously on two occasions threatened his life. Analysis and Determination 9. The appellants have brought forth 15 grounds of appeal. Out of those grounds, the appellants have narrowed down four issues. 10. On the first issue, the appellants posed the question: Has the prosecution proved this case beyond reasonable doubt? 11. In response to that issue, the appellants submitted that prosecution failed to prove the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (thereafter the Act). The appellants submitted that prosecution did not prove the ingredients of that offence as held in the case Paul Otieno Okello v Republic [2019] eKLR as follows:"15. As to whether there was any contact between any body part of the Appellant with the genital organ, breast or buttocks of the complainant which act however did not cause any penetration, I must say that I have re-read the proceedings severally and did not see https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/364/eng@2022-05-05 2

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anywhere where the complainant alleged that the Appellant touched her genital organ, breast or buttocks. ... With such state of evidence, I do not see how the offence of committing an indecent act with a child was proved. A trial court should not assume that once it finds no evidence of commission of the principal charge of defilement then the lesser charge of committing an indecent act with a child must have been committed. Every offence has the same threshold of being proved beyond any reasonable doubt." 12. It is the appellant’s position that prosecution failed to meet the definition of committing indecent act with a child, as defined in Section 2 of the Act. In this regards, appellant raised the deficiencies of the prosecution’s evidence by submitting that there was no proof before the trial court that the victims of the crime were children and that there was no evidence of contact between any body part of the appellants and genital organ, breast or buttocks of the victim. 13. Appellant’s submission is that it is paramount in an allegation of offence under the Act that the age of the victim be proved. In the submissions appellant stated that the prosecution failed to prove the ages of the complainants. 14. I have considered those submission of the appellant. The jurisprudence that has developed on the issue of proof of age of the victim in sexual offences cases is that the age of the victim can be proved by birth certificate, by medical evidence, by parents or guardians, amongst others. A case in point is William Koech Kiyeng v Republic [2015] eKLR as follows:"In Joseph Kieti Seet v Republic [2014] eKLR H.C Machakos Criminal Appeal No. 91 of 2011 Hon Mutende J held as follows:‘It is trite law that the age of a victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni v Uganda , Court of Appeal Criminal Appeal No. 2 of 2000. It was held thus: In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…’” 15. The appellants were convicted of the offence of committing an indecent act with a child as provided under Section 11(1) of the Act which section provides:"11(1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.” 16. For the offence to be actualized under that section, the indecent act has to have been committed with a child. That Section does not, as some of the sections of the Act, graduate the term of the sentence to be served on conviction depending on the age of the victim. In this regard, reference is made to graduated sentences under Section 8 of the Act. In Section 11(1) of the Act under which the appellants were convicted, the offence is committed if the indecent act is with a child. Under Article 260 of the Constitution an adult means an individual who has attained the age of eighteen years and a child means one who has not attained the age of eighteen years. It follows that an offence under section 11(1) of the Act is committed if the indecent act is committed with a child, that is, one who is below the age of 18 years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/364/eng@2022-05-05 3

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17. JMM, one of the complainants before the trial court stated in evidence that he was 9 years old as at the date he testified. He testified in December, 2016. His mother (name withheld) PW6 stated that JMM was 9 years old. Further, the proceedings of the trial court at page 26 line 14 and 15 shows that JMM’s mother produced evidence JMM’s birth certificate which was marked as exhibit No. 7. On my perusal of the trial court’s file, I was unable to trace that birth certificate but I accept that it indeed was produced. 18. The other complainant was AKN. His mother (name withheld) PW5 stated that AKN was in standard 4 and that as at the date of testifying he was approaching 10 years old. 19. MSM the third complainant said that he was nine years old. His mother (name withheld) PW4 stated that MSM was born on 25th May, 2005. 20. The clear evidence of the prosecution and which evidence was not challenged by the appellant was that, the three complainants were students at (name withheld) Primary School. This was indeed confirmed by the Deputy Head teacher of that primary school. 21. The Kenya Ministry of Education guidelines require a chid to start schooling at 6 years of age and to complete primary schooling cycle at the age of 13 years. 22. All the above goes to show that the prosecution proved that the complainants were children, as defined under the constitution. But much more than this, the trial court which had the advantage of hearing and seeing the complainants testify had this to say. "… This Court had the benefit of seeing them (the complainants) and its clear though (sic) there was no proof of their ages they were clearly minors in lower primary school. The complainant’s P3 and PRC Forms I find in there the doctors also arrived at the same conclusion with the court. Their ages were indicated in the said documents as 10, 8, 8 years respectively.” 23. In view of the above finding, I reject the submissions of the appellants that the age of the complainant were not proved. The ages of the complainants were proved by the very persons who ought to know the ages of the complainants, that is, their mothers. 24. All the three complainants were subjected by the trial court to voir dire examination. The voir dire examination is for the purpose of the court determining whether a child of tender years understands the nature of the oath: See the case Johnsoin Muiruri v Republic [1983] KLR 447. There was no objection raised by the appellants, or more importantly their learned counsel, that the complainants should not be subjected to voir dire examination. That can only mean that the appellants conceded that the complainants were children of tender years. It follows that the complainants were children under the age of 18 years and accordingly, the requirements under Section 11(1) of the Act that the indecent act committed against a child was proved beyond doubt. 25. The second issue raised by the appellants in this appeal was the determination of whether there was proof that there was contact between any body part of the accused person with the genital organ, breast or buttocks of the child victim. 26. In support of the above issue, appellants conceded that the complainants, all the three of them testified in detail how the appellants applied oil to their buttocks and then defiled them. Indeed, appellants by their written submission stated thus: "Each of the said witnesses (the complainants) complained that they felt pain as a result of the insertion (the defilement). https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/364/eng@2022-05-05 4

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Further, according to the testimony of PW4 (mother of MSM) She had witnessed a watery substance coming out of (MSM) anus. Similarly, PW5 (mother of AKN) testified before court that she had examined each of the minors and found that they all had watery substance coming out of their anus.” 27. Although appellants conceded the above evidence was evidence submitted by the prosecution during the trial, they however argued that the evidence as contradicted by medical documents adduced at the trial and that that evidence as affected by inconsistencies in the prosecution’s evidence. 28. The first point raised by the appellant in respect to the above issue was that the medical evidence did not support penetration of the complainant’s anus. The trial court by its judgment had this to say:"I consequently find that the prosecution proved the offence of gang defilement against the 1st and 2nd accused persons, save that the issue of penetration was not clear, I therefore find the 1st and 2nd accused persons guilty of the alternative charge of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act in count 1, II and III and accordingly, convict the 1st and 2nd accused persons of the same...” 29. The above finding was infiuenced by the Post Rape Care Form (PRC) of the ministry of Health. In that form the medical doctor noted there was no physical injuries in the three complainants. 30. The appellants were convicted of committing an indecent act with a child, that is, the complaints, and not the offence of defilement. Section 2(1) of the Act defines indecent act as:"indecent act” means an unlawful intentional act which causes(a) 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.” 31. As will be noted from the above, appellants confirm that the complainants were consistent in describing how the appellants applied to their buttocks oil and defiled them. Their mothers PW4 and PW5 and PW6 witnesses watery substance in each of the complainant’s anus. That evidence in my view proved there was contact between the appellants’ body part with complainant’s anus as provided under Section 2(1) of the Act. 32. It is also worthy at this point to consider the holding in the case SCN v Republic [2018] eKLR thus:In Kassim Ali v Republic [2006] eKLR it was held:“… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.” 18. This was reaffirmed in the case of George Kioji v R Nyeri Criminal Appeal No. 270 of 2012 (unreported) that:‘Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/364/eng@2022-05-05 5

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properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.’” 33. Appellant also submitted that the offence was not proved because of inconsistence of the date when the offence occurred. The charge sheet stated that the offence occurred on 11th March, 2016 while the mothers of the complainants in evidence stated the offence occurred on 14th March, 2016. 34. What is to be determined is whether the statement in the charge sheet that the offence occurred on 11th March rather than 14th March as stated by prosecution’s witnesses caused prejudice to the appellants. I can find no prejudice and the appellants failed to elaborate on the prejudice they suffered. This brings to mind the holding by the Court of Appeal in the case Obedi Kilonzo Kevevo v Republic [2015] eKLR thus:"The test applicable by an appellate court when determining firstly the existence of a defective charge, and secondly its effect on an appellants’ conviction is whether the conviction based on the alleged defective charge occasioned a miscarriage of justice resulting in great prejudice to the appellant. In the case of JMA v. Republic [2009] KLR 671, it was held inter alia that: “It was not in all cases in which a defect detected in the charge on appeal would render a conviction invalid. Section 382 of the CPC was meant to cure such an irregularity where prejudice to the appellant is not discernible.” Applying this principle to the rival arguments of the parties, we are satisfied in the instant case that this was an omission and discrepancy which did not prejudice the appellant and that no miscarriage of justice has been occasioned as a result of the difference in dates. The errors on the dates cannot make the charge sheet defective or the conviction a nullity. This defect is therefore curable under Section 382 of the Criminal Procedure Code.” 35. I cannot find that the error in the charge sheet, stating the date of offence was 11th March occasioned a failure of justice. I will therefore cure that omission of the date by applying the provisions of Section 382 of the Criminal Procedure Code thus:"Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 36. The appellants further submitted that the complainants’ evidence was inconsistent as to whom was defiled first and whether the complainants were in the room as each was defiled and the inconsistency on the person, amongst the appellants, who defiled which complainant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/364/eng@2022-05-05 6

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37. In my view, in the light of the very clear evidence of the defilement by the appellant, the stated inconsistency is not so grave to lead this Court to find the complainants were not honest witnesses. I rely on the Court of Appeal decision I the case Kazungu Katana Ngoa v Republic [2017] eKLR thus:"[15] This Court had occasion to address this issue recently in Phillip Nzaka Watu v R [2016] eKLR, where it expressed:‘However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed it has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and couching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.’” (emphasis supplied) 38. It is also worthy to note that recollection of incidents as they occur, the standard of a reasonable adult in recollecting is not appropriate to assess the evidence of a child. 39. Although appellants submitted that the appellants’ identification was through an identification parade, I find that the evidence of PW5, mother to AKN, shows that Laban was arrested following his identification at a church service by AKN. On being arrested, he was requested to call Willy which thereby led Willy to go to Juja police station which also led to the arrest of Willy. 40. Apart from a statement by PW4, mother of MSM, that appellants were identified by MSM through an identification parade, no question was put to PW8 Pc. Frida Anali of any such parade. It therefore remains that it was AKN who identified Laban and Laban lured Willy to surrender at the police station whereupon he was also identified by AKN. There is therefore sufficient evidence of the identification of the appellants. 41. Nothing also turns on the appellants’ submission that prosecution failed to call a vital witness, the street urchin. The street urchin was said to have no place of abode, and it is therefore not surprising he was not called by prosecution. But more importantly, is that the said street urchin was not present when the offence, the subject of the case before court, were committed. His evidence would not have added any value to the prosecution’s case. Nor did the failure to call the investigating officer affect the prosecution’s case. The prosecution availed witnesses of the offence which evidence was supported by the parents of the complainant and that was sufficient to prove the offence was committed beyond reasonable doubt. The evidence of those witnesses who testified aided the trial court to establish the fact the offence was committed. 42. The State through the DPP prosecution counsel Mr. Kasyoka did not oppose this appeal. DPP conceded to this appeal on the basis that the age of the complainants was not proved at the trial. However, as I have endeavoured to show above, Section 11(1) of the Act speaks of indecent act committed against a child. A child as defined in the constitution as one who has not attained 18 years of age. The complainants were children attending lower primary school. They were nowhere near the age of 18 years. For that reason, the concession made by the DPP to this appeal is rejected. I uphold the conviction of the trial court of both appellants. The sentence meted out by the trial court was the minimum sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/364/eng@2022-05-05 7

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43. This Court finds no merit in the appeal of both appellant, Laban Wambugu Waruguru and Willy Kungu and accordingly, both Criminal Appeals Numbers E088 of 2021 and E089 of 2021 against conviction and sentence are dismissed. JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 5TH DAY OF MAY, 2022. MARY KASANGO JUDGE Coram: Court Assistant : Maurice 1st Appellant : - Laban Wambugu Waruguru : Present 2nd Appellant : - Willy Kungu : Present For Appellants : -Ms. Kamau H/B Mr. Swaka For DPP : - Mr. Kasyoka JUDGMENT delivered virtually. MARY KASANGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/364/eng@2022-05-05 8

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