Anderson Muderwa Unziru v Republic

5. Briefly, facts of the case were that the complainant with her sibling aged three (3) years ten months were playing outside their house. Their mother, PW1 JM called them and prior to bathing them noticed the complainant’s underpants were stained with blood and mucous. Upon interrogation the complainant mentioned the appellant as the person who had molested her. The complainant was taken to hospital for examination and treatment. While on the way they encountered PW2 AK her father who went home and found the appellant hiding under his parent’s bed. He called the police who arrested him. In the course of investigations some specimen were obtained from the complainant and the appellant and subjected to DNA profiling. It was concluded that the DNA profile generated from semen stain obtained from the trousers indicated as of the complainant matched the DNA profile generated form the buccal swab sample indicated to be for the appellant. Investigations were concluded that culminated into the appellant being charged. 6. Upon being put on his defence the appellant stated that on the 28th February 2014, he was arrested as he prepared to bathe so as to go to church and was taken to three different Police Posts and Station respectively prior to being arraigned in court where he was charged with the offence. He denied the allegations. 7. The trial court analyzed evidence adduced and concluded that the complainant accurately told the court what transpired. It found her a truthful witness. In the result, the court found the prosecution having proved the age of the complainant, the act of penetration and the appellant as the assailant beyond reasonable doubt. 8. The appeal was canvassed through written submissions. It was urged by the appellant that penetration could not have occurred as it was not proved, and, that the complainant removed her clothes and this having been the case, it should have been a case of committing an Indecent Act as provided by Section 11(1) of the Sexual Offences Act. That medical evidence adduced cast doubts on the prosecution’s evidence in respect of the offence of defilement. That there could not have been laceration and bleeding noted on the vagina, a day after the offence was committed. That despite the hymen having been broken it was not proof of penetration as held in the case of PKW vs Republic [2012] eKLR where it was stated that: “ Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen” 9. On the question whether the appellant was the assailant, it was submitted that although the appellant was inside the house, evidence adduced regarding the time the offence was committed was contradictory, therefore, identification was not proved beyond reasonable doubt. 10. The appellant questioned why crucial a witness who was told to record the ordeal was not availed to testify and concluded that the court failed to analyze evidence adduced objectively so as to determine his criminal culpability. 11. In response thereto the Respondent submitted that evidence of the complainant was corroborated by that of PW1, PW5 and the medical evidence hence proving the element of penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/516/eng@2022-06-02 2

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12. That the complainant identified the appellant as her assailant, evidence that was confirmed by the DNA profile generated from the semen obtained from the complainant’s clothes; and the buccal swab of the appellant, evidence that placed the appellant at the scene of crime and there was no other inference that could be drawn other than that of guilt. 13. With regard to contradictions, it was urged that it is not unusual for inconsistences to arise in a trial but where the inconsistencies are minor and do not go to the root of the matter, they cannot be fatal as stated in the case of Philip Nzaka Watu vs. Republic (2016) eKLR where the court of Appeal Stated that: “ 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 as 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 coaching 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.” 14. As to the issue of the complainant’s brother who did not testify, it was submitted that, it was not a requirement. 15. On the allegation of the applicant having been 17 years old at the time of arrest, the Respondent argued that during defence hearing the appellant claimed to be twenty (20) years old but while mitigating he alleged that he was Eighteen (18) years old. That although an order was made for the appellant to be taken for age assessment the report did not form part of the record. But, as at 12th January 2018 the court was informed that the appellant was twenty-two (22) years old which means that the sentence meted out was lawful. 16. This being a first appellate court, it is obligated to re-analyze, and re-evaluate afresh what transpired at trial and draw its own conclusions bearing in mind that it did not have the opportunity of hearing or seeing witnesses who testified. This fact was stated in the case of Okeno v Republic [1972] EA 32, where the Court of Appeal set the duties of the first appellate court thus: “ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic [1957] EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (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 finding and conclusion; 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] E.A 424.” 17. The appellant has faulted the trial court for not reaching a finding that elements of the offence of defilement were not proved to the required standard of proof beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/516/eng@2022-06-02 3

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18. The appellant was tried following allegations of having engaged in coitus with a child of tender years. Section 8(1) of the Sexual Offences Act Provides that: A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 19. In the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 it was stated that: “ The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 20. Therefore the prosecution was required to prove all elements of the offence beyond reasonable doubt. On the question of the age of the victim which does not seem to be in dispute, an Immunization Card was adduced in evidence which showed that the complainant was born on 27th June, 2009. Other than documentary evidence, PW1, and PW2, parents of the complainant stated that the complainant was born on 27th June 2009. 21. In the case of Francis Omuroni vs. Uganda, Criminal Appeal No. 2 of 2000, the Court of Appeal of Uganda observed as follows: “ In defilement cases, 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...” 22. The victim’s parents did prove the age of the victim. The trial court which had the opportunity of seeing the victim observed and was convinced that the child was of an apparent age of five (5) years at the time of testifying the offence having been committed at a time when she was about 4½ years old. This was proof beyond reasonable doubt that the complainant was a child of tender years. 23. On the question of penetration, it is defined by the Sexual Offences Act as partial or complete insertion of the genital organs of a person into the genital organs of another person; it was the testimony of the victim/complainant that the assailant inserted a ‘dudu’ into her genitalia. That he lay on the bed facing up and she stood facing down when he inserted his genital organ into hers. 24. PW1 undressed the complainant so as to bathe her when she noticed stains of blood and some mucous substance on the underpants. 25. PW5 Irene Mumbua testified to have been called by PW1 and when she went to her house she examined the complainant and found that she was bleeding from her genital organ which alsohad secretion. 26. At the outset the complainant was taken to Mbagathi District Hospital. PW9 Margaret Mutungwa, a Clinical officer examined her and found she had laceration on the external vagina with active bleeding from the vagina and she had a blood stained underpant. 27. PW6 Dr. Joseph Maundu examined the complainant on 24th February 2019 and noted lacerations and bruises on her outer genetalia. Her hymen was broken. He concluded that the child had been defiled. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/516/eng@2022-06-02 4

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28. The Appellant argues that PW6 did not find any scientific proof that the victim had been penetrated as the fact of a broken hymen cannot be proof of penetration. In the case cited by the appellant of PKW vs. Republic the Court of Appeal Stated that: “ Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences, we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback ride, bicycle riding and gymnastics, there can also be natural tearing of the hymen.” 29. It is a fact that a hymen may not be intact as a result of other activities as opposed to sexual intercourse. But the Respondent argued that the hymen was stretched and torn as a result of penetration. The act in question was stated to have been committed on 23rd February 2014. The complainant a child of tender years was subjected to voire dire and the court concluded that she was intelligent enough to understand questions that were put to her and she gave credible answers. 30. Section 124 of the Evidence Act provides thus: Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), 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 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. 31. The learned trial magistrate considered evidence adduced of how events unfolded and the complainant having stated details to specificity therefore believed her. In the premises, I find that based on evidence adduced by the complainant that was corroborated by medical evidence there was proof of penetration. 32. As regards the question of identification of the assailant, the Complainant identified the appellant as a neighbour who offered them tea, she was with her younger brother A who was allegedly given a phone to photograph the act as it unfolded. 33. The appellant complains that A, a crucial witness was not called to testify. Section 143 of the Evidence Act provides that: No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/516/eng@2022-06-02 5

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34. In the case of Keter vs. Republic [2007] 1 EA 135 the court held inter alia: “ The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.” 35. A was stated to have been 3 years and (10) months, a - child of an apparent age of three years. Section 125 of the Evidence Act provides that: All person shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them. 36. The defence did not demand calling of the child to testify which would have prompted the court to act pursuant to Section 150 of the Criminal Procedure Code. But, it is apparent that because of the age of such a child, it was unlikely that he could understand the court process. 37. To prove the case to the required standard, some DNA profiling was done, some profile generated from the semen stain obtained from the trouser that the complainant had on the fateful date matched with the DNA profile generated from the buccal swab that was obtained from the appellant. This was proof that the appellant come into contact with the complainant on the fateful day hence the identification of the appellant as the culprit was positive. 38. The appellant contends that the prosecution’s case was riddled with inconsistences. It is argued that the date when the act was committed according to PW7 was 23rd February 2014 while PW2 stated that it was on 25th February 2014. In the case of Twehangane Alfred vs. Uganda Criminal Appeal No. 139 of 2001 (2003) UGCA 6 it was stated 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.” 39. The appellant failed to demonstrate that the contradictions pointed out went to the root of the case. Witnesses having given different dates was a minor discrepancy. The complainant was examined soon after the act on the 23rd February, 2014, a Post Rape Care Form was filed. It specifies the date when the offence was committed. 40. Another alleged discrepancy was in respect of what the complainant was wearing at the time of the offence. One of the items submitted for DNA profiling was an underpant that the complainant was wearing. In her testimony the complainant stated that she was wearing a skirt. PW1 was silent on what exactly the complainant was wearing. But one of the items submitted was a dress stated to be for the complainant. These contradictions were not genuine as there was proof of the applicant’s semen on one of the complainant’s clothes and no explanation was given how it came into contact with it. 41. On the question of the sentence meted out, Section 8 (2) of the Sexual Offences Act provides thus: 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. 42. Although the appeal was against the sentence, the appellant failed to submit on it. However, looking at the charge sheet, the apparent age of the appellant was not indicated. On the 7th March 2014 the appellant told the court that he was seventeen (17) years old but the trial court did not request for an age https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/516/eng@2022-06-02 6

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assessment. On the 19th September 2014 the Appellant told the court that he was born on 28th February 1996 therefore the court took note of the fact that he was already eighteen (18) years at the time of the offence. On the 10th March 2015 the appellant told the court that he was nineteen (19) years old. When he was put on his defence on the 29th January 2018 he stated that he was twenty (20) years old. 43. In meting out sentence the trial court took all that into consideration prior to passing the sentence provided in law. In the premises, I find the appeal lacking merit, therefore, it is dismissed in its entirety. 44. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JUNE, 2022. L. N. MUTENDE JUDGE In the Presence of: Appellant Ms. Kibathi- ODPP Court Assistant - Mutai https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/516/eng@2022-06-02 7

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