Brian Ochieng Owuor v Republic

13. He pleaded with the court to reduce the sentence so that he may get an opportunity to get reintegrated back into the society, soon. 14. In answer to the appeal, learned Prosecution Counsel, Ms M. Odumba, submitted that all the ingredients of the offence were proved beyond any reasonable doubt. 15. The Respondent submitted that the age of the Complainant was proved to have been 16; and also that the Appellant was positively identified at the scene of crime. 16. On account of the age of the Complainant, the Respondent submitted that she lacked capacity to consent to any sexual act. 17. On the issue of the sentence, the Respondent pointed out that the prescribed sentence was at least 15 years imprisonment. Therefore, as the Appellant was jailed for 10 years the Respondent submitted that his court ought not to reduce the sentence. 18. I will now re-evaluate the evidence on record. 19. PW1 is the mother of the Complainant. She testified that she learnt about what had happened to the Complainant from a neighbour, who phoned her. Immediately after she got the information PW1 rushed to the Muhoroni Police Post, where she found both the Appellant and the Complainant. 20. Both of them were covered in mud. 21. From the Police Post, the 2 were taken to the hospital for examination. 22. PW1 said that the Complainant was admitted in hospital for 3 days. Thereafter, the Complainant had to undergo counselling, as she was very distressed. 23. PW1 produced the original Birth Certificate of the Complainant, which showed that the Complainant was born on 14 th January 2002. 24. During cross-examination PW1 explained that the Complainant was muddy because she had been defiled in a swampy place. 25. PW2 is the Complainant. She testified that she was 16 years old. She said that on the material day, she had gone to Mtwala River to wash clothes. Whilst she was getting ready to leave for home, a man appeared from a bush and confronted her. 26. Although she ran-off, the man chased after her and caught her after she slid and fell down. 27. He then defiled her, whilst threatening to kill her if she continued shouting. He strangled her and also covered her mouth with his hands. 28. It was the Complainant’s testimony that it started raining after the Appellant got hold of her. 29. Whilst he was still in the act, a passer-by pursued the offender and, together with other persons who joined in the chase, they caught up with the offender. 30. PW2 testified that he identified the Appellant at the time of the incident, and that when the Appellant was arrested by those who arrived at the scene, she confirmed that that was the person who had just defiled her. 31. PW3 is a village elder. He rushed to the scene after getting a phone-call about a man who had just been caught in the act of defilement. 32. He phoned the Chief, who went to the scene in the company of police officers. 33. PW4 testified that on the material day, he left his house, heading to an Mpesa shop in Muhoroni. 34. From his home, the road leading to town passes by a river. As he was walking by the river, he heard somebody saying that someone was being defiled. He approached the river he saw a man jump into the river. The man crossed the river and reached the area where PW4 was. Apparently, the man had not known that PW4 was there. 35. PW4 grabbed the man. However, the man slipped-off and entered the river again. But PW4, with the help of other members of the public entered into the river and arrested him. 36. PW4 told the court that the person he arrested is the Appellant herein. 37. During cross-examination, PW4 testified that the Complainant, who was crying hysterically, was covered in mud. 38. PW5 is a Clinical Officer based at Muhoroni Sub-County Hospital. He testified that on the material day, he examined both the Complainant and the Appellant.

page 2 of 5

39. PW5 said that he saw lacerations on the Complainant’s vaginal wall, and that her genitalia was filled with soil and foreign bodies like grass. 40. She had epithelial cells and red blood cells which PW5 said, were an indication of internal vaginal injuries. 41. PW5 produced the P3 Form; the Discharge Summary and the Laboratory Result Form; as well as the Post Rape Care Form. 42. PW6 is a neighbour to the Complainant. On the material day he rushed to River Mtwala after learning that the Complainant had been defiled. 43. At the river, PW6 found both the Appellant and the Complainant. She said that the Complainant was full of mud, whilst the Appellant was stark naked. 44. PW7 testified that on the material day he took his cattle to Mtwala River, to graze. 45. In the evening of that day he returned to the area, to collect his cattle. 46. He is one of the people who arrested the Appellant inside the river. 47. Thereafter, when the police arrived, the Appellant took them to a bush where he had defiled the Complainant. At that spot, the Complainant’s panty was recovered. 48. During cross-examination, PW7 denied the suggestion that he might be the person who had stripped clothes off the Appellant. 49. PW8 was the Investigating Officer. After a report was received at the Muhoroni Police Post, PW8 was assigned the task of investigating it. She went to the scene, with 2 other police officers. 50. She testified that the scene was muddy, and that there was evidence that there had been a struggle there. 51. PW8 arrested the Appellant and escorted him together with the Complainant to the Police Post, and then to the hospital. 52. After PW8 testified, the prosecution closed its case. 53. However, both PW5 and PW8 were recalled thereafter, when the Appellant made an application to that effect. 54. PW5 noted that whilst the P3 Form gave the Complainant’s age as 16, the Clinical Card indicated that her age was 17. 55. PW5 also said that no spermatozoa was seen in the Complainant’s vagina. 56. When PW8 was recalled she said that the Appellant had removed his clothes so that could commit the offence. It was her evidence that the Appellant was not mentally unstable. 57. PW8 denied the suggestion that the case was simply fabricated against the Appellant. She explained that the physical injuries on the Complainant were proof of what transpired to her. 58. When the Appellant was put to his Defence, he said that he was employed as a Caretaker at a home in Koru. 59. On the material day, he confirmed being within the area where the offence was committed. 60. He insisted that he was intercepted by 2 men who are strangers to him. Those men claimed that he had defiled a minor. 61. The Appellant said that he was not naked. He explained that it is the men who had intercepted him, who undressed him. 62. The Appellant testified that he had never met the Complainant. 63. He said; “It is a must for someone to ejaculate when having sex. It is not true that I was caught in the act of sex and that is why I did not ejaculate.” 64. Having re-evaluated the evidence I find that there was conclusive proof that the Complainant was defiled. She testified that the offender inserted his penis into her vagina. 65. The Complainant’s evidence was corroborated by the medical evidence.

page 3 of 5

66. The evidence of penetration was in the nature of the lacerations and bruises to the genitalia of the Complainant. 67. Although the Appellant has submitted that the said injuries may have been caused by a nurse who had inserted her finger into the Complainant’s vagina, the evidence tendered shows that no nurse did as alleged by the Appellant. It was only the Clinical Officer who examined the Complainant physically. 68. And whilst the medical report did not specify how far back the Complainant had lost her hymen, the presence of the epithelial cells was a clear indication of the nexus between the time the Complainant was defiled and the time when she was examined. In other words, the incident happened only a few hours before the Complainant was examined. 69. As regards age, the Birth Certificate indicates that the Complainant was born on 14 th January 2002. 70. The P3 Form, which is dated 8th November 2018 indicates that the Complainant was 16 years old. 71. However, in the medical notes dated 3rd November 2018, the Complainant’s age is cited as 17 years. 72. The Appellant submitted that the evidence on the age of the Complainant was thus unreliable. 73. I find that by a simple deduction, a person who was born in 2002, would, in 2018 be 16 years old. As the Complainant was born in January 2002, it would not be until January 2019, that she would turn 17. Therefore, as at November 2018, when the incident took place, the Complainant was still 16. 74. However, it is also absolutely correct that as at November 2018, the Complainant was only 3 months shy of her 17 th birthday. In those circumstances, I do appreciate why it was possible for the Complainant to have said to the doctor that she was almost literally, already 17 years old. 75. But it is noteworthy that her exact date of birth was 14 th January 2002, as was shown on the Birth Certificate; and also as testified about by both Complainant and her mother. Therefore, the evidence proved that the Complainant was still 16 at the time of the incident. 76. The remaining question is about the identity of the person who perpetrated the offence. 77. Both the Complainant and the Appellant told the court that they did not know each other prior to the incident. 78. In the circumstances, I found it curious that when he was cross-examining the Complainant, the Appellant suggested that the Complainant may have called him before she went to the river, so that they could meet there. 79. The question that is pertinent is about the identity of the perpetrator. 80. The Complainant testified that from the moment the Appellant first appeared from behind a bush, he was naked. The Appellant did not cross-examine the Complainant about that aspect of her evidence. Therefore, when the Appellant later suggested that it is the members of the public who had undressed him, that was an afterthought which he intended to utilize in an attempt to escape from justice. 81. Secondly, the offender did not just appear suddenly, and later disappear after a brief moment. The Complainant noticed him, and she tried to get away. The offender pursued her and eventually caught up with her. 82. The Complainant tried to free herself by struggling with the offender. The evidence of the struggle was visible at the scene. 83. Throughout the incident, the offender was naked. He took-off in that state of undress, when some members of the public appeared. He jumped into the river, and the members of the public followed him into the river. 84. Although they caught up with him, the offender temporarily freed himself from their grasp. But he did not manage to escape. 85. Once the offender was arrested by the public, the Complainant confirmed that that was the person who had defiled her. 86. I find that there was no break in the chain of events, from the time the offender ran-off after being found committing the offence, until the time when the offender was re-arrested by the police. 87. The identity of the offender was thus positively ascertained to be the Appellant herein. 88. But I also note that whilst the Complainant had not known the Appellant prior to incident, the P3 Form indicated that the Complainant had; “……. been defiled by a person known to her …………”

page 4 of 5

89. Similarly in the Discharge Summary issued by the Muhoroni County Hospital, it was indicated that the Complainant had been defiled by a person known to her. 90. According to the Appellant, the pieces of evidence, concerning the identity of the offender were inconsistent. 91. In my considered view, the evidence must be put within context. First, both the Complainant and the Appellant confirmed that prior to the incident, they had not known each other. 92. However, as the offender had been arrested at the scene of crime, and because he was escorted to the police station and also to the hospital, in the company of the Complainant, it was correct that the Complainant knew, as at that time, the identity of the person who had defiled her. 93. Accordingly, I find that the Appellant was positively identified by the Appellant. In the circumstances, there was no room for any mistaken identification. 94. As regards legal representation, the learned trial magistrate accorded the Appellant, time and opportunity to engage an advocate. I find that the Appellant suffered no prejudice. 95. On the question regarding the rejection of the Appellant’s application to have the Complainant recalled, I hold the considered view that the learned trial magistrate had exercised her discretion judiciously. 96. The Complainant was attending school at the time when the Appellant asked that she be recalled to testify. 97. On the issue of the sentence, I find that the learned trial magistrate sought and obtained a Victim Assessment Report. That was done after both the prosecution and the defence had drawn the Court’s attention to the decision in WANJALA Vs REPUBLIC CIVIL APPEAL NO. 312 OF 2018, wherein the Court of Appeal had held that the statute law ought not to take away the court’s discretion, by imposing mandatory minimum sentences. 98. The trial court properly exercised its mind, as prescribed by the Policy on Sentencing. The seriousness of the offence; the impact of the offence on the victim; the circumstances of the offence; and the impact on the offender’s family; were all taken into account, when the Court weighed the Mitigating Factors against the Aggravating Factors. 99. I find that the sentence of 10 Years Imprisonment was not just lawful, but it was justified. I so hold after taking into account the fact that the trial court was even bold enough to hand down a sentence of 10 Years Imprisonment, when the prescribed minimum sentence was 15 years Imprisonment. 100. In the result, the appeal is dismissed. I uphold both conviction and sentence. DATED, SIGNED AND DELIVERED AT KISUMU THIS 16TH DAY OF MARCH 2021 FRED A. OCHIENG JUDGE

page 5 of 5