David Kaunda Charles v Republic

8. Peter Mumo Kiema (PW5) the area sub-chief stated that he was called on the material day by PW4 with a report that the Appellant had defiled PW1 at compound of Break through Church. He testified that he proceeded to the church compound where he found the Appellant and PW1 surrounded by some members of the public. He stated that he questioned PW1 about the incident but she could not talk due to shock. He called police who came and rearrested the Appellant. 9. P.C Fredrick Kariuki (PW6) informed the court that he received information about the incident from PW5. He went to the scene in the company of his colleague and arrested the Appellant. He stated that he accompanied PW1 to Kitui District Hospital where she was examined and treated. The witness produced PW1’s pant (PEx1) which he stated was wet and dirty when the clinical officer who attended to PW1 handed it over to him. Dr Patrick Mutuku (PW7) a medical officer from Kitui District Hospital testified on behalf of his colleague one Dr. Christopher Wainya who he stated was in the United Kingdom for further studies. The witness stated that PW1 was treated in the hospital. He stated that she was in the same clothes she was assaulted. He added that PW1 stated that the perpetrator pushed her into a room within their church compound where he spread a sack and sexually assaulted her. The doctor observed that she had dust on her thighs and genitalia. That on examination, she had lacerations / bruises on her vagina and her hymen was broken. The witness also stated that an age assessment conducted on PW1 indicted that she was 11 years old and that she was put on medication to prevent contracting H.I.V infection and pregnancy. The witness produced the following documents; (i) P3 Form-P Ex. 1 (ii) Treatment card –P Ex. 2 (iii) Lab test forms Obliged-P Ex. 5 (a) (b) (c) (d) & (e) (iv) Age assessment Report-P Ex 6 10. When placed on his defence, the appellant gave sworn statement and denied committing the offence. He told the trial court that he was arrested as he was coming from a graduation on a Sunday and was taken to Kwa Vonza Police Station. She blamed Angelina Kavithe (PW4) for his woes claiming that she had been employed in the past at Tanganyika Area and that she was not happy that he had gotten another job. 11. According to him, when the child was taken to the hospital for medical examination and found not to have been defiled. 12. He further testified that he PW4 had previously instigated his arrest on false allegation of insulting a school teacher at Tanganyika. 13. The trial evaluated the evidence and found that the prosecution’s case had been proved to the required standard and convicted the appellant sentencing him to serve life imprisonment. 14. The appellant was aggrieved and filed this appeal raising the following grounds namely; i. That the trial magistrate erred by not looking forward to the fact that the said complainant when examined by the doctor there was no defilement act though he said that there was charcoal dust. ii. That the trial magistrate used hearsay evidence to convict the appellant which according to the law the is not reliable iii. That the trial magistrate didn’t consider that the grandmother of the complainant had a grudge with me post the case iv. That the trial magistrate did evaluate the Appellant’s defence of alibi against the weight of defence which was sworn with great clarity. v. That the trial magistrate erred by not considering that the witness evidence was not corroborative. 15. In his oral submissions in this court in this appeal the appellant reiterated that PW4 testified against him because of a grudge. He claimed that he used to work for the lady and used the salary she paid him to pay fees for a bible school he attended, a fact he contended, did not sit well with Angelina (PW4). He however did not say whether the other witnesses who testified against him like PW3 also begrudged him. He however contends that the victim’s mother (PW1) did not know him. 16. He further submitted that the age of the victim was not properly established given that some documents indicated she was 14 while other indicated she was 11 years. 17. The Respondent through Mr. Okemwa learned counsel from the Office of the Director of Public Prosecution opposed this appeal. The State contends that the age of the victim was established to be 11 years. The State further submits that the offence took place within a church compound where the appellant was supposed to be a shepherd but turned predator and preyed on the ‘‘flock’’. 18. The Respondent further submits that the victim was epileptic although there is no medical document referred to in that contention but it contends that the act was witnessed by PW3 who found the appellant on the act.

page 2 of 4

The Respondent contends that age was proven and that the crucial ingredient of penetration was established through the evidence tendered by the doctor (PW7). 19. This court has considered this appeal and the response made by the State through the Director of Public Prosecution. The appellant as observed above was charged with the offence of defilement contrary to Section 8(1) (2) of Sexual Offence Act which provide; “A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 8 (2). 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.” 20. The issues for determination that have arisen from this appeal are as follows: (i) Whether the prosecution proved the elements of defilement beyond reasonable doubt. (ii) Whether the sentence meted out was proper. 21. (i) Whether the prosecution at the trial discharged its burden of proof The necessary ingredients of an offence of defilement that must be established and proved to the required standard in Criminal Law (beyond reasonable doubt) are: (i) Age of the Victim. (ii) Penetration (iii) Identification of the offender 22. On the question of age, this court has perused through the evidence tendered at the trial and noted that while the P3 Form tendered as P Ex 1 indicates that the victim was aged 14 years, the age assessment report (P Ex 6) tendered by PW7 indicated that the child (victim) was aged 11 years. The apparent contradiction was not addressed by the trial court. This court finds that the P3 Form ( P Ex 1) and the age assessment report (P Ex 6) was authored by the same doctor, one Dr. Christopher. It might have been useful for the Doctor ( PW7) who testified on behalf of Dr. Christopher to give an explanation regarding the apparent contradiction but unfortunately the doctor did not. 23. I have checked at the evidence of the victim’s mother (PW2) and find that she omitted the question of age of her daughter in her evidence. With the apparent inconsistency it is moot to find the basis upon which trial court relied on P Ex 6 in making a finding on the age of the victim and not on P Ex 1 which also indicated the age of the victim was 14 years. The element of age in the face of the apparent inconsistency between the two documents was left with doubt and one cannot say with certainty that it was proved beyond reasonable doubt. The prosecution ought to have done more by seeking clarity in order to help the trial court but it did not. 24. On the question of penetration, while I agree with the respondent that the evidence of the doctor established that there was penetration, there is a crucial procedural issue that the prosecution and indeed the trial court overlooked or disregarded. 25. The evidence of the minor or the victim who testified as PW1 was incomplete as she was stood down after introduction. The prosecution however did not recall her again to finish her testimony. The Respondent has submitted in this appeal that the child was epileptic and was incoherent but I have checked at the proceedings and the evidence tendered and there is not medical evidence tendered showing that the girl was epileptic and could not testify on account of a seizure or anything of that sort. The reason why I have come to that conclusion is that the trial magistrate observed in the proceedings that; ‘‘………………the court is of the opinion that the child is possessed of sufficient intelligence to testify in this matter……..’’ This court of course is aware that an epileptic attack can be sudden and unforeseen but the proceedings do not show that the trial court noted any incident that could suggest that the minor was in some difficulty that made it hard for her to testify or comprehend what had happened to her. 26. Secondly and more importantly is that under Section 31 of Sexual Offence Act there is a procedure to be adopted where a situation arises that makes it not possible for a victim of Sexual Offence to testify. The trial court under Section 31 of Sexual Offence Act is required to declare such a person a ‘‘vulnerable witness’’ and allow an intermediary or a guardian to testify on her behalf. That procedure also requires that before a trial court declare a person a vulnerable witness, the trial court must be satisfied that there is sufficient evidence of vulnerability before a witness is declared vulnerable. 27. The above procedure was not adopted by the trial court and there are no reasons advanced to show why a key witness stood down before she testified, was never recalled to testify thereafter. The effect of that is that the finding by the trial court regarding the guilt of the appellant was devoid of the crucial evidence of the complainant. The trial court for good measure noted that anomaly in its judgement when it observed as follows: -

page 3 of 4

‘‘………………..the victim did not testify because on the day she was to testify….she was to give unsworn testimony but was stood down for reasons that she was epileptic and was oriented (sic) with events was not called at a later stage to testify but she was not called because of change of courts and change of prosecutors after the trial magistrate went on transfer…’’ 28. The trial court having noted the deficiency in the proceedings in my view misdirected itself when it went ahead to disregard a procedural and legal requirement and evaluate the evidence tendered. The fact that the trial magistrate who began the trial went on transfer, should not have been used as an excuse to disregard a flared process. The provisions of Section 200 (3) of the Criminal Procedure Code provides that a succeeding magistrate may proceed from where the predecessor leaves but should notify the accused of the right to recall a witness if he so desirous. 29. The succeeding trial magistrate as per proceedings from the lower court informed the appellant of that right upon which the appellant applied that PW4 be recalled and the request was allowed. However, that witness (PW4) was never recalled and neither was PW1 which could either have been due to some inadvertence or obvious error. In either case what is apparent is that the appellant was subjected to unfair trial and the trial court fell into error when it proceeded to evaluate the evidence tendered in the absence of the evidence of the complainant. The prosecution’s case in the absence of the evidence of the complainant could not, so to speak, stand because it lacked the legs to stand on. 30. In such circumstances, the remedy available in order to meet the ends of justice would have been to order for a retrial but in this instance the incident took place almost 9 years ago and though the appellant was convicted on 2 nd February 2017, it will not be viable or practical for re-trial to take place. 31. From the foregoing, this court finds that the prosecution’s case was not proved to the required standard owing to the deficiencies or irregularities which I have pointed out above. The conviction of the appellant was not safe in the circumstances and despite the strong medical evidence properly tendered by the doctor and PW3, this court finds that the key element of age was not well established due to the cited inconsistency and the element of penetration in the absence of evidence of the complainant could not be sustained. That fact could only be established if the complainant testified herself in court or did so by dint of Section 31 of Sexual Offence Act if she was a ‘‘vulnerable witness.’’ 32. Having found that conviction was not well founded, I will not go into the sentence because that is now academic particularly given that the question of age of the victim was also not clearly established. 33. The upshot of this is that this court finds merit in this appeal. The conviction is set aside and the sentence is reversed. The accused is hereby acquitted and shall be set free unless otherwise held. Dated, Signed and Delivered at Kitui this 8th day of March, 2022. HON. JUSTICE R. LIMO JUDGE

page 4 of 4