Jok v State

Pw1 he threatened to cut her with a panga and chased her away. She testified that she took Pw1 to Nduru Hospital. 12. LM (Pw5) testified that he is a clinical officer at Nduru Hospital and has worked for 4 years with Isaac Omwangi and he is thus familiar with his handwriting. He testified that Pw1 was brought in with a history of defilement. It was alleged that he was exposed to anal sex for 2 years. According to the report there were traces of faecal matter on anal region and bruises that had been sustained by the child. Pw1 was counseled and given medication. 13. MN No. xxxx (Pw4) testified that the appellant was brought in at Nyamarambe police station 2 members of the community on 15 th March 2017. The appellant had been accused of defiling a 6 year old boy. Pw4 testified that he placed the appellant in custody. JM No. xxxx (Pw3) confirmed that the appellant was brought in from Nyanchenge police post and a complaint filed by Pw2. A P3 form was issued to Pw2 and filled at Nduru District Hospital. 14. When the appellant was placed on his defence he gave unsworn testimony. He denied committing the offence and testified that he had been framed following a land dispute. 15. The appellant in his appeal submits that the charge sheet was defective. The appellant contends that the offence in the charge sheet ought to have read sodomy and not defilement and he was thus convicted on a defective charge. 16. One of the key ingredients to be proved by the prosecution for the offence of defilement is penetration. Under section 2 of the Sexual Offences Act, penetration has been defined as ‘the partial or complete insertion of the genital organs of a person into the genital organs of another person’. Genital Organs under the same section of the Act has been defined ‘to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.’ Therefore, the act of defilement includes penetration of the anus and thus the charge sheet cannot be described as defective. In the case of Chaka Mangisi Ngao v Republic [2018] eKLR the court held that: “…..to the extent that the particulars of the charge sheet did indicate the Appellant did cause his penis to penetrate the anus of a child aged 7 years, there was no defect in the said charge sheet. It is also notable in this regard that there is no offence known as sodomy in the Sexual Offences Act or Penal Code that could have been substituted for defilement, irrespective of the term having being used in the P3 form that was produced by PW3. Lastly, the evidence adduced by the prosecution, and particularly by PW2 and PW3, did support the particulars in the charge sheet, and there was thus no need for amendment of the same.” 17. The evidence led by the prosecution point to the elements of defilement and therefore the charge sheet was not defective. Pw1 gave clear evidence that the appellant inserted his penis in his anus and injured him. Pw1 immediately told his mother Pw2 that the appellant told him to remove his clothes, hold his knees and the appellant inserted his penis in his anus. 18. Although the P3 form described the act as sodomization, it was also clear from the medical report that there had been penetration of Pw1’s at his anus as bruises were noted. The complainant was further referred to a surgeon for further management. 19. The appellant however contends that he was not given the medical reports that formed part of the prosecution evidence. Article 50 (2) (j) of the Constitution of Kenya guarantees the right to a fair trial which includes the right to be informed in advance of the prosecution evidence. It provides as follows: “50. (2) Every accused person has the right to a fair trial, which includes the right: (j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.” 20. Recent case law from our jurisdiction reveal that court have taken a rather functional as opposed a rigid interpretation of the right under Article 50 (2) (j) of the Constitution. Although the appellant contends that he was not supplied with the documentary evidence (the P3 Form), he has not demonstrated that he satisfied the minimum obligation, which was to ask for documentary evidence before trial. I agree with the reasoning of Ngugi J in M E M v Republic [2018] eKLR where he stated: “21. In this case, the Appellant says on appeal that the witness statements were never supplied to him. However, he does not allege that he asked for them and that the Court failed to give them. Indeed, his argument is that the Court record does not reflect that he was given witness statement. This argument verges on the technical: that failure of the Court to record that an Accused Person has been given witness statements is a per se proof violation of his constitutional right to fair trial. I do not think our decisional law has enunciated such a rigid and formalistic rule. 22. Instead, our case law provides a more functional approach. While it is a salutary practice for a Trial Court to record to indicate that it has given orders for an Accused Person to be provided with the statements or has facilitated their supply, failure to record this is not necessarily fatal. As I held in an earlier case: It is salutary practice for the Court to do so when it has given orders. Indeed, it is salutary practice for the Trial Court to satisfy itself that an Accused Person has all the reasonable facilities for his defence and all the prosecution disclosure documents before commencement of trial. However, an Accused Person has an obligation to bring it to the attention of the Court that he has not been supplied with the witness statements (or any other prosecution documents) as ordered by the Court. This minimum obligation on the Accused Person triggers the Court’s duty to ensure the documents are supplied before commencement of the trial.

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Francis Muniu v Republic [2017] eKLR. 23. In his case, as in the Francis Muniu Case, there is evidence that the Appellant participated in the trial vigorously through crossexamination which is in an indication that he knew the case facing him well. There is also no indication that he asked for the witness statement and was not supplied with them. These two factors lead to the conclusion that the fair trial rights of the Appellant were not violated in this case: he either received the witness statements or failed to fulfill his minimal obligation to inform the Court that he did not have the statements.” 21. The appellant herein participated fully in the trial and even cross examined Pw5 who produced the P3 form and treatment chit as exhibits. I therefore find that his right to fair trial was not violated. 22. Having carefully looked at the prosecution evidence in its entirety, the evidence led by the prosecution point to the conclusion that there was penetration. The evidence of Pw1, Pw2, Pw5 as well as evidence from the P3 form conclusively lead to a finding that the prosecution proved the element of penetration. 23. I shall now consider whether the appellant was the alleged perpetrator was the appellant. In this case, the prosecution evidence reveals that the appellant was well known to Pw1. In the case of Wamunga v R, [1989] KLR 424 this Court while dealing with the complexities of an identification of an assailant stated as follows; - “It is trite law that where the only evidence against a defendant is evidence of identification of recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction”. 24. Pw1 and Pw2 both testified the appellant was Pw1’s uncle and a person well known to Pw1. Pw2 testified that they shared the same compound with the appellant. Pw1 in his testimony testified that it was his uncle, the appellant that told him to bend down and defiled him. I therefore find that the appellant was properly identified by Pw1. 25. Finally, the prosecution has to establish that the victim was minor at the time the offence was committed. According to the age assessment form, Pw1 was 9 years as at 9 th July 2019. This could only mean that at the time the offence was committed in 2017, Pw1 was 7 years. It is therefore my finding that age was well proved by the prosecution. 26. The appellant merely denied committing the offence and did not provide any evidence of any land dispute with Pw1’s family. In the end, I find that his defence could not displace the prosecution case. I therefore find that the prosecution proved all the ingredients for the offence of defilement beyond any reasonable doubt. 27. On the sentence, the appellant was sentenced to 20 years’ imprisonment as opposed to the mandatory life imprisonment under section 8 (2) of the Sexual Offences Act. Section 8 (2) provides as follows: “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.” 28. I therefore do not find that the sentence meted by the trial court was rather lenient. 29. In conclusion I find that the prosecution proved its case beyond any reasonable doubts. The appeal is lacking in merit and consequently dismissed. Dated, Signed and Delivered at KISII this 9th day of February, 2022. R. E. OUGO JUDGE In the presence of: Appellant In person Mr. Kaino State Counsel ODPP Kevin Court Assistant

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