Pmg v Republic

7. She stated that the appellant defiled her for a long time forcing her to scream for help. That when her brother K arrived, he found her putting on her clothes while the appellant had worn his clothes and left. She disclosed that it was not the first time for the appellant to have defiled her. That the matter was reported to the village elders who summoned and interrogated the appellant. She was subsequently taken to Rukanga Dispensary and later Voi referral Hospital where she was examined, treated and a p3 form filled. 8. On his part, the appellant was escorted to Voi Police Station where he was charged with the offence before court. During cross examination, she insisted that she was 12 and not 15 years old. That the incident occurred during the day and that the accused forced her to have sex with him. She denied any knowledge of a grudge between her parents and the appellant .In re-examination, the witness stated that a lady by the name Bi Mzungu found them having sex. 9. PW2 was MMH who told the court that the appellant is her brother. That on 9 th March, 2019 she arrived home from work at 6 pm only to be informed that her daughter PW1 had been defiled by the appellant. That she overhead PW1 inform her brother K who is 18 years old that her uncle had defiled her. She stated that her daughter was 15 years old at the material time. That she reported to the village elders before whom she narrated on how Pw1 was defiled by the uncle the appellant herein. She further told the court that when they examined pw1’ private parts, they noticed some semen and that she was bruised. That pw1 told them that nobody heard her scream. 10. During cross examination, she stated that she had no grudge with the appellant and that this was the second time the appellant had defiled PW1.She denied any knowledge that pw1’s brother owed the appellant any money nor was there a grudge between the appellant and any other family member. In re-exam, she stated that the accused had been charged with defiling pw1 before but was acquitted after being remanded for 7 months. 11. PW3 No. xxxx APC Calvin Pengo of Kasigheu AP post merely received the incest report from the complainant while in company of the accused, pw2 and a crowd of people led by the incharge nyumba kumi. He referred the matter to maungu police post where after investigations the appellant was charged. 12. PW4 was Lilian Maghuna a clinical officer Kasighau Health Centre who received the complainant a child aged 10 years who had allegedly been defiled. Upon examination of her private parts, she noticed that there was some fluid but there was no bruise. She stated that the clothes she was wearing were intact save for the pant which was not there. She referred the victim to Moi referral hospital for further action. She produced her treatment notes as exhb no.1. 13. PW5 PC Mercy Njoroge the investigating officer stated that on 10th March, 2019, while at Voi Police Station, Cpl Telemoi and Pc Ratema presented a suspect the appellant herein in the company of a minor (PW1) and her mother who complained that the appellant had defiled the minor the previous day on 9 th March, 2019.That the minor narrated to her on how the appellant confronted and defiled her and upon investigation she preferred the charges before court. 14. Pw6 was Dr. Shem Jeremiah the medical superintendent at Moi Referral Hospital who pursuant to Section 77 of the Evidence Act presented a PRC form in respect of the minor filled by George Barini a clinical officer who worked at the facility but could not come to testify due to the medics strike at the facility. That the PRC form (Post Rape Care Form) in respect of PW1 was filled at the facility on 10 th March, 2019.The date of birth was found to be 1 st February, 2003 and the offence was recorded to have occurred on 9 th March, 2019 at around 11.00 am in Bungule Area. That medical examination showed the victim had no bruises, tears nor inflammation but only presence of discharge and absence of hymen. That pus cells were noted in her urinalysis examination and the victim was given a contraceptive to prevent pregnancy. In his opinion, there was no evidence of penetrative defilement in this case. 15. In his defence, the appellant in his sworn testimony denied the offence thus expressing the position that the same was a frame up arising from a grudge held by his sister pw2 after he rejected her request to sell his mines to her and her husband thus threatening that she was to teach him a lesson. He denied meeting nor interacting with pw1 that day as he was at Rukanga at 700pm from where he went home. On cross examination, he reiterated that he had differences with his sister and her husband after a boundary dispute on a piece of land his family had given the sister. 16. When the matter came for directions, parties agreed to dispose the appeal by way of written submissions. Appellant’s submissions 17. The appellant filed his supplementary grounds of appeal together with written submissions on 25 th May 2021. He submitted that the age of the complainant was not proved as the evidence of the complainant PW1 and that of PW2, PW3 and PW4 was contradictory. That the learned magistrate relied on unsafe opinions as can be observed in his judgment. He relied on the case of Hillary Nyongesa V Republic CR.Appeal No.123 of 2009 at Eldoret where the court held that where proof of age is not conclusively established by way of medical evidence or birth certificate, it would be prejudicial to convict. 18. He further submitted that the prosecution did not prove penetration as required by law. That the prosecution did not prove its case beyond reasonable doubt as held in the case of Woolmington V Dpp (1935) Ac 462. 19. On his alibi, he submitted that it was upon the prosecution to prove that he was lying that he was at Rukanga on the material day. He emphasized that the case was a frame up out of their family differences and a revenge mission because he had been acquitted of a similar offence. 20. In conclusion, he urged the court to allow the appeal, quash the conviction and set aside the sentence. Respondent’s submissions

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21. Chirchir counsel for the prosecution filed written submissions dated 1 st July, 2021 submitting that the contradictory evidence by prosecution witnesses regarding the age of the complainant and failure to produce birth certificate alone does not mean that the child was above 18 years. That variation of age as ranging between 10 and 15 years and the evidence of the mother that the complainant was 15 years is sufficient enough to conclude that either way the complainant was a minor aged below 18 years. Learned counsel contended that age is not necessarily proved by way of production of a birth certificate. To buttress that proposition, Counsel relied on the case of Richard Wahome Chege v Republic Criminal Appeal No.61 of 2016 Court of Appeal Nyeri where the court held that; “On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate.PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of a mother who gave birth? It is our considered view that the age of the complainant was not only proved by pw2 but supportive evidence was given by pw3 (the doctor) who examined the complainant and the complainant herself.” 22. On whether the charge of incest was proved, counsel submitted that the appellant is an uncle to the complainant a fact that is conceded by the appellant and confirmed by the testimony of pw1 and pw2. As to whether there was penetration, learned counsel conceded that penetration was not proved, hence conviction and sentence is not safe. That crucial witnesses were never called to testify namely; K a brother to the complainant and Bi Mzungu whom PW1 stated that had found them having sex. In counsel’s view, there was no evidence to sustain a conviction and that the court ought to have acquitted the appellant. That over reliance of section 124 of the evidence Act could not on its own be sufficient to convict. Learned counsel conceded the appeal and urged for the appellant to be acquitted. Analysis and determination. 23. I have considered the grounds of appeal herein against the record of appeal and submissions of both parties. I can discern the issues/grounds for determination as follows: a) Whether the age of the complainant was proved b) Whether there was penetration c) Whether the charge of incest was proved 24. Concerning whether the age of the complainant was proved, the particulars of the charge state that the complainant was 15 years old when the offence was committed. According to the complainant she was 12 years of age at the material time. PW2 her mother stated that the complainant was 15 years while PW4 the clinical officer who treated the complainant (pw1) first indicated in the medical treatment notes produced as pexh no.1 that pw1 was aged 10 years. The PRC form produced by PW6 recorded that the complainant was born on 1 st day of February, 2003. Further, PW6 indicated that the complainant’s birth certificate showed that she was 15 years at the time of the incident. Nevertheless, the birth certificate was never produced as evidence. In voire dire examination, the court noted that despite the complainant insisting she was 12 years old, she appeared older than the age she had indicated. The court also noted that the complainant was still below the age of 18 years. 25. The trial court in deciding the issue of the age of the complainant stated thus; “in my view therefore, in the midst of the conflicting ages of the minor, it is my considered view that the minor was still below the age of 18 years by looks and the testimony of her age as per the mother, PW2 in this case, is sufficient to prove her age as a minor within the meaning of the Children’s Act. She was therefore incapable of consenting to any act of penetration and or indecent act.” 26. There is no dispute that prosecution did not produce the birth certificate of the complainant. It is also admitted by both parties that witnesses gave varying evidence regarding the complainant’s age. However, nobody is alleging that pw1 was above 18 years. Be that as it may, the complainant was below 18 years at the time the offence was committed and for purposes of determining severity of sentence in case of conviction, I will take the highest stated age of 15 years as the correct age of the complainant. Further, as a mother, pw2 is the best person to give the age of her child hence her testimony that the complainant was 15 years when the offence was committed cannot be doubted. 27. Therefore, although production of a birth certificate is important to help the court determine the correct sentence to impose, failure to produce one is not an automatic ground to acquit an accused person if age is established through other means including parents giving the age of their child. Where in doubt, a court can order for medical examination in the course of the hearing to avoid a possible dilemma when sentencing in case of a conviction. 28. In the case of P M M v Republic [2018] e KLR the court had this to say when a birth certificate is not produced in court; “What emerges from the authorities is that whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant.” 29. I must acknowledge that unlike this court, the trial court had the chance to see and hear the evidence of the witnesses. The trial court relied on the looks of the complainant and the evidence of the mother (PW2) and came up with the conclusion that the complainant was below the age of 18 years. Thus, it’s my view that despite the discrepancy on the evidence on the age of the complainant, it is not disputed that she was below 18 years which is the age described in law in the offence of incest.

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30. On whether there was penetration, the appellant submitted that the evidence /words of the complainant were in conflict with the medical evidence which revealed that there was no penetration. The respondent in its response conceded that penetration was not proved on the grounds that; PW4’s evidence indicated that the vagina had only fluids and no bruises; the vagina had clean discharges; the PRC form and PW6 indicated that the genitalia was normal hence no proof of penetration to infer defilement. That if indeed pw1 had been defiled on 9 th March, 2019 as alleged, then PW4 would have noticed since she examined her the same day after some hours. 31. The trial court in dealing with the issue of penetration observed that; “Having had an opportunity to see the complainant testifying, it was apparent that she understood exactly what penetration meant. In her description of the actual act, she understood the meaning of “mdudu wa kukojoa” to mean a penis and a vagina. … in the present case too, the absence of bruises or tears did not prove that the complainant was not defiled or penetrated as within the meaning of the act, the absence of hymen showed she had been sexually active before the incident and probably other times but her testimony that she was penetrated cannot be rubbished by the absence of tears or injury to her genitalia. Further I reject the defence of the accused that he was framed by his sister over his refusal to concede to the sale of the family mines. This defence in my view is an afterthought as the same was not raised during the cross examination of his sister, PW2. Another afterthought defence is that of the brother of the complainant having his debt hence frame up. These are issues the accused in his cross examination kept throwing around which in my view did not meet the threshold of a proper and credible defence, I find therefore that the complainant was truthful and therefore in light of section 124 of the evidence act ,I find the aspect of penetration dully proved.” 32. Whereas proof of penetration is a requirement in proving a sexual offence, the same need not necessarily be proved by way of medical evidence alone. Penetration can be proved by other methods of evidence among them circumstantial evidence e.g when an accused person is caught red handed in a compromising situation like being found performing the actual act and for some reason medical evidence is tempered with by say improper preservation or prolonged period before examination. 33. In the case of E E v Republic [2015] eKLR the court expressed itself on the question of penetration as follows; Penetration is defined in section 2 of the Sexual Offences Act as “‘Penetration’ means the partial or complete insertion of the genital organ of a person in the genital organ of another person. The penetration or act of sexual intercourse has therefore to be proved to sustain a charge of defilement. In Bassita Hussein – VS – Uganda, Supreme Court criminal appeal No. 35 of 1995, the court stated, “The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.” 34. In this case, there is no medical evidence to prove penetration. The court is then left with the option of relying on other methods of evidence including the testimony of the complainant or any other witness. It is clear from pw3’s evidence that when she saw the complainant, her clothes were intact and that her pant was not presented to her. Equally, the alleged torn pant was not produced. What other evidence is available to prove penetration? Pw1stated that when her uncle defiled her, she screamed and her brother and one Bi Mzungu responded. That the two witnessed the offence being committed. The said brother and Bi mzungu were not called as witnesses and no explanation was given. The only inference to be drawn is that their evidence was withheld as it was likely to be adverse and therefore prejudicial to the prosecution’s case. See Bukenya and others vs Uganda(1972)EA 549 35. Besides, pw2 said that, pw1 had told them while before elders that after she screamed nobody responded. This is contradictory evidence to that of the complainant. Further, pw2 stated that when they observed pw1’s private parts, they noticed that there was semen and that the vagina was bruised. This is a contradiction to pw3’s evidence and pw6 medical experts who confirmed that there was no evidence of any bruise. 36. Considering these contradictions, I do hold that nobody witnessed the commission of the offence hence pw1’s evidence is not corroborated. Therefore, the evidence of the rest of the witnesses is hearsay evidence hence inadmissible in law. 37. However, the trial court did find as well that other than the complainant’s evidence, the rest of the witnesses’ evidence was hearsay. It nevertheless relied on section 124 of the evidence Act to convict after being satisfied that the complainant was truthful. 38. In the case of Stephen Nguli Mulili v Republic [2014] eKLR the court of appeal had this to say; regarding reliance on Section 124 of the Evidence Act to convict. “as a general rule of evidence embodied in Section 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section make an exception in sexual offences and provides as follows: “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

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in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 39. The trial court in this case convicted the accused based on the evidence of the complainant. I must acknowledge that it is the trial court that had the privilege to see and hear the witnesses while giving their evidence. It also conducted a voire dire examination on the complainant. This court has not had the same privilege. 40. There is no dispute that under Section 124 of the evidence Act, a court can convict based on the evidence of the victim alone in sexual offences. In this regard am guided by the case of Stephen Nguli Mulili v Republic (supra) where the court held; “with regard to the issues of corroboration and the appellant being proved as the one who defiled the complainant, section 124 of the Act is clear that the court may convict on the evidence of the alleged victim alone provided that the court is satisfied that the alleged victim was truthful. From the record it appears that the trial court was satisfied that the victim told the truth.” 41. The critical question to ask is whether the complainant was indeed truthful. From her testimony, she claimed to have been sexually assaulted and when she screamed her brother and Bi mzungu responded. However, the mother pw2 stated that pw1 told her that nobody responded to her screams. Is that the evidence of a truthful witness? I do not think so. If pw1 was truthful, she would have consistently given her story. It is not in dispute that the appellant had previously been charged of another offence of incest against pw1 but was acquitted. Obviously there was bad blood between the two families hence the need for the court to have warned itself of the dangers of relying on the evidence of this single witness alone to convict. See Abdallah Bin Wendo vs R (1953) 20EACA 166. 42. It is my finding that had the trial court taken into account pw1’s contradictory evidence, it would have arrived at a different conclusion. Although a court has the power to convict under Section 124 of the Evidence Act, the same section should be tested with the greatest care and only be applied against the clearest of the victim’s evidence without an iota of doubt. That provision is not a panacea to rescue otherwise a weak prosecution case. It is also not a sympathy nor a tears’ wiping provision. I do agree with the prosecution counsel that reliance on Section 124 of the Evidence Act was not appropriate in the circumstances of this case. 43. Having held as above, I am satisfied that the evidence of the prosecution did not meet the threshold of proving a case beyond reasonable doubt. Accordingly, the appeal is allowed, conviction quashed and sentence set aside. The appellant shall be set free unless otherwise lawfully held. Right of appeal 14 days. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF FEBRUARY 2022 J.N.ONYIEGO JUDGE

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