Lawrence Kiptoo Kogo v Republic

3) That he wished to move the court to adduce further evidence based on the probation report. 6. The appellant also filed written submissions to the effect that the complainant never demonstrated that any threats or violence was visited on her before she engaged in the sexual act; that PW4, the medical officer, did not indicate when the hymen was broken; that the complainant behaved like an adult and knew what she was doing. In support of that ground the appellant relied on the case of Martin Charo v Republic HCCRA 32 of 2015 [2016] eKLR Malindi High Court; that the medical evidence did not determine where the pus cells emanated from as the appellant was not subjected to any examination. The appellant also submitted that his Constitutional Rights to be allowed to recall the complainant were violated. He relied on Section 146(4) of the Evidence Act which grants the court the power to allow recalling of witnesses and Section 150 of the Criminal Procedure Code which gives the court the discretion to recall witnesses for the just determination of the case. He relied on the decision of Paul Mino Criminal Appeal No 152 of 2018 High Court of Kenya Nairobi; that from the probation officers report, the charges were framed up and he should have been acquitted. The appellant therefore prayers that the conviction be quashed, sentence set aside and a retrial be conducted or the court grant any other order it deems fit to grant. 7. The appeal was opposed and the prosecution counsel Mr. Kimanthi filed submissions in which he urged that PW1 narrated what the appellant, a person she knew very well did to her which amounted to penetration, that her age was proved to be sixteen (16) years; that the offence occurred during the daytime and the issue of identification did not arise; that the evidence of PW4 corroborated PW1’s testimony; that in his defence, the appellant denied that the offence occurred or that he knew the complainant and that he may have been framed which defence was dismissed; that though he claims that he wanted to adduce more evidence, he did not disclose what the new evidence was and lastly that the court sentenced the appellant to fifteen (15) years, the minimum sentence provided under Section 8(4) of the Sexual Offfences Act. He urged the court to dismiss the appeal. 8. This being a first appeal, it behoves this court to re-examine all the evidence tendered before the trial court, subject to fresh analysis and arrive at this court’s own findings but bear in mind that this court neither saw nor heard the witnesses testify and make allowance for that fact. The court is guided by the decision in Okeno v Republic [1972] EA 32. 9. The prosecution evidence was as follows: PW1 RKO, a child aged sixteen (16) years; recalled that on 9/8/2020, after returning a match box to the person who had lent her, she saw the appellant whom she knew as Lawrence. He called and told her to go to the house in which he lived at his place of work. She went to the house where he removed her clothes, her pant, then removed his shorts and underwear and that he placed his thing for urinating into hers; that the appellant’s employer (Madam) came and she was told to leave quickly and she left. Her father demanded to know what she was doing with Lawrence because he had seen her leave with him and she admitted having slept with madam’s employee; the father told the mother who went to enquire from the appellant’s employer and they went to report at Migori Policer Station together and later the appellant was arrested. She was taken to hospital for examination and identified the documents she was issued with and her birth certificate. 10. PW2 KN, the complainant’s mother arrived home about 4: 00p.m on 9/8/2020 and found PW1 crying and on enquiring from PW1, she narrated what the appellant had done to her and PW2 went to the home of the appellant’s employer by the name Karen and thereafter reported at Migori Police Station after which the appellant was arrested. PW2 accompanied PW1 to hospital. PW2 confirmed that the appellant worked for her neighbour. 11. PW3 PC Nahashon Akumu of Migori Police Station received a report of defilement from PW1’s parents; that he recorded witness statements and later charged the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/2957/eng@2022-05-05 2

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12. PW4 Maureen Adhiambo Omondi, a Clinical officer at Migori Referral Hospital produced the P3 Form filled by Immaculate Owuor Ogola who was then away on leave. The Clinical officer upon examining the complainant found that she had lacerations around the labia, hymen was broken and spermatozoa were seen. 13. When called upon the to defend himself, the appellant gave a sworn statement in which he confirmed being a causal labourer. He denied knowing the complainant nor had he seen her before; that he was taken for medical examination but nothing was found; that the day before arrest, he saw the complainant with the lady who worked for them; that he had a dispute with the said woman after she wanted him to go and work for her sister in Kisii and he refused. He said he was framed because of being a different tribe from others. 14. I have duly considered the grounds of appeal and the rival submissions. As to whether the offence of defilement was committed, this court has no doubt that it did occur. The age of the complainant was proved by production of the birth certificate which showed that the complainant was born on December 24, 2004. As of 04/8/2020 when the offence was allegedly committed, the complainant was about to turn sixteen (16) years old. She was a child. 15. As to whether penetration was proved, PW1 narrated that the perpetrator after undressing her, undressed his own shorts and underwear and they lay in bed and that he inserted his thing for urinating into hers. In cross examination, she said that he inserted his penis in her vagina. The complainant was examined on 10/8/2020 a day after the incident and lacerations were noted on the labia and evidence of spermatozoa. This evidence corroborated PW1’s evidence that indeed there was penetration. Soon after the incident occurred, PW1 named Lawrence as the perpetrator. She mentioned that fact in her evidence. According to PW1 and PW2, the appellant works for their neighbour and they knew him very well. The offence took place during the day before 4:00p.m. The appellant was arrested the same day. There was no hesitation on the part of the complainant as to who the perpetrator was. When PW2 asked who the culprit was, she mentioned Lawrence. 16. In his defence, the appellant denied knowing the complainant and her mother. If indeed the appellant worked for their neighbour, which evidence was not controverted, I believe the appellant was not truthful. I am satisfied that he was properly identified as the perpetrator . To buttress the same, in his grounds of appeal, the appellant alleged that the complainant held herself out as an adult. The complainant could only have done that if they engaged in a sexual activity as stated by PW1. That ground of appeal does not make sense. The appellant did not raise any such defence under Section 8 (5) of the Sexual Offences Act, that the complainant held herself out as an adult. In his defence, he totally denied knowing the complainant or ever meeting her. He was blowing hot and cold at same time and that ground is untenable. He cannot raise a new defence in his submissions on appeal. 17. The appellant claimed to have been framed by the lady who works for the complainant because she had wanted him to work for somebody else but he refused. He never put this question to the prosecution witnesses. It was an afterthought. He then went further to state that he was framed because he was of another tribe but again that come later and it really is baseless. 18. Having examined all this evidence on record afresh, I arrive at the same conclusion as the trial court. The trial court which had an opportunity to observe PW1’s demenour believed her as a truthful witness. I find that the appellant committed the offence of defilement as alleged, the same having been proved beyond reasonable doubt. I affirm the conviction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/2957/eng@2022-05-05 3

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19. The appellant also complained that the sentence was excessive. The appellant was sentenced to fifteen (15) years imprisonment. The complainant was sixteen (16) years and under Section 8(4) of the Sexual Offences Act upon conviction, one is liable to a minimum of fifteen (15) years imprisonment. 20. I have considered that the appellant is a first offender. From the probation officer’s report, the appellant had been a person of good conduct. 21. For that reason, I will set aside the sentence of fifteen (15) years. I hereby substitute it with a sentence of ten (10) years imprisonment. The appeal succeeds to that extent. DATED, SIGNED AND DELIVERED AT MIGORI THIS 5TH DAY OF MAY, 2022 R. WENDOH JUDGE Judgment delivered in the presence of Mr. Omooria for the Respondent. Appellant present. Nyauke Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/2957/eng@2022-05-05 4

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