Wilfred Ondaso v Republic

Facts of the Case: 3. The prosecution case was that in the year 2013, the complainant was a child aged 10 years as indicated by her birth certificate PEx 1. That on the October 30, 2010the complainant was washing dishes outside her home. The appellant who was known to her as a distant neighbour appeared on a motorcycle. He parked the motor-cycle on the road and entered into the compound of the complainant’s father. He asked her where her parents were. The complainant told him that her mother had gone to the shamba while she did not know where her father was. The appellant then told her to assist him with drinking water. The complainant entered into their house to fetch the water from the sitting room. The appellant then followed her into the house. She gave him the water. The appellant then got hold of her. He sat on a chair and placed her on his laps. He started to sweet-talk her. He told her that he will buy her clothes, shoes and oil if she allowed him to touch her. He started to touch her on her private parts over her clothes and all over the body. He removed her underpants to her knees. He told her that her parents should not know about it. 4. Meanwhile, the father to the complainant, PW3, unknown to the complainant, was resting in the same house in the bedroom. He was unwell. He had heard what had transpired outside the house and what was going on in the sitting room. The complainant’s father emerged from the bedroom. He found the appellant having placed his daughter between his legs and having pulled down her underpants to her thighs. The complainant’s father locked the door. He started to beat the appellant with a rungu. The appellant pleaded with him and offered to give his mobile phone to him. He offered to pay him Kshs.40,000/-. The appellant managed to slip away and escaped. He left behind the phone and a shoe. The complainant’s father took the complainant to the AP camp. He left the shoe at the AP camp. He took his daughter to Matungu sub-county Hospital. He reported at Mumias police station. The report was received by PC Otieno, PW4 who issued a p3 form to the girl and referred them to Matungu sub-county hospital. While they were at the police station the appellant arrived at the police station and reported that he had been assaulted by the father to the complainant. PC Otieno concluded that the report was an attempt to defeat justice. He arrested the appellant. He visited the home of the complainant. He charged the appellant with attempted defilement. The appellant denied the charge. On the April 5, 2011the p3 form was completed by a clinical officer, PW2 at Navakholo sub-county hospital. The complaint was that a certain man had caressed her private parts on October 31, 2010. There were no significant findings by the clinical officer. The father to the complainant handed over to PC Otieno the complainant’s birth certificate that indicated that she was born on June 6, 2000. Later PC Otieno added the alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. During the hearing of the case in court the clinical officer PW2 produced the p3 form as exhibit - PEx1. PC Otieno produced the birth certificate as exhibit – Pex3. 5. In his defence the appellant stated in a sworn statement that on the October 30, 2010he was attending a wedding when he received a phone call that he was required to go to the home of Wanyirae Sumba (father to the complainant) and meet Mr Wanyirae’s worker called Bakari who was to assist him plough his shamba. He was taken to the home of Wanyirae. He did not find anybody at the home. He left. At the road he saw the complainant. Her mother was digging in the shamba. He told her to call her mother for him. She complied and left. He waited. He then heard Wanyirae Sumba inquiring harshly why he (the appellant) was with his daughter. He told him that he had a bad intention of defiling her. Wanyirae hit him with a rungu on the head. He escaped. Neighbours gathered and Wanyirae left. He went to report at the AP camp. He was arrested by Aps from Kayonzo. He proceeded with Aps to the home of Wanyirae. Wanyirae was not there. He, the appellant, then reported at Mumias police station. The complainant’s father went there. He was then arrested and charged. During the hearing he denied in cross-examination that he borrowed water from the complainant. He denied that he entered into https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3277/eng@2022-07-15 2

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the house of Wanyirae Sumba. He denied that he left a shoe in the house of Wanyirae. He said that Wanyirae assaulted him while outside at a tree. 6. The appellant called one witness, John Mukotsa Makanga, DW2 whose evidence was that in 2012 he had leased land from the brother of the appellant called Bakari. That he called the appellant to plough the land. That later the appellant called him and informed him that Wanyirae had assaulted him. The appellant was then arrested. Findings of the trial court 7. The trial magistrate convicted the appellant on the grounds that the appellant was well known to the complainant and her father. That the evidence of the complainant that the appellant was touching her vagina with his fingers and pulled down her underpants was corroborated by the evidence of her father PW3 who found the appellant in the act. That the logical conclusion to be drawn in placing the complainant between his legs and pulling down her under pant is that his intention was to defile her. The trial magistrate accordingly found that the offence of attempted defilement had been proved. Submission: 8. The appellant made written submissions which he high-lighted orally in court. He submitted that he was charged with attempted defilement on January 1, 2010. That the alternative charge was introduced 5 months later on March 1, 2011. That there were no proper investigations conducted to warrant the amendment. That the clinical officer filled the p3 form on April 5, 2011 which is more than 5 months after the alleged offence was committed. The treatment notes from the hospital where the complainant had initially been taken were not produced in court. That the mother to the complainant did not testify in this case. That as the complainant testified in court she was being couched by sign language by her grand-mother, one F. 9. The State made oral submissions and opposed the appeal on the grounds that the appellant was well known to the complainant and her father. That the complainant’s father caught the appellant in the act. That the appellant left his shoe behind as he escaped. That the evidence on identification was cogent. That there was no bad blood between the appellant and the prosecution witnesses. Therefore that the trial court was justified in believing the evidence of the witnesses. The State submitted that the conviction and sentence were proper. They urged the court to dismiss the appeal. Duty of first appellate court: 10. It was held in Kinyanjui v Republic (2004) 2KLR 364 that a first appellate court must look at the evidence presented before the trial court afresh, re-evaluate and re-examine the same and reach its own conclusions. That the court must bear in mind that it did not have the opportunity to see the witnesses as they testified. The court should also look at the grounds of appeal put forward by the appellant. Analysis And Determination 11. The particulars of the offence against the appellant were that on the October 30, 2010 at about 10.30 am in Koyonzo in Matungu District within Kakamega County he intentionally attempted to cause his penis to penetrate the vagina of FSW, a child aged 10 years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3277/eng@2022-07-15 3

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12. It is important to prove the age of the complainant in a case of sexual assault. This was emphasized by the Court of Appeal in Kaingu Elias v Republic (2010) eKLR where the court said that: “ Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved in the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed upon conviction will be dependent on the age of the victim.” 13. In a case of attempted defilement, it has first to be proved that the victim was a child. The age of minors in defilement cases can be proved by various methods. In the case of Edwin Nyambaso Onsongo v Republic (2016) eKLR, the court cited the case of Mwolongo Chichoro Mwanyembe v Republic, Mombasa Criminal Appeal No 24 of 2015 (UR) where the Court of Appeal held that: “ … the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” “… we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” In this case a birth certificate was produced that indicated that at the time of alleged offence the complainant was aged 10 years. The complainant was therefore a child for the purposes of section 9 of the Sexual Offences Act, 2006. 14. The appellant admits that he went to the home of the complainant. He alleges that the complainant’s father beat him up outside the home because he had talked to his daughter. He denies that he had entered into the house of the complainant’s father. Besides this, the appellant went to the police station and reported that the complainant’s father had assaulted him. The issue of identification therefore does not arise as the appellant admits that he went to the home of PW3. The issue was whether he was beaten inside the house of PW3 or outside the home of PW3 and whether he had committed the offence he was accused of. 15. The appellant complains in this appeal that the trial magistrate did not allow sufficient crossexamination on the complainant. The right to challenge evidence is part of a fair hearing as provided in article 50 of the Constitution of Kenya 2010. The complainant gave unsworn evidence in court. She was cross-examined at length by the then advocate for the appellant, Mr Nandwa. There is nothing in record to indicate that the trial magistrate did not avail the advocate sufficient time to cross-examine the witness. There is then no truth in the submission that the advocate was not given sufficient time to cross-examine the witness. 16. The appellant submitted that the clinical officer, PW2, examined the complainant 5 months after the alleged date of the offence. That the initial treatment notes from Matungu sub-county hospital were not produced in evidence. However the offence that the appellant was facing, attempted defilement and the alternative charge of committing indecent act with a child, do not require medical evidence to prove. That the complainant was examined 5 months after the alleged offence was committed is of no consequence. There were no significant findings in the P3 form in relation to the charge. That ground of appeal does not hold water. 17. The appellant alleged that the complainant’s mother was a crucial witness and that she did not testify. The evidence of the complainant was that the incident took place at their home. The complainant’s father said that his daughter fled to the shamba and returned with her mother. The appellant himself https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3277/eng@2022-07-15 4

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admitted that the complainant’s mother was in the shamba. There was no evidence as to the distance between the home and the shamba where the complainant’s mother was. There is thereby no evidence that the complainant’s mother witnessed the incident that took place at the home. It cannot be said that the complainant’s mother was a crucial witness in the case who was not called to testify. The submission that the complainant’s mother was a crucial witness in the case who did not testify is not supported by evidence. 18. The appellant was said to have left a slipper shoe in the house of the complainant as he escaped. The shoe was not produced in court as exhibit. The question is whether failure to produce the shoe as exhibit in court was fatal to the prosecution case. In Peter Kihia Mwaniki vs R (2010) eKLR where some exhibits were not produced the Court of Appeal held that what the court has to consider is whether there was a failure of justice in failing to produce the exhibits. Said the court: “ It would have been proper to avail those exhibits for the court’s observation. However a failure to produce the same was not fatal to the prosecution case. There were other exhibits which were more incriminating which the prosecution produced. We do not think there was a failure of justice arising from the omission to tender those exhibits in court.” In this case there was no failure of justice arising from the omission to produce the shoe as exhibit as there was no denial that the appellant had gone to the home of the complainant. That ground of appeal should therefore fail. 19. The appellant submitted that the complainant was not a credible witness and that the evidence adduced did not support the charge. He submitted that the trial magistrate dismissed his defence without giving any reasons. The court record indicates that the trial magistrate considered the evidence of the appellant and said that it was unbelievable as he was caught red handed. She dismissed the evidence of his witness, DW2, as hearsay. 20. The complainant’s evidence that the appellant borrowed for water from the complainant and that he entered into the house was corroborated by the complainant’s father PW3. The evidence that the appellant promised to buy her clothes, shoes and oil was also corroborated by her father. The complainant’s father also corroborated the evidence that the appellant pulled down her underpants. Both witnesses said that the appellant was beaten inside the house. The complainant added that her father continued to beat the appellant outside the house after he escaped from the house. 21. From my own analysis of the evidence I find that the evidence of the complainant and that of her father was credible and that there was no reason to doubt it. The appellant did not allude to any previous bad blood between him and the complainant’s father. There was thereby no reason for the complainant’s father and the complainant to fabricate the evidence against the appellant. The evidence that the complainant’s father beat up the appellant outside the home because the appellant had talked to his daughter cannot be true. The simple act of the appellant talking to the complainant cannot have caused the complainant’s father to beat him. The appellant was beaten because he was found in a compromising situation with the complainant in the complainant’s house. The appellant’s witness DW2 was not at the scene of the incident. He admitted in cross-examination that he did not know anything about the charges that the appellant was facing. He said that the incident he was testifying over occurred in 2012 yet the offence the appellant was facing had taken place in 2010. The evidence of the witness was thereby of little probative value to the issues that were before court. After carefully evaluating the evidence I find that the trial magistrate was correct in dismissing the defence of the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3277/eng@2022-07-15 5

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22. The appellant alleged that the complainant was being couched by sign language by her grandmother as she testified in court. However no such a complaint was made by the defence during the hearing. The allegation is thereby dismissed. 23. The appellant was convicted of the offence of attempted defilement contrary to section 9(1)(2) of the Sexual Offences Act No.3 of 2006. The section states as follows:9. (1) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement. (2) A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years. The particulars of the offence against the appellant were that on the 30th day of October, 2010 at about 10.30 Am at Namamali village Koyonzo in Matungu District within Kakamega County he intentionally attempted to cause his penis to penetrate the vagina of F.S.W a child aged 10 years. 24. In the case of Abraham Otieno v Republic (2011) eKLR, Asike-Makhandia, J (as he then was) said the following as to what constitutes attempted rape: “ For an offence of attempted rape to be deemed to have been committed under the section, the prosecution must prove that the culprit acted in such manner that there was no doubt at all as to what his intention was. The intention must be to rape. It must be shown that he was about to rape the victim but was stopped in tracks and/or in the nick of time. The intention to rape must be manifest. Such intention can be manifested for instance by word of mouth or conduct of the culprit. If the culprit proclaims his intention to rape and directs his efforts towards that goal for instance, by holding the victim or pushing her to the ground, undressing her, removing her pants if at all and also unleashing his male genital organ in preparation thereof but does not go the whole hog because of factus interventions, that would be good evidence of attempted rape. Alternatively, if the culprit without expressing his intentions verbally gets hold of the victim, fondles her, removes her clothes including her pants and also undresses himself in preparation thereof but for one reason or another something happens which compels him stop, again that would be good evidence of attempted rape.” 25. The complainant’s evidence was that the appellant told her that he would buy her clothes, oil and shoes if she allowed him to touch her. That he touched her private parts over her clothes. He pulled down her underpants to her knees. Her father PW3 stated that he heard the appellant saying that he would buy her mandazi, clothes, body oil and shoes if she engaged him in a secret act. He came out of the bedroom and found the appellant having placed the girl between his legs and that he had pulled her underpants to her thighs. There was really no reason for the trial magistrate to doubt the evidence of the two witnesses. Their evidence was cogent and credible. 26. From the evidence that was presented to the court there was no doubt as to what the intention of the appellant was. The intention was to defile the girl. The act of removing the girl’s underpants ,touching her private parts and telling her that he wanted to engage her in a secret act that should not be known by her parents was an overt act that manifested the intention of the appellant that he wanted to defile https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3277/eng@2022-07-15 6

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the girl. The appellant had started to execute his intention by removing the girl’s underpants. The appellant was stopped in his tracks by the appearance of the complainant’s father. There was thereby sufficient evidence to prove the charge of attempted defilement. 27. In the foregoing and for the above stated reasons, I find that the charge of attempted defilement was proved beyond reasonable doubt. The minimum sentence for the said offence is ten years imprisonment. The appellant was given the minimum sentence. The conviction and the sentence were thereby lawful. The appeal is accordingly dismissed. DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 15TH DAY OF JULY 2022. PATRICK J. O. OTIENO JUDGE In the presence of: No appearance for Appellant Ms. Chala for Respondent Court Assistant: Kulubi https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3277/eng@2022-07-15 7

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