Republic v Hiribae (Sexual Offence 12 of 2018) [2020] KEMC 13 (KLR)

a Child contrary to section 11(1) of the SOA. On 11.10.2018, he denied in the main count that on unknown dates between the month of August 2018 and September 2018 at a village in Tana North Sub County within Tana River County, he intentionally caused his penis to penetrate the vagina of F.S., a child aged 16 years. The defendant herein again denied in the alternative charge that in the same month, and at the same place, he intentionally touched the vagina of the same child with his penis. 4. Hearing of the prosecution's case had taken ofi on 23.11.2018 at Hola and continued at Bura on 28/05/2019, when the 4th witness, PW4, No. 113617 PC Solomon Karanja, testified for the prosecution after which the prosecution was granted another adjournment to present the remaining witness, a medical practitioner who examined the complainant herein, and his exhibits. On 24.09.2019, PW5, Athman Abdalla, a clinical oficer testified as the practitioner before the prosecution closed its case. 5. After the close of the prosecution's case, I delivered a ruling on 12.05.20204, calling upon the defendant herein to make his defence, which he proceeded to do on 28.07.2020, despite the absence of his counsel. He then closed his defence on the same day and prayed for a date for this judgment. This matter has therefore been pending for this judgment on whether the prosecution has proved its case against the defendant herein and to the required standards. 6. The defendant herein was represented in the trial herein by Mr. Wyclifie Majanga, Advocate. He was also able to meet the bond terms fixed herein and has therefore been out on bail since 06.11.2018 when he presented a surety. The prosecution was on the other hand represented by Mr. Karanja Anthony, before handing over to Mr. Dennis Atika, both prosecution counsel, duly instructed by the Director of Public Prosecutions, who by virtue of Article 157(6) of the Constitution, exercises state powers of prosecution within the Republic of Kenya. The proceedings herein have been well recorded down in the trial notes herein. The Evidence 7. The complainant herein, PW1, F.S., comes from the same village with the defendant herein5. She was at all material times herein a primary school going pupil in the village schools. She informed the court while on oath that she was in a sexual relationship with the defendant herein for a while. That they used to meet frequently sometimes on her way from school and that she therefore used to occasionally delay her return home from school. That sometimes in August 2018, while heading back home in the evening6, he again met the defendant herein while on the way. That the defendant wanted sexual intercourse with her. He therefore led her into a thicket, fell her down, removed their clothes including their undergarments and then inserted his urinary organ into hers7. The defendant then left late in the night after performing the act. The defendant the left and went back to his village as she proceeded home (her grandmother’s). She was later tested and found to be pregnant. He explained the development to the defendant who instead lured her, on 29.09.2018, to an abandoned house where he again had penetrative sexual intercourse with her till around midnight. The defendant then escorted her back home. When her mother enquired from her where she had been for most part of the night, she 4 The delay was caused by lack of a suitable date in our diaries for the defendant’s submissions on a case to answer. 5 According to DW2, the complainant’s mother, their homes are 100m apart 6 She was then staying with her grandmother after having been transferred to a difierent school so as to break her relationship with the defendant 7 Refer to PW1’s evidence-in-chief at pages 8 and 9 of the handwritten notes of the proceedings https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/13/eng@2020-08-04 2

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decided to escape away from home. She was later found to be pregnant. The matter was then reported to the police who organised for the arrest of the defendant and for her medical and age examinations. 8. In cross-examination, the victim stated that she had her first sexual intercourse with the defendant herein in 2015 when she was still a virgin. That the intercourse was painful at the time because it broke her virginity8. She also confirmed that there is a time when her father found them while together, and that he took them to the defendant’s parents with that report. 9. Her father, PW2, S.B.O., a boda boda9, gave the complainant’s age at the time as 16 years. He also confirmed that he knew the defendant herein who used to disturb her daughter, the complainant herein. That at one point he consulted his parents who warned him against involving himself with the complainant herein, but that he did not heed to that warning. That her daughter used to disappear from home whenever the defendant passes by. That on one occasion, he did his covert investigations and found them red-handed while together at around 10.00pm. He therefore arrested both and took them to the defendant’s father’s home. He left them there, but the defendant later sneaked her daughter back home in the same night while he was asleep. That despite all those, the defendant continued following his daughter. He even tried to separate them by transferring her daughter to a difierent school in another village. The defendant however continued to follow her there. Later on 04.10.2018, he realised that her daughter was pregnant. Because the matter of their love relationship had already been reported at the D.O.’s ofice, he therefore decided to report them to the police station. 10. Her mother, PW3, H. J., also confirmed that she had seen the defendant herein in May, 2018 while following her daughter while she was from school. This was after the complainant had failed to return back home the previous evening. The complainant used to tell her that the defendant herein was the one who used to cause her to delay returning back home. That on some occasions the complainant used to escape from home and she used to blame the defendant for the escapes. She informed the complainant’s father, PW2, and also explained all the steps they took to warn the defendant to leave her daughter alone, including transferring her to a difierent school in a difierent village. At one point, she had caught them red handed while having sexual intercourse. She made the report to a government oficer (possibly the DO10). It was later discovered that the victim herein was pregnant which prompted them to report the matter to the nearest police at Bura on 04.10.2018, where it was handled by PW4, No. 113617 PC Solomon Karanja. 11. The complainant herein was then examined at Bura Sub-County Hospital by PW5, Athman Abdalla, a clinical oficer. She was found to be expectant, with a creamy paravaginal discharge and a torn hymen which was conclusive proof that she was defiled. Her age was also assessed and estimated to be 16 years at the time. Her treatments note, Medical Examination (P3) and the age assessment reports were produced herein as PEXH. Nos 1, 2 and 3, respectively. The medical Practitioner summarised his findings in his evidence-in-chief as follows: ‘My final conclusion is that the girl was defiled, she was underage, pregnant and with UTI (Urinary Tract Infection). She was presented to our medical facility 3 days after the incident. UTI are common in pregnancy – whether at an earlier stage or later stage’11. 8 Refer to her evidence in cross-examination at page 13 of the handwritten notes of the proceedings 9 Motor cycle taxi operator 10 A senior administrator at a wards 11 Refer to her evidence at page 41 of the handwritten notes of the proceedings https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/13/eng@2020-08-04 3

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12. In cross-examination. The medical practitioner appeared to be admitting that her medical evidence had some contradictions especially on whether the complainant was harmed or not, but she nevertheless appears to have clarified the same in re-examination when she testified as follows: [On] defilement, there was evidence of penetration based on the hymen that was lost. There were no visible injuries all over the body. They could include bruises, lacerations etc. Also at the vagina. There was however penetration because the hymen was broken. I checked the private parts. 13. In his evidence in defence, the defendant herein, testifying as DW1, denied having been in a relationship with the complainant herein as alleged. He stated that he came to know her in the course of the trial herein. That on the dates and months alleged in the charge sheet, he was away in Hola and therefore not at the village as alleged. That the allegations herein are because of a dispute between his parents and those for the complainant. He otherwise concentrated on how he was arrested on 04.10.2018 at around 3.00pm. That a white vehicle suddenly emerged in the village. That some people alighted from it and pointed at him. He was then arrested and later charged in court where he was surprised to find that he was being called John Komora Hiribaye. He denied being called with that name. He was therefore sure that the suspect herein is not him, but someone’s else known with that name. 14. In cross-examination he stated that his name is Hiribaye Komora John and not the other way round. That the names are not the same. He stated that he was in Hola at his sister’s place in the months of August and September. That he returned to the village on 28.09.2018. He maintained that he does not know the complainant herein. That he just saw her in court during the trial herein. 15. His mother, DW2, Hazija Juma, is an assistant chief in the village. She stated that on the date of the arrest herein, 04.10.2018, she saw the white vehicle come to the village, stop before a police oficer in uniform alighted while with the complainant herein. That the complainant herein then pointed at the defendant herein. That they willingly accompanied them to the riverside where she learnt that the defendant was being alleged to have defiled a primary school pupil. The defendant was then taken to the police station cells. That because the complainant had no birth certificate at the time, there were attempts for an out of court settlement where the defendant was to end up marrying the complainant herein. That she refused to participate because defilement cases are serious and such out of court settlements are not recommended, and the complainant was underage at the time. The issues of reconciliations continued till sometimes later on when the defendant was rearrested and charged. She let the matter proceed for the trial rather than the out of court settlement proposed because she believed in the court process. In cross-examination, she confirmed that the complainant herein is their close neighbour at the village and that the defendant herein knew her very well. Issues, Burden and Standard of Proof 16. The pregnancy issue appears to have instigated the proceedings herein. It is this pregnancy that triggered the report, arrest and prosecution of the defendant. However, the ofience herein is that of defilement or indecent act. Defilement has been defined in section 8 of the SOA thus: 'A person who commits an act which causes penetration with a child is guilty of an ofience termed defilement' 17. Justice George Dulu, in Jumaa Hiribae Komora v Republic [High Court of Kenya at Garissa Criminal Appeal No. 53 of 2017, UR] at page 7, paragraph 9, held that in a defilement case, 3 elements are to be proved by the prosecution beyond reasonable doubt. They are firstly the age of the complainant, secondly penetration, and thirdly the identity of the culprit. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/13/eng@2020-08-04 4

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18. Justice Majanja, in Peter Mokami Nahashon v Republic [2014] eKLR stated as follows on the ofience of Defilement: 13. 19. A person is said to have committed an act of defilement under section 8(1) of the Sexual Offences Act when the person commits an act which causes penetration with a child. “Penetration” under section 2 of the Act, means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person. ( Emphasis supplied) Indeed, under section 2(1), SOA, penetration means the partial or complete insertion of the genital organ of a person into the genital organ of another person. Genital organs have been defined as the whole or part of male or female genital organs and includes the anus. The same section 2(1) of the same Act defines indecent act to mean: ...unlawful intentional act which causes - (a) any contact between any part of the body of a person with the genital organs, breasts, or buttocks of another, but does not include any act that causes penetration; (b) exposure or display of any pornographic material to any person against his or her will 20. In the alternative charge, the prosecution was just therefore supposed to prove to the same standard of beyond reasonable doubt that the defendant herein intentionally touched the vagina of the same complainant with his penis. As noted herein, the burden of proof herein lies with the prosecution and going by how the case against the defendant herein proceeded in trial herein, and mainly the nature of the evidence adduced herein, I do not find any such burden that shifts to the defendant except as he could have raised a defence under section 8(5) of the SOA. Determination 21. To begin with, I do find no reason or evidence that the charges or complaints herein have been maliciously raised against the defendant herein. The witnesses herein (except the defendant himself, DW1) confirmed that the defendant herein is known to them and that he is in fact a close neighbour. He used to be seen by the complainant’s parents while with the complainant. His mother, DW2, confirmed that the complainants are well known to them. This is despite the defendant’s lie while on oath that he did not know the complainant herein before, that he came to know her after the allegations herein had been lodged against him, and in the course of the trial herein while in court. I find his evidence not that reliable on account of this lie and as held by the court of appeal in Ndungu Kimanyi v Republic [1976-1980] KLR 1444: We lay down the minimum standard as follows. The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person or raise a suspicion about his trustworthiness or to do or say something which indicates that he is a person of doubtful integrity and therefore an unreliable witness which makes it unsafe to accept his evidence. 22. The complainant's parents stated that they knew the defendant herein very well and that they were aware that he was in a love relationship with the complainant, then a primary school-going minor. They had sometimes found them while together. They warned him to stop the relationship. They even took steps of protecting the complainant herein by transferring her to another school in another village. The defendant was however still able to follow her there. I do therefore find that the defendant herein was positively identified and the order of name notwithstanding, he is the accused person properly in this trial. Any grudge or issue that the parents herein had with his parents appear to have been because of his sexual relationship with the complainant minor herein and not anything else. I have not https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/13/eng@2020-08-04 5

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found any other reason that could have caused the complainants herein to falsely implicate him with the pregnancy or sexual assault herein. There was nothing peculiar or unusual with him which might ofiered the complainants herein an opportunity to benefit from by falsely or maliciously implicating him with the ofience herein. This is therefore not a case of a sole evidence of the complainant, but one with corroborating evidence of the parents seeing the defendant herein while with the complainant on numerous occasions, and thus the defendant had the opportunities to defile the complainant as has been charged herein. 23. I do not find any other fact or evidence that might make me disbelieve the evidence on how the complainant was in a sexual relationship with the defendant herein. She in fact described the sexual acts in detail. I do hereby find her to be an impressive witness on the sexual acts, and the identity of the perpetrator, the defendant herein who is an adult male. Hence, relying on the complainant and her parents’ evidence, I have found that it has been proved to the required standard of beyond reasonable doubt that the defendant herein was in a sexual relationship with the victim herein. 24. As foretasted, the victim's evidence was in fact suficiently corroborated by the evidence of the parents, PW2 and PW3, who confirmed that the defendant herein visited and conversed with the victim herein severally prior to the pregnancy. Such kinds of evidence that mainly proves the opportunity to commit defilement were found to be corroborative even in those old days where corroboration of the evidence of a child of tender years was required by the law, the old section 124 of the Evidence Act before the enactment of the proviso. The Court of Appeal in Sibo Makovo v Republic, the Court of Appeal at Nakuru Criminal Appeal No. 39 of 1996 [UR] held as follows: [T]his corroboration was provided by PW1 (the victim's mother) who said that PW2 (the victim) was outside the house when the appellant left the house and her frantic efiorts to reach the appellant's house. ... This factor was further indirectly corroborated by the appellant himself who confirmed that he saw PW2 on the road when she was allegedly coming to his (the appellant's) house to borrow 'unga'. There was no need for PW2 to go to borrow fiour at the appellant's house. What the appellant said confirms that he was with PW2 after he left the house of PW1. 25. The evidence on penetration herein is mainly oral. The medical evidence of the same, and the resultant pregnancy or conception was not suficient because the medical practitioner herein did not achieve much in his examination of the minor. This is because there was no evidence of laceration, bruises or any recent sexual act on the victim. It was however claimed that the defendant had defiled the complainant herein severally before and therefore the hymen was torn a long while before. Nothing in the medical examination herein can however be said to have proved that the complainant herein was defiled. Pregnancy in these contemporary times should also not be seen to be the only evidence of sexual penetration as conception could nowadays be achieved even without genital penetration. The High Court considered a similar scenario in Peter Mokami Nahashon v Republic [2014] eKLR; an appeal from my judgment and sentence in a trial where the medical evidence of penetration was completely excluded, a fact which made me to find that penetration and hence defilement was not proved, but I still proceeded to convict in the alternative charge of Committing an Indecent. In the appeal case, Justice Majanja held as follows: 18. In my view, the medical evidence would only go to corroborate the testimony of PW 1. The testimony of PW 1 does not require corroboration as the proviso to section 124 of the Evidence Act (Chapter 80 of the Laws of Kenya) states that, Provided that where in a criminal case involving a sexual ofience the only evidence is that of the alleged victim of the ofience, the court shall receive the evidence of https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/13/eng@2020-08-04 6

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the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 19. 26. Taking PW 1’s testimony together with that of PW 3 and PW 4 and the chain of events leading to the arrest of the appellant, I find and hold that penetration was proved beyond reasonable doubt, lack of medical evidence notwithstanding (Emphasis supplied) In Sibo Makovo v Republic, supra, the Court of Appeal considered similar circumstances where the medical evidence was found to have been improperly received and hence was not to be considered in arriving at the decision therein. The Court of Appeal held as follows: The P3 form which was filled in by the Medical Oficer, Naivasha District, was produced by PW3 (a police oficer12). The record does not show that the contents of the P3 form were explained to the appellant. Nor does the record show that the maker of the report (P3 form) was laid so as to produce the P3 form by a person there than the maker thereof. It is trite law that if the maker of a document is not available the document can be produced only after another person identifies the signature of the maker and in terms as laid down in Section 33 of the Evidence Act (Cap 80, Laws of Kenya) so far as relevant. It appears to us that production of P3 forms in Courts is not taken seriously and we wish to impress upon trial magistrates to be careful in admitting P3 forms when the maker is not called. However, the P3 form did not add to the prosecution case in the magistrate's court. There was evidence of the condition in which PW2 was found which evidence showed that PW2 was in fact defiled. Accordingly, we see no reason to difier from the concurrent findings of the two courts below and we order that this appeal be dismissed. 27. Having been impressed by the complainants’ evidence herein, and having found some elements of corroborations that the defendant herein had the opportunities to defile the victim herein, and going by the above decisions, I do hereby find that the prosecution has proved its case against the defendant herein to the required standards of beyond reasonable doubt. Penetration has been proved by the impressive oral evidence of the victim herein that by virtue of section 124 of the Evidence Act, does not require corroboration, the absence of the medical evidence (P3 form) notwithstanding. And even if it requires corroboration, then the opportunities to defile that have been laid by the evidence of the complainant’s parents are suficient corroboration to the complainant’s evidence that she was penetrated by the defendant herein who was in a love relationship with her. 28. Since the sexual penetration herein, appears to have been consensual, I have to determine whether there is evidence to prove that the victim herein was a child as provided for in Section 8 of the SOA. This is because consent or absence thereof is not an issue worth consideration when it comes to defilement of children. As held by Justice Majanja in Peter Mokami Nahashon v Republic, supra, proof of age is required to establish that the victim is a child and secondly to establish the level of punishment where the ofience is that of defilement under section 8 of the Sexual Offences Act. Section 2(1) of the SOA refers us to the Children Act13 for the definition of a child. Section 2 of the Children Act14 defines a child to mean any human being under the age of 18 years, where the age may also include the apparent age. 12 Added 13 Cap 141, Laws of Kenya 14 Ibid https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/13/eng@2020-08-04 7

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29. Proof of age is a question of fact and in this case, there is suficient evidence from the testimony of the PW1, the victim herself, and her parents, PW2 and PW3, that she was a child at the time of the commission of the ofience herein. Her age has consistently been stated herein; and was further assessed that she was 16-year-old as at the time of the commission of the ofience. The victim was confirmed to have been in primary school at the time. DW2, the defendant’s mother, corroborated the evidence of the age when she insisted that the complainant herein was a minor at the time, her lack of a birth certificate notwithstanding. I find no plausible defence raised by the defendant herein pursuant to the provisions of section 8(5) of the SOA. I thus have to find that the prosecution has been able to prove its case against the defendant herein to the required standard and do therefore hereby find him guilty. Conclusion 30. Pursuant to the provisions of section 215 of the Criminal Procedure Code15, I do hereby convict the defendant herein of the ofiences of Defilement contrary to sections 8(1) as read with 8(4) of the SOA, as charged in the main count. I shall hereinafter receive the material and evidence, if available, that may be relevant to the appropriate sentence herein. DATED, SIGNED AND DELIVERED AT BURA IN OPEN COURT (BUT IN CAMERA) THIS 04TH DAY OF AUGUST, 2020 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Buko/ Betty Prosecution counsel: Atika Defendant: Present Victim: Absent Victim's guardian/ parent: Absent 15 Cap., 75, Laws of Kenya https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/13/eng@2020-08-04 8

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