BRITAM GENERAL INSURANCE COMPANY LTD VS VINCENT MOCHAMA minor suing thru his next friend EVANS KEGOYA ROBARE

1. The Appellant was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006 Laws of Kenya. The particulars of the charge were that on diverse dates between 12^th July 2021 and 15^th July 2021 at Kiogutwa sub-location in Manga Sub-County within Nyamira County intentionally and unlawfully caused his penis to penetrate the anus of L.K. (particulars withheld), a child aged 14 years.
2. The Appellant also faced the alternative count of committing an indecent act with a child contrary to the Sexual Offences Act. The particulars were that on diverse dates between 12^th July 2021 and 15^th July 2021 at Kiogutula sub-location in Manga Sub-County within Nyamira County intentionally and unlawfully touched the anus of L.K. (particulars withheld), a child aged 14 years with his penis.
3. The Appellant pleaded not guilty to the charges and a trial was conducted in which the Prosecution called a total of five (5) witnesses as follows: -

1. PW1 L.K. (particulars withheld) the victim, testified that she went home for lunch on 12^th July 2021 when the Appellant defiled her. Her mother (PW2) escorted her to the hospital for treatment and reported  the incident to the police.
2. PW2 A.M. (particulars withheld), the victim’s mother, testified that the Appellant was her adopted son. She explained that her in law, one Grace (PW3), informed her that the victim had been defiled. She escorted the victim to the hospital and later, to the police station.
3. PW3, Grace Bonareri, testified the victim and her friends informed her of the defilement on 15^th July 2021 after which she relayed the information to PW2.
4. PW4, No. 1045321 P.C. Damaris Mose, took over the investigations of the case from one PC Wairimu who was on transfer. She testified that she issued the victim with a P3 Form and established that the Appellant was the victim’s adopted brother.
5. PW5, Nyanyuki Abibu Nixon, was the Clinical Officer who treated the victim on 17^th July 2021 at 3.00 p.m. He noted that the victim had bruises in the anus and an old broken hymen. He concluded that the victim had been defiled. He also carried out an age assessment examination of the victim and established that she was approximately 14 years old. He produced the Treatment Notes (P.Exh1), P3 Form (P.Exh2) and Age Assessment Report (P.Exh3).
6. At the close of the Prosecution’s case, the trial court found that he prosecution had established a prima facie case against the Appellant who was consequently placed on his defence. The Appellant elected to give an unsworn statement and did not call any witnesses.

The Appellant’s Case

1. The Appellant testified that he was a casual labourer and that he was arrested on 17^th July 2021 over allegations that he had defiled his sister. He denied the defilement allegations and explained that his adoptive parent framed him in the case so as to get rid of him because he had stayed with her for long. He explained that he did not know his birth parents as he had been in his grandmother’s care.

Judgement and Sentence

1. At the close of the case, the trial court found that the prosecution had proved its case against the Appellant on the main count of defilement. The Appellant was consequently convicted on the main count and sentenced to serve 20 years’ imprisonment.

The Appeal

1. Aggrieved by the conviction and sentence by the trial court, the Appellant filed the present Appeal and listed the following grounds of appeal in the Petition of Appeal: -
2. That the learned trial magistrate erred both in law and fact by concluding that the offence of defilement was proved to the required standard.
3. That the court relied only on the evidence produced by the Prosecution which was fabricated to implicate him in the offence.
4. That the trial magistrate erred in law and fact in concluding that the offence of defilement was proved without considering the evidence of the clinical officer.
5. That the learned trial magistrate erred in law and fact by rejecting the Appellant’s defence without a cogent reason.
6. That the sentence imposed on the Appellant was harsh and excessive given the nature of the offence committed.
7. That the Appellant prays that the sentence of 20 years be reduced.
8. That the Appellant equally prays to be served with certified trial court proceedings and wishes to attend the hearing of the appeal.
9. The Appeal was canvassed by way of written submissions which I have considered.
10. The duty of a first appellate court is to re-analyse and reconsider the evidence presented before the trial court with a view to arriving at its own independent conclusions while bearing in mind the fact that it neither heard nor saw the witnesses testify. This is the position that was taken in Shantilal M. Ruwala vs. Republic [1975] EA, 57 where the court observed thus: -

“The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.”

1. The main issue for my determination is whether the Prosecution proved its case against the Appellant to the required standard.

Analysis and Determination

1. Section 8 of the Sexual Offences Act, No. 3 of 2006 (the Act) stipulates as follows over the offence of defilement: -

8. Defilement

(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

(2) _________

(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

1. In order to succeed in prosecuting the offence of defilement, the prosecution must prove three ingredients, to wit; the age of the victim, penetration and positive identification of the perpetrator. (See Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 [2015] eKLR).
2. In Francis Omuroni vs. Uganda, Criminal Appeal No. 2 of 2000, the court held as follows: -

“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence.  Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”

Age

1. PW5, the Clinical Officer, who conducted an age assessment examination of the victim and established that she was approximately 14 years old. I note that the age of the victim was not contested and I therefore find that the minority age of the victim was proved to the required standard.

Penetration

1. Section 2 of the Act defines penetration as follows: -

The partial or complete insertion of the genital organ of a person into the genital organs of another person.

1. Section 2 of the Act further defines a genital organ as follows: -

"genital organs" includes the whole or part of male or female genital organs and for purposes of this Act includes the anus;

1. The victim testified as follows concerning penetration: -

“…He placed me on the bed and made me bend and did bad things in my anus. He used his penis. He lowered his trouser. Blood came out and after that he told me not to tell anyone. He covered my face with a blanket….He did it 3 times….”

1. PW5, the Clinical Officer, examined the victim and noted that her anus was bruised and that her hymen was broken. He produced the victim’s Treatment Notes and P3 Form as exhibits. I perused the exhibits and noted that they confirm the Clinical Officer’s findings. I am satisfied that the prosecution proved that the victim was penetrated.

Identification

1. The victim testified that she was defiled by the Appellant who was his adopted brother. She testified that the incident occurred during the day which means that the assailant was a person who was not only well known to her, but that she was able to see and identify him as she was assaulted in broad daylight. I note that the Appellant did not deny that the victim was well known to him. PW2, the victim’s mother testified that the Appellant was her adopted son and that she had lived with them for a long time. It cannot therefore be in doubt that the Appellant was well-known to the victim and her mother.
2. This court is aware of the provisions of Section 124 of the Evidence Act which provides that an accused may be convicted on the sole testimony of a victim if the court is satisfied that the victim is telling the truth. The trial court found that the victim’s evidence was consistent as opposed to the testimony of the Appellant who stated that PW2 wanted to chase him away as he was adopted.
3. My finding is that even though the evidence presented by the prosecution witnesses paints a picture of a case that ticks all the boxes of the three (3) ingredients of the offence of defilement, there were certain aspects of the case that not so clear. For instance, the victim testified that she was defiled on 12^th July 2021 and that she went back to school and informed her friend Teresa who in turn informed her teacher one madam Rose and Grace (PW3). PW3 on the other hand testified that she learn of the incident on 15^th July 2021 and informed the victim’s mother on 17^th July 2021. The question which lingers on the mind of this court is why it took so long for such an important report to reach the victim’s mother yet she lived in the same home with the victim and the Appellant. The other issue is why the crucial witnesses who interacted with the victim immediately after her alleged assault such as her friend Teresa and her teacher Rose, were not called to testify at the hearing.
4. The case of Bukenya & Others vs Uganda [1972] E.A.549 is the leading authority on the issue of failure to call crucial witnesses. In the said case, the Court of Appeal for Eastern Africa held that:

“The prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. The court has the right, and the duty to call any person whose evidence appears essential to the just decision of the case. Where the evidence called barely is adequate the court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.”

1. In Julius Kalewa Mutunga vs Republic [2006] eKLR, the Court of Appeal held that:

“…As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive.”

1. In the case of Bukenya & Others vs Uganda (supra), the court was clear that the prosecution is not expected to call a superfluity of witnesses. The adverse inference will therefore only be made by the court if the evidence by the prosecution is not or is barely adequate. Accordingly, adverse inference will not be inferred where evidence tendered is sufficient to prove the particular matter in issue or the entire case.
2. Section 143 of Evidence Act stipulates that, no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
3. In Keter vs Republic [2007] 1 EA 135 the court held inter alia that:

“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”

1. I have perused the trial court record of proceedings and judgment and I find there are certain missing links, especially the exact date of the offence, which I have highlighted elsewhere in this judgment, that could have been clarified through the evidence of the witnesses who were not called to testify.
2. It did not also escape this court’s attention that the medical evidence presented by the clinical officer PW5 did not indicate the age of the victim’s injuries so as to link the same to the victim’s testimony. The treatment notes produced as P Exhibit1 contained the following information: -

“Alleges to have been sexually assaulted by her brother on ? 15/7/21 at around 17.00hrs. was assaulted anally. History of being assaulted in the perpetrator’s house three episodes previously…..

Anal examination – Bruises around the anus.

Vaginal examination – old broken hymen.”

1. A critical look at the medical evidence shows that the date of the assault was not only unclear going by the question mark by the doctor, but does not also correspond with the victim’s evidence that she was assaulted on 12^th July 2021. I further note that the victim did not state that she was defiled through the vagina yet the treatment notes shows that she had an old broken hymen. How old was the broken hymen? The doctor concluded that the complainant was a victim of sexual assault. The question which arises is whether the victim could have been defiled by another person(s) other than the Appellant. Was the Appellant subjected to medical examination to confirm if he had corresponding bruises on his penis?
2. My analysis of the glaring inconsistencies in the prosecution’s case lend credence to the Appellant’s claim that his adoptive parents implicated in the case so as to get rid of him.
3. I find that the questions and doubts that arise from my analysis of the evidence must be resolved in favour of the Appellant. It is my finding that the Prosecution did not discharge their burden of proving the offence of defilement to the required standard. I therefore find that the conviction by the trial court was not safe.
4. In sum, I find that the appeal is merited and I therefore allow it by quashing the conviction and setting aside the sentence passed by the trial court. I direct that the Appellant be set at liberty forthwith unless he is otherwise lawfully held.
5. It is so ordered.

DATED

W.A. OKWANY

JUDGE

1. It was the victim’s evidence that the Appellant penetrated her in her anus. The Sexual Offences Act under Section 2 includes the anus in its defining of a genital organ as follows: -

"genital organs" includes the whole or part of male or female genital organs and for purposes of this Act includes the anus;

1. In her testimony, PW1 stated as follows: -

“…He placed me on the bed and made me bend and did bad things in my anus. He used his penis. He lowered his trouser. Blood came out and after that he told me not to tell anyone. He covered my face with a blanket….He did it 3 times….”

1. Alongside the victim’s testimony was that of PW5 the Clinical Officer who stated that on examination, he found the victim’s anus was bruised, there was an old broken hymen, urine indicated an infection due to presence of puss cells while HIV and Syphilis tests were negative. He produced the victim’s Treatment Sheet and P3 Form which I have re-examined and confirmed these findings. It is my conclusion that the Prosecution proved that the victim’s anus was penetrated and thus the second ingredient stands proven beyond reasonable doubt.
2. I have considered the evidence of identification and found that the only direct evidence linking the Appellant to the charge in question was the victim’s testimony. It was not in doubt that the Appellant lived with the victim and her mother in the same compound. PW2, the victim’s mother testified that the Appellant was her adopted son who had lived with them for a long time. This testimony mean that the Appellant was well-known to the victim could not have been mistakenly identified by her more so where the offence occurred during the day. This Court concludes that the evidence of identification was one of recognition as rightfully submitted by the Respondent’s Counsel. The victim’s testimony also alludes to the fact that she went to the Appellant’s house during lunch hour after he had called her. There was therefore no possibility of mistaking the Appellant if at all he was the one who allegedly defiled her.
3. Nonetheless, I have keenly considered the entire Prosecution evidence to determine whether a conviction can stand. Several questions arose in the course of my analysis of the Prosecution evidence which must be highlighted in this analysis.
4. Timelines for Reporting the Incident
5. PW2 testified that the incident occurred on 12^th July 2021 at lunch hour before she went back to school. PW2, the victim’s mother testified that on 16^th July 2021 she went to work and came home to prepare food and when the Appellant came to request for food, she refused to open the door for him. Then the following day she learned from Grace that her daughter had been defiled. From her testimony, this was on Saturday 17^th July 2021 and that was when she also took the victim to Tombe dispensary for treatment before reporting to the police who referred them to Manga hospital. PW3 Grace Bonareri on the other hand testified that she learned of the incident on 15^th July 2021 from the victim’s friends.
6. This Court noted that the incident occurred on Monday 12^th July 2021 but the victim’s mother knew about it on Saturday 17^th July 2021. It is also noteworthy that that was when the victim was examined but looking at the medical report, PW5 did not state the age of the injuries. It was therefore questionable that the victim’s mother did not notice that her child was walking with difficulties the entire week and that she only came to learn that her daughter was defiled after someone else (PW3) informed her. It is also not clear why it took this long for the incident to be reported and the victim to be examined yet she had informed her teacher and friend. Further, since the Appellant was the victim’s adopted brother and they lived in the same compound, it is also questionable that he was arrested the following day on Sunday which was 6 days after the incident and was never subjected to a medical examination so that it could be established that he was the perpetrator of the crime.
7. Material Witnesses
8. It was PW1’s testimony that after the incident happened, she went to school and told her friend Teresa and Teacher Rose. These two were never called as witnesses to corroborate PW1’s testimony. It is more perplexing that a teacher would fail to report an alleged defilement to the victim’s parent or police. DW1 also testified in his defence that during his arrest, he met two people in a Prado and was put into the vehicle and taken to Manga Sengera where he was informed of the defilement case. There was no evidence adduced in Court by the Prosecution to explain who the two persons were and PW4 P.C. Mose also never offered any explanation who the arresting officers were or how the Appellant was arrested.
9. I find that it was imperative for the Prosecution to call for the evidence of these material witnesses to fortify their case and to cast away any doubts that were likely to have arisen in the mind of the Court. Failure to call these witnesses could only mean that their evidence would have been adverse to the Prosecution’s case. In deciding so, I am guided by the case of Oloro and Daltanyi vs. Reginam [1956] 23 23 EACA 49 where it was held thus: -

“Prosecution have a duty to call material witnesses.  If they fail, the presumption is that if the evidence had been called that evidence would have been unfavourable to prosecution.”

1. It is my finding therefore that, failure to call Teresa, Teacher Rose and the two men who arrested the Appellant in the Prado dealt a fatal blow to the prosecution’s case.
2. Inconsistent and Unclear evidence.
3. PW1 She stated that the Appellant did it (defiled her) 3 times. It was not clear to this Court whether the Appellant defiled her 3 times on the said day during the incident in question or whether it was on 3 different occasions. This question arises from the fact that PW2, the victim’s mother stated on cross-examination as follows:

“He is not my son. The 1^st time you were warned. You were chased….The incident was on Monday and I received the information on Friday….”

1. From the above testimony, it was not clear to the Court whether the victim had been previously defiled by the Appellant owing to her old broken hymen or whether this was the first time he committed the crime or whether in committing the crime, he defiled her three times. The evidence of PW2 raises more questions as to why PW2 would allow a person who had previously defiled her child as alluded to in her testimony to come back into the homestead and continue living with them.
2. In her evidence-in-chief, the victim stated that blood came out during the incident. Her evidence was peculiar to this Court when compared to the many testimonies adduced by other victims of defilement. Ordinarily, victims of defilement may be threatened or held forcefully by their assailants and their ordeals would be characterized by screams and physical struggle. In this case, the victim never stated whether she screamed at all to raise an alarm or attract help from neighbours or whether she cried during the incident. There was no evidence of the Appellant threatening her in any manner as he defiled her. She merely stated that blood came out and that the Appellant covered her head with a blanket. This Court wonders why the Appellant would cover the victim’s head when defiling her yet she knew him prior to the incident and she alleged that he called her to his house, meaning she clearly saw him as her assailant before the occurrence of the crime. This testimony in my view was unrealistic in the circumstances and would only make sense in a scenario where a perpetrator needed to cover their victim’s head to obscure them from identifying them. In this case, that was already completely unnecessary since the victim knew and saw the Appellant and willingly went to his house is her testimony was anything to go by.
3. Further, in considering the inconsistencies in the Prosecution’s evidence, this Court re-examined the findings of PW5 the Clinical Officer who stated that the victim had an old broken hymen. He also testified that the victim was defiled on 15^th July 2021 yet the victim herself stated that she was defiled on 12^th July. The medical evidence as already stated in this analysis did not state the age of the injuries found on the victim’s anus. It is doubtful whether the victim was defiled 3 times on 12^th July or whether she was defiled on three occasions between 12^th and 15^th July as stated in the Charge Sheet or in the extreme case, whether she was defiled way before the incident. Further, the inconsistent evidence of the dates in which the offence occurred from all the Prosecution witnesses leaves this Court with more questions than answers. It cannot be said with certainty that the penetration on the victim’s anus resulted from the specific incident in this case or that she was a victim of a separate ordeal due to her old broken hymen.
4. It was also curious why PW2 refused to open the door on 16^th July 2021 for the Appellant and denied him food if at all she only got to learn of the incident on 17^th July from Grace. Her action lends credence to the Appellant’s evidence that they wanted to chase him away and fabricated this case to destroy him.  In arriving at this conclusion also, I have considered the Pre-Sentence Report which highlighted the fact that the Appellant was a first offender, that he had always been a peaceful person who related warmly with everyone that the present case was a witch hunt arising from succession disputes by the adopting family who refused to give him land as a son of the family. One can easily conclude that the Appellant may have been implicated in the crime because of these underlying family disputes and because the Prosecution did not provide watertight evidence, I am not persuaded that a conviction should be the appropriate end result.
5. In Njuki vs. Rep 2002 1 KLR 77, the court said the following in respect of discrepancies in the evidence of witnesses: -

“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable.  About what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused…  however, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused.”

1. From the totality of the above evidence, I find that these inconsistencies and unclear pieces of evidence go to the root of the Prosecution case and create doubt in the mind of the Court.  While it became apparent to this Court that PW1 was a victim of prior defilement due to her old broken hymen as evidenced by the medical report, and although she alleged that the Appellant was the one who defiled her on the material date by penetrating her anus, this Court finds that the evidence as presented merely raises suspicion as opposed to affirming beyond reasonable doubt that the Appellant was the one responsible for the commission of the crime. It is trite that suspicion cannot form the basis for a conviction. In Sawe vs. Rep [2003] KLR 364, the Court of Appeal held: -

“Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.”

1. All the questions and doubts that have arisen from my analysis of the evidence in the trial record must be resolved in favour of the Appellant. It is my finding that the Prosecution did not discharge their burden of proving the offence to the required standard and I therefore find that the conviction by the trial court was unsafe.
2. In the final analysis, this Appeal has merit and is allowed. The conviction by the trial court is quashed and the Appellant is acquitted of the charge of defilement. He is to be released forthwith unless otherwise lawfully held.
3. It is so ordered.