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JudgmentHAKIM BARAKA CHENGO VS The Republic8 min read

HAKIM BARAKA CHENGO VS The Republic

High Court at Malindi High Court · · M Thande

 

  1. The Appellant herein was tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act (SOA). The particulars of the offence are that on diverse dates between 2.6.22 and 18.7.22 at Tekaungu village, Chanagande location, Kaloleni sub county in Kilifi County, he unlawfully and intentionally committed an act which caused his penis to penetrate the vagina of A. M. (the Complainant), a girl aged 15 years. Following trial, the Appellant was convicted and sentenced to 20 years imprisonment.
  2. Being aggrieved by the decision of the trial Court, the Appellant filed the Appeal herein raising the following grounds reproduced below:
  3. The That the learned trial magistrate erred in fact and law in proceeding to convict and sentence the Appellant herein based on a defective charge sheet, the particulars thereto and the date of the alleged offence does not tally with the particulars thereof.
  4. That the learned trial magistrate erred in fact and law in proceeding to convict and sentence the Appellant on a charge: Defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual offences Act No. 3 of 2006 the particulars of which…

on 2nd June 2022 and 18th July 2022 at Tekaungu village, Chanagande location, Kaloleni Sub-county in Kilifi county within coast region intentionally and unlawfully committed an act which caused his male genital organ namely penis to penetrate the female genital organ namely of A.M a child aged 15 years.

In the alternative he was charged with the offence of indecent act with a child contrary to section 11 (1) of the Sexual Offences Act no.3 of 2006.

on diverse dates between 2nd day of June 2022 and 18th day of July 2022 at Tekaungu village, Chanagande location, Kaloleni sub county in Kilifi county within coast region intentionally committed an act which caused his male genital organ namely penis to touch the female genital organ namely vagina of A.M a child aged 15 years.

Yet on the judgment delivered on the 13th day of February 2023, the learned trial magistrate alludes to … the accused person is her boyfriend whom she has been in a relationship with and had sexual intercourse with several times...”

Therefore, the particulars do not conform to the main charge especially the time and dates of the alleged incident, the place of the alleged incident and whether or not the incident in itself (defilement in essence actually occurred)

  1. That the learned trial magistrate erred in fact and in law in relying on a p3 form that had conflicting description of the age of the alleged (broken and loose vaginal sphincter muscles), in conflict with the evidence on record, the treatment notes and the testimony of the alleged eye witnesses.
  2. That the learned trial magistrate erred in fact and law by convicting and sentencing the appellant based on facts presented by the prosecution that are clearly not in tandem with the charges proffered as against the Appellant.
  3. That the learned trial magistrate erred in fact and law by proceeding to convict the Appellant on evidence that does not meet the threshold as enunciated by Section 36 of the Sexual Offences Act, the medical evidence thereof was doubtful and non-incriminating based on fabrications inconsistent and doubtful.
  4. That the learned trial magistrate erred in law and fact in meting out a sentence that was harshly and manifestly excessive in the circumstances and failed to take into consideration mitigating factors thereto.
  5. The Appellant prayed that the conviction and sentence be quashed and the Appellant be set at liberty forthwith.
  6. As a first appellate Court, I am required to subject the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32 and Kariuki Karanja v Republic [1986] KLR 190).
  7. The record shows that in support of its case, the prosecution called 4 witnesses.
  8. PW1 Chigulu Mwangolo a Senior Clinical Officer- Mariakani Sub County Hospital who examined the Complainant stated that her clothes were clean, her head, neck, thorax and abdomen and limbs were normal. Further that she had normal and unkempt genitalia with a broken hymen and loose vaginal sphincter muscles. Pregnancy syphilis and HIV tests were negative and there was proof of penetration. He produced the P3 and PRC forms as well as the treatment notes for the Complainant.
  9. PW2 No 119006 PC Winnie Murei, the investigating officer told of Kaloleni Police Station gender desk, told the trial court that on 15.7.22 the Complainant’s uncle PW3 reported that his niece, the Complainant was missing since 11.07.22. On 17.07.22 he directed police officers to the home of the Appellant where they found him and the Appellant at midnight. They were both arrested. On interrogation, the Complainant told them that she was 15 years old and in class 8 and that she had started her affair with the accused in June 2022. She further stated that she had gone went to the Appellant’s house on 02.07.22 up to 10.07.22 and also went back on 17.07.22 when they arrested them. The Complainant was taken to hospital where it was confirmed that there had been penetration. That she further interrogated the girl who told her that
  10. PW3 Nickson Kitsao told the court that the Complainant lives with her and that in June, she started going home late from school and would also spend the night out. She lied to him that they were having extra tuition. He then reported the matter to the chief and the village elder. When she spent a week out, he reported the matter to the police then started his own investigations. On the night of 17.07.22 he and the police went to the Appellant’s house where they found him and the Complainant and both were arrested. The Complainant was taken to the hospital for examination and penetration was confirmed.  
  11. In her testimony, the Complainant stated that she was 15 years old having been born on 8.8.07. She told the court that the accused was her boyfriend and was the one paying her school fees. She testified that on 2.6.22 she went to the Appellant’s house at 6:00pm and they had sexual intercourse and went back home at 7:00pm. That on 11.7.22 she went back and remained in his house for 5 days during which time they had sexual intercourse. On 16.07.22 she went back to the accused’s house where they were arrested and she was taken to the hospital.
  12. At the close of the prosecution case, the Appellant was found to have a case to answer and was put on his defence.
  13. In his unsworn statement, the Appellant stated that on 17.7.22 he was at work in Mikinani when he was arrested by more than 5 police officers and taken to the police station. They interrogated him and he told them that he was not privy to what was going on. They then took him to the cell and then he saw the Complainant and her uncle at the station. He stated that the Complainant had alleged that he had defiled her but he had not.
  14. At the beginning of the trial on 5.9.22, PW2 the investigating officer, told the court that she had bonded the Complainant and the guardian. However, on the morning of the hearing, the guardian told her that the Complainant had disappeared. On 26.9.22, the prosecutor told the trial court that PW2 had told him that she intercepted a letter from the Complainant which was to be passed on to the Appellant. In the letter, the Complainant had stated that if the matter proceeds and she testifies, she will take her own life. Not wanting to take the same as empty threats, the prosecutor asked that the Complainant be put in an institution for counselling before testifying. The trial court then directed that she be taken to a children’s home where she would undergo counselling.
  15. On 24.10.22, the children’s officer informed the court that the manager of the institution had informed her that the Complainant was doing well and that a hearing date could be taken.
  16. The circumstances herein are that the Complainant is the only direct witness to the alleged offence. Section 124 of the Evidence Act makes provision for evidence of children as follows:

Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:

  1. The proviso to Section 124 allows the court to receive evidence of an alleged victim of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. It 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 in the proceedings, the court is satisfied that the alleged victim is telling the truth.

  1. The learned trial Magistrate was required to apply the cautionary proviso to Section 124. More so, given that the circumstances relating to the Complainant’s conduct. To begin with, the Complainant disappeared on the day she was due to testify. Later, she stated that she would kill herself if she was made to testify. This clearly alarmed the prosecutor who applied for the Complainant to undergo counseling. This to me is indicative of a reluctant witness who did not testify of her free will. She was clearly coerced to testify. Had she been a willing witness, she would not have run away on the initial hearing date as she did, or threatened to kill herself if forced to testify. The critical question to ask is whether the complainant’s testimony was reliable in the circumstances. In order to fulfil the requirement of the proviso to Section 124, the trial court must be satisfied that a victim of a sexual offence is telling the truth. This truth must of necessity be given freely without coercion. A court must not belief a witness who is forced to testify.
  2. In light of the foregoing, I do find that the trial Magistrate erred in convicting the Appellant on the basis of the testimony of the Complainant which was not credible, given that she was clearly was coerced into testifying.
  3. The upshot is that the conviction of the Appellant was not safe. The Appeal is thus allowed. The Appellant’s conviction is quashed and the sentence is hereby set aside. The Appellant is set at liberty unless otherwise lawfully held.

DATED SIGNED and DELIVERED in MALINDI this 14th day of February 2025


    HAKIM BARAKA CHENGO VS The Republic HAKIM BARAKA CHENGO VS The Republic