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JudgmentHEZRON ARISA VS The Republic10 min read

HEZRON ARISA VS The Republic

High Court at Nyamira High Court · · Wilfrida A. Okwany

(Being an Appeal from the Conviction and Sentence in the Chief Magistrate’s Court at Nyamira, Sexual Offence Case No. E044 of 2021 delivered by Hon. W.K. Chepseba, Chief Magistrate on 8th May 2021)

  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 12th July 2021 and 15th 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 12th July 2021 and 15th 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: -
  4. PW1 L.K. (particulars withheld) the victim, testified that she went home for lunch on 12th July 2021 when the Appellant defiled her. Her mother (PW2) escorted her to the hospital for treatment and reported  the incident to the police.
  5. 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.
  6. PW3, Grace Bonareri, testified the victim and her friends informed her of the defilement on 15th July 2021 after which she relayed the information to PW2.
  7. 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.
  8. PW5, Nyanyuki Abibu Nixon, was the Clinical Officer who treated the victim on 17th 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).
  9. 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 17th July 2021 over allegations that he had defiled his sister. He denied the defilement allegations and explained that his adoptive parent framed him up in the case so as to get rid of him because he had stayed with her for a long time. 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, 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 her minority age was proved to the required standard.

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.

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. 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.
  2. My finding is that there are certain aspects of the Prosecution’s case that not so clear. For instance, while the victim testified that she was defiled on 12th 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 learnt of the incident on 15th July 2021 and informed the victim’s mother on 17th 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.
  3. 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. A perusal of the trial court’s proceedings and judgment reveals 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. 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. 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 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. I note that the medical evidence does not indicate the date of the assault as shown in the question mark by the doctor. The date indicated in the said report does not also correspond with the victim’s evidence that she was assaulted on 12th 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 the 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.

Judgment dated, signed and delivered virtually via Microsoft Teams this 4th day of July 2024.

W. A. OKWANY

JUDGE

In the Presence of: -

Mr. Chirchir for the Respondent

The Appellant

C/A – Anita

    HEZRON ARISA VS The Republic HEZRON ARISA VS The Republic