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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CRIMINAL APPEAL NO. E031OF 2023
JOHN MATHARE GICHERU………………..………………..……..………..APPELLANT
VERSUS
REPUBLIC....…….……………………………………….….………….…RESPONDENT(Being an appeal from the conviction and sentencing of Hon. D. Orimba (SPM)in Lodwar SPMC SO Case No. E017 of 2022 delivered on 31st May, 2023)
JUDGMENT
1. The appellant was arraigned before the Senior Principal Magistrate at Lodwar, in Sexual Offences Case No. E017 of 2022, charged with the offence of defilement contrary to section 8(1)(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on the 27th day of February at Natirae village in Turkana Central Sub County within Turkana County, the appellant intentionally caused his penis to penetrate the vagina of S.A a child aged 6 years.
2. In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of Sexual Offences Act No. 3 of 2006. The particulars of the alternative count were set out to be that on the 27th day of February, 2022 at Natirae village in Turkana Central Sub County within Turkana County, the appellant intentionally touched the vagina of S.A a child aged 6 years.
3. The appellant pleaded not guilty to the charge and the case proceeded to full trial with the prosecution calling a total of five (5) witnesses whose evidence can be summarized as below;
4. PW1, Dorcas Losike, a shopkeeper at Kalokol Natirae and mother to the complainant recalled that on 24.02.2022 she was at her shop when she received information that her child had been defiled. She rushed to the scene, called the caller to take the child to the police station, a report was book, and the child escorted to the hospital.
5. She stated that she interrogated the victim who informed her that the accused found her playing, took her to a nearby thicket where he defiled her and gave her Kshs. 50/-. She added that the accused was familiar to her and that he had been staying at his brother’s house for two days and that the brother to the accused was her tenant.
6. On crossexamination….
7. PW2, Yohana Lokwawi, a fisherman from Natirae narrated that on 27.02.2022 he was coming from church and on his way back home he branched into a nearby bush to answer to a call of nature and heard noises. He followed the noises and saw a man, the appellant, in the company of a child who was crying and when he demanded to know what the man was doing with the child, the man alleged that the child was his. He added that the child had blood dripping down her legs and that he saw the appellant give the child Kshs. 50/-. He further stated that when he saw the complainant, she was naked and that she picked her pants from the ground.
8. He then took both the appellant and the victim to the village elder where the appellant was interrogated. As they were leaving, the appellant put Kshs. 100/- in the pocket of the witness and asked to take the child with him but the witness refused. When they got to the village, a villager identified the child and called for the parents as the appellant was detained until the police came and took him away.
9. PW3 was Susan Adhiambo, a clinical officer at Kalokol GoK dispensary. She produced the p3 report of Dickson Were who was her colleague at the facility and whose handwriting and signature she was familiar with. She stated that the victim was received at the hospital on 27.02.2022 with a history of having been defiled. Upon examination, the child had no bruises on her private parts and she appeared normal. She added that the victim’s genitalia had no discharge though her labia had some bruises and laceration.
10. The victim was called as PW4 upon whom the court conducted voire dire examination and after the court got satisfied on her ability to understand the importance of telling the truth, she testified on affirmation. She told the court of being a pupil in PP2 pupil. She recounted that one day she was playing with other children when the appellant took her away to a thicket, closed her mouth, defiled her and when the appellant saw blood flowing from her pants, he removed her pants and that he later gave her money. She detailed how the appellant defiled her by stating that; “accused did tabia mbaya to me (showing her private parts). He inserted his dudu into my dudu, his dudu for urinating.”
11. On cross examination she stated that she laid on thorns and that she bled from her private parts.
12. PW5 was No. 217713 PC Lokale Omari, a police officer attached to the Kalokol police station. He testified that he was the investigating officer having taken over from the initial investigator. He stated that on 27.02.2022 a report was made by the victim accompanied by her mother complaining that the victim had been defiled by the appellant. They were issued with a P3 form and the victim was taken to hospital. He stated that the victim’s evidence was taken which was that the appellant lured her into a bush with the promise of buying her a soda but instead he gave her Kshs. 50/- and defiled her and that PW2 found the appellant half naked and rescued the girl.
13. The evidence of PW5 marked the close of the prosecution case with the court ruling that a prima facie case had been established and the accused person was put on Defence.
14. The appellant when put on his defence and given a chance to rebut the prima facie case established against him elected to give sworn evidence as the only defence witness without calling any other witness. In that evidence he said that he was a business person at natirae but denied defiling the victim.
15. In a judgment of the trial court delivered on 14th June, 2022 the appellant was found guilty and convicted for the main count and sentenced to twenty (20) years imprisonment.
16. Dissatisfied with the judgment of the trial court, the appellant has lodged this appeal on the grounds that he pleaded not guilty to the charge, that the charge sheet was defective, that the age of the victim was not proved, that the element of penetration was not proved and that the prosecution’s case was marred with contradictions.
17. The appeal has been canvassed by way of written submissions as below;
Appellant’s Submissions
18. On the ground that the element of penetration was not conclusively proved, the appellant submits that though the victim testified that that the appellant inserted “his dudu into my dudu”, the testimony of the clinical officer was that on examining the victim she had no bruises on her private parts and the child looked normal.
19. On the ground that the age of the victim was not conclusively proved, the appellant submits that the age assessment report relied on by the trial court was not produced by the maker thus making the evidence incredible.
20. The contradictions cited by the appellant are that; a) PW2 stated that she was at her shop on 24th February 2022 when a person came to her and that the statement does not describe the exact date when she was informed of the ordeal; b) that PW2 stated that she had only seen the appellant for two days thus differing with exhibit 3 which states that he did not know the accused properly.
21. On the ground that the charge sheet was defective, the appellant submits that the OB No. indicated at the top of the charge sheet was 17/27/02/2022 and that the date to court was missing. He further faults the charge sheet by stating that the particulars of the offence lacked the word, “unlawfully”.
Respondent’s Submissions
22. On whether penetration and age of the victim were conclusively proved, the respondent responds in the affirmative and cites the following reasons; i) PW2 caught the appellant in the act and saw blood flowing down the victim’s leg; ii) Both PW2 and PW4 testified to the effect that the appellant attempted to bribe them kshs. 100 and kshs. 50 respectively; iii) the bloodied innerwear and the kshs. 50 the appellant tried to bribe the victim were positively identified by PW4; iv) PW4 illustrated how she was defiled by the appellant who inserted his penis into her vagina and that PW3 upon assessing the victim concluded that she had been defiled. The respondent further submits that the age assessment report prepared by a medical doctor and produced by the investigating officer is sufficient proof of the age of the victim.
23. On whether there were any contradictions by the prosecution witnesses, the respondent submits that a mere error on the date mentioned by PW1 is not sufficient to amount to contradiction since the rest of her testimony corroborates with the testimonies of PW2 and PW4.
24. On whether the charge sheet was defective, the respondent submits that merely not having a court file does not render a charge sheet defective and that the appellant was aware of the court file number throughout the trial.
Issues For Determination
25. This court has considered the grounds of appeal, the proceedings of the lower court and the submissions by both the appellant and the respondent and discerns the following issues for determination: -
a) Whether the charge sheet was defective
b) Whether the age of the victim was proved
c) Whether the element of penetration was proved against the appellant
d) Whether the evidence of the prosecution witnesses was marred with contradictions and its effect on the case
Analysis
Whether the charge sheet was defective
26. The appellant contends that the charge sheet was defective because the date to court was not captured on the charge sheet.
27. The components of a charge sheet are contained in` section 134 of the Criminal Procedure Code. It provides as follows;
“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged”.
28. From the provision of section 134 of the Criminal procedure Code, an indication of the date to court is therefore not a requirement of the law and if anything, the appellant took plea and appeared to understand the charges he was facing and elected to cross examine PW5. The appellant does not contest his understanding of the charges he faced and therefore no prejudice was visited on him as to negate on his right to a fair trial.
Whether the age of the victim was proved
29. The appellant contends that the age of the victim was not conclusively proved since the age assessment report relied on by both the prosecution and the court was produced by the investigating officer and not the maker of the report.
30. The court in the case Republic v Ronoh Khalif Ahmed [2015] eKLR of addressed the issue of the production of a medical report by a person other than the maker of the document and held as follows;
“Section 77 of the Evidence Act states as follows:-
77 (1) In criminal proceedings any document purporting to be a report under the handwriting of a Government Analyst, Medical Practitioner or of any Ballistics expert, Document Examiner or Geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.
The court may presume the signature of any such document is genuine and that the person signing it or the office and qualifications which he processed to hold at the time when he signed it.
When any report is so used the court may, if it thinks fit, summon the analyst, Ballistics expert, Document Examiner, Medical Practitioner, or Geologist, as the case maybe, and examine him as to the subject matter there of”.
In my view section 77 of the Evidence Act does not deal with the issue as to who can produce such a document. The section allows the court to presume the genuineness of the document. The section also states that the court may call the maker of that statement to be examined on the same. This means that such a document need not be produced by the maker. It also means that the court may or may not require the maker of the document to come to court. It thus means that the document is admissible whether or not the maker comes to court. That does not mean that its value will be the same if the maker fails to come to court to be examined. When the maker comes to court, the evidential value will be much higher as he/she will be subject to cross examination on the same.”
31. That said, I find that that the age of the victim was conclusively proved.
Whether the element of penetration was proved against the appellant
32. The appellant’s case is that the element of penetration was not proved as it was the testimony of the clinical officer that on examining the victim she had no bruises on her private parts and that the child looked normal.
33. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organ of a person into the genital organs of another person.
34. The victim narrated how she was playing with other children when the appellant took her away to a thicket, closed her mouth and then did tabia mbaya to her (showing her private parts) by inserting his dudu for urinating into her dudu.
35. Though the evidence of a victim on penetration is sufficient by itself as espoused in section 124 of the Evidence Act, Cap 80, her evidence was corroborated by the clinical officer who testified that on examination, the victim’s labia had some bruises and laceration.
36. I therefore find that the element of penetration was sufficiently proved by the prosecution against the appellant.
Whether the evidence of the prosecution witnesses was marred with contradictions and its effect on the case
37. The discrepancy cited by the appellant is that whereas PW2 stated that she was at her shop on 24th February 2022 when a person came to her and informed her of the incident, the charge sheet captures that the incident occurred on 27th day of February. Is this a discrepancy that warrants the rejection of the entirety of the prosecution’s evidence? I do not think so. I find the discrepancy so trivial and not substantial enough to negate the conviction based on otherwise cogent evidence by the prosecution witnesses.
38. In conclusion, the court finds the appeal to lack merit and the same is dismissed in its entirety.
Dated, signed and delivered at Lodwar this 27th day of January 2025
Patrick J O Otieno
Judge
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CRIMINAL APPEAL NO. E031OF 2023
JOHN MATHARE GICHERU………………..………………..……..………..APPELLANT
VERSUS
REPUBLIC....…….……………………………………….….………….…RESPONDENT(Being an appeal from the conviction and sentencing of Hon. D. Orimba (SPM)in Lodwar SPMC SO Case No. E017 of 2022 delivered on 31st May, 2023)
JUDGMENT
1. The appellant was arraigned before the Senior Principal Magistrate at Lodwar, in Sexual Offences Case No. E017 of 2022, charged with the offence of defilement contrary to section 8(1)(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on the 27th day of February at Natirae village in Turkana Central Sub County within Turkana County, the appellant intentionally caused his penis to penetrate the vagina of S.A a child aged 6 years.
2. In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of Sexual Offences Act No. 3 of 2006. The particulars of the alternative count were set out to be that on the 27th day of February, 2022 at Natirae village in Turkana Central Sub County within Turkana County, the appellant intentionally touched the vagina of S.A a child aged 6 years.
3. The appellant pleaded not guilty to the charge and the case proceeded to full trial with the prosecution calling a total of five (5) witnesses whose evidence can be summarized as below;
4. PW1, Dorcas Losike, a shopkeeper at Kalokol Natirae and mother to the complainant recalled that on 24.02.2022 she was at her shop when she received information that her child had been defiled. She rushed to the scene, called the caller to take the child to the police station, a report was book, and the child escorted to the hospital.
5. She stated that she interrogated the victim who informed her that the accused found her playing, took her to a nearby thicket where he defiled her and gave her Kshs. 50/-. She added that the accused was familiar to her and that he had been staying at his brother’s house for two days and that the brother to the accused was her tenant.
6. On crossexamination….
7. PW2, Yohana Lokwawi, a fisherman from Natirae narrated that on 27.02.2022 he was coming from church and on his way back home he branched into a nearby bush to answer to a call of nature and heard noises. He followed the noises and saw a man, the appellant, in the company of a child who was crying and when he demanded to know what the man was doing with the child, the man alleged that the child was his. He added that the child had blood dripping down her legs and that he saw the appellant give the child Kshs. 50/-. He further stated that when he saw the complainant, she was naked and that she picked her pants from the ground.
8. He then took both the appellant and the victim to the village elder where the appellant was interrogated. As they were leaving, the appellant put Kshs. 100/- in the pocket of the witness and asked to take the child with him but the witness refused. When they got to the village, a villager identified the child and called for the parents as the appellant was detained until the police came and took him away.
9. PW3 was Susan Adhiambo, a clinical officer at Kalokol GoK dispensary. She produced the p3 report of Dickson Were who was her colleague at the facility and whose handwriting and signature she was familiar with. She stated that the victim was received at the hospital on 27.02.2022 with a history of having been defiled. Upon examination, the child had no bruises on her private parts and she appeared normal. She added that the victim’s genitalia had no discharge though her labia had some bruises and laceration.
10. The victim was called as PW4 upon whom the court conducted voire dire examination and after the court got satisfied on her ability to understand the importance of telling the truth, she testified on affirmation. She told the court of being a pupil in PP2 pupil. She recounted that one day she was playing with other children when the appellant took her away to a thicket, closed her mouth, defiled her and when the appellant saw blood flowing from her pants, he removed her pants and that he later gave her money. She detailed how the appellant defiled her by stating that; “accused did tabia mbaya to me (showing her private parts). He inserted his dudu into my dudu, his dudu for urinating.”
11. On cross examination she stated that she laid on thorns and that she bled from her private parts.
12. PW5 was No. 217713 PC Lokale Omari, a police officer attached to the Kalokol police station. He testified that he was the investigating officer having taken over from the initial investigator. He stated that on 27.02.2022 a report was made by the victim accompanied by her mother complaining that the victim had been defiled by the appellant. They were issued with a P3 form and the victim was taken to hospital. He stated that the victim’s evidence was taken which was that the appellant lured her into a bush with the promise of buying her a soda but instead he gave her Kshs. 50/- and defiled her and that PW2 found the appellant half naked and rescued the girl.
13. The evidence of PW5 marked the close of the prosecution case with the court ruling that a prima facie case had been established and the accused person was put on Defence.
14. The appellant when put on his defence and given a chance to rebut the prima facie case established against him elected to give sworn evidence as the only defence witness without calling any other witness. In that evidence he said that he was a business person at natirae but denied defiling the victim.
15. In a judgment of the trial court delivered on 14th June, 2022 the appellant was found guilty and convicted for the main count and sentenced to twenty (20) years imprisonment.
16. Dissatisfied with the judgment of the trial court, the appellant has lodged this appeal on the grounds that he pleaded not guilty to the charge, that the charge sheet was defective, that the age of the victim was not proved, that the element of penetration was not proved and that the prosecution’s case was marred with contradictions.
17. The appeal has been canvassed by way of written submissions as below;
Appellant’s Submissions
18. On the ground that the element of penetration was not conclusively proved, the appellant submits that though the victim testified that that the appellant inserted “his dudu into my dudu”, the testimony of the clinical officer was that on examining the victim she had no bruises on her private parts and the child looked normal.
19. On the ground that the age of the victim was not conclusively proved, the appellant submits that the age assessment report relied on by the trial court was not produced by the maker thus making the evidence incredible.
20. The contradictions cited by the appellant are that; a) PW2 stated that she was at her shop on 24th February 2022 when a person came to her and that the statement does not describe the exact date when she was informed of the ordeal; b) that PW2 stated that she had only seen the appellant for two days thus differing with exhibit 3 which states that he did not know the accused properly.
21. On the ground that the charge sheet was defective, the appellant submits that the OB No. indicated at the top of the charge sheet was 17/27/02/2022 and that the date to court was missing. He further faults the charge sheet by stating that the particulars of the offence lacked the word, “unlawfully”.
Respondent’s Submissions
22. On whether penetration and age of the victim were conclusively proved, the respondent responds in the affirmative and cites the following reasons; i) PW2 caught the appellant in the act and saw blood flowing down the victim’s leg; ii) Both PW2 and PW4 testified to the effect that the appellant attempted to bribe them kshs. 100 and kshs. 50 respectively; iii) the bloodied innerwear and the kshs. 50 the appellant tried to bribe the victim were positively identified by PW4; iv) PW4 illustrated how she was defiled by the appellant who inserted his penis into her vagina and that PW3 upon assessing the victim concluded that she had been defiled. The respondent further submits that the age assessment report prepared by a medical doctor and produced by the investigating officer is sufficient proof of the age of the victim.
23. On whether there were any contradictions by the prosecution witnesses, the respondent submits that a mere error on the date mentioned by PW1 is not sufficient to amount to contradiction since the rest of her testimony corroborates with the testimonies of PW2 and PW4.
24. On whether the charge sheet was defective, the respondent submits that merely not having a court file does not render a charge sheet defective and that the appellant was aware of the court file number throughout the trial.
Issues For Determination
25. This court has considered the grounds of appeal, the proceedings of the lower court and the submissions by both the appellant and the respondent and discerns the following issues for determination: -
a) Whether the charge sheet was defective
b) Whether the age of the victim was proved
c) Whether the element of penetration was proved against the appellant
d) Whether the evidence of the prosecution witnesses was marred with contradictions and its effect on the case
Analysis
Whether the charge sheet was defective
26. The appellant contends that the charge sheet was defective because the date to court was not captured on the charge sheet.
27. The components of a charge sheet are contained in` section 134 of the Criminal Procedure Code. It provides as follows;
“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged”.
28. From the provision of section 134 of the Criminal procedure Code, an indication of the date to court is therefore not a requirement of the law and if anything, the appellant took plea and appeared to understand the charges he was facing and elected to cross examine PW5. The appellant does not contest his understanding of the charges he faced and therefore no prejudice was visited on him as to negate on his right to a fair trial.
Whether the age of the victim was proved
29. The appellant contends that the age of the victim was not conclusively proved since the age assessment report relied on by both the prosecution and the court was produced by the investigating officer and not the maker of the report.
30. The court in the case Republic v Ronoh Khalif Ahmed [2015] eKLR of addressed the issue of the production of a medical report by a person other than the maker of the document and held as follows;
“Section 77 of the Evidence Act states as follows:-
77 (1) In criminal proceedings any document purporting to be a report under the handwriting of a Government Analyst, Medical Practitioner or of any Ballistics expert, Document Examiner or Geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.
The court may presume the signature of any such document is genuine and that the person signing it or the office and qualifications which he processed to hold at the time when he signed it.
When any report is so used the court may, if it thinks fit, summon the analyst, Ballistics expert, Document Examiner, Medical Practitioner, or Geologist, as the case maybe, and examine him as to the subject matter there of”.
In my view section 77 of the Evidence Act does not deal with the issue as to who can produce such a document. The section allows the court to presume the genuineness of the document. The section also states that the court may call the maker of that statement to be examined on the same. This means that such a document need not be produced by the maker. It also means that the court may or may not require the maker of the document to come to court. It thus means that the document is admissible whether or not the maker comes to court. That does not mean that its value will be the same if the maker fails to come to court to be examined. When the maker comes to court, the evidential value will be much higher as he/she will be subject to cross examination on the same.”
31. That said, I find that that the age of the victim was conclusively proved.
Whether the element of penetration was proved against the appellant
32. The appellant’s case is that the element of penetration was not proved as it was the testimony of the clinical officer that on examining the victim she had no bruises on her private parts and that the child looked normal.
33. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organ of a person into the genital organs of another person.
34. The victim narrated how she was playing with other children when the appellant took her away to a thicket, closed her mouth and then did tabia mbaya to her (showing her private parts) by inserting his dudu for urinating into her dudu.
35. Though the evidence of a victim on penetration is sufficient by itself as espoused in section 124 of the Evidence Act, Cap 80, her evidence was corroborated by the clinical officer who testified that on examination, the victim’s labia had some bruises and laceration.
36. I therefore find that the element of penetration was sufficiently proved by the prosecution against the appellant.
Whether the evidence of the prosecution witnesses was marred with contradictions and its effect on the case
37. The discrepancy cited by the appellant is that whereas PW2 stated that she was at her shop on 24th February 2022 when a person came to her and informed her of the incident, the charge sheet captures that the incident occurred on 27th day of February. Is this a discrepancy that warrants the rejection of the entirety of the prosecution’s evidence? I do not think so. I find the discrepancy so trivial and not substantial enough to negate the conviction based on otherwise cogent evidence by the prosecution witnesses.
38. In conclusion, the court finds the appeal to lack merit and the same is dismissed in its entirety.
Dated, signed and delivered at Lodwar this 27th day of January 2025
Patrick J O Otieno
Judge
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