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JudgmentJOHN ONDEGO VS The Republic10 min read

JOHN ONDEGO VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


BEING AN APPEAL FROM THE JUDGMENT AND SENTENCE IN THE CHIEF MAGISTRATE’S COURT AT MOMBASA IN S/O NUMBER  34 OF 2020. (HON E OLIMO)


INTRODUCTION

  1. The appellant was charged before the Chief Magistrate’s Court sitting in Mombasa with the following offences;
  2. Incest by a male person contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006; and in the alternative,
  3. Committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
  4. The prosecution in proving their case called a total of 6 witnesses whereas the appellant gave sworn testimony and called 1 witness.  After a full trial, the appellant was convicted and sentenced to life imprisonment.
  5. GROUNDS OF APPEAL
  6. Being dissatisfied with the Trial court’s decision , the Appellant filed the Appeal challenging  both the conviction and sentence on 21st February 2024.  He raised the following grounds;
  7. THAT
  8. The Honourable Magistrate erred in law and fact by convicting the Appellant without taking into account his defence of grudge between him and the victim’s step-mother.
  9. The learned court erred in both fact and law in failing to

Consider that the testimony of minor which was obtained by intimidation and corporal punishment by the step-mother.

  1. The court erred in law and fact as it chose to convict the Appellant, despite the step-mother not testifying.
  2. The court erred in law and fact as it did not consider thewhole evidence in convicting the Appellant.
  3. The Honourable Court erred in Law and fact in convicting the accused on a defective charge sheet.
  4. The prosecution convicted yet the case no proved beyondreasonable doubt.

SUBMISSIONS

  1. The appeal was argued through submissions.
  2. The Appellant submitted that the evidence adduced did not meet the required standard of beyond reasonable doubt.
  3. THAT  ”Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge Criminal appeal no 15 of 2024 
  4. They added that the onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi. A trial court has a duty to weigh the evidence adduced in court by all the parties in totality and make a finding on the culpability or otherwise of the accused.
  5. That   choosing to analyze the prosecution evidence and leave out that of the accused defence is a fatal mistake. It’s a duty bestowed in every court to weigh one set of evidence (prosecution) against another (defence) before arriving at a conclusion. This is the basic calling of every Court without exception.8 As was held in Ricky Ganda v The State9:

  1. As regards the evidence, the Appellant highlighted that in this particular case, it is the evidence of the prosecution that the minor subject issue was beaten one day by her step mother and that is what made her say that her father had been sleeping with her, however the step mother suddenly disappeared and did not testify on the fateful day. That the prosecution was at pains at explaining why the step mother did not testify.
  2. That the Appellant in his defence painted a picture of failed marriage between him and the step mother and he highlighted the fact that in their short marriage of less than two years the step mother had been separated from him for a long time.  Further The Appellant in his testimony  stated that he has been the primary care giver of the minors (the victim and her brother) ever since their mother left until recently when their step mother came into the picture .The  Appellant further testified that there have been numerous complaints ,from the children that their step mother has been mistreating them.
  3. The Appellant urged the court to find that taking the evidence and the circumstance in this case it would not be safe to uphold the Appellant, his evidence is believable as he is a victim of grudge between him and the step mother and  the investigation officer in cross examination did admit that he did not investigate whether there was a grudge between the Appellant and the step mother.
  4. On their part the Respondent urged the court to uphold both the conviction and the sentence as all the ingredients of the offence of incest were proved.
  5. DUTY OF THE COURT
  6. The duty of the 1st Appellate court is to analyze   the evidence afresh as was held in Okeno – Versus – Republic [172] EA 32, where the East Africa Court of Appeal stated as follows on the duty of the Honourable Court on a first Appeal;

“An Appellant on a first Appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (PANDYA-VERSUS-REPUBLIC [1957] E.A. 336) and to the Appellate Courts own decision on the evidence. The first Appellate Court must itself weigh conflicting evidence and draw its own conclusions. (SHANTILAL M. RUWALA-VERSUS- REPUBLIC [1957] EA 570 It is not the function of a first Appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions. Only then can it decide whether the Magistrate's findings should be supported

  1. THE LAW
  2. Section 20(1) of the Sexual Offences Act provides as follows:-

“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term not less than ten years.

Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

  1. The specific elements of the offence incest arising from Section 20(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:
  2. Relationship of the complainant and assailant as provided under section 20(1).
  3. Age of the complainant (if the complainant is under the age of 18 years).
  4. Proof of penetration or incident act in accordance with section 2(1) of the Sexual Offences Act.

Relationship of the Appellant and Complainant

  1. The Appellant is the complainant’s father.  They have lived together ever since she was born.  PW 1 and 2 confirmed that the appellant was well known to them as the complainant’s father.  The appellant did not controvert or deny the relationship of father-daughter with the complainant.  The first element was therefore proved beyond reasonable doubt.

Age of the Complainant

  1. PW1 said she was 10 years old, and since her mother did not testify and there were no documents   PW 6, Sergeant Daniel Otieno, produced an age assessment as exhibit 4 which gave the age as10 years old.  The Appellant did not in any way deny PW 1’s age. 

 Therefore  the age was proved but we should beaer in mind , that for the offence of  incest, age is  only relevant when it comes to sentencing as per the proviso to section 20(1) of the SOA.

Penetration

  1. Section 2(1) of the Sexual Offences Act defines penetration as:

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

ANALYSIS

  1. PW 1, Rose Kayesi Joseph, testified that in the month of August 2020 the complainant’s mother, Joyce, went to her house accompanied by the complainant.  She observed that the complainant was crying and had bruises on her face.  Joyce informed her that the complainant had told her that the appellant had defiled her.  Rose reported the matter to the village elder for action to be taken.  She also observed that the complainant was limping and had difficulty in walking. 
  2. The charge sheet shows that the minor was defiled on unknown dates and time in the month of August 2020.  It is critical to note that the charge sheet does not say on diverse dates.  This is IMPORTANT AS even the evidence is not clear if it was a once only incident on a pattern of abuse. 
  3. When we look at the evidence of PW 1, the victim told her that ‘the father used to sit on a chair then put her on the laps and then insert something into her vagina.  That the child also told her the dad had done the same while at Wayani forest.  PW 1 says she was told this August 2020 and she reported to the nyumba kumi elder.  Even in her cross examination PW1 said the child was defiled severally.
  4. On her part, the Nyumba kumi elder,  PW 2 says that PW 1 called her on 23/11/2020 and she arrested the child’s mother who wanted to travel upcountry. She did not interview the child.
  5. The village elder-PW 5, said that PW 2 called her on 23/11/2020 at 11.00am.  That the child told her that the father had defiled her while on a chair.
  6.   The Investigating Officer PW 6 testified that the child mentioned that the act took place severally.
  7. When we go to the child’s evidence in court, (PW3 )we note that she only talks of one incidence which she says was on a Saturday.  She says that the father told her to lie on the chair, that he lay on top of her and he removed her panty and he removed his trousers.  Then he penetrated her vagina using his genitalia  for going for short calls.  That after this she went to play and later she told her mother about it the same day and the mother beat her up and told a neighbour.  Later during re-examination she said she told the mother on a different day.
  8. This lack of flow of events is a glaring red flag that the trial court ought to have picked up.
  9. We also note that the investigating officer said the mother questioned the child when she saw that the child’s genitalia  was injured and  the panties had some discharge.  This was contrary to what the child said and there is no indication that the child sustained visible injuries from the alleged defilement.  Infact according to her the child, she went out to play after the encounter with the father. 
  10. When we look at the medical documents, there are no visible external injuries on the genetalia.  That is upon close examination.  Now one must ask , how was the mother able to see injuries on the internal part of the child? 
  11. The  initial treatment booklet dated  on 20/08/2020  only talks of redness all around the vaginal walls of  the  OS and the hymen not intact. (old scar).  There are the injuries noted in the P3.    There is no external injury that the step mother could have observed.
  12. The said  treatment booklet also has a special note During the examining the body – marks on both thighs that she claims have been inflicted by the mother ( Step)  and facial marks as well.  These injuries are noted in the P3. 
  13. The child testified that the step mother used to beat her as she, , the stepmother wanted her to go back and live upcountry. 
  14. .  Indeed even the village elder,  PW 1 , noted the bruises on the child’s face  and the child told her that it is the mother who had caused them and these are  the injuries noted in the  treatment card .
  15. The village elder also stated the child had difficulty in walking but if this is true, it was most probably  caused by the severe beating by this savage step mother who was masquerading as a rescuer.
  16. After looking at all these discrepancies, then it is difficult to find  that penetration was proved and even if it was, it was by the Appellant.  The treatment card talks of an broken hymen-old scar and some redness.  There are a lot on authorities on how a hymen may tear.
  17. That notwithstanding, the court also noted the discrepancy in the evidence of the victim both in court and even what she told other people.  To start with we do not know if the defilement was continuous like she  or the mother told other people or once like she testified in court.  Then to PW1 , the victim  said the would put her on her lap yet in court she said he lay on her.                           She also mentioned a forest to PW1 but not to anyone else and also in court she did not say so.
  18. Then there are the serious injuries inflicted by the stepmother who raised the alarm then ran away.  This must be weighed against the defence that the Appellant had fallen out with her and one of their areas of difference was these children whom it appears the said stepmother wanted to go back upcountry. (as per the child’s evidence).
  19. The trial court stated the child had no reason to lie but she overlooked the thorough beating the child had received from the step mother which beating the child reported to PW1 and  the doctor.
  20. Accordingly, the court finds that the conviction was not safe and  as William Blackstone stated – It is better that 10 guilty persons escape than one innocent person suffer.  The conviction is quashed and consequently even the sentence of 20 years imprisonment  is set aside.
  21. The Appeal succeeds and the Appellant may be set free forthwith unless if otherwise lawfully held.
  22. It is so ordered.

Dated, signed and delivered in Open Court/online through MS TEAMS,

this ………13th………day of ……MARCH……………………2025

HON. LADY JUSTICE W. K. MICHENI

JUDGE

In the presence of: -

Appellant and his advocate Mr  Manguro

Ms Cherop for the state

Bebora court Assistant

HON. LADY JUSTICE W. K. MICHENI

JUDGE

    JOHN ONDEGO VS The Republic JOHN ONDEGO VS The Republic