JOSEPH KIKUVI KIVUNGI VS The Republic JOSEPH KIKUVI KIVUNGI VS The Republic

The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 25^th November 2021 at unknown time at Kithangathini Sub Location, Kikoko Location, within Makueni County, the appellant intentionally caused his penis to penetrate the vagina of F.N.M, a child aged 10 years.
In the alternative, he was charged with committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on the same day and place, the appellant intentionally touched the vagina of FNM, a child aged 10 years with his penis.
The appellant pleaded not guilty and after a full trial, he was convicted on the main charge and sentenced to 20 years’ imprisonment.
He was aggrieved by that decision, the appellant filed appeal and raised the following grounds;
That the trial court did not consider article 49 of the CPC which protects every person against arbitrary imprisonment.
That the honorable court failed to consider his circumstances and mitigation factors when giving the sentence.
That the trial magistrate appeared biased on the accused person whenever he raised his claims ad issues on the prosecution side.
That the trial magistrate was dishonest, incompetent and negligent when delivering the ruling and judgment.
The appellant’s submissions when filed contained the following grounds;
That the learned trial magistrate erred in law and fact by convicting him without considering that there was no evidence to prove penetration.
That the learned trial magistrate erred in law and fact by shifting the burden of proof to him contrary to the rule of law that the burden always rests on the shoulders of the prosecution.
That the learned trial magistrate erred in law and fact by misapprehending and misdirecting himself on the evidence hence arriving at the wrong conclusion.
That the learned trial magistrate erred in law and fact by not applying section 124 of the Evidence Act and maintaining the evidence by prosecution witnesses which was uncorroborated.
That the learned trial magistrate convicted the appellant on unworthy, untrue, untenable and inconsistent evidence which prejudiced him.
That the learned trial magistrate erred in law and fact by dismissing his sworn defence which alleged the possibility of the charges being framed against him.
The prosecution’s case was that on 25/11/2021, the complainant left school and went to the appellant to get macadamia nuts from his tree. The appellant told her to remove her panty and he defiled her under the tree. He then gave her the macadamia nuts and told her not to say anything. She went home and found her grandparents and her cousin Eva. Her cousin noticed that she was bleeding and asked her to remove her panty. Her grandmother asked her what had happened and she told her that it was the appellant who had defiled her but that she had also been defiled earlier by Mutinda.
The prosecution called 3 witnesses to wit; the complainant (PW1), the complainant’s cousin (PW2), the complainant’s mother (PW3), the Clinical Officer (PW4) and the Investigating Officer (PW5). The exhibits produced were; Age assessment report (P. Ex 1), Treatment Notes (P. Ex 2), PRC Form (P. Ex 3), P3 Form (P. Ex 4) and Accused’s outpatient card (P. Ex 5).
The appellant was found to have a case to answer and was put on his defense. He elected to give sworn evidence and not to call any witness. He testified that he lived in Kithangathini and was a farmer. That on 25/11/2021, he was in Makindu working as a boda boda and was nowhere near home. That the next day, he was arrested over something he had not done and was only informed of the charges after insisting for a long time. That he only got home at 9pm.
On cross examination, he reiterated that he was not at home on the material date as he was at Makindu. The he had left his house at 6am and returned at 9pm. He said that he didn’t know the complainant and had seen her for the first time at the police station. He agreed that he knew the complainant’s mother and that he didn’t know why they were framing him. That a child will say whatever she is told to say. He denied that the complainant was a neighbor and said that she had never been on his land. He said that the complainant’s mother was his girlfriend two years ago.
The parties elected to canvass the appeal through written submissions and appropriate directions were given.
The appellant urged this court to check the evidence of PW1 where she said that her dress was green and then her mother, PW3, said that the complainant had a white dress. He submitted that the trial magistrate seemed to take sides with the prosecution evidence which was contradictory. He submitted that PW3 and the Investigating Officer (IO), PW5, talked of blood stained clothes but the P3 form indicates that the clothes were not blood stained.
He submitted that it is pertinent to consider the mischievousness that led to the amendment of section 124 of the Evidence Act as entailed in J. Hyde on Evidence Cases and Materials Seconded-Butterworths London 1984. He submitted that among the reasons given are; firstly, a child’s power of observation and memory are less reliable than adults, secondly, children are prone to live in a make-believe world so that they magnify incidents which happen to them or invent them completely, thirdly, they are very egocentric and can easily be influenced by adults and other children; fourthly, police officers taking statements from child tend to confuse what actually happened with the answers suggested implicitly by the questions and fifthly, children often have little notion of duty to speak the truth.
The appellant submitted that the results of his medical examination did not link him to the offence hence the charge against him was not proved to the required standard. He relied inter alia on the case of Woolmington –vs- DPP (1985) EA 485 where it was held that;

“It needs no gainsaying that doubts arising in this matter as earlier on enumerated are legion. This court is requested not to close its eyes to them.”

He submitted that the framers of the charge sheet omitted an important ingredient i.e. the word ‘unlawfully’ and that made it difficult for him to defend himself. He contended that the prosecution and trial court had ample time to amend the charge sheet but failed to do so.
He submitted that it was the duty of the investigating officer to find the blood stained panty an avail it as an exhibit before the court. He relied on Joseph Njaramba Karura –vs- R (1982-1988) K.A.R 1165 where it was held that;

“Where there is no identification in the court for a key exhibit, such an exhibit remained unidentified and that destroys the judgment”

He submitted that there was no medical evidence to prove penetration and relying on a broken hymen only is not sufficient. He contended that the trial magistrate seemed to be siding with the prosecution when he corrected their mistakes at page 24, lines 12 and 13 of the judgment.
He submitted that the trial court convicted and sentenced him on a case which was not corroborated. He relied on the case of DPP –vs- Kilbourne (1973) where Lord Simons defined corroboration to mean; ‘evidence which renders other evidence probable’.
He submitted that a crime refers to the co-existence of actus reus and mens rea and lack of evidence of mens rea proves that he was subjected to a conviction and sentence by only using the power of the court. He contended that the result was prejudice, miscarriage of justice and violation of his Constitutional rights as a citizen. He submitted that according to recent cases, people use the Sexual Offences Act to settle scores and punish innocent people.
He submitted that the trial magistrate misinterpreted the evidence of the experts as it was clear from the evidence of the doctor and IO that he could not be linked to the offence.
He submitted that the trial magistrate erred by concluding that a hymen is broken only when there is sexual intercourse. He relied on the case of P. K.W –vs- R [2012] eKLR where the Court of Appeal held that;

“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse?

16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences, we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen vs Manuel Vincent Quintanila [1999] AB QB 769.”

He submitted that the case should have been juxtaposed with his defence which was to the effect that the entire case was fabricated due to deteriorated relationship between him and the mother of PW1.
He submitted that the age assessment was not proved because the trial magistrate assumed the complainant’s age to be 12 years and the charge sheet indicates 10 years. He contended that the trial magistrate took advantage of the powers of court to convict him and submitted that there is no law in our country which allows a court to refer to a defence as an afterthought. That an IO is mandated to ascertain whether the defence offered is an afterthought.
The State, through Prosecution Counsel Vincent Maina, submitted that PW1’s age was proved through the production of age assessment report which put her age between 10 and 12 years. That the same was corroborated by her mother who stated that she was 10 years old.
He submitted that penetration was proved through the evidence of PW1, PW2 and the clinical officer.
He submitted that the appellant was positively identified by PW1 as he was a person well known to her and the offence happened during the day.
With regard to contradictions and inconsistencies, he submitted that the evidence of the prosecution witnesses was clear, consistent and corroborated. That the only difference was with regard to the color of the blood stained dress which, he submitted, did not at all prejudice the appellant. He relied on Philip Nzaka Watu -vs- R (2016) eKLR where the Court of Appeal stated;

“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

He also cited Erick Onyango Ondeng’–vs-R [2018] eKLR where it was held;

“With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

He submitted that the trial court took note of the minor contradictions and found that there wasn’t any untruthfulness in the testimony of the witnesses.
He submitted that the omission of the word unlawful in the charge sheet did not prejudice the appellant at all. That the ingredients of the offence were clearly laid out in the charge sheet and they were understood by the accused person who was able to respond and defend himself. He contended that even if there was an error, the same was a mere technicality which is curable under Article 159 (d) of the Constitution.
In conclusion, he urged this court to uphold both conviction and sentence.
It is now settled that the duty of a first appellate Court is to scrutinize the evidence on record, make its own findings and draw its own conclusions giving due allowance to the fact that the trial Court had the advantage of seeing and hearing the witnesses (Okeno –vs- R (1972) EA 32).
Having looked at the grounds of appeal, the rival submissions and the entire record, it is my considered view that the following issues arise for determination;
Whether the charge sheet was defective;
Whether the case was proved beyond reasonable doubt.

Analysis and determination

Whether the charge sheet was defective

The appellant argued that the omission of the word ‘unlawfully’ in the charge sheet was prejudicial and made it difficult for him to defend himself.
Section 134 CPC 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.”

The appellant was charged with Defilement as defined by s. 8(1) of the Sexual Offences Act. It says A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. S. 8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. From the definition, defilement is unlawful without needing to be said to be unlawful because any sexual contact with a child is unlawful and all that is loaded in the term defilement. The charge as drawn contains a statement of a specific offence, namely defilement. The particulars given informed the appellant that he was being accused of intentionally causing his penis to penetrate the vagina of a child aged 10 years. There was no irregularity.

Whether the case was proved beyond reasonable doubt

The ingredients of the offence are; age of the complainant, proof of penetration and positive identification of the assailant.
With regard to age, the appellant argued that the same was not established. The complainant testified that she was 10 years and the investigating officer (PW5) produced an age assessment report (P. Exh 1) which assessed PW1’s age to be between 10 and 12 years. The trial magistrate adopted the higher age of 12 years.
Further, the trial magistrate relied on Fappyton Mutuku Ngui –vs- Republic; HCCA 296 of 2010 (Machakos) for the conclusion that proof of age in cases under Sexual Offences Act does not necessarily mean that there has to be a formal age assessment report or the production of a birth certificate. The appellant has argued otherwise but the conclusion by the trial magistrate is well founded in law. In the Ugandan case of Francis Omuroni –vs- Uganda, Criminal Appeal No. 2 of 2000; it was held that: -

“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...”

In our jurisdiction, there is Richard Wahome Chege –vs- Republic [2014] eKLR, where the Court of Appeal stated that;

“12. On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant, and the complainant herself.”

Consequently, it is my considered view that the complainant’s age was sufficiently established.
As to whether the appellant was well identified, the appellant said that he saw the complainant for the first time at the police station while the complainant testified that; “On 25/11/2021 I left school and I went to Kikuvi to get macadamia nuts from his tree. The tree is on his shamba…the person who did that to me is Kikuvi the one appearing on the computer screen. He has no family and just stays at home. We live in the same area.” This evidence by PW1 implies that the appellant was a person well known to her.
Further, PW2 testified that; “My cousin told me that Joseph Kikuvi our neighbor had done that to her. She even described his house. I know his house and I know him. He is the accused here on the screen before court.” On his part the appellant’s defence was that he was out of the village at that time and was at Makindu. He said he saw the complainant for the first time at the police station. He however told the court that he knew the complainant’s mother and said that she was his girlfriend two to the incident he was accused of.
While it is possible for someone to be in a romantic relationship with another and be totally ignorant about their offspring, in this case, the appellant was merely denying any knowledge of the complainant. The evidence shows that the complainant encountered the appellant in broad daylight as it was after leaving school though the exact time of leaving school is not indicated. Also, PW3’s evidence is that they reported the incident at 7.00pm and what I decipher from the evidence is that there had been some passage of time between the incident and time of reporting. It is therefore my considered view that the appellant was identified by the complainant.
As to whether there was penile penetration of the complainant by the appellant, the complainant testified that after leaving school on 25/11/2021, the appellant defiled her under a macadamia tree. She said that; “He inserted his thing that he uses to urinate inside mine.”
The appellant argued that the prosecution evidence was unworthy, untrue, untenable and inconsistent. The appellant took issue with the complainant’s evidence for saying that her dress was green while her mother (PW3) said that the dress was white. Looking at the exact evidence with regard to this issue, the complaint said; “I had a green dress on. It is not in court today.” Her mother said; “I do not have the clothes my daughter was wearing on the material date but they are with the police. The blood stained clothes are white in colour.” Further, the complainant’s cousin PW2 said; “She also had a blood stain on her panty.”
Looking at this evidence, my view is that while the complainant was specific about a green dress, her mother talked about clothes generally and that could mean the dress plus inner wear. According to PW2, it is the panty which was blood stained hence it is possible that the mother was referring to a blood stained white innerwear. Consequently, there is no contradiction when the evidence is examined holistically.
The appellant also argued that it was a fatal omission for the IO not to avail the blood stained clothes in court. He also argued that the issue of blood stained clothes was controversial because the P3 is clear that the clothes were not blood stained. Indeed, it is true that the prosecution witnesses referred to blood stained clothes but the same were not produced. The complainant’s mother testified that the clothes had been handed over to the police. In my view, the question at this juncture is whether the failure to produce the clothes affected the threshold of proof.
As regards the entry in the P3 form, PW2 testified that they reported at 7pm on 25/11/2021 and they were told to return the next day which they did. Indeed, the P3 form is dated 26/11/2021 and it’s the same day that the complainant was sent to the hospital for examination. The clinical officer, PW4, confirmed that he examined the complainant on 26/11/2021. Now, the logical explanation is that the complainant had changed her clothes at the time of examination since it was a day after the incident. The treatment notes show that she bathed after the incident hence it wouldn’t make a lot of sense for her to wear dirty clothes after bathing. In my view, that explains the entry in the P3 form.
The appellant also complained that the complainant’s evidence was not corroborated. The prosecution’s case was that the complainant was defiled by two people on two different dates. The first one was by a man called Mutinda on 20/11/2021 and the second one was by the appellant on 25/11/2021. The complainant was examined shortly after the second incident and the Clinical Officer (PW4) observed that the hymen was broken, that there was vaginal tenderness, a spot of blood and high number of pus cells indicating an infection. It is of course trite that a broken hymen is not per se proof of defilement but that fact of penetration is to be looked at holistically with the rest of the evidence.
Be that as it may, Section 124 of the Evidence Act allows courts to base their conviction on the sole evidence of the victim provided they give reasons for believing them. In the judgment, the trial magistrate stated; “I also found the complainant’s evidence was quite candid and credible and having heard and saw her, I believed her.” In my view, the trial magistrate complied with the proviso to section 124 of the Act.
Further, where the victim is of tender years, corroboration is only required if their evidence is unsworn. In the case of John Otieno Oloo –vs- Republic [2009] eKLR, the Court of Appeal stated that;

“In short, we are of the view that in law evidence of a child of tender years given on oath after voire dire examination requires no corroboration in law but the Court must warn itself that it should in practice not base a conviction on it without looking and finding corroboration of it. Evidence of a child of tender years not given on oath must in law be corroborated.”

The offence in question was committed in November 2021 hence for purposes of defining a child of tender years, the repealed Children Act, 2001 (Act No. 8 of 2001) is applicable. Section 2 therein defined such a child to mean, ‘a child under the age of ten years’. In our case, the complainant was between 10 and 12 years and the record reveals that she gave sworn evidence after being subjected to a voire dire examination
The appellant also argued that no sperms were found in the complainant’s medical examination hence nothing linking him to the defilement. He referred to the complainant’s evidence where she stated that after finishing, he gave her macadamia nuts. This ‘finishing’ was interpreted by the appellant to mean ejaculation. While I highly doubt that that was the meaning in the complainant’s mind due to her age, the law is that absence of spermatozoa does not automatically mean that there was no defilement. In Mark Oiruri Mose –Vs- Republic [2013] eKLR the Court of Appeal stated that;

“Her finding that as there was no evidence of the presence of spermatozoa, the appellant could not be convicted of defilement, was with respect erroneous. As we have stated, all that was required to be proved was not presence of spermatozoa, but penetration of the victim's vagina with the appellant's penis and that was clearly proved.”

I need not add more.
The appellant’s defence is that he was not within the area on the material day. But the evidence of the complainant places him at the scene where the defilement happened. He also added that this was a set up due to grudges with the mother of the minor The appellant said that he didn’t know why they were framing him and also said that the complainant’s mother was his girlfriend some time ago. If at all he was in a romantic relationship with the complainant’s mother and they parted acrimoniously, nothing would have been easier than for him to state so expressly. The appellant introduced the aspect of acrimony in his submissions but did not raise it either in evidence or cross examination. Consequently, I do agree with the trial magistrate that the appellant’s defence was an afterthought.
Having re-evaluated the evidence, my view is that the prosecution’s evidence was consistent, credible and pointed solely to the appellant as the perpetrator who defiled the complainant on 25/11/2021.
The final issue is whether the failure to produce the blood stained clothes dented he case for the prosecution as to create doubt to amount to an unsafe conviction. It is evident that from the record the evidence of the complainant was credible that penetration had occurred by the appellant. Hence the I. O’s failure to produce the clothes was not fatal to the conviction.
The appeal is therefore unmerited and the conviction is upheld
With respect to the sentence, I note that the appellant was in custody from 26^th November 2021 and the trail court did not mention that period in the sentence. Pursuant to the proviso to s. 333(2) of the Criminal Procedure Code, the 20-year sentence is upheld save that it will run from 26^th November 2021.
Otherwise the appeal is dismissed.
Right of Appeal 14 days.