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JudgmentMOSES NYAKUNDI RATEMO VS The Republic16 min read

MOSES NYAKUNDI RATEMO VS The Republic

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

(Being an Appeal from the Judgment and Sentence in the Principal Magistrate’s Court at Keroka, P.M.C SO E032 of 2022 delivered by Hon. B.M. Kimtai, Senior Principal Magistrate delivered on 30th August 2023.)

  1. The Appellant herein, Moses Nyakundi Ratemo, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 30th day of April 2022 at Satia Village in Borabu Sub-County within Nyamira County intentionally caused his penis to penetrate the vagina of J.K.O (particulars withheld), a child aged 14 years.
  2. The Appellant also faced the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 30th day of April 2022 at Satia Village in Borabu Sub-County within Nyamira County intentionally touched the vagina of J.K.O. (particulars withheld), a child aged 17 (14) years old with his penis.
  3. The Appellant pleaded not guilty to both charges and a trial was thereafter conducted in which the Prosecution called a total of six (6) witnesses as follows: -

The Prosecution’s Case

  1. PW1, J.K.O. (particulars withheld), the victim testified that she had known the Appellant for a period of two years as he worked at his aunt’s place in Ndereba. She stated that she was on 30th April 2022 heading to church when she decided, on her own volition, to divert and go into the Appellant’s house where the appellant gave her his phone to watch some choir music.
  2. PW1 explained that she stayed in the Appellant’s house until night time and that they had dinner after which they slept together on the same bed where the Appellant defiled her. She stated that her mother (PW2) later came to look for her but the Appellant hid her under the mattress and sharpened his panga as he insulted her mother. The victim’s father also came with the area chief who  arrested the Appellant. She was escorted to the hospital for examination and treatment.
  3. PW2, T.N. (particulars withheld), the victim’s mother testified that the victim left home for church on 30th April 2022 but did not return home only for her to receive information that the victim had gone to the Appellant’s house. She informed her husband (PW3) who accompanied her to the Appellant’s house where they found the victim.
  4. PW3 C.O. (particulars withheld), the victim’s father, testified that the victim disappeared from home on 30th April 2022 and that they later found her at the Appellant’s house.
  5. PW4, Mr. Evans Mokaya Okari, was the Clinical Officer who treated and examined the victim at Kijauri Hospital. He also produced the victim’s P3 Form, treatment notes, Lab results and PRC Form.
  6. PW5, No. 242077 P.C. Nicholas Kaburi, accompanied the victim’s parents to the Appellant’s house where they found the victim hiding under a mattress. He arrested the Appellant and escorted both the Appellant and the victim to the hospital for examination.
  7. PW6, No. 245539 P.C. Mercy Akinyi Omondi, was the Investigating Officer. She recorded the witness statements and escorted the Appellant and the minor to the hospital. She produced the victim’s birth certificate as (P.exh1). 
  8. At the close of the Prosecution’s case, the trial court found that the prosecution had established a prima facie case against the Appellant who was placed consequently placed on his defence. The Appellant elected to tender sworn testimony and did not call any witnesses.

The Appellant’s (Defence) Case

  1. The Appellant (DW1) testified that the victim came to his house on the evening of 30th April 2022 and told him that she would spend the night in his house. He stated that he did not defile the victim as he only assisted her by giving her food and a place to sleep.

The Trial Court’s Decision

  1. At the end of the case, the trial court found that the prosecution had proved all the ingredients of the offence of defilement against the Appellant beyond reasonable doubt. The Appellant was consequently convicted on the main charge of defilement and sentenced to serve ten (10) years’ imprisonment.

The Appeal

  1. Aggrieved by the trial court’s conviction and sentence, the Appellant filed the present appeal and listed the following grounds of appeal in the Petition of Appeal: -
  2. THAT the trial magistrate faulted both in law and facts by convicting the Appellant without observing that the ingredients of the offence (defilement) were not proved beyond reasonable doubt.
  3. THAT the trial magistrate erred in both law and fact by convicting the Appellant despite glaring contradictions.
  4. THAT this is a case where the Appellant ought to have been given the benefit of doubt as held in Waita Munyoki case in the authority of Elizabeth Waitheigeni Atimo and Others vs. Republic (2005) eKLR.
  5. THAT the trial court failed in both law and facts by trying on a shady and shoddy (sic) fabricated medical report thus making his conviction problematic.
  6. The Appeal was canvassed by written submissions which I have considered.

The Appellant’s submissions

  1. The Appellant submitted that the trial court should have considered the victim’s conduct or behavior of voluntarily going to his house and insisting on sleeping on his bed. For this submission, the Appellant cited the decision in Martin Charo vs. Republic where the court held that a child who behaved like an adult and willingly sneak into men’s houses for purposes of sex ought to be treated by the court as a grown-up who knew what they were doing.
  2. The Appellant further submitted that penetration was not proved and that the evidence before the court had inconsistencies which should have created doubt in the mind of the trial court.

The Respondent’s Submissions

  1. The Prosecution conceded to the Appeal in its submissions on the grounds that penetration was not proved through the medical evidence and that the trial court dealt with extraneous matters that were never canvassed during the trial. It was also submitted that there were material contradictions on the date when the offence was committed and when the Investigating Officer recorded the incident which was on 11th May 2022.

The Duty of the Court

  1. The duty of a first appellate court was discussed in the case of David Njuguna Wairimu vs. Republic [2010] eKLR thus: -

“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

Analysis and Determination

  1. I have carefully considered Record of Appeal and the submissions of the parties. I find that the main issue for my determination is whether the Prosecution proved the charge of defilement beyond reasonable doubt.
  2. Section 8 (1) of the Sexual Offences Act No. 3 of 2006 stipulates as follows:-

8.Defilement

(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

(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.

(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. The elements of the offence of defilement were stated in the case of

Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 as follows: -

“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

  1. The importance of proving the age of a victim was explained by the Court of Appeal (Kisumu) in Alfayo Gombe Okello vs. Republic Cr. App. No. 203 of 2009 as follows;

“....In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).?”

  1. The Court of Appeal in Malindi outlined the various ways in which the age of a victim can be established in Mwalongo Chichoro Mwajembe vs. Republic, Msa. App. No. 24 of 2015 (UR) thus: -

‘‘ ……the question of proof of age finally been settled decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.  It has even been held in a long line of decision from the High Court that age can also be proved by observation and common sense.  See Denis Kinywa - vs – Republic, Criminal Appeal No. 19 of 2014 and Omar Uche Vs Republic, Criminal Appeal No. 11 of 2015.  We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond reasonable doubt.  This form of proof is a direct influence by the decision of the Court of court Appeal of Uganda in Francis Omuroni is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable…………’’

  1. In the instant case, the evidence presented by the prosecution was that the victim was 14 years old. I however note that the Charge Sheet initially recorded the victim’s age on the main charge as 17 years before the same was amended, in hand writing to read 14 years. However, the age indicated on the main charge remained 17. I note that the Appellant was charged with the offence under Section 8 (4) as recorded on the Charge Sheet which tallies with the original age indicated on the charge sheet. The said sub-section (4) relates to defilement of minors aged between 16 and 18 years.
  2. It was therefore not clear to this Court which charge the Appellant was facing, whether under subsection 3 or subsection 4 as the charge sheet indicated different ages and under the main charge and the alternative charge.
  3. The victim testified that she was 14 years old at the time that the time of the offence. PW6 P.C. Akinyi the Investigating Officer produced the victim’s Birth Certificate Serial Number (particulars withheld) which indicated that she was born on 18th August 2004. Considering that the offence is alleged to have been committed on 30th April 2022, I find that the correct age of the victim was 17 years and 8 months.
  4. The question that arises is whether the charge, as drafted (amended) was defective. The principles governing the drafting of a charge are outlined in Section 134 of the Criminal Procedure Code as follows:

134. 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.

  1. In Benard Ombuna vs. Republic (2019) eKLR the Court of Appeal rendered itself as follows on the importance of the accuracy of the information contained in a charge sheet: -

“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.”

  1. Section 382 of the Criminal Procedure Code stipulates as follows: - Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. It follows therefore that the court in determining whether a defect caused injustice has to have regard whether the objection should have been raised at an earlier stage in the proceedings.
  2. Applying the above cited provisions and case to the instant case, I find that the charge was defective for two main reasons, firstly; the offences under Section 8 of the Sexual Offences Act are pegged on the age of a minor as a primary ingredient because the type of punishment to be meted on an accused person is pegged on the ingredient of age. Secondly, the contents of the charge is what informs the accused person on how to defend himself. This mean that where the charge sheet is not clear on the age of a victim of a sexual offence, the accused person will be prejudiced and may not know which offence he is charged with so as to mount a proper defence. In the circumstances of this case, it is not clear if the Appellant pleaded to the charges relating to a victim who was 17 years or 14 years as it is not known when the changes on the charge sheet were effected. I note that there are no proceedings relating to the amendments made on the charge sheet and that the only information available to the Court is a hand written amendment of the age of the victim on the charge sheet and a signature against the changes from 17 to 14 years.
  3. My finding is that the charge sheet in question is fatally defective and does not support the evidence presented, by the prosecution, on the aspect of the age of the victim. Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53, states as follows on the circumstances where a charge sheet is considered to be defective: -

(i) when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,

(ii) when for such reason it does not accord with the evidence given at the trial.”

(See also Peter Ngure Mwangi vs. Republic (2014) eKLR).

  1. It is therefore my finding that even though the prosecution proved that the victim was a minor, the charge was incurably defective as it contained varying information on the actual age of the minor which is a critical ingredient in defilement cases as it informs the court on the type of sentence to mete on the accused, upon conviction.
  2. My above finding on the issue of the age of the minor and the validity of the charge would have been sufficient to determine this appeal but I am still minded to consider the other ingredients of the offence of defilement.
  3. Turning to penetration, Section 2 of the Act as follows:

\"penetration\" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

  1. The minor testified as follows: -

“….I was heading to church but diverted and went to his house. I went on my own volition. He lives in Ensinyo and he lives alone. I found him in his house. Accused gave me his phone …I stayed there (his home) till night. After eating, we slept in the same bed. The accused removed my skirt and panty. He also removed his clothes then he did bad manners to me. Bad manners is inserting his penis on my vagina. He did the bad manners twice in that night…. I was taken to Kijauri Hospital.”

  1. From the above testimony it is clear that the victim was describing the act of penetration when she stated that the Appellant did ‘bad manners’ to her. The Court of Appeal acknowledged the use of euphemisms by children in describing sexual intercourse in the case of

Muganga Chilejo Salha vs. Republic [2017] eKLR and held that: -

“Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a courtroom.  If the trend in the decided cases is anything to go by, courts in this country have generated/accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE v Republic, Kapenguria High Court Criminal Case No. 11 of 2016) “he pricked me with a thorn from the front part of this (sic) body.” (Samuel Mwangi Kinyati v Republic, Nanyuki HC Criminal Appeal No. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v Republic, Homa Bay HC Criminal Appeal No. 44 of 2015), “he inserted his “dudu” into my “mapaja” (Joses Kaburu v Republic, Meru HC Criminal Case No. 196 of 2016), “he used his munyunyu” (Thomas Alugha Ndegwa, Nairobi HC Criminal Appeal No. 116 of 2011) as apt description of acts defilement.  We, however, need to remind trial courts that the use of certain words and phrases like “he defiled me” which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony.  See AM v Republic Voi HC Criminal Appeal No. 35 of 2014, EMM v Republic Mombasa HC Criminal Case No. 110 of 2015, among others.  Trial courts should record as nearly as possible what the child says happened to him or her.”

  1. I note that the victim in this case was examined immediately after her parents found her in the Appellant’s house. PW2 testified that the Appellant was also examined in the same hospital. PW4, the Clinical Officer, testified that there were epithelial cells in the victim’s urine sample but that she had no injuries or lacerations on the genitalia. 
  2. A perusal of the Treatment Notes (P.Exh 2) reveals that the doctor noted that that there were no bruises, lacerations, spermatozoa or discharge but that the hymen was not intact. The PRC Form (P.Exh5) also indicates that there were no physical injuries on the outer genitalia, vagina and anus were reported to be normal. The PRC Form also indicated that the hymen was not freshly broken. The P3 Form (P.Exh3), also reveals that the victim did not have any injuries on the labia and vagina. The Appellant’s Treatment Notes were however not produced at the hearing.
  3. My finding is that the medical evidence presented by the prosecution did not support the charge of defilement. I find that even though the victim’s hymen was found to be broken, the medical evidence showed that it was not freshly broken so as to support the allegation of defilement. Moreover, courts have held that a broken hymen does not connote defilement as there are other factors that can lead to the absence of a hymen. This is the position that was taken by the Court of Appeal in PKW vs. Republic [2012] eKLR, where it was held that: -

“Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina 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 the 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 ride, bicycle riding and gymnastics, there can also be natural tearing of the hymen.”

  1. Considering the above cited decision coupled with the lack of proof of physical injuries on the victim’s genitalia, I find that the prosecution did not prove the ingredient of penetration beyond reasonable doubt. 
  2. Having regard to the findings and observations that I have made in this judgment, I find that the Appellant’s conviction on the offence of defilement was not safe as the prosecution did not discharge its burden of proof to the required standard. I consequently find that the appeal is merited and I therefore allow it and quash the conviction and set aside the sentence imposed by the trial court. I direct that the Appellant shall be set at liberty forthwith unless he is otherwise lawfully detained.
  3. Orders accordingly.

DATED

In the presence of …….


    MOSES NYAKUNDI RATEMO VS The Republic MOSES NYAKUNDI RATEMO VS The Republic