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JudgmentNATELO PALAL VS ODPP10 min read

NATELO PALAL VS ODPP

High Court at Lodwar High Court · · P. J. Otieno

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT LODWAR

CRIMINAL APPEAL NO. E007 OF 2024

NATELO PALAL…………………………….……….…………………………..APPELLANT

VERSUS

REPUBLIC……………………………………………………………………….RESPONDENT

(Being an Appeal from judgement of Hon. Orimba in Lodwar Magistrate Court, Cr, SO. No. E003 OF 2022)

JUDGMENT

  1. The Appellant was charged with the offence of defilement contrary to section 8(1)(2) of the sexual Offences Act. The particulars of the charges were that on the 13th June 2023 at Lokomarinyang Village in Kibish Sub-County within Turkana County, the appellant intentionally caused his penis to penetrate the vagina of L.L, a child aged 4 years.
  2. The Appellant also faced an alternative charged of committing an indecent Act with a child aged 4 years contrary to section 11(1) of the Sexual Offences Act. The particulars of the alternative charge were that the Appellant on the 13th June 2023, at Lokomarinyang village in Kibish Sub- County within Turkana County, he intentionally and unlawfully touched with his penis the vagina of A.L, a child aged 4years against her will.
  3. The matter proceeded to full trial at which the prosecution called four (4) witnesses to testify at trial while the Appellant was the only witness in his defence.
  4. Evidence by PW1 the complainant’s father was that on the incident day at about 5pm, he was in is shop adjacent to his residence that he heard a lady shouting and calling for help that his daughter was being defiled. He proceeded to the scene and found that it was his neighbor PW2 calling while the complainant at the moment was sitting on the ground bleeding from her private parts.
  5. He stated that the Appellant had jumped over the fence upon seeing and escaped to Lodwar but was later arrested by the police. The witness confirmed to have well known the Appellant and who was at all times his neighbor. The victim was taken to hospital and the matter reported to police. On cross-examination, he maintained to have been the first to arrive at the scene when PW2 raised an alarm and that he saw the Appellant jump over the fence trying to escape from the scene. He asserted not to be having any grudge with Appellant.
  6. PW2 and the only eye-witness testified that on the incident day at about 5pm, she was walking to PW1’s homestead to buy some food stuff when she saw the Appellant defile the complainant besides PW1’S house outside the bathroom. She then shouted calling the name of the victim’s father, PW1 for help.
  7. The Appellant on seeing her had jumped over the fence and escaped only to be arrested later by the police. She stated that they to be well known to the Appellant for many years being they all came from the same village and was able to identify him. On cross-examination she confirmed having found the Appellant on the Act of defiling the minor.
  8. PW3, the investigation officer in his evidence reiterated the position by both PW1 and PW2 as to what they reported. He also exhibited the Age assessment report on the minor that revealed her age to be 4 years.
  9. Evidence by PW4, the clinical officer who examined the minor testified that minor’s vaginal wall had a swelling with a foul smell. Further, that the labia minora and labia majora had bruises painful to touch, tender with blood stains as well as some whitish discharge. The doctor came to the conclusion that there was penetration. He produced the P3 form and the medical report as exhibits at the trial.
  10. When put on defence, the Appellant issued that on the 21/6/2023 he was at home with his mother when two police officers came and arrested him with allegations that he had defiled the complainant. The Appellant averred that there was an existing grudge between him and PW1 who had been his boss. He asserted that PW1 having been an agent assisting the aged in receiving their money from the government, it was the complainant’s case that the grudge followed an incident when he assisted one blind lady who had only been given Kshs.5400/= instead of Kshs.9600/=.

The Submissions

  1. The Appellant submits to have been framed in case following an existing grudge between it him and PW1. The Appellant submit that having not been arrested at the scene, the evidence by PW2 at the trial to have seen him defile the minor before shouting the name of PW1 to come for rescue raises doubts. The Appellant submits that in no way PW2 would have clearly seen/identified him while running from the back.
  2. The Appellant submits that both PW1 and PW2 purport to have recognized him yet none of them laid any description of the perpetrator as to clothing, height, a mark on the body or any other relevant factor at the time of the incident. Further, the Appellant submits that no evidence was tendered by the prosecution linking him with the offence charged of defilement. The Appellant as such submits that the ingredients of identification was not proven by the prosecution beyond reasonable doubt.
  3. On contrary, it was submitted on behalf of the Respondent that the prosecution at trial proved their case beyond reasonable doubt. As to the age of the minor, the Appellant submits that the testimony of PW2 revealed that the complainant was around 4 years old. Further, an age assessment was done and which report indicted the minor’s age to be 4 years old hence the limp proved to the required standard.
  4. On penetration, the Respondent relies on the evidence of PW1 to the effect that she saw the minor bleeding from her genitals and her pant torn as well as that of PW2 to have seen the Appellant defile the minor.it was further submitted that the examination conducted by PW4 revealed the minor’s vaginal wall swollen and red in colour with foul smell. The labia minora and majora also had bruises, pain, tenderness, some stains of blood leading him to a conclusion that there had been penetration.
  5. As to whether the Appellant was positively identified, it was submitted that PW2 saw the Appellant defile the minor while both PW1 and PW2 had seen the Appellant jump over the fence and running away. The Respondent submitted that the incident having occurred during the day adding to the fact that the Appellant was well known to both PW1 and PW2 as they stayed in the same village, the Appellant couldn’t have been mistaken for anyone else.

Analysis and Determination

  1. I have duly considered the grounds of the appeal, the evidence adduced before the trial court and the submissions filed by both parties. Being the first Appellate court in the matter, the court is mandated to re-evaluate the evidence tendered at the trial both on points of law and facts and come up with its own findings and conclusions bearing in mind it never had the advantage of either seeing or hearing the witnesses testify before it as was held in Okeno vs Republic [1972] EA 32. 
  2. Sections 8(1) & (2) of the Sexual Offences Act in which the Appellant was charged and convicted with creates the offence of defilement by stipulating that a person who commits an act which causes penetration with a child is guilty of an offence termed defilement and that when convicted of the offence of defilement with a child aged eleven years or less the offender shall be sentenced to imprisonment for life.
  3. The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant. The age of the Appellant has not however been disputed by the Appellant even though the evidence of PW3 sufficiently established that the minor was aged 4 years at the time of the incident and produced the minor’s age assessment report for the same.
  4. On penetration, it is worth noting that the ingredient can be proven by either direct or circumstantial evidence as was held by the Supreme Court of Uganda in Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995. The court in Sammy Charo Kirao v Republic [2020] eKLR in reiterating the position in the Bassita case stated as follows:

“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the proved by the victims own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.’’

  1. In the instant case, the court notes that even though the victim never testified in court for her young age, the evidence by PW2 to have found the Appellant defiling the minor was well corroborated by that of both PW1 and PW4. PW1 and the complainant’s father told the court at trial that when he got to the scene, he saw the Appellant jump over the fence and run away. At the time, the minor was sitting on the ground and was bleeding from her genitals.
  2. PW4 who examined the minor indicated that the victim’s vaginal wall had a swelling with a foul smell. Further, that the labia minora and labia majora had bruises painful to touch, tender with blood stains as well as some whitish discharge, leading him to a conclusion that there was penetration. In line with the trial court’s findings, this court similarly confirms that the ingredient of penetration was well proven by the prosecution beyond reasonable doubt.
  3. On the last element of identification, evidence by both PW1 and PW2 point the Appellant as the perpetrator of the offence. Evidence by PW2 was that on the incident day at about 5pm while she was walking to PW1’s homestead to buy some food stuff, she found the Appellant defile the complainant. The scene she stated to have been besides PW1’S house outside the bathroom but the Appellant flee away on seeing her when he called PW1.
  4. Identification evidence of PW2 was well corroborated by that of PW1 who stated that after he got to the scene following alarm raised by PW2, he found the complainant sitting on the ground bleeding from her genitals while the Appellant escaped through the fence and run away. The time and place of the incident he indicated to have been at around 5 pm and outside his bathroom. Further, the shop in which he was at when PW2 called he indicated to have been besides his residence.
  5. Notably, both PW1 and PW2 indicated to have well known the Appellant prior and were able to properly identify him on the incident day by daylight. The Appellant was PW2’s neighbor and that all came from the same village and was able to identify him. The court notes that the intervening period between when PW1 found the Appellant  defile the minor, when she shouted calling PW1 and his response in getting to the scene; there is no breakage in the occurrence of the event with the Appellant having been the person who was at all times with the victim.
  6. I have looked at the defence proffered by the Appellant at trial. He asserted of being implicated in the matter for the existing grudge between him and PW1. In his submissions herein, the Appellants indicates that the element of penetration never met the required standards for how would both PW1 and PW2 identify him from the back while running. Further, that no evidence was tendered by the prosecution linking him with offence charged with.
  7. The evidence by PW2 who had no grudge with the Appellant was that he found the Appellant defile the minor before he started running away and escaped through the fence upon seeing the witness. There is no doubt that the witness clearly saw the Appellant and was able to recognise him.  
  8. Cognizant of the fact that the two had known the Appellant very well for having been all staying in the same village, this was a case of identification by recognition, and as is always, recognition of an attacker is more satisfactory, more assuring and more reliable than identification of a stranger. The court is satisfied that there is no mistake on the ability of PW2 in recognizing the appellant just as much as there is no possibility of the witness having been propelled by malice to false implicate him. In any event the allegation of being fixed by PW1 for being privy to the information about an elderly lady having been cheated of her money by PW1 was never raised with the witness to elicit his reaction. The court find that defence to be an afterthought and not true.
  9. Upon complete reevaluation and appraisal of the evidence by the prosecution against that by the appellant, the court holds and finds that the wight of the evidence by PW1, PW2 and PW4 has not been uncontroverted at all and that the Appellant’s defence cannot possibly be true. The direct evidence tendered irresistibly point towards the Appellant as the perpetrator of the offence. It is thus the court’s ultimate finding that the Appellant was positively identified and demonstrated as the as the person who defiled the minor.
  10. There is thus no ground upon which to fault the judgement and findings of the trial court. The evidence adduced supported the charge and the degree of proof required in law was well met. The appeal against conviction has no merit and is dismissed. The Court finds that even sentence of 40 years was quite commensurate taking into account the age of the victim. It is equally upheld. Appellant shall serve the trial sentence as was determined by the trier and master of the facts.

Dated, signed and delivered at Lodwar, this 20th day of March, 2025

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