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JudgmentOmar Juma Castro VS The Republic8 min read

Omar Juma Castro VS The Republic

High Court at Malindi High Court · · M Thande

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL APPEAL NO. E051 OF 2023

OMAR JUMA CASTRO………..……….….……………….………………….……APPELLANT  

VERSUS

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

(An Appeal arising out of the conviction and sentence of Hon. E. K. Usui CM delivered on 10.8.23 in Malindi Criminal Case No. E030 of 2020)

    JUDGMENT

  1. The Appellant was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act (SOA). The particulars of the offence are that on 5.10.19 at Kalima Poa area in Malindi Sub-County within Kilifi County, the Appellant unlawfully caused his penis to penetrate into the vagina of HCK (the Complainant), a child of 12 years who was to his knowledge his half-sister. The Appellant also faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the SOA. The particulars of this offence are that on the same day and in the same place, the Appellant intentionally and unlawfully committed an indecent act by touching the Complainant’s vagina with his penis.  Following a full hearing, the Appellant was convicted of the main count and sentenced to 20 years imprisonment.

  1. The Appellant is aggrieved by the conviction and sentence and has filed the Appeal before Court. He urged the Court to allow the same, quash the conviction and set aside the sentence. The summarized grounds as set out in his amended grounds of appeal are that the trial Magistrate erred in fact and in law in failing to consider:
  2. that the case was full of discrepancies and uncorroborated evidence which created doubts rendering the conviction unsafe.
  3. that no voire dire was conducted in compliance with Section 19(1) of the Oaths and Statutory Declarations Act.
  4. that the element of penetration was not proved to the required standard.
  5. The Appellant’s alibi defence. 

  1. I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that I neither saw nor see the witnesses. In this regard I am guided by the holding in the case of Okeno v. Republic [1972] EA 32 where the Court of Appeal stated:

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 Vs. Republic (1957) E.A. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) E.A. 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 finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported.  In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, See Peters V. Sunday Post, (1958) E.A. 434).

  1. The facts of this case according to the prosecution are that the Complainant is a half-sister to the Appellant. In her testimony, the Complainant stated that on 5.10.19, the Appellant took her and her 2 younger siblings to the shop and bought them yoghurt. He then told the younger children to go home while he sent to Complainant to buy soda. He then followed her and pulled her into the bushes far from the shop. He covered her mouth, pulled down her underwear, unzipped his trouser and had sex with her on the ground. She screamed but no one heard her. The Appellant threatened to kill her if she told her mother. On return home, her mother asked her where she had been and she told her what had happened. On advice from the village elder, her mother reported the matter at Malindi Police Station and the Complainant was taken to Malindi Sub-county Hospital.
  2. In her testimony, PW2 No. 92913 Cpl. Mariam, the in-charge of the Children and Gender desk at Malindi Police Station stated that on 13.11.22, he received the Complainant and her mother. They had reported a rape that had occurred on 5.10.19.  She added that the Appellant who had fled had been spotted. PW2 accompanied the Complainant and her mother to Kalimoni and the suspect was arrested and taken to the police station. The Complainant narrated to her what had transpired and her statement was recorded and the Appellant charged in court. 
  3. PW3 Kahuranni Kalu, the Complainant’s mother testified that she returned home at 6 pm on the material date and found the Complainant was not home. When she arrived, she told PW3 that she had been with the Appellant and that he had defiled her. She then reported the matter to the police and recorded her statement. She further stated that the Appellant disappeared until 13.11.2020 when he was arrested.
  4. PW4 Moses Rimba a clinical officer at Malindi Subcounty Hospital stated that the Complainant was treated at the hospital on 5.10.19; that the P3 form was completed on 16.11.19; that from the treatment notes the Complainant arrived at 9am with alleged defilement at 6pm; that on examination, her hymen was missing; that she did not have fresh injuries; that no spermatozoa was noted; that he compiled and signed P3 form on 16.11.2020. He concluded that there was vaginal penetration. 
  5. After the close of the prosecution case, the Appellant was found to have a case to answer and placed on his defence. He however chose not to say anything and await the court’s decision. 

  1. Both parties filed their written submissions which I have duly considered.
  2. Section 20(1) of the SOA provides:

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 of 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. In order to establish the offence of incest, the prosecution must prove first, that the assailant is a relative of the victim; second, that there was penetration or indecent act; third, that there is positive identification of the perpetrator and finally, proof of age of the victim. Proof of age is critical because the offence of incest where the victim is under the age of 18 carries a sentence of life imprisonment. Parliament imposed such a stiff sentence no doubt because of the depravity of the offence.
  2. It is not disputed that the Complainant and the Appellant are related. The Complainant stated that the Appellant is her step brother while her mother PW3 stated that the Appellant was her husband’s son. The age of the Complainant is also not disputed. Her birth certificate which was produced indicates that she was born on 14.3.08. She was thus 11 years old when the incident took place on 5.10.19. As regards penetration, PW4 testified that he completed the P3 form which he produced. He also produced the treatment notes as well as lab request and results form. His conclusion was that there was vaginal penetration. 
  3. On identification, the Complainant stated that it was the Appellant who defiled her. In her judgment, the trial Magistrate stated:

Prior to the act the complainant had been in the company of his (sic) other siblings who also trusted him. There was no reason whatsoever for the complainant to fabricate the charges against the accused person. She was consistent in her testimony even on cross examination. The Court is satisfied that she was telling the truth. Further her testimony is well corroborated by the Medical report.

  1. The record shows that the Complainant stated that the Appellant defiled her on 5.10.19. Further that he sent her to go buy him soda and then followed her. He then pulled her into a bush, blocked her mouth with his hand, removed her biker and under pants, unzipped his trouser and had sex with her on the ground. She was taken to Malindi Hospital on that same day and examined. In his testimony, PW4 stated that the Complainant was treated at the hospital on the same day. Upon examination, her hymen was found to be missing. Notably she did not have fresh injuries and no spermatozoa was noted. PW4 concluded that there was vaginal penetration.
  2. From the narration of the Complainant as to what happened, it would appear very unlikely that she was defiled on the material date. Surely had the Appellant forced himself on the Complainant and defiled her on the date in question, given her tender age, there would have been evidence of bruises or fresh injuries. There would also have been spermatozoa. Further, on general appearance, the P3 form indicated that the Complainant was stable, calm and well kept. To my mind, this is not indicative of a child who had been brutally assaulted and defiled just a few hours earlier. While this Court agrees that at her young age, it would seem inconceivable for the Complainant to fabricate charges against the Appellant, the medical evidence does not support the claim that she was defiled on 5.10.19.
  3. The foregoing plants doubt in the mind of the Court as to the culpability of the Appellant and I find nothing in the evidence to connect the Appellant to the offence. The conclusion that can be drawn from the evidence, is that yes, the Complainant is a minor and that yes, she was defiled. When and by whom cannot be ascertained from the evidence on record.
  4. Given the foregoing conclusion, it is unnecessary to delve into whether the Appellant’s defence of alibi was disregarded. In any event, the record shows that he said nothing when put on his defence.  
  5. In the end, I find that the prosecution did not discharge its burden of proof to the requires standard of beyond reasonable doubt. The evidence adduced was not sufficient to sustain the conviction. In the premises, I quash the conviction and set aside the sentence. The Appellant is hereby set at liberty unless otherwise lawfully held.  

DATED SIGNED and DELIVERED in MALINDI this 8th day of November 2024

_____________________

M. THANDE 

JUDGE

    Omar Juma Castro VS The Republic Omar Juma Castro VS The Republic