INTRODUCTION
The appellant in this matter was charged with the offence of defilement contrary to section 8(1) as read with 8(2) of the sexual offences Act No. 3 of 2006.
The particulars of the offence were that on diverse dates in October 2019 at Penyanya estate in Njiru sub-county within Nairobi County , he intentionally caused his genital organs to penetrate the genital organs of T.M a child of 9 years .
The appellant faced an alternative count of Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offenses Act, No. 3 of 2006
The particulars in the alternative count were that on diverse dates in the month of October, 2019 at Penyanya estate in Njiru sub-county within Nairobi County he intentionally and unlawfully touched the genital organs of T.M a child aged 9 years with his penis.
The appellant was tried, convicted and sentenced for the offence of defilement and was sentenced to serve life imprisonment.
The appellant appeals to the High Court against the conviction and sentence on the following grounds:
The learned trial magistrate erred in law and in fact in convicting the Appellant without credible evidence.
The learned trial magistrate erred in law and in fact in convicting and sentencing the Appellant when there was no evidence of penetration.
The learned trial magistrate erred in law and in fact in finding that there was penetration without analysing the medical report against the inconsistencies in the evidence of the minor and the denial by one of the alleged victims (Cindy) that they were defiled.
The learned trial magistrate erred in law and in fact in finding that there was penetration on the basis of the evidence of PW2 and PW3 who were indirect witnesses while disregarding the medical report vis-à-vis the testimony of the minor.
The learned trial magistrate erred in law and in fact in convicting and sentencing the Appellant when the Appellant was not properly identified.
The learned trial magistrate erred in law and in fact in convicting and sentencing the Appellant when the prosecution did not address the following issues of fact:
The inconsistency on the part of the minor on whether the incident was one-off or continuous for over 1 year;
The identity of Maina who the complainant said was her boyfriend;
The identity of Michael who the complainant told the police about on the day of arrest;
Why the complainant could not easily trace the house where the act (which allegedly lasted over 1 year) was committed;
Why the minor was not willing to show the police the house of the perpetrator;
Why Cindy who was allegedly defiled together with the complainant disputed the allegations and denied knowing the Appellant; and
Why Cindy who was allegedly defiled with the complainant was never called as a witness.
The learned trial magistrate erred in law and in fact in convicting and sentencing the Appellant in spite of his defence of alibi.
The learned trial magistrate erred in law and in fact by misleading itself that none of the defence witnesses corroborated the evidence of the Appellant that he was going to school on every Saturday.
The learned trial magistrate erred in law and in fact by shifting the burden of proof upon the Appellant to prove the alibi.
The learned trial magistrate erred in law and in fact in convicting and sentencing the Appellant without addressing the following issues raised before her:
The minor talked of vaginal penetration yet the medical report talks of anal;
The minor testified in chief that the 2019 incident was the first one before later changing her narrative when cross-examined that the acts had been going on since 2018;
The Appellant was staying in Dandora in 2018 and 2019 and not Mowlem (Penyanya) where the acts were allegedly committed;
Cindy denied knowing the Appellant and being defiled;
Who Maina and Michael were;
Why the complainant had difficulty identifying the house where the wrong was committed to her for over 1 year;
The Appellant was living with his brother's family in the same house.
The learned trial magistrate erred in law and in fact in convicting the Appellant yet the prosecution did not prove the charges beyond reasonable doubt.
The learned trial magistrate erred in law and in sentencing the Appellant to life imprisonment which is harsh under the circumstances and which did not consider the mitigation.
The conviction was unwarranted and the sentence illegal and harsh under the circumstances.
The conviction and sentence was a miscarriage of justice hence the same
should be quashed and set aside.
The appellant and the respondent through counsel filed written submissions which this court has considered.
The duty of this court as a first appellate court is to re-evaluate the evidence and draw its own findings and conclusions as to whether the prosecution had sufficiently proved the case against the appellant to the required standard of proof beyond a reasonable doubt. The court in undertaking that review of evidence must however remain cognizant of the fact that unlike the trial court, this court has not had the advantage of hearing or seeing the witnesses testify thus due allowance in that regard must be had.
In Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows:
“
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) EA. (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) 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 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 vs. Sunday Post [1958] E.A 424.”
The prosecutions in order to succeed on a defilement charge must be able to prove the following three elements of the offence that is;- a) age of the victim, b) the fact of penetration and c) the identity of the perpetrator.
The the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013, the court stated that:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
The prosecution in this case called the victim as Pw1. The trail court upon conducting a voire dire examination determined that the victim though intelligent enough did not understand the importance of an oath thus she proceeded to give unsworn evidence.
In her testimony T.M testified that she was about to turn 10 years and was in class 4. She went on to state that she knew the accused and pointed at him in court. According to her, it was on Saturday when she was playing with Cindy near a salon and Cindy told her they go for a birthday party and they went.
The witness further stated that Cindy told her they go to another home and on getting inside they met another boy who told them to remove their clothes, pushed them to bed and removed his clothes.
The trial court in recording her evidence made the observation that the witness avoided eye contact with the accused as she continued to testify and that she kept looking down.
The witness went on to testify that she was wearing a dress which she removed and was left with no clothes on. The boy lay on Cindy first, he was pushing his butt in her and he did the same to her. She also stated that the accused wore a condom on his “susu.” When the court went on to ask where “susu” is ? the witness pointed at her genital area.
The witness went further to state:
“He put it inside my private part. (Points at her genital area). He moved like this. (Demonstrates). I was in pain. My private part was painful.”
According to the minor the accused asked them to put on clothes, Cindy remained in the bedroom and she went to the sitting room. She slept in the sitting room and afterwards they went outside to play.
In her statement, PW1 stated that she went to the salon to wait for her mum whom they went home with. She testified that she did not tell anyone of had what happened.
She also stated in her statement that “the accused said he will kill us if we say. It was my first time doing it. Mum was told by the teachers at school. (Identifies accused).”
Upon cross examination by the defense counsel PW1 stated that it was her first time doing it.
On being pressed further by the defense counsel she said that the accused did it since last year. It was not the first time. The witness was therefore contradictory as to the number of times the appellant had allegedly committed the act.
Further, the victim stated that the house of the appellant was on the ground floor but on cross examination she contradicted herself and said that it was on the first floor.
The witness given her age obviously would have been able to recall the location of the house if at all she had visited the locus in quo severally as she alleged.
PW1 also told the teacher that she had a boyfriend called Maina but at the time of giving evidence she said she didn’t have a boyfriend. That was yet another aspect of contradictory evidence to which I shall revert later.
It is important to state here that Cindy, who the victim alleged to have been defiled together with her denied that ever happened according to Pw5 and for that reason no charges were preferred against the appellant in relation to the allegation by PW1 that he had also defiled Cindy.
The prosecution chose not to call Cindy as a prosecution witness despite her having recorded a statement. In this courts view that amounted to suppression of exculpatory evidence which must be held against the prosecution.
The law requires that the prosecution must disclose evidence that helps the accused person’s case or hinders the states case. See Brandy vs Maryland 373 U.S 83.87 (1963) where the Supreme court held that the state cannot hide evidence that helps the defense. It must be disclosed.
The failure to call Cindy a material witness could only invite an adverse inference. The failure must have been calculated to suppress the evidence and that cannot be entertained in any civilized criminal justice system. The discretion to choose which witnesses to call is entirely with the prosecutor and courts will not interfere with the exercise of that discretion unless it is shown that it was influenced by an oblique motive. See the holding of the Court of appeal in Julius Kalewa Mutunga Vs Republic (2006) eKLR. This is one case that the prosecutor’s discretion must be held to have been actuated by an oblique motive to suppress evidence.
PW2 MAUREEN ONYANGO the mother of the victim in her statement stated that she lived in Mowlem with her 2 children Travis and Talia. Talia is PW1 11 years old. D.O.B: 16th March 2010. The said Talia is the child she alleged was defiled by the appellant. She marked the Birth Certificate Serial number 246816- Exhibit 1.
PW2 further stated that PW1 Talia goes to school at Hezron Learners, Class 5. According to her on 8th October 2019 PW2 took her for check-up in hospital after she was called on 7th October by the head teacher and asked to go to school where she met the director and head teacher. They told her that Talia was withdrawn and her performance was poor.
She went on to say that is when she discovered her child knew what a condom was and she alleged that she had used it with someone. The mother went on to state that this was said by the child in the presence of the teacher.
However, in her statement PW2 stated that she did not see her daughter at school. She asked her in the evening and she confirmed she has had sex.
According to her the child said she did not say because she feared and the appellant who had threatened her. Pw 2 went to report at the police station and proceeded to Mama Lucy Hospital.
PW1 said she knew the accused before. According to her she was told that victim used to visit the accused every Saturday with her friend. PW1 told her that the man used to make them bend and could insert his penis inside their vagina. That the man could use a condom each time. He could threaten them.
It was on account of the report that the appellant was arrested. It was her who led the police to arrest him. PW2 went on to state that her daughter has been greatly affected by the act, she has withdrawn and her school performance had been affected. The accused was a neighbor who used to sell mandazi. It was her evidence that her daughter said it happened frequently and she is told there was another child who was defiled.
Upon cross-examination PW2 stated that she was present during arrest. Her daughter took them to the upper floor and brought them downstairs. There were 4 floors in the building and she was looking for Michael's home. Michael is the appellant’s person's nephew. The appellant opened the door and she said "Ndio huyu".
Cindy was the victim’s classmate who come from the same area and used to play together with her. Cindy was allegedly a victim of the similar sexual assault according to the prosecution but Cindy was not called to testify and the appellant was not investigated and charged with any sexual offence I relation to her.
On re-examination PW2 told the court that the minor took them to 4th floor then down, ground floor. She took them to the house but was hesitant.
However, when the police officers came, she decided to show them the house. She did not want to the first time. They were looking for Michael's home- the accused person's nephew. According to her her daughter knew where it was but she was afraid. When the appellant opened the victim said "Kwa kina Michael". The appellant opened and the minor identified him.
The witness pw2 stated that She did not see the doctor examining the genitals of her daughter she was told to leave as the doctor did it.
PW3 was Dr. FARAH MOHAMMED. She testified that she is a medical doctor and holds Bachelors degree of Medicine and surgery from the University of Nairob and was attached at Mama Lucy Hospital. She stated that her colleague Rose Waweru (Dr.) filled the form.
She went on to state that according to the narration given the victim was introduced to a certain man by her friend and was allegedly sexually violated the man’s home since 2018 with her friend.
On examination the doctor stated that there were no visible injuries. the victim had normal genitalia and she had a Whitish vaginal discharge. The Hymen was Intact but had loose sphincter muscle. She produced the Medical Summary as PExhibit 2. The PRC Form had same findings and was produced as Exhibit 3.
According to Pw3 Dr. Kiatu filled the P3 form - 15/10/2019. The allegation was repeated defilement. The victim appeared Stable, Calm and No physical injuries.
The same findings on genital examination were recorded in the P3 Form-Exhibit 4.
On cross-examination she stated that the hymen was smooth regular and intact.no penetration was noted. She went on to state that there was no opinion by the doctor. On re-examination PW3 stated that there is no conclusion that is required.
The medical evidence tendered raised the question whether there was indeed, defilement, or repeated defilement as alleged by the victim Pw 1 and her mother. The failure by the doctor to render an opinion on penetration dealt the prosecution’s case a fatal blow. The offence of defilement reguires that there be proof of age, penetration and identity of the perpetrator.
The failure to establish any of the ingredients renders the conviction unsafe. The court is left to wonder, if indeed the victim was defiled since 2018 or repeatedly, as alleged, why then would the hymen be intact? Why would the doctor not state or give his opinion in the report?
It is unbelievable that in the opinion of Pw 3 there was no need for conclusion in the medical report. A medical report without the doctors opinion and or conclusion is worthless as it cannot aid the court in forming an opinion.
Section 48 of the Evidence Act Cap 80 of the laws of Kenya where the court has to form an opinion upon a point of foreign law, or of science or art, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art.
The purpose of taking victims of defilement or rape to hospital for examination is to get an expert opinion as to whether there was penetration in the doctor’s opinion.
The proof of penetration is important because the absence of it leaves the court without evidence of a very key ingredient of the offence of defilement. See Jacob Odhiambo Umuombo vs Republic Cr. App. No. 80 of 2008 Kisumu; George Opondo Olunga vs republic (2016) eKLR.
The case of the appellant calls for even deeper consideration on the issue of penetration because the victim’s evidence raises considerable doubt. It is not clear to this court how the trial magistrate arrived at the conclusion that the victim was defiled in the anus yet the Doctor Pw3 never made any mention of it.
Further, Pw2 stated categorically that ‘’ she told me the man used to make them bend and could insert his penis inside their vagina’’. The trial magistrate’s conclusion that the penetration was in the anal opening at page 14 of her judgment was not supported by the evidence. It is clear that the trial court having rightly noted that there was no penetration in the vagina elected to find penetration in the anal area without evidence. The evidence as recorded in the lower court when Pw1 testified she pointed to her genital area.
The victim is shown to have been reluctant to lead the mother to the house of the appellant and there was contradiction on her part as to the location of the house where she claimed to have been repeatedly defiled in.
The mother Pw2 mentioned that they were looking for Michael’s house and when the appellant opened his door that when the victim pointed at him.
The issue that arises is, who was Michael? Is it possible that the man the victim said had defiled her severally was Michael? The law requires that each of the ingredients of the offence must be proved beyond a reasonable doubt. See John Mutua Munyoki Vs Rep. (2017) e KLR. Any doubt that emerges from the evidence of the prosecution, the benefit thereof must to the accused . The issue of the identity of the perpetrator and penetration were in doubt and the benefit should have been accorded to the appellant.
The identity of the perpetrator becomes critical when one considers the evidence of Pw1 who said ‘’we went inside the home. We met another boy who told us to remove our clothes. He pushed us to the bed. He removed his clothes’’. It is important to note that the appellant was seated right in front of her in court and nothing would have been easier than for her to say that the accused told us to remove our clothes.
That is important particularly because the victim admitted to having had a boyfriend. In Kariuki Njiru Vs $ 7 others Vs Rep. Criminal APP. NO 6 of 2001 (unreported) the court held that the law on identification is well settled and this court from time to time has said that evidence relating to identification must be scrutinized and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from any possibility of error.
The witness is recorded as having told the teacher that ‘’I had a boyfriend called Maina. I don’t have a boyfriend now.’’
The victim was an unreliable witness in this court’s view and the court ought to have exercised great caution in considering her evidence as the sole basis to base a conviction. The victim in this case was a child of questionable character in this court’s view. She admitted to having had a boyfriend and boldly told the teacher the name of the boy friend as Maina. She was unable to lead the mother and the police directly to the house she claimed to have been frequenting with Cindy.
Further, the victim also gave evidence to the effect ‘’ there was a condom at the school field. I was with my friends. Cindy told the teacher mother puts it inside the bag. She told the teacher I said it. Cindy brought it where I was. she found it in the field. I told the teacher I had a boy friend called Maina’’. The victim was a child who in the view of this court had fallen in bad company and her education was on a downward trend and this court is persuaded that she was an unreliable witness whose evidence alone should not have been relied on to convict the appellant.
Pw4 also confirmed that the victim said she had a boyfriend by the name Maina and when he questioned Cindy whom the victim had claimed to have been defiled together with her, Cindy denied having being sexually abused.
Pw4 further testified that the victim identified the appellant since he had defiled her severally. The evidence of this witness taken together that of Pw 1 and 2 would have led one to believe that the victim was defiled but the fact that Cindy denied being sexually abused and taking into account the evidence of the doctor Pw3 the appellant was convicted on very weak evidence of identification and without any iota of evidence of penetration.
On cross-examination, PW4 stated that the hymen as per the doctor was intact. That therefore sharply contradicted the version of Pw1.
Investigating officer No. 91118 PC Daniel Tuya currently the Investigating Officer in this case stated that he was handed over the file by PC Jesse Wanjala and was unable to get the 2 remaining witnesses, Eunice a teacher at Jordan's Primary, and Cynthia Aluoch a student at the same school. He went on to state that he would be able to reach them. He went to the school and the said teacher was not at the school and she relocated to unknown location.
The teacher and Cindy would have been critical witnesses and the failure to call them more so Cindy with whom the victim purported to have been with when she was defiled, the court can only deduce the fact that had Cindy testified, she would have tendered evidence that would have been adverse to the prosecution’s case.
In this courts view, the prosecution of the appellant appears to have been a desperate move by PW 2 and her daughter to calm some storm in the school kicked up by the discovery made by the teachers and staff of the school concerning her falling standards and generally issues on morality.
This court has closely examined the evidence of PW5 Eunice Onyango who stated in her evidence that she is a resident in Dandora and works as a teacher previously at Johada Academy and now at Bright Academy. She testified that in October 2019 she was at Johada Academy during lunch hour when Natasha came to the office and told them that another child, Talia was playing with a condom. According to her, Natasha came to report that Talia was explaining to them the work of the condom. She stated that she was in the company of a secretary in the office and they sent her to call Talia.
PW5 went on to state that Talia was called to the office. They investigated her how she knew a condom and its work and she informed them that there was a man who uses a condom on her. They informed the director and the parent of the case. The parent was not aware of the same. The parent reported at Mowlem Police station.
PW5 told the court that Talia told them that there was a man who was a neighbor who used to defile her. The witness claimed that Pw1 alleged that the man had been defiling her since 2018 every saturday and this discovery by the school was made 2019.
The evidence of the witnesses could not be reconciled with the fact that the doctor found the hymen of the victim to have been intact.
The claim that Pw1 had been defiled repeatedly every Saturday since 2018 was thus unbelievable given the evidence of Pw 3.
The appellant Paul Onyango Ongeso stated in defence that he worked in a Wholesale shop and he previously resided in Mowlem estate. He went on to state that he heard all the witnesses and the victim said he used to defile her every Thursday. He was in form 3 and he would be at school.
He testified further that on the day of his arrest the officers and the mother of the victim forced her to state the house where she was being defiled and that they threatened to beat her. He went on to state that they said they wanted Michael, Fred and Frank who were his brother’s children. He testified that none of his brother’s children is known as Michael.
The appellant denied committing the offence and he maintained that he did not know the victim and Cindy.
When he was arrested the complainant’s mother and the officers first went to 4th floor, 2 officers and mother to the victim and they forced the child to state the house otherwise she would be beaten.
Upon cross-examination, DW1 stated that he had never seen the victim. Cindy the friend he saw her at the police station.
The appellant called his brother DW2 who stated that they lived with the appellant and his family. The brother stated that he lived on the ground floor with the appellant yet the victim claimed to have been defiled on 1 st .
In his statement, DW2 told the court that the accused would go to school on Saturdays and the accused has never stayed alone. He said he also \heard the police ask about Michael. The witness went on to state that after the arrest of the appellant the police took them to Cindy’s place and she denied knowing the appellant. According to him Cindy recorded a statement in which she denied being defiled a fact the police officer Pw 5 corroborated.
The case against the appellant was basically anchored on the testimony of Pw1. The inconsistencies in her evidence coupled with the evidence of Pw3 who ruled out penetration leads this court to the conclusion that the appellant was wrongly convicted and his appeal has merit.
In the case of Philip Nzaka Watu v. Republic [2016] e KLR, the Court of Appeal held:-
“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 phenomenon 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”.
The issue of the inability to identify the particular house where the alleged repeated incidents would occur is clear indication that the victim was just looking for someone to pick and satisfy her mother who was on her case.
The man known as Michael appears in all probability to have been the man that the victim Pw1 would go and see in the building where the appellant lived. The mysterious Michael was never disclosed who he was and the investigating officer never bothered to find out who that was.
The identity of the house is not an immaterial matter considering that the victim alleged she engaged in sexual escapades in a certain house in the building every Saturday but she had difficulties leading the police and her mother to the said house. The offence of defilement was not proved to the required standard of proof beyond a reasonable doubt as the two elements of penetration and identity of the offender were not satisfactorily established.
The highlighted contradictions were not minor nor trivial contradictions as they went into affecting the credibility of Pw 1 and vitiated the trail.
The inconsistencies in the prosecution case are such that they are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind this court.
The evidence on age was not in doubt but the issues of penetration and identity of the perpetrator were not adequately proved.
The appeal is therefore allowed, the conviction is quashed and the sentence is accordingly set aside.
The appellant shall be immediately released unless otherwise lawfully held.
It is so ordered.
The appellant in this matter was charged with the offence of defilement contrary to section 8(1) as read with 8(2) of the sexual offences Act No. 3 of 2006.
The particulars of the offence were that on diverse dates in October 2019 at Penyanya estate in Njiru sub-county within Nairobi County , he intentionally caused his genital organs to penetrate the genital organs of T.M a child of 9 years .
The appellant faced an alternative count of Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offenses Act, No. 3 of 2006
The particulars in the alternative count were that on diverse dates in the month of October, 2019 at Penyanya estate in Njiru sub-county within Nairobi County he intentionally and unlawfully touched the genital organs of T.M a child aged 9 years with his penis.
The appellant was tried, convicted and sentenced for the offence of defilement and was sentenced to serve life imprisonment.
The appellant appeals to the High Court against the conviction and sentence on the following grounds:
The learned trial magistrate erred in law and in fact in convicting the Appellant without credible evidence.
The learned trial magistrate erred in law and in fact in convicting and sentencing the Appellant when there was no evidence of penetration.
The learned trial magistrate erred in law and in fact in finding that there was penetration without analysing the medical report against the inconsistencies in the evidence of the minor and the denial by one of the alleged victims (Cindy) that they were defiled.
The learned trial magistrate erred in law and in fact in finding that there was penetration on the basis of the evidence of PW2 and PW3 who were indirect witnesses while disregarding the medical report vis-à-vis the testimony of the minor.
The learned trial magistrate erred in law and in fact in convicting and sentencing the Appellant when the Appellant was not properly identified.
The learned trial magistrate erred in law and in fact in convicting and sentencing the Appellant when the prosecution did not address the following issues of fact:
The inconsistency on the part of the minor on whether the incident was one-off or continuous for over 1 year;
The identity of Maina who the complainant said was her boyfriend;
The identity of Michael who the complainant told the police about on the day of arrest;
Why the complainant could not easily trace the house where the act (which allegedly lasted over 1 year) was committed;
Why the minor was not willing to show the police the house of the perpetrator;
Why Cindy who was allegedly defiled together with the complainant disputed the allegations and denied knowing the Appellant; and
Why Cindy who was allegedly defiled with the complainant was never called as a witness.
The learned trial magistrate erred in law and in fact in convicting and sentencing the Appellant in spite of his defence of alibi.
The learned trial magistrate erred in law and in fact by misleading itself that none of the defence witnesses corroborated the evidence of the Appellant that he was going to school on every Saturday.
The learned trial magistrate erred in law and in fact by shifting the burden of proof upon the Appellant to prove the alibi.
The learned trial magistrate erred in law and in fact in convicting and sentencing the Appellant without addressing the following issues raised before her:
The minor talked of vaginal penetration yet the medical report talks of anal;
The minor testified in chief that the 2019 incident was the first one before later changing her narrative when cross-examined that the acts had been going on since 2018;
The Appellant was staying in Dandora in 2018 and 2019 and not Mowlem (Penyanya) where the acts were allegedly committed;
Cindy denied knowing the Appellant and being defiled;
Who Maina and Michael were;
Why the complainant had difficulty identifying the house where the wrong was committed to her for over 1 year;
The Appellant was living with his brother's family in the same house.
The learned trial magistrate erred in law and in fact in convicting the Appellant yet the prosecution did not prove the charges beyond reasonable doubt.
The learned trial magistrate erred in law and in sentencing the Appellant to life imprisonment which is harsh under the circumstances and which did not consider the mitigation.
The conviction was unwarranted and the sentence illegal and harsh under the circumstances.
The conviction and sentence was a miscarriage of justice hence the same
should be quashed and set aside.
The appellant and the respondent through counsel filed written submissions which this court has considered.
The duty of this court as a first appellate court is to re-evaluate the evidence and draw its own findings and conclusions as to whether the prosecution had sufficiently proved the case against the appellant to the required standard of proof beyond a reasonable doubt. The court in undertaking that review of evidence must however remain cognizant of the fact that unlike the trial court, this court has not had the advantage of hearing or seeing the witnesses testify thus due allowance in that regard must be had.
In Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows:
“
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) EA. (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) 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 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 vs. Sunday Post [1958] E.A 424.”
The prosecutions in order to succeed on a defilement charge must be able to prove the following three elements of the offence that is;- a) age of the victim, b) the fact of penetration and c) the identity of the perpetrator.
The the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013, the court stated that:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
The prosecution in this case called the victim as Pw1. The trail court upon conducting a voire dire examination determined that the victim though intelligent enough did not understand the importance of an oath thus she proceeded to give unsworn evidence.
In her testimony T.M testified that she was about to turn 10 years and was in class 4. She went on to state that she knew the accused and pointed at him in court. According to her, it was on Saturday when she was playing with Cindy near a salon and Cindy told her they go for a birthday party and they went.
The witness further stated that Cindy told her they go to another home and on getting inside they met another boy who told them to remove their clothes, pushed them to bed and removed his clothes.
The trial court in recording her evidence made the observation that the witness avoided eye contact with the accused as she continued to testify and that she kept looking down.
The witness went on to testify that she was wearing a dress which she removed and was left with no clothes on. The boy lay on Cindy first, he was pushing his butt in her and he did the same to her. She also stated that the accused wore a condom on his “susu.” When the court went on to ask where “susu” is ? the witness pointed at her genital area.
The witness went further to state:
“He put it inside my private part. (Points at her genital area). He moved like this. (Demonstrates). I was in pain. My private part was painful.”
According to the minor the accused asked them to put on clothes, Cindy remained in the bedroom and she went to the sitting room. She slept in the sitting room and afterwards they went outside to play.
In her statement, PW1 stated that she went to the salon to wait for her mum whom they went home with. She testified that she did not tell anyone of had what happened.
She also stated in her statement that “the accused said he will kill us if we say. It was my first time doing it. Mum was told by the teachers at school. (Identifies accused).”
Upon cross examination by the defense counsel PW1 stated that it was her first time doing it.
On being pressed further by the defense counsel she said that the accused did it since last year. It was not the first time. The witness was therefore contradictory as to the number of times the appellant had allegedly committed the act.
Further, the victim stated that the house of the appellant was on the ground floor but on cross examination she contradicted herself and said that it was on the first floor.
The witness given her age obviously would have been able to recall the location of the house if at all she had visited the locus in quo severally as she alleged.
PW1 also told the teacher that she had a boyfriend called Maina but at the time of giving evidence she said she didn’t have a boyfriend. That was yet another aspect of contradictory evidence to which I shall revert later.
It is important to state here that Cindy, who the victim alleged to have been defiled together with her denied that ever happened according to Pw5 and for that reason no charges were preferred against the appellant in relation to the allegation by PW1 that he had also defiled Cindy.
The prosecution chose not to call Cindy as a prosecution witness despite her having recorded a statement. In this courts view that amounted to suppression of exculpatory evidence which must be held against the prosecution.
The law requires that the prosecution must disclose evidence that helps the accused person’s case or hinders the states case. See Brandy vs Maryland 373 U.S 83.87 (1963) where the Supreme court held that the state cannot hide evidence that helps the defense. It must be disclosed.
The failure to call Cindy a material witness could only invite an adverse inference. The failure must have been calculated to suppress the evidence and that cannot be entertained in any civilized criminal justice system. The discretion to choose which witnesses to call is entirely with the prosecutor and courts will not interfere with the exercise of that discretion unless it is shown that it was influenced by an oblique motive. See the holding of the Court of appeal in Julius Kalewa Mutunga Vs Republic (2006) eKLR. This is one case that the prosecutor’s discretion must be held to have been actuated by an oblique motive to suppress evidence.
PW2 MAUREEN ONYANGO the mother of the victim in her statement stated that she lived in Mowlem with her 2 children Travis and Talia. Talia is PW1 11 years old. D.O.B: 16th March 2010. The said Talia is the child she alleged was defiled by the appellant. She marked the Birth Certificate Serial number 246816- Exhibit 1.
PW2 further stated that PW1 Talia goes to school at Hezron Learners, Class 5. According to her on 8th October 2019 PW2 took her for check-up in hospital after she was called on 7th October by the head teacher and asked to go to school where she met the director and head teacher. They told her that Talia was withdrawn and her performance was poor.
She went on to say that is when she discovered her child knew what a condom was and she alleged that she had used it with someone. The mother went on to state that this was said by the child in the presence of the teacher.
However, in her statement PW2 stated that she did not see her daughter at school. She asked her in the evening and she confirmed she has had sex.
According to her the child said she did not say because she feared and the appellant who had threatened her. Pw 2 went to report at the police station and proceeded to Mama Lucy Hospital.
PW1 said she knew the accused before. According to her she was told that victim used to visit the accused every Saturday with her friend. PW1 told her that the man used to make them bend and could insert his penis inside their vagina. That the man could use a condom each time. He could threaten them.
It was on account of the report that the appellant was arrested. It was her who led the police to arrest him. PW2 went on to state that her daughter has been greatly affected by the act, she has withdrawn and her school performance had been affected. The accused was a neighbor who used to sell mandazi. It was her evidence that her daughter said it happened frequently and she is told there was another child who was defiled.
Upon cross-examination PW2 stated that she was present during arrest. Her daughter took them to the upper floor and brought them downstairs. There were 4 floors in the building and she was looking for Michael's home. Michael is the appellant’s person's nephew. The appellant opened the door and she said "Ndio huyu".
Cindy was the victim’s classmate who come from the same area and used to play together with her. Cindy was allegedly a victim of the similar sexual assault according to the prosecution but Cindy was not called to testify and the appellant was not investigated and charged with any sexual offence I relation to her.
On re-examination PW2 told the court that the minor took them to 4th floor then down, ground floor. She took them to the house but was hesitant.
However, when the police officers came, she decided to show them the house. She did not want to the first time. They were looking for Michael's home- the accused person's nephew. According to her her daughter knew where it was but she was afraid. When the appellant opened the victim said "Kwa kina Michael". The appellant opened and the minor identified him.
The witness pw2 stated that She did not see the doctor examining the genitals of her daughter she was told to leave as the doctor did it.
PW3 was Dr. FARAH MOHAMMED. She testified that she is a medical doctor and holds Bachelors degree of Medicine and surgery from the University of Nairob and was attached at Mama Lucy Hospital. She stated that her colleague Rose Waweru (Dr.) filled the form.
She went on to state that according to the narration given the victim was introduced to a certain man by her friend and was allegedly sexually violated the man’s home since 2018 with her friend.
On examination the doctor stated that there were no visible injuries. the victim had normal genitalia and she had a Whitish vaginal discharge. The Hymen was Intact but had loose sphincter muscle. She produced the Medical Summary as PExhibit 2. The PRC Form had same findings and was produced as Exhibit 3.
According to Pw3 Dr. Kiatu filled the P3 form - 15/10/2019. The allegation was repeated defilement. The victim appeared Stable, Calm and No physical injuries.
The same findings on genital examination were recorded in the P3 Form-Exhibit 4.
On cross-examination she stated that the hymen was smooth regular and intact.no penetration was noted. She went on to state that there was no opinion by the doctor. On re-examination PW3 stated that there is no conclusion that is required.
The medical evidence tendered raised the question whether there was indeed, defilement, or repeated defilement as alleged by the victim Pw 1 and her mother. The failure by the doctor to render an opinion on penetration dealt the prosecution’s case a fatal blow. The offence of defilement reguires that there be proof of age, penetration and identity of the perpetrator.
The failure to establish any of the ingredients renders the conviction unsafe. The court is left to wonder, if indeed the victim was defiled since 2018 or repeatedly, as alleged, why then would the hymen be intact? Why would the doctor not state or give his opinion in the report?
It is unbelievable that in the opinion of Pw 3 there was no need for conclusion in the medical report. A medical report without the doctors opinion and or conclusion is worthless as it cannot aid the court in forming an opinion.
Section 48 of the Evidence Act Cap 80 of the laws of Kenya where the court has to form an opinion upon a point of foreign law, or of science or art, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art.
The purpose of taking victims of defilement or rape to hospital for examination is to get an expert opinion as to whether there was penetration in the doctor’s opinion.
The proof of penetration is important because the absence of it leaves the court without evidence of a very key ingredient of the offence of defilement. See Jacob Odhiambo Umuombo vs Republic Cr. App. No. 80 of 2008 Kisumu; George Opondo Olunga vs republic (2016) eKLR.
The case of the appellant calls for even deeper consideration on the issue of penetration because the victim’s evidence raises considerable doubt. It is not clear to this court how the trial magistrate arrived at the conclusion that the victim was defiled in the anus yet the Doctor Pw3 never made any mention of it.
Further, Pw2 stated categorically that ‘’ she told me the man used to make them bend and could insert his penis inside their vagina’’. The trial magistrate’s conclusion that the penetration was in the anal opening at page 14 of her judgment was not supported by the evidence. It is clear that the trial court having rightly noted that there was no penetration in the vagina elected to find penetration in the anal area without evidence. The evidence as recorded in the lower court when Pw1 testified she pointed to her genital area.
The victim is shown to have been reluctant to lead the mother to the house of the appellant and there was contradiction on her part as to the location of the house where she claimed to have been repeatedly defiled in.
The mother Pw2 mentioned that they were looking for Michael’s house and when the appellant opened his door that when the victim pointed at him.
The issue that arises is, who was Michael? Is it possible that the man the victim said had defiled her severally was Michael? The law requires that each of the ingredients of the offence must be proved beyond a reasonable doubt. See John Mutua Munyoki Vs Rep. (2017) e KLR. Any doubt that emerges from the evidence of the prosecution, the benefit thereof must to the accused . The issue of the identity of the perpetrator and penetration were in doubt and the benefit should have been accorded to the appellant.
The identity of the perpetrator becomes critical when one considers the evidence of Pw1 who said ‘’we went inside the home. We met another boy who told us to remove our clothes. He pushed us to the bed. He removed his clothes’’. It is important to note that the appellant was seated right in front of her in court and nothing would have been easier than for her to say that the accused told us to remove our clothes.
That is important particularly because the victim admitted to having had a boyfriend. In Kariuki Njiru Vs $ 7 others Vs Rep. Criminal APP. NO 6 of 2001 (unreported) the court held that the law on identification is well settled and this court from time to time has said that evidence relating to identification must be scrutinized and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from any possibility of error.
The witness is recorded as having told the teacher that ‘’I had a boyfriend called Maina. I don’t have a boyfriend now.’’
The victim was an unreliable witness in this court’s view and the court ought to have exercised great caution in considering her evidence as the sole basis to base a conviction. The victim in this case was a child of questionable character in this court’s view. She admitted to having had a boyfriend and boldly told the teacher the name of the boy friend as Maina. She was unable to lead the mother and the police directly to the house she claimed to have been frequenting with Cindy.
Further, the victim also gave evidence to the effect ‘’ there was a condom at the school field. I was with my friends. Cindy told the teacher mother puts it inside the bag. She told the teacher I said it. Cindy brought it where I was. she found it in the field. I told the teacher I had a boy friend called Maina’’. The victim was a child who in the view of this court had fallen in bad company and her education was on a downward trend and this court is persuaded that she was an unreliable witness whose evidence alone should not have been relied on to convict the appellant.
Pw4 also confirmed that the victim said she had a boyfriend by the name Maina and when he questioned Cindy whom the victim had claimed to have been defiled together with her, Cindy denied having being sexually abused.
Pw4 further testified that the victim identified the appellant since he had defiled her severally. The evidence of this witness taken together that of Pw 1 and 2 would have led one to believe that the victim was defiled but the fact that Cindy denied being sexually abused and taking into account the evidence of the doctor Pw3 the appellant was convicted on very weak evidence of identification and without any iota of evidence of penetration.
On cross-examination, PW4 stated that the hymen as per the doctor was intact. That therefore sharply contradicted the version of Pw1.
Investigating officer No. 91118 PC Daniel Tuya currently the Investigating Officer in this case stated that he was handed over the file by PC Jesse Wanjala and was unable to get the 2 remaining witnesses, Eunice a teacher at Jordan's Primary, and Cynthia Aluoch a student at the same school. He went on to state that he would be able to reach them. He went to the school and the said teacher was not at the school and she relocated to unknown location.
The teacher and Cindy would have been critical witnesses and the failure to call them more so Cindy with whom the victim purported to have been with when she was defiled, the court can only deduce the fact that had Cindy testified, she would have tendered evidence that would have been adverse to the prosecution’s case.
In this courts view, the prosecution of the appellant appears to have been a desperate move by PW 2 and her daughter to calm some storm in the school kicked up by the discovery made by the teachers and staff of the school concerning her falling standards and generally issues on morality.
This court has closely examined the evidence of PW5 Eunice Onyango who stated in her evidence that she is a resident in Dandora and works as a teacher previously at Johada Academy and now at Bright Academy. She testified that in October 2019 she was at Johada Academy during lunch hour when Natasha came to the office and told them that another child, Talia was playing with a condom. According to her, Natasha came to report that Talia was explaining to them the work of the condom. She stated that she was in the company of a secretary in the office and they sent her to call Talia.
PW5 went on to state that Talia was called to the office. They investigated her how she knew a condom and its work and she informed them that there was a man who uses a condom on her. They informed the director and the parent of the case. The parent was not aware of the same. The parent reported at Mowlem Police station.
PW5 told the court that Talia told them that there was a man who was a neighbor who used to defile her. The witness claimed that Pw1 alleged that the man had been defiling her since 2018 every saturday and this discovery by the school was made 2019.
The evidence of the witnesses could not be reconciled with the fact that the doctor found the hymen of the victim to have been intact.
The claim that Pw1 had been defiled repeatedly every Saturday since 2018 was thus unbelievable given the evidence of Pw 3.
The appellant Paul Onyango Ongeso stated in defence that he worked in a Wholesale shop and he previously resided in Mowlem estate. He went on to state that he heard all the witnesses and the victim said he used to defile her every Thursday. He was in form 3 and he would be at school.
He testified further that on the day of his arrest the officers and the mother of the victim forced her to state the house where she was being defiled and that they threatened to beat her. He went on to state that they said they wanted Michael, Fred and Frank who were his brother’s children. He testified that none of his brother’s children is known as Michael.
The appellant denied committing the offence and he maintained that he did not know the victim and Cindy.
When he was arrested the complainant’s mother and the officers first went to 4th floor, 2 officers and mother to the victim and they forced the child to state the house otherwise she would be beaten.
Upon cross-examination, DW1 stated that he had never seen the victim. Cindy the friend he saw her at the police station.
The appellant called his brother DW2 who stated that they lived with the appellant and his family. The brother stated that he lived on the ground floor with the appellant yet the victim claimed to have been defiled on 1 st .
In his statement, DW2 told the court that the accused would go to school on Saturdays and the accused has never stayed alone. He said he also \heard the police ask about Michael. The witness went on to state that after the arrest of the appellant the police took them to Cindy’s place and she denied knowing the appellant. According to him Cindy recorded a statement in which she denied being defiled a fact the police officer Pw 5 corroborated.
The case against the appellant was basically anchored on the testimony of Pw1. The inconsistencies in her evidence coupled with the evidence of Pw3 who ruled out penetration leads this court to the conclusion that the appellant was wrongly convicted and his appeal has merit.
In the case of Philip Nzaka Watu v. Republic [2016] e KLR, the Court of Appeal held:-
“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 phenomenon 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”.
The issue of the inability to identify the particular house where the alleged repeated incidents would occur is clear indication that the victim was just looking for someone to pick and satisfy her mother who was on her case.
The man known as Michael appears in all probability to have been the man that the victim Pw1 would go and see in the building where the appellant lived. The mysterious Michael was never disclosed who he was and the investigating officer never bothered to find out who that was.
The identity of the house is not an immaterial matter considering that the victim alleged she engaged in sexual escapades in a certain house in the building every Saturday but she had difficulties leading the police and her mother to the said house. The offence of defilement was not proved to the required standard of proof beyond a reasonable doubt as the two elements of penetration and identity of the offender were not satisfactorily established.
The highlighted contradictions were not minor nor trivial contradictions as they went into affecting the credibility of Pw 1 and vitiated the trail.
The inconsistencies in the prosecution case are such that they are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind this court.
The evidence on age was not in doubt but the issues of penetration and identity of the perpetrator were not adequately proved.
The appeal is therefore allowed, the conviction is quashed and the sentence is accordingly set aside.
The appellant shall be immediately released unless otherwise lawfully held.
It is so ordered.