(Being an Appeal from the Judgement delivered in the Magistrates Court at Winam by Hon. Robert Mobisa Oanda on 11 th December, 2023 in Republic Vs Nelson Cheruiyot Kiprono)
INTRODUCTION AND BACKGROUND
1. This is an appeal against the Judgement delivered in the Magistrates Court at Winam by Hon. Robert Mobisa Oanda on 11 th December, 2023; Republic vs Nelson Cheruiyot Kiprono. The charges against the accused were instituted through a charge sheet dated 28 th December 2020.
2. The Accused was charged with defilement, contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006; (Count 1) that on the night of 25 th /26 th December 2020 in Shauri Moyo Administration Police line in Kisumu Central Sub County within Kisumu County in Nyanza region intentionally caused his penis to penetrate the anus of Darren Mecha, a child aged 15 years.
3. The Accused was also charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006; (Count 2) that on the night of 25 th /26 th of December 2020 in Shauri Moyo Administration Police line in Kisumu Central Sub County within Kisumu County in Nyanza region, intentionally touched the anus of Darren Mecha a child aged 15 years.
4. The accused entered a plea of not guilty and the prosecution proceeded by calling a total of 10 witnesses. The trial court ruled that a prima facie case had been established and therefore the accused had a case to answer. The accused was placed to trial.
5. Through its judgement dated 11 th December 2023, the trial court analyzed the evidence produced and relied upon by both the prosecution and the accused. The trial court placed reliance on Section 8 (1) and Section 11(1) of the Sexual offences Act,while bringing out the ingredient of age as the central ingredient of the offence of defilement which were highlighted in the cases of Charlies Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013, Simon Kiprotich vs Repubic (2021) eKLR, Hillary Nyongesa vs Republic (Eldoret Criminal Appeal No. 123 0f 2000 and Adam Daktari Konoyo vs. Republic (2019) eKLR
6. The trial court relied on the said cases putting emphasis on the aspect of age as a critical aspect in sexual offences and the same ought to be proved as an ingredient for defilement.
7. In addition, it analyzed the provision of Section 134 of the Criminal Procedure Code which provides that a charge should give reasonable information as to the nature of the offence charged. The analysis was on the basis that the charge sheet was ambiguous as to the exact date on when the alleged offence took place.
8. The trial court therefore pronounced that the critical aspect of age has not been conclusively proven, citing that the birth certificate which was displayed by the said grandfather, PW8, was never produced and in the circumstances, the trial court pronounced itself as follows: -
Following this, I do not find it necessary to delve into the other limbs/ ingredients of the offence of defilement as their findings will not affect the outcome of the matter. The main and the alternative charges herein, for the reasons given, have not been proven against accused herein beyond reasonable doubt as required. He is thus not guilty as charged and is acquitted accordingly under Section 215 CPC.
9. The prosecution, being dissatisfied by the outcome of the said Judgement, appealed on the same, filing a Petition of Appeal dated 28 th February 2024, preferring the grounds of Appeal as follows: -
1. That the learned Trial Magistrate erred in fact and in law by acquitting the Respondent against the weight of the prosecution case.
2. That the Learned Trial Magistrate erred in fact and in law by finding that the prosecution had not prove its case beyond reasonable doubt.
3. That the learned Trial Magistrate erred in fact and in law in holding that the apparent ambiguity in the date of commission of the offence which was indicated as “on the night of 25 th /26 th December 2020 was gross and fatal to the case.
4. That the learned Trial Magistrate erred in fact and in law in holding that the age of the complainant was not proved notwithstanding that a birth certificate was produced in court as Exhibit 7.
5. That the learned Trial Magistrate erred in fact and in law in failing to evaluate the entire evidence on record and determine the other ingredients of the offence of defilement holding that they will not affect the outcome notwithstanding that age of the victim is more pronounced at the sentencing level after conviction for defilement.
6. That the Learned Trial Magistrate erred in fact and in law by confusing proof of age for purposes of establishing defilement with proof of age for purposes of appropriate punishment thereof.
7. That the learned Trial Magistrate erred in acquitting the Respondent despite overwhelming evidence on record which was not analyzed.
REASONS WHEREOF the Appellant prays that this Honourable Court allows this appeal and:-
1. Overturn the decision of Learned Trial Magistrate delivered on 11 th December 2023.
2. Finds that the Republic/ Appellant proved its case against the Respondent beyond reasonable doubt and act accordingly convict and sentence him thereof.
3. In the alternative to prayer (2) above, the Honourable court remits the matter back for a fresh hearing before another Magistrate other than the Learned Hon. R.M Oanda, SPM.
9. This is the first appellate court and as held in the matter of Okeno v R (1972) EA 32, the Court of Appeal for East Africa laid down that the duty of the first appellate court is to analyze 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 but bearing in mind that it never saw the witnesses testify.
SUBMISSIONS BY THE PARTIES
10. The Appellant, vide submissions dated 2 nd July, 2024, submitted on three ingredients of defilement, namely; age, penetration and identification of the accused person stating that the said ingredients have been proven beyond reasonable doubt.
11. On age, the Appellant submitted that the victim testified and gave sworn evidence and that this was after a voir dire test was done and the trial court was satisfied that the child was sufficiently intelligent and old enough to testify.
12. The Appellant also submitted that the alleged offence occurred on the night of 25 th /26 th December 2020 and PW7 testified that the victim was 14 years old. The age was corroborated by PW8 and also produced a birth certificate of the victim which was marked as PMFI 7 and produced as an exhibit before the court.
13. In addition, the appellant submitted that although the learned magistrate seems to indicate that the birth certificate was not on record, Appellant submitted that the same had initially been stood down and the court directed that a copy of the birth certificate be supplied to the Accused therefore forming part of the record.
14. The Appellant further submitted that in the event the birth certificate was not in court, it is still uncontested that the age of the victim had been proven beyond reasonable doubt. The Appellant relied on the following cases, Edwin Nyambogo Onsongo vs. Republic (2016) eKLR , Criminal Appeal Case No. 22 of 2015 and Musyoki Makvi vs. Republic Criminal Appeal No. 172/2012
15. On the second ingredient of penetration, the appellant submitted that penetration was proved through the evidence. The appellant submitted that the P3 form and the PRC form clearly indicates that there were lacerations on the anal region and a tear at the same place. The anal swab showed epithelial cells. The Appellant also submitted that the testimony of the victim in this case corroborated by the medical examination is sufficient evidence that penetration occurred and the same was occasioned by the Respondent.
16. On the last ingredient of identification, the Appellant stated that PW4 identified the Respondent to PW 1, PW2 and PW3, who was able to describe the act, the victim’s sandals and jacket were found in the Respondents premises and that there was a match with the Respondent’s DNA profile.
17. The Respondent filed his submissions and on the first ingredient of age, the Respondent submitted that age is a serious limb to be determined for the offence of defilement to suffice. The Respondent submitted that there were inconsistencies on the issue of age in the sense that the charge sheet produced before court states that the complainant was aged 15 years, PW1 stated that the complainant is about 16 years old, PW4 (complainant) did not testify as to his age, PW7 and PW8 stated that the complainant was 14 years old and PW 10 stated that the complainant was born in 2006.
18. Further to the above, PW8 tried producing the complainant’s birth certificate but the same was stood down by an order of the court as he is not an author of the same. The Respondent relied on cases such as Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, Alfayo Gombe Okello v Republic, where he emphasized the that age is a critical aspect that should be established.
19. On the second ingredient raised by the Appellant on whether the ingredient of penetration was proved, the Respondent stated that PW5 testified that upon conducting a medical examination on the complainant, she found that he had normal external genitalia. The Respondent also submitted that the P3 form produced by the prosecution did not state that there was penetration. The Respondent relied on the case of AML vs. Republic (2012) eKLR
20. On the issue of identification of the Respondent, the Respondent submitted that the victim was able to identify the accused due to the fact that he had offered him a place to stay and some food. The Respondent therefore submitted in general that the Appellant failed to discharge its duty to prove beyond reasonable doubt while placing reliance on Section 107 and Section 109 of the Evidence Act.
ISSUES FOR DETERMINATION
21. Having reviewed the pleadings from both parties and the determination from the lower court, the following ingredients need to be addressed for the offence of defilement to hold water.
i. Whether the ingredient of Age was proved.
ii. Whether the ingredient of Penetration was proved.
iii. Whether the ingredient of Identification was proved.
iv. Whether the Appellant proved its case beyond reasonable doubt
ANALYSIS AND DETERMINATION
Issue 1: Whether the ingredient of age was proved
22. Section 8 (1) of the Sexual Offences Act states that “ A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”
23. Further, Section 11(1) of the Act provides that “ Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable to upon conviction to imprisonment for a term not less than 10 years.
24. From the foregoing, age, is a key ingredient for the offence of defilement to stand. The same has been clearly laid out in the case of Charlies Wamukaya Karani vs Republic, Criminal Appeal No. 72 of 2013 where the court stated that “ the central ingredients forming the offence of defilement are age of the complainant, proof of penetration and positive identification of the assailant.
25. As at the date of 15 th July, 2022, PW4 (complainant) stated that he is aged 17 years. PW7 through his testimony stated that the age of the victim when the alleged offence was committed was 14 years. PW8 further corroborated the statement by PW4 and stated that the complainant was 14 years of age when the alleged offence was committed. In addition, he presented a birth certificate in court, MFI P.7- Exhibit 7 but the trial court stood the same down after counsel for the Defense stated that they have not been supplied with the same. The trial court ordered that the defence counsel to be supplied with a copy of the same.
26. Age being a pertinent ingredient on the issue of defilement, it has been proven beyond reasonable doubt that the complainant was under the age of 18 years when the alleged defilement took place. Testimonies from the Prosecution Witnesses together with the birth certificate speak to one fact, that the complainant was less than 18 years when the alleged defilement took place and therefore it will be fatal for the court to turn a blind eye to the existence of such compelling evidence.
27. In its judgement, the trial court stated that, “Following this I do not find it necessary to delve into other limbs/ ingredients of the offence of defilement as their findings will not affect the outcome of the matter” Contrary to this pronunciation, this Appellate Court has found that the prosecution proved its case beyond reasonable doubt on the issue of age, bringing us to the next issue for determination on the ingredient of Penetration.
Issue 2: Whether the ingredient of Penetration was proved
28. The trial court did not delve into the ingredient of penetration and therefore, being a pertinent aspect of defilement; Section 2 of the Sexual Offences Act defines penetration to mean partial or complete insertion of the genital organs into the genital organs of another person. It is therefore essential to determine whether penetration indeed occurred and this can only be proved by relying on the evidence that was produced by the prosecution at the trial court.
29. PW5 gave her testimony to the effect that she is a medical doctor working at JOOTRH and she has a P3 form that she filed on 29 th December 2020. She stated that the accused, aged 15 years came to the hospital, his clothes had no tear or stains and he had been accompanied by a police officer. She stated that the victim was stranded in Kisumu, he met a man who agreed to feed and host him for a night and at night his anus was penetrated.
30. It was further the testimony of PW5 that the victim was shy and withdrawn, on genitalia, the outer list normal, he was experiencing pain when going for a long call, she produced a MFI P3 and marked as Exhibit 1.
31. From the evidence by Pw5 it might not be very clear as to whether penetration occurred or not. However, we cannot turn a blind eye to the very important question of, must there be a damage on the genitalia for it to amount to penetration? Penetration might have occurred without the genitals being damaged.
32. We shall further analyze the testimony and the evidence produced by PW6 (Government Analyst at the Laboratory of the Government’s Chemists Department), who produced a report he prepared dated 18 th June 2021 and produced as exhibit 6, stated that he collected the following items:-
1. An Orange Face Towel in a brown envelope marked “A”
2. Two (2) Penile Swabs from No. 231021 APC Nelson Cheruiyot Kiprono (Accused) marked “X”
3. Two (2) anal swabs from Darren Mecha (Complainant) marked “Y”
4. A green boxer with animal drawings in a brown envelope marked “W”
5. A black boxer with red and grey stripes in a brown envelope marked “Z”
33. He Further stated that on 29 th December, 2020, the following sampled were obtained
1. Buccal Swab from Darren Mecha (Complainant) marked “B”
2. Buccal Swab from Nelson Cheruiyot (Accused) marked “C”
The report indicated as follows:
1. The face towel (item A) and the anal swabs (item Y) tested positive for seminal fluids.
2. The DNA profiles generated from the above listed items are tabulated and produced at the end of the report.
34. PW6 recognized the issues relating to Genetic Relationships while pointing out the uniqueness of DNA. In the conclusion and Opinion of the report marked as Exhibit 1, it read as follows:-
1. The DNA profile generated from the stains on the face towel (item “A”) and the anal swabs (item “Y”) is a mixed DNA profiles of Darren Mecha (Complainant) and Nelson Cheruiyot Kiprono (Accused)
2. The DNA profile generated from the penile swab (item “X”) and the boxer (item “Y”) matches the DNA profile of Nelson Kiprono (Accused) while the DNA profile generated from the boxer (item “W”) matches the DNA profile of Darren Mecha (complainant)
35. From the above report, it can be seen that the face towel (item “A”) and the anal swabs (item “Y”) tested positive for seminal fluids and upon further tests, it was concluded that that the DNA profile generated from the face towel and the anal swabs from the victim, is a mix of DNA profiles of Darren Mecha (complainant) and Nelson Cheruiyot (Accused).
36. The said anal swabs from the victim tested positive for seminal fluids, which fluids tested positive for the Accused DNA. The question then is, at what point can the DNA of another person be found on another’s genital organs? How could the accused DNA be found on the Complainant anal area? The answer to the above proves that indeed there was contact. It goes without saying that penetration indeed occurred.
37. This appellate court therefore finds that the trial court erred in failing to determine the issue of penetration and therefore finds that the Appellant, at the trial court, proved its case beyond reasonable doubt.
38. On the last limb of defilement, the question is on identification of the witness.
Issue 3: Whether the issue of Identification was proved
39. On the identity of the Respondent, the complainant stated that he was stranded in Kisumu town and the accused offered help, they both went to the accussed house where they spent the night. The accused does not also dispute the sentiments by the accused that indeed he spent the night in his house.
40. PW3 also confirmed that while she was on way to work, the complainant stopped them, explained what had happened and the complainant led them to the camp where he identified the accused. This shows that proper identification of the accused was done by the complainant therefore satisfying the third limb of defilement.
41. In the foregoing it is important to discuss whether the Appellant proved its case beyond reasonable doubt and subsequently the fate of the Appeal at hand.
Section 107 of the Evidence Act states as thus: -
(1) Whoever desires the court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
42. It is indeed true that in the trial court, the burden of proof lied on the prosecution. After analyzing the evidence that was relied upon by the Appellant herein, the trial court failed to see that it had proved the existence of facts.
43. Section 109 provides for Proof of a particular fact and states as follows: the burden of proof as to any particular fact lies in the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
44. It is trite law that in criminal matters the degree of proof is higher, than on a balance of probabilities. In the case of JMN v Republic (Criminal Appeal E017 of 2021) (2022) KHEC 279 (KLR) It was pronounced as follows: - “For starters, the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendants guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any.”
45. In the foregoing, it is the only rational inference that the accused committed the offence as charged and the lower court misdirected and erred in failing to find the same, while only relying on one ingredient of “age” and failing to look into the evidence proved by the prosecution beyond reasonable doubt.
DISPOSITION
From the analysis above, it is evident that the Appellant proved its case beyond reasonable doubt, on the ingredients of defilement, that is age of the victim, penetration, and identification of the accused. In the premise, this appellate court finds that the trial court faulted itself in failing to consider all the ingredients of defilement. Accordingly, it is ordered as follows;
This court finds merit in the appeal herein and proceeds to order as follows: -
i. This court finds the Appellant’s appeal merited and therefore overturns the decision of the Learned Trial Magistrate delivered on 11 th December, 2023.
ii. This court finds that the Appellant proved its case as against the Respondent beyond reasonable doubt and accordingly convict and sentence the Respondent.
iii. That the Respondent/Accused is hereby sentenced to 20 years imprisonment.
It is so ordered.
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INTRODUCTION AND BACKGROUND
1. This is an appeal against the Judgement delivered in the Magistrates Court at Winam by Hon. Robert Mobisa Oanda on 11 th December, 2023; Republic vs Nelson Cheruiyot Kiprono. The charges against the accused were instituted through a charge sheet dated 28 th December 2020.
2. The Accused was charged with defilement, contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006; (Count 1) that on the night of 25 th /26 th December 2020 in Shauri Moyo Administration Police line in Kisumu Central Sub County within Kisumu County in Nyanza region intentionally caused his penis to penetrate the anus of Darren Mecha, a child aged 15 years.
3. The Accused was also charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006; (Count 2) that on the night of 25 th /26 th of December 2020 in Shauri Moyo Administration Police line in Kisumu Central Sub County within Kisumu County in Nyanza region, intentionally touched the anus of Darren Mecha a child aged 15 years.
4. The accused entered a plea of not guilty and the prosecution proceeded by calling a total of 10 witnesses. The trial court ruled that a prima facie case had been established and therefore the accused had a case to answer. The accused was placed to trial.
5. Through its judgement dated 11 th December 2023, the trial court analyzed the evidence produced and relied upon by both the prosecution and the accused. The trial court placed reliance on Section 8 (1) and Section 11(1) of the Sexual offences Act,while bringing out the ingredient of age as the central ingredient of the offence of defilement which were highlighted in the cases of Charlies Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013, Simon Kiprotich vs Repubic (2021) eKLR, Hillary Nyongesa vs Republic (Eldoret Criminal Appeal No. 123 0f 2000 and Adam Daktari Konoyo vs. Republic (2019) eKLR
6. The trial court relied on the said cases putting emphasis on the aspect of age as a critical aspect in sexual offences and the same ought to be proved as an ingredient for defilement.
7. In addition, it analyzed the provision of Section 134 of the Criminal Procedure Code which provides that a charge should give reasonable information as to the nature of the offence charged. The analysis was on the basis that the charge sheet was ambiguous as to the exact date on when the alleged offence took place.
8. The trial court therefore pronounced that the critical aspect of age has not been conclusively proven, citing that the birth certificate which was displayed by the said grandfather, PW8, was never produced and in the circumstances, the trial court pronounced itself as follows: -
Following this, I do not find it necessary to delve into the other limbs/ ingredients of the offence of defilement as their findings will not affect the outcome of the matter. The main and the alternative charges herein, for the reasons given, have not been proven against accused herein beyond reasonable doubt as required. He is thus not guilty as charged and is acquitted accordingly under Section 215 CPC.
9. The prosecution, being dissatisfied by the outcome of the said Judgement, appealed on the same, filing a Petition of Appeal dated 28 th February 2024, preferring the grounds of Appeal as follows: -
1. That the learned Trial Magistrate erred in fact and in law by acquitting the Respondent against the weight of the prosecution case.
2. That the Learned Trial Magistrate erred in fact and in law by finding that the prosecution had not prove its case beyond reasonable doubt.
3. That the learned Trial Magistrate erred in fact and in law in holding that the apparent ambiguity in the date of commission of the offence which was indicated as “on the night of 25 th /26 th December 2020 was gross and fatal to the case.
4. That the learned Trial Magistrate erred in fact and in law in holding that the age of the complainant was not proved notwithstanding that a birth certificate was produced in court as Exhibit 7.
5. That the learned Trial Magistrate erred in fact and in law in failing to evaluate the entire evidence on record and determine the other ingredients of the offence of defilement holding that they will not affect the outcome notwithstanding that age of the victim is more pronounced at the sentencing level after conviction for defilement.
6. That the Learned Trial Magistrate erred in fact and in law by confusing proof of age for purposes of establishing defilement with proof of age for purposes of appropriate punishment thereof.
7. That the learned Trial Magistrate erred in acquitting the Respondent despite overwhelming evidence on record which was not analyzed.
REASONS WHEREOF the Appellant prays that this Honourable Court allows this appeal and:-
1. Overturn the decision of Learned Trial Magistrate delivered on 11 th December 2023.
2. Finds that the Republic/ Appellant proved its case against the Respondent beyond reasonable doubt and act accordingly convict and sentence him thereof.
3. In the alternative to prayer (2) above, the Honourable court remits the matter back for a fresh hearing before another Magistrate other than the Learned Hon. R.M Oanda, SPM.
9. This is the first appellate court and as held in the matter of Okeno v R (1972) EA 32, the Court of Appeal for East Africa laid down that the duty of the first appellate court is to analyze 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 but bearing in mind that it never saw the witnesses testify.
SUBMISSIONS BY THE PARTIES
10. The Appellant, vide submissions dated 2 nd July, 2024, submitted on three ingredients of defilement, namely; age, penetration and identification of the accused person stating that the said ingredients have been proven beyond reasonable doubt.
11. On age, the Appellant submitted that the victim testified and gave sworn evidence and that this was after a voir dire test was done and the trial court was satisfied that the child was sufficiently intelligent and old enough to testify.
12. The Appellant also submitted that the alleged offence occurred on the night of 25 th /26 th December 2020 and PW7 testified that the victim was 14 years old. The age was corroborated by PW8 and also produced a birth certificate of the victim which was marked as PMFI 7 and produced as an exhibit before the court.
13. In addition, the appellant submitted that although the learned magistrate seems to indicate that the birth certificate was not on record, Appellant submitted that the same had initially been stood down and the court directed that a copy of the birth certificate be supplied to the Accused therefore forming part of the record.
14. The Appellant further submitted that in the event the birth certificate was not in court, it is still uncontested that the age of the victim had been proven beyond reasonable doubt. The Appellant relied on the following cases, Edwin Nyambogo Onsongo vs. Republic (2016) eKLR , Criminal Appeal Case No. 22 of 2015 and Musyoki Makvi vs. Republic Criminal Appeal No. 172/2012
15. On the second ingredient of penetration, the appellant submitted that penetration was proved through the evidence. The appellant submitted that the P3 form and the PRC form clearly indicates that there were lacerations on the anal region and a tear at the same place. The anal swab showed epithelial cells. The Appellant also submitted that the testimony of the victim in this case corroborated by the medical examination is sufficient evidence that penetration occurred and the same was occasioned by the Respondent.
16. On the last ingredient of identification, the Appellant stated that PW4 identified the Respondent to PW 1, PW2 and PW3, who was able to describe the act, the victim’s sandals and jacket were found in the Respondents premises and that there was a match with the Respondent’s DNA profile.
17. The Respondent filed his submissions and on the first ingredient of age, the Respondent submitted that age is a serious limb to be determined for the offence of defilement to suffice. The Respondent submitted that there were inconsistencies on the issue of age in the sense that the charge sheet produced before court states that the complainant was aged 15 years, PW1 stated that the complainant is about 16 years old, PW4 (complainant) did not testify as to his age, PW7 and PW8 stated that the complainant was 14 years old and PW 10 stated that the complainant was born in 2006.
18. Further to the above, PW8 tried producing the complainant’s birth certificate but the same was stood down by an order of the court as he is not an author of the same. The Respondent relied on cases such as Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, Alfayo Gombe Okello v Republic, where he emphasized the that age is a critical aspect that should be established.
19. On the second ingredient raised by the Appellant on whether the ingredient of penetration was proved, the Respondent stated that PW5 testified that upon conducting a medical examination on the complainant, she found that he had normal external genitalia. The Respondent also submitted that the P3 form produced by the prosecution did not state that there was penetration. The Respondent relied on the case of AML vs. Republic (2012) eKLR
20. On the issue of identification of the Respondent, the Respondent submitted that the victim was able to identify the accused due to the fact that he had offered him a place to stay and some food. The Respondent therefore submitted in general that the Appellant failed to discharge its duty to prove beyond reasonable doubt while placing reliance on Section 107 and Section 109 of the Evidence Act.
ISSUES FOR DETERMINATION
21. Having reviewed the pleadings from both parties and the determination from the lower court, the following ingredients need to be addressed for the offence of defilement to hold water.
i. Whether the ingredient of Age was proved.
ii. Whether the ingredient of Penetration was proved.
iii. Whether the ingredient of Identification was proved.
iv. Whether the Appellant proved its case beyond reasonable doubt
ANALYSIS AND DETERMINATION
Issue 1: Whether the ingredient of age was proved
22. Section 8 (1) of the Sexual Offences Act states that “ A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”
23. Further, Section 11(1) of the Act provides that “ Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable to upon conviction to imprisonment for a term not less than 10 years.
24. From the foregoing, age, is a key ingredient for the offence of defilement to stand. The same has been clearly laid out in the case of Charlies Wamukaya Karani vs Republic, Criminal Appeal No. 72 of 2013 where the court stated that “ the central ingredients forming the offence of defilement are age of the complainant, proof of penetration and positive identification of the assailant.
25. As at the date of 15 th July, 2022, PW4 (complainant) stated that he is aged 17 years. PW7 through his testimony stated that the age of the victim when the alleged offence was committed was 14 years. PW8 further corroborated the statement by PW4 and stated that the complainant was 14 years of age when the alleged offence was committed. In addition, he presented a birth certificate in court, MFI P.7- Exhibit 7 but the trial court stood the same down after counsel for the Defense stated that they have not been supplied with the same. The trial court ordered that the defence counsel to be supplied with a copy of the same.
26. Age being a pertinent ingredient on the issue of defilement, it has been proven beyond reasonable doubt that the complainant was under the age of 18 years when the alleged defilement took place. Testimonies from the Prosecution Witnesses together with the birth certificate speak to one fact, that the complainant was less than 18 years when the alleged defilement took place and therefore it will be fatal for the court to turn a blind eye to the existence of such compelling evidence.
27. In its judgement, the trial court stated that, “Following this I do not find it necessary to delve into other limbs/ ingredients of the offence of defilement as their findings will not affect the outcome of the matter” Contrary to this pronunciation, this Appellate Court has found that the prosecution proved its case beyond reasonable doubt on the issue of age, bringing us to the next issue for determination on the ingredient of Penetration.
Issue 2: Whether the ingredient of Penetration was proved
28. The trial court did not delve into the ingredient of penetration and therefore, being a pertinent aspect of defilement; Section 2 of the Sexual Offences Act defines penetration to mean partial or complete insertion of the genital organs into the genital organs of another person. It is therefore essential to determine whether penetration indeed occurred and this can only be proved by relying on the evidence that was produced by the prosecution at the trial court.
29. PW5 gave her testimony to the effect that she is a medical doctor working at JOOTRH and she has a P3 form that she filed on 29 th December 2020. She stated that the accused, aged 15 years came to the hospital, his clothes had no tear or stains and he had been accompanied by a police officer. She stated that the victim was stranded in Kisumu, he met a man who agreed to feed and host him for a night and at night his anus was penetrated.
30. It was further the testimony of PW5 that the victim was shy and withdrawn, on genitalia, the outer list normal, he was experiencing pain when going for a long call, she produced a MFI P3 and marked as Exhibit 1.
31. From the evidence by Pw5 it might not be very clear as to whether penetration occurred or not. However, we cannot turn a blind eye to the very important question of, must there be a damage on the genitalia for it to amount to penetration? Penetration might have occurred without the genitals being damaged.
32. We shall further analyze the testimony and the evidence produced by PW6 (Government Analyst at the Laboratory of the Government’s Chemists Department), who produced a report he prepared dated 18 th June 2021 and produced as exhibit 6, stated that he collected the following items:-
1. An Orange Face Towel in a brown envelope marked “A”
2. Two (2) Penile Swabs from No. 231021 APC Nelson Cheruiyot Kiprono (Accused) marked “X”
3. Two (2) anal swabs from Darren Mecha (Complainant) marked “Y”
4. A green boxer with animal drawings in a brown envelope marked “W”
5. A black boxer with red and grey stripes in a brown envelope marked “Z”
33. He Further stated that on 29 th December, 2020, the following sampled were obtained
1. Buccal Swab from Darren Mecha (Complainant) marked “B”
2. Buccal Swab from Nelson Cheruiyot (Accused) marked “C”
The report indicated as follows:
1. The face towel (item A) and the anal swabs (item Y) tested positive for seminal fluids.
2. The DNA profiles generated from the above listed items are tabulated and produced at the end of the report.
34. PW6 recognized the issues relating to Genetic Relationships while pointing out the uniqueness of DNA. In the conclusion and Opinion of the report marked as Exhibit 1, it read as follows:-
1. The DNA profile generated from the stains on the face towel (item “A”) and the anal swabs (item “Y”) is a mixed DNA profiles of Darren Mecha (Complainant) and Nelson Cheruiyot Kiprono (Accused)
2. The DNA profile generated from the penile swab (item “X”) and the boxer (item “Y”) matches the DNA profile of Nelson Kiprono (Accused) while the DNA profile generated from the boxer (item “W”) matches the DNA profile of Darren Mecha (complainant)
35. From the above report, it can be seen that the face towel (item “A”) and the anal swabs (item “Y”) tested positive for seminal fluids and upon further tests, it was concluded that that the DNA profile generated from the face towel and the anal swabs from the victim, is a mix of DNA profiles of Darren Mecha (complainant) and Nelson Cheruiyot (Accused).
36. The said anal swabs from the victim tested positive for seminal fluids, which fluids tested positive for the Accused DNA. The question then is, at what point can the DNA of another person be found on another’s genital organs? How could the accused DNA be found on the Complainant anal area? The answer to the above proves that indeed there was contact. It goes without saying that penetration indeed occurred.
37. This appellate court therefore finds that the trial court erred in failing to determine the issue of penetration and therefore finds that the Appellant, at the trial court, proved its case beyond reasonable doubt.
38. On the last limb of defilement, the question is on identification of the witness.
Issue 3: Whether the issue of Identification was proved
39. On the identity of the Respondent, the complainant stated that he was stranded in Kisumu town and the accused offered help, they both went to the accussed house where they spent the night. The accused does not also dispute the sentiments by the accused that indeed he spent the night in his house.
40. PW3 also confirmed that while she was on way to work, the complainant stopped them, explained what had happened and the complainant led them to the camp where he identified the accused. This shows that proper identification of the accused was done by the complainant therefore satisfying the third limb of defilement.
41. In the foregoing it is important to discuss whether the Appellant proved its case beyond reasonable doubt and subsequently the fate of the Appeal at hand.
Section 107 of the Evidence Act states as thus: -
(1) Whoever desires the court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
42. It is indeed true that in the trial court, the burden of proof lied on the prosecution. After analyzing the evidence that was relied upon by the Appellant herein, the trial court failed to see that it had proved the existence of facts.
43. Section 109 provides for Proof of a particular fact and states as follows: the burden of proof as to any particular fact lies in the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
44. It is trite law that in criminal matters the degree of proof is higher, than on a balance of probabilities. In the case of JMN v Republic (Criminal Appeal E017 of 2021) (2022) KHEC 279 (KLR) It was pronounced as follows: - “For starters, the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendants guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any.”
45. In the foregoing, it is the only rational inference that the accused committed the offence as charged and the lower court misdirected and erred in failing to find the same, while only relying on one ingredient of “age” and failing to look into the evidence proved by the prosecution beyond reasonable doubt.
DISPOSITION
From the analysis above, it is evident that the Appellant proved its case beyond reasonable doubt, on the ingredients of defilement, that is age of the victim, penetration, and identification of the accused. In the premise, this appellate court finds that the trial court faulted itself in failing to consider all the ingredients of defilement. Accordingly, it is ordered as follows;
This court finds merit in the appeal herein and proceeds to order as follows: -
i. This court finds the Appellant’s appeal merited and therefore overturns the decision of the Learned Trial Magistrate delivered on 11 th December, 2023.
ii. This court finds that the Appellant proved its case as against the Respondent beyond reasonable doubt and accordingly convict and sentence the Respondent.
iii. That the Respondent/Accused is hereby sentenced to 20 years imprisonment.
It is so ordered.
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