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JudgmentRICHARD NGOWA ZIRO VS The Republic10 min read

RICHARD NGOWA ZIRO VS The Republic

High Court at Malindi High Court · · M Thande

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL APPEAL NO. E075 OF 2023

RICHARD NGOWA ZIRO ………...…….….……………………………..….……APPELLANT  

VERSUS

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

(An Appeal arising out of the conviction and sentence of Hon. R. Amwayi, SRM delivered on 24.11.22 in Kaloleni in Criminal Case No. 316 of 2022)

JUDGMENT

  1. The Appellant herein was tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence are that on diverse dates between 1.1.20 and 1.2.2020 at Ngome village, Kaloleni location, Kaloleni sub county within Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of E. M. (the Complainant), a girl aged 15 years. Following trial, the Appellant was convicted and sentenced to 15 years imprisonment.
  2. Being aggrieved by the decision of the trial Court, the Appellant has appealed to this Court against both the conviction and sentence. The summarized grounds as set out in his amended grounds of appeal are that the trial Magistrate erred in fact for:
  3. Shifting the burden of proof to the Appellant.
  4. failing to appreciate the contradiction, inconsistencies and corroborations in the prosecution evidence.
  5. failing to appreciate that this case was poorly, shoddily and inadequately investigated.
  6. failing to find that there were fabrications and DNA test was never conducted to ascertain the responsibility of the Appellant

  1. The Appellant urged the Court to allow the Appeal, quash the conviction and set aside the sentence. 

  1. The appeal is opposed by the Respondent and filed submissions dated 19.4.24.  
  2. As a first appellate Court, I am required to subject the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32 and Kariuki Karanja v Republic [1986] KLR 190).
  3. In support of its case, the prosecution was her lover, and that their sexual relationship began in January 2021. She used to go to his house in the afternoons whenever sent to the shops and they would have sex. called 4 witnesses. The Complainant testified that the Appellant, a secondary school student, was her lover, and that their sexual relationship began in January 2021. She used to go to his house in the afternoons whenever sent to the shops and they would have sex. After February 2021, she missed her periods and realized she was pregnant. When she informed the Appellant that she was pregnant, he denied and she told her parents. He father reported the matter Kaloleni Police Station. Upon examination at Mariakani Sub-county Hospital the Complainant’s pregnancy was confirmed. The Appellant was then arrested. The Complainant gave birth to a baby boy on 7.10.21.
  4. PW3 Masumbuko Ngala the Complainant’s father testified that he learned in June 2021 that his daughter was pregnant. He confronted her and she admitted and that she knew who was responsible. PW3 reported the matter at the police station where an officer escorted them to Mariakani Sub-county Hospital where the Complainant was examined. The Appellant was then arrested.
  5. PW2’s testimony was corroborated by PW4, PC Winnie Mureyi who stated that the Complainant told her that she had sexual intercourse with the Appellant severally and realized in March 2021 that she was pregnant. In July, the Complainant visited her father who noticed she was pregnant. He reported the matter to the police. The Complainant’s pregnancy was confirmed following examination at Mariakani Sub-county Hospital. The Complainant identified the Appellant at the time of his arrest.
  6. The prosecution led the medical evidence through the testimony of PW1 Mwangolo Chigulu, a senior clinical officer at Marakani Sub-county Hospital testified that he examined the Complainant on 2.7.21 and found that she was 25 weeks and 5 days pregnant. He genitalia was unkempt with no hymen. He concluded that this was a case of pregnancy secondary to defilement.
  7. At the close of the prosecution case, the Appellant was found to have a case to answer and was put on his defence.
  8. In his sworn statement, the Appellant stated that he was 21 years old and a form four student at Kizurini Secondary School. He stated that the Complainant was his friend. He added that the Complainant’s boyfriend, Baya, asked him to call her, which he did and they left together. He was arrested in September while at school and taken to the police station and told that he had defiled the Complainant.
  9. The Court has given due consideration to the recorI have considered the submissions filed by the Appellant and the Respondent. A careful reading of the Respondent’s submissions will show that the same do not relate to the Appellant’s amended petition of appeal.
  10. The offence in respect of which the Appellant was charged and convicted is defilement. For a person to be convicted of the offence of defilement, 3 ingredients must be established. These ingredients were set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the court stated:

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

  1. In order to achieve a conviction, it must be demonstrated that there was penetration of the complainant’s genitalia. Second, the evidence must show that the accused is the perpetrator; and third, the complainant must be below eighteen years.
  2. The record contains the birth certificate of the Complainant as produced by PW4 indicates that she was born on 8.7.06. The Appellant submitted that the ingredient of age is doubtful and not well satisfied. He based this assertion on the fact that the birth certificate was obtained on 11.6.21 while the case is said to have been reported on 2.7.21 and that the incident is said to have been committed between January and February 2021. It is not clear what the actual grievance in respect of the cited dates is. The record shows that when the birth certificate was produced by PW4, the Appellant did not raise the issue he now raises in cross examination. He did not also challenge the Complainant’s testimony that she was 15 years old when he cross examined her. When he was cross examined by the prosecutor, the Appellant himself stated that the Complainant was 15 years old. His claim that the ingredient of age was not established therefore rings hollow. The Court accordingly finds that based on the testimony of the Complainant and PW3 as well as the exhibited birth certificate, the age of the Complainant was 15 years at the time of the incident. The test of age was thus established.
  3. As regards the test of penetration, the evidence on record shows that the complainant admitted to her father PW3 that she was pregnant. She further stated that she gave birth to a baby boy on on 7.10.21. Additionally, Upon examination at the Marakani Sub-county Hospital by PW1, her genitalia was found to be unkempt and she had no hymen. A pregnancy test at the lab confirmed her pregnant. A scan further confirmed that the Complainant the pregnancy was 25 weeks and 5 days old. He filled in the P3 form which he produced together with the OB scan, lab request and treatment notes. He concluded that this was a case of pregnancy secondary to defilement. In light of the foregoing, I find that the fact of penetration was proved.
  4. The Appellant submitted that the charge sheet stated that the offence happened on diverse dates between 1.1.21 and 1.2.21 while the Complainant stated that she started a relationship with him in January 2021. His case is that this was a contradiction. The Appellant further submitted that the Complainant’s testimony that she realized she was pregnant in February 2021 but that PW3 stated that he suspected in May 2021 that the Complainant was pregnant which was confirmed in June 2021. He contended that these were contradictions.
  5. The Court has considered the arguments of the Appellant on the apparent contradictions. However, while the same are acknowledged, the Court finds that they are insignificant that they cannot render the prosecution evidence unreliable or negate the fact that the Complainant was defiled. They are also not sufficient ground to quash the conviction. In this regard, I am guided by the decision in Willis Ochieng Odero vs. Republic [2006] eKLR, where the Court of Appeal held:

As for the contradictions in the prosecution evidence it may be true that such contradictions, particularly with regard to the date indicated on the P3 form as the date of the offence, is different.  But that per se is not a ground for quashing the conviction in view of the provisions of section 382 of the Criminal Procedure Code.

  1. On identification, the Appellant faulted both the prosecution and the trial court for not ordering a DNA test to be done on the child to establish paternity. It was submitted that to ascertain that the penetration by the Appellant resulted in the pregnancy, a DNA test on the child and himself ought to have been done to clear any doubts. The Respondent countered the Appellant’s argument by submitting that there is no legal requirement of DNA to prove penetration. Further that failure to conduct DNA does not fault the finding of the trial court. Reliance was placed on the case of AML v Republic [2012] eKLR.
  2. Section 36(1) of the SOA Offences Act empowers a Court to direct that an accused person be subjected to a DNA test to ascertain whether or not such person committed an offence as follows:

Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence.

  1. I concur with Odero, J. who in the case of AML v Republic (supra) stated that the fact of rape or defilement is not proved by way of a DNA test but by way of evidence. I am further fortified by the holding in Evans Wamalwa Simiyu v Republic [2016] eKLR, where the Court of Appeal while noting that the fact of rape or defilement is not proved by way of a DNA test but by way of evidence, stated that the Court’s power under Section 36(1) is discretionary and there is no mandatory obligation on the court to order DNA testing in each case.
  2. The tenor in the case of Dennis Osoro Obiri v Republic [2014] eKLR is similar. The Court of Appeal stated:

We do not see the reason why the principle should be different in a charge of defilement. The same view was repeated by this Court in GEOFFREY KIOJI VS REPUBLIC, Crim. App. No. 270 of 2010 (Nyeri) where the Court stated:

“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”

  1. The circumstances of this case are that the Complainant was defiled but did not disclose the fact of defilement at the time it happened. It is only after her father PW3 learnt that the Complainant was pregnant and that she said that the Appellant was responsible that the matter was reported to the police.   According to PW1 who examined the Complainant, she was found to be 25 weeks and 5 days weeks pregnant. The fact of defilement is not disputed as the Complainant was indeed pregnant. He concluded that this was a case of pregnancy secondary to defilement. 
  2. The testimony of the Complainant is that the Appellant was her lover, and that their sexual relationship began in January 2021. She used to go to his house in the afternoons whenever sent to the shops and they would have sex. She ended up getting pregnant.
  3. In the case of Nehemiah Kiplangat Ngeno v Republic [2018] eKLR Ngugi, J (as she then was) stated:

The fact that a child goes to a man’s house and has consensual sex with him does not take away criminal liability from the adult. The law is that a child below the age of 18 has no capacity to consent to sex.  Secondly, an adult is deemed to know that it is unlawful to engage in sexual conduct with a child. An adult who engages in sex with such a child commits the offence termed defilement.

  1. At the time of the incident, the Appellant was an adult while the Complainant was a child, a fact he readily admitted. While the Court notes from the evidence that it is the Complainant who used to go to the Appellant’s house and had consensual sex with him, she was a child with no capacity to consent to sex, while he was an adult. As an adult, he ought to have known better than to engage in sexual conduct with a child. The Appellant cannot therefore be absolved from criminal liability for committing the offence of defilement.
  2. The law is that when an offence including the offence of defilement is committed, it must be punished and a person who commits a crime is upon conviction subjected to the penal provisions of the law.
  3. In the end, after reevaluating the evidence, my finding is that the Appellant was properly convicted and sentenced. Accordingly, both the conviction and sentence are upheld and the Appeal being devoid of merit is hereby dismissed. 

DATED SIGNED and DELIVERED in MALINDI this 18th day of October 2024

_____________________

M. THANDE 

JUDGE

    RICHARD NGOWA ZIRO VS The Republic RICHARD NGOWA ZIRO VS The Republic