This is an appeal from the judgment delivered by Hon. P. C. Biwott – SPM on 30.1.2024 in Ogembo Magistrate’s court in Sexual Offence case No. E136 of 2021 where the Appellant Samwel Omange was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offence Act No. 3 of 2006.
The particulars of the charge were that on diverse days between 24th and 26th December, 2021 at Bonyagwanga Sub location in Gucha South Sub County within Kisii County the Appellant intentionally caused his penis to penetrate the vagina of S. N. O. a child aged 11 years.
The trial magistrate considered the evidence of 4 prosecution witnesses and the Appellants sworn evidence and concluded that the charge of defilement had been proved beyond all reasonable doubt and convicted the Appellant and subsequently sentenced him to serve 25 years imprisonment.
Through his Advocates M/s Sagwe & Co Advocates the Appellant lodge the appeal herein vide Petition of Appeal dated 12.2.2024 on the following grounds: -
- That the learned trial magistrate erred in law and fact in not appreciating evidence on record indicating that the accused/Appellants fundamental rights under Article 49(1)(f) was gravely violated and making no finding on such violation.
- The learned trial magistrate erred in relying on the complainants unsworn statement evidence holding that she was truthful and inspiring confidence and holding her as a credible witness against the weight of evidence and completely ignoring the worthless contradictory and discredited evidence of the complainant and other prosecution witnesses.
- The learned trial magistrate erred in law and fact in selectively impugning the prosecution’s evidence and giving credence to the same testimonies and holding irrelevant evidence which was material profound and favourable to the Appellant
- The learned trial magistrate erred in failing to make determination that the prosecution failure to call key witnesses mentioned by the complainant in her testimony ought to have led to an adverse inference that if such evidence was adduced it would have been in favour of the accused.
- The Appellant’s conviction is against the weight of evidence and the trial magistrate erred in fact and law by ignoring or not sufficiently and not judiciously appreciating the inconsistent and contradictions evidence of the complainant and other relevant witnesses who told numerous untruths were cunningly unreliable and evasive forgetful and contradictory on material aspects.
- The learned trial magistrate erred in fact and in law by not giving any adequate considerations and rejecting, ignoring and not appreciating the sworn and unchallenged evidence of the Appellant and not considering the defence of the Appellant judiciously and in its totality.
- The learned trial magistrate erred in not giving any sufficient consideration to the Appellant’s sworn evidence when considering defence and shifted onto the accused to prove his innocence.
- That the sentence imposed was manifestly excessive and harsh by not considering that the Appellant was 1st time offender.
Reasons whereof the Appellant prayed that the Appeal be allowed, the conviction be quashed and sentence set aside.
Directions for hearing of the Appeal were taken on 9.10.24 when the appeal was admitted to the effect that the appeal be canvassed by way of written submissions.
The Appellant’s submissions dated 17th December, 2024 are to the effect that a missing broken hymen is not proof of penetration through sexual act as was held in PKW =vs= Republic (2012) eKLR. That it was upon the Prosecution to establish beyond a reasonable doubt that the complainants’ hymen was torn by an act of defilement by the Appellant.
It was submitted that the trial court in analysing the ingredient of penetration grossly misdirected himself by basing his determination on evidence that was never tendered before him that there was penetration when the doctor testified and said there was no lacerations and bruises and therefore the conclusion that there was frictions and bruising in the vagina walls was erroneous.
The Appellant’s counsel submitted that there was doubt that the complainant was defiled and the doubt should be resolved in favour of the appellant.
The appellant’s counsel further submitted that there were contradictions on the prosecution’s evidence as to the hospital where the complainant was taken for treatment, whether Nyamarambe or Nduru Sub County Hospital.
The Respondent Advocate that another contradiction was the number of people who are alleged to have defiled the complainant as she reported to the police and Medical officer – PW3 and PW4.
It was argued that the contradictions in the complainant’s testimony raises doubt and without corroboration there is confusion as to what is the truth.
The Appellant counsel cited the holding in Bernard Kebiba =vs= Republic (2000) eKLR and Benjamin Mugo Mwangi and Another =vs= Republic (1984) eKLR to support his position that corroboration is required in sexual offences with a proviso that where there is no corroborations an accused may still be convicted but the trial Magistrate must warn himself of the dangers of acting on uncorroborated evidence.
The Appellant’s counsel also cited the Nigerian case of Igbine =vs= The State (1997) where corroboration is defined and Makungu =vs= Republic (2002) 2 EA 482 where an elaborated definition is given by the East Africa Court of Appeal.
It was the Appellant’s contention that there was no material evidence corroborating the Prosecution’s evidence to confirm, ratify, verify or validate the evidence against the accused.
Further submission is that the trial Magistrate believed the evidence of the complainant rather than the truth of the same. The holding by Warsame J (as he then was) in Jon Cardon Wagner =vs= Republic & 2 Other (2011) e KLR and Ayub Muchele =vs= Republic (1980) KLR 44 was cited in support of the argument that the trial Magistrate ought to have established and made a finding as to truthfulness of the complainants evidence. That the trial Magistrate having failed
to make finding to truthfulness of complainant’s evidence as against that of PW3 and PW4 made the said evidence fall short of the proof required for the offence herein.
That a further contradiction is that the prosecution failed to call a crucial witness namely Obadiah who PW4 said was involved in the crime. That there was also the grandmother of the complainant who it is claimed she had visited.
The Appellant’s counsel faulted the trial Magistrate for failing to follow precedent of the court of Appeal in Hamisi Bakari and Another =vs= Republic (1987) eKLR as to heavy minimum sentence where the issues are not clear.
The brief submissions by Respondent dated 2/1/2025 oppose the Appeal saying that all the ingredients of the offence of defilement had been proved beyond all reasonable doubt. That the child’s evidence was corroborated by the Clinical Officer PW3 who produced the treatment notes and P3 Form.
It was also submitted that the Appellant was properly identified as the perpetrator of the offence of defilement.
On the issue of sentence of 25 years imprisonment, it was submitted that Section 8 (2) of the Sexual Offences Act prescribed a sentence of life imprisonment. The Respondent’s counsel cited the Supreme Court decision in Republic =vs= Mwangi Initiative for Strategic Litigation in Africa (ISLA) and 3 Others Petition No. E018 OF 2023 (2024) KESC 34 in which the Court affirms the duty of the trial court to sentence based on the provisions of the Act.
The Respondent’s counsel urged the court to dismiss s the Appeal.
ANALYSIS AND DETERMINATION
The duty of a first Appellate Court as held in Peters vs. Sunday Post (1958) E.A. 424, and in the case of Mark Oururi Mose vs. Republic (2013) eKLR is that the, Court should revisit the evidence tendered before the trial court a fresh, evaluate it, analyse it and come to its own independent conclusion on the matter while bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and heard them give evidence and give allowance for that.
Having considered the evidence in the trial court, the judgment of the trial magistrate, the grounds of appeal and the rival submissions the issues for determination are:-
- Whether the Appellant’s fundamental right under Article 49 (1) (f) of the Constitution was violated.
- Whether the complainant’s evidence was properly taken being she was a child of tender years aged 12 years only.
- Whether the prosecution failed to avail crucial witnesses mentioned by the complainant in her testimony.
- Whether the evidence tendered by the prosecution was riddled with inconsistencies and contradictions.
- Whether the trial magistrate failed to consider the Appellants defence.
- Whether the sentence passed was manifestly harsh and excessive in the circumstances.
To start with the issue of age the complainant was 11 years old at the time she was alleged to have been defiled between 24th and 26th December, 2021 and therefore by the time she was testifying the trial court ought to have conducted voire dire examination to determine whether the complainant understood the importance of giving evidence on oath under Section 19 of the Oaths and Statutory Declarations Act or even, whether the complainant knew the importance of telling the truth and consequences of lying in court as was held in the case of Kibangen Arap Korir vs. Republic 1951.
I have seen that the trial magistrate indicated that voire dire examination was being conducted but there is no conclusion as to whether the child was intelligent enough to appreciate the importance of telling the truth or understood the nature of the Oath. However, the law is that absence of voire dire examination is not automatically fatal to the evidence of a witness as observed by the Court of Appeal in Marriott Lokomok vs. Republic (2016) EKLR where it was held:-
“We turn to consider the effect of failure by the trial court to administer voire dire on the complainant. It is firmly settled that not all cases that voire dire is not administered properly the entire trial would be vitiated.……the question will depend on the peculiar circumstances and particular facts of each case.
In Athumani Ali Mwinyi vs. Republic – Criminal Appeal No. 11 of 2015 it was stated that in appropriate case where voire dire is not conducted but there is sufficient independent evidence to support the change the court may still be able to uphold conviction.
In Samuel Warui Karimi vs Republic [2016] eKLR where the court failed to conduct voir dire examination on a complainant aged 12 years, the Court of Appeal held that her evidence was not properly taken and the conviction was unsafe.
In the case of Haji vs. Republic like in this instant case J. N. Njagi J found that the independent evidence required is that which connects or tends to connect the Appellant to the offence in the commission of the crime. The clinical officer found that the complainant was defiled her. The Appellant confirmed that the complainant whom he alleged was a friend to his sister was at their home on the material night. This places the Appellant and the complainant at the scene of the offence and thus makes this court find that this was sufficient independent evidence to support a finding that the Appellant committed the offence despite failure to conduct voir dire examination.
On the issue as to whether the Appellants fundamental rights under Article 49 (1) (h)was violated it was said that he remained in custody for more than 24 hours. The charge sheet shows the Appellant was arrested on 26.12.2021 and arraigned in court on 30.12.2021.
According to the calendar for 2021, 26.12.2021 was a Sunday and 30.12. 2021 was as a Thursday. It is therefore true that there was an unexplained delay to arraign the Appellant in Court. This issue however, ought to have been raised with the trial court to establish the reason as to the delay in arraign the Appellant in court within 24 hours. On the other hand, although the Appellant’s Constitutional Rights was violated by the investigating officer that cannot vitiate the right of the victim herein as she is also entitled to the Courts protection where it has been established that she was sexually abused. The Appellant is at liberty take up a Constitutional Petition to remedy the violation against him.
On whether the prosecution failed to call crucial witnesses. The Criminal Procedure Code does not specify a minimum number of witnesses required to prove a case. The law focuses on the quality of the evidence and a guilty verdict can be reached on the testimony of a single witness. In Section 143 of the Evidence Act it is provided that no particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.
In Julius Kalewa Mutunga vs. Republic the Court of Appeal held that whether a witness should be called is a matter within the discretion of the prosecution and an appeal court will not interfere with the exercise of that discretion unless it is shown that the prosecution was influenced by some oblique motive.
In Bukenya & Others vs. Uganda the East Africa Court of Appeal held that the prosecution is not expected to call a superfluity of witnesses.
In the instant case the complainant said that the Appellants wife was nit I the house that day and his parents were in a different house, she also said that the Appellants brothers and sisters were not in the house she was taken to. The investigating officer explained that the Appellant was the first to have sex with the complainant after luring her for super and that on the second day he escorted her to Obadiah’s place. According to PW4 the said Obadiah was a minor and was therefore counseled and released. According to the Appellant he was with Obadiah on the material night and that when he fell sick he took him over to his mother. Obadiah was also a suspect and for reasons given by PW4 he was released. Failure to call him as a witness does not exonerate the Appellant from the offence committed.
On sentence the Appellant was sentenced to serve 25 years hail term instead of life imprisonment. I consider that the trial magistrate exercised his discretion to give a determinate sentence following the Court of Appeal in Julius Kitsao Manyeso vs. Republic – Malindi Cr. Appeal No. 12 od 2021 (2023) KECA 827 (KLR). The sentence is therefore not harsh and excessive as alleged.
In conclusion this Court finds that the Appeal lacks merit and the sentence and conviction are upheld. Right of Appeal within 14 days is explained to the Appellant.
DELIVERED, DATED and SIGNED at MIGORI this 10th day of January, 2025.