(Being an Appeal from the Judgement and Sentence at the Principal Magistrate’s Court in Keroka, MCSO E049 of 2022 delivered by Hon. C. Ombija, Senior Resident Magistrate delivered on 8 th June 2023)
The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act. The particulars of the charge were that on 31 st July 2022, at Kijauri area in Borabu Sub-County within Nyamira County, intentionally caused his penis to penetrate the vagina of J.O. (particulars withheld) a child aged 16 years.
The Appellant also faced the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars of the charge were that on 31 st July 2022, at Kijauri area in Borabu Sub-County within Nyamira County, intentionally touched the vagina of J.O. (particulars withheld) a child aged 16 years.
The Appellant pleaded not guilty to both charges and a trial was conducted in which the Prosecution called a total of four (4) witnesses.
A summary of the Prosecution’s case was that on 29 th July 2022, the complainant ( PW1) J.O.N (particulars withheld) met the Appellant on her way from school. The Appellant asked her to accompany him to a home where she spent the night with one Mariam. She met the Appellant the following day at a bar in Mochenwa where they drank alcohol. The Complainant’s cousin, one Supa, came and tried to take her away but the Appellant refused and started a fight with the said Supa.
The Appellant later escorted the Complainant to the house of Miriam where she spent the night. The Complainant claimed that the Appellant came back the following day and defiled her. The Complainant claimed that she returned home after the incident and that her mother escorted her to the Police Station and later, to Keroka Sub-County Hospital for medical examination. The Complainant reported that it was the Appellant who had sex with her and that it happened only once.
PW2, JK ( particulars withheld ), the Complainant’s mother testified that PW1 disappeared from home on 27 th July 2022 after which they mounted a search for her several days before she resurfaced on 1 st August 2022. The Complainant informed PW2 that she had been with the Appellant at a bar. She reported the matter to the police.
PW3, Edna Muchoki , a Clinical Officer at Keroka Sub-County Hospital produced the victim’s P3 Form (P.Exh4). She examined the victim on 2 nd August 2022 and noted that her external genitalia was normal with no spermatozoa, her hymen was absent but not freshly torn, there were no bruises noted on the labia majora and pregnancy test was negative. She did not examine the Appellant as he was not brought to their facility. She produced the victim’s treatment notes (P.Exh2) and PRC Form (P.Exh3).
PW4, No. 247270 P.C. Daniel Obiero , recorded the witness statements and escorted the victim to the hospital for examination and treatment. He explained that the Appellant presented himself to the police station for interrogation. He produced the victim’s birth certificate (P.Exh1).
When placed on his defence, the Appellant gave a sworn testimony and did not call any witnesses. The Appellant explained that he had an altercation with one Lawrence Obonyo at a bar in Mochenwa on 30 th July 2022, and that it was later alleged that he had defiled the Complainant at the said bar. He denied the defilement claim and explained that the village elders had deliberated over the matter.
The Appellant attributed his woes to a vendetta that he had with one Jared Mogaka, PW2’s cousin, who had incited PW2 to implicate him in the case because of a disagreement that they had over a motor cycle purchase. He explained that the said Jared had threatened him and his family while claiming that they were foreigners.
At the close of the case, the trial court found that the Prosecution had not proved its case on the main charge and instead convicted the Appellant of the alternative charge of committing an indecent act with a child. The Appellant was consequently sentenced to serve 10 years’ imprisonment thereby triggering the instant appeal.
The Appeal
Aggrieved by the conviction and sentence, by the trial court, the Appellant filed the instant appeal vide a homemade Petition of Appeal dated 10 th January 2024. He listed the following grounds of appeal: -
THAT the trial magistrate erred in both law and facts by convicting the Appellant to ten years’ imprisonment without considering that the offence of defilement was not proved beyond any reasonable doubt thus making his conviction unsafe.
THAT the trial magistrate further erred in both law and facts by convicting the Appellant to ten years’ imprisonment despite the graving (sic) contradictions and inconsistencies thus making his conviction unsafe.
THAT the trial magistrate further erred in both law and facts by convicting the appellant without observing that the medical report tendered by the Prosecution side had exonerated him from the act.
THAT the learned trial magistrate erred both in law and facts by convicting the appellant using shoddy and scanty investigation evidence from the Prosecution side.
The Appeal was canvassed by way of written submissions which I have considered.
The Respondent conceded to the Appeal and noted that crucial prosecution witnesses were not called to testify, in particular, the victim’s cousins Mariam and Supa who were allegedly with her during the period that she had disappeared from home. The Respondent also noted that the area Chief, who had allegedly received a missing person’s report, was also not called to testify so as to corroborate the testimonies of PW1 and PW2.
Mr. Chirchir, Learned Prosecution Counsel cited Section 143 of the Evidence Act on the Prosecution’s discretion to call witnesses. He submitted that the trial court imported extraneous matters that were not canvassed during the trial and that the trial court was determined to convict the Appellant by all means thus explaining the decision to convict him on the alternative charge.
The duty of a first appellate court was addressed in the case of John Oketch Abongo vs. Republic [2000] eKLR where the Court of Appeal held thus: -
“The duty of a first appellate court in regard to the evidence and facts is now settled in law. It is required to subject the evidence to fresh and independent analysis and, in appropriate circumstances, even to make its own independent findings and conclusions. In doing so however, the first appellate court must bear in mind that it has only the record and has not enjoyed the advantage of seeing and observing witnesses under testimony.”
I have considered the Record of Appeal and the parties’ submissions. I find that even though the Respondent conceded to the appeal, this court is still under a duty to consider the merits of the appeal in order to arrive at its own independent findings. I find that the main issues for determination are: -
Whether the Prosecution proved the charge of committing an indecent act with a child to the required standard.
Whether the sentence imposed by the trial Court was legal and appropriate.
Whether the trial Court erred in convicting the Appellant on the alternative charge of indecent act.
The trial court found that the prosecution did not proved the charge of defilement and went ahead to convict the Appellant on the alternative count of committing an indecent act with a child. The trial court held as follows: -
“The accused was in the company of the minor for 2 nights and they slept together having been in a relationship. Sex is a secret and following the evidence adduced in this matter raises a reasonable doubt if the act of penetration actually occurred and therefore the main charge of defilement cannot stand for it has not been proved to the criminal standards of beyond reasonable doubt. However, the veracity of the evidence is deficient to find the accused capable (sic) of the alternative charge of committing an indecent act with a child aged 16 years. I am therefore satisfied that the Prosecution has discharged its burden of proof vis-à-vis the alternative charge and therefore discharge him in the main charge but convict him on the alternative charge….”
I find that the trial court erred when it found that the Prosecution had not proved its case on the main charge but had proved the alternative charge when its own analysis pointed to the fact that penetration was not proved.
Section 2 of the Sexual Offences Act (the Act) provides: -
"indecent act" means any unlawful intentional act which causes—(a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;
(b)exposure or display of any pornographic material to any person against his or her will;
I have perused the trial court’s record and I note that no material was presented to show that the Appellant and the victim spent the night together or that the Appellant may have committed acts that fall under Section 2 of the Act. I note that apart from the Complainant’s claim that she had sex with the Appellant, which claim the trial Court found to have fallen short of the level of proof expected in a defilement case, no other evidence was presented to support the allegation that the Appellant touched her in a manner that could be said to be an indecent act.
I therefore find that a conviction for the alternative charge was not safe as it was be based on extraneous matters that were not supported by any tangible evidence. I find guidance in the decision in the case of Paul Otieno Okello vs Republic [2019] eKLR where it was held as follows: -
“As to whether there was any contact between any body part of the appellant with the genital organ, breast or buttocks of the complainant which act however did not cause any penetration, I must say that I have re-read the proceedings severally and did not see anywhere where the complainant alleged that the appellant touched her genital organ, breast or buttocks. The complainant talked of the appellant having had sex with her twice, an allegation which the trial court rejected for lack of proof and no appeal was lodged against the finding. The complainant was not lead to describe how the sexual act unfolded and which part of her body was touched by which part of the body of the appellant. With such state of evidence, I do not see how the offence of committing an indecent act with a child was proved. A trial court should not assume that once it finds no evidence of commission of the principal charge of defilement then the lesser charge of committing an indecent act with a child must have been committed. Every offence has the same threshold of being proved beyond any reasonable doubt.”
In sum, I find that the alternative charge of indecent act with a child was not proved beyond reasonable doubt. This finding would have been sufficient to determine this appeal but I am still minded to consider the issue of failure to call material prosecution witnesses.
The victim introduced two key witnesses namely; Mariam and Supa. She alleged that she was in the company of the said Mariam and Supa during the entire period that she was reported to be missing from home. The said witnesses were however not called to testify thereby dealing a fatal blow to the prosecution’s case.
Section 143 of the Evidence Act provides that the Prosecution is not required to call a superfluity of witnesses but only those who are necessary to prove a charge against an accused person. It states as follows: -
143. Number of witnesses.
No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
In Michael Kinuthia Muturi vs. R CRA 51 of 2002 (NRI) the Court of Appeal stated thus: -
“Although no particular number of witnesses is required to prove a fact, the failure to call certain witnesses in the instances where the evidence on record is not sufficient to sustain a conviction will attract adverse inference. However, in the instant case, the evidence on record was sufficient and therefore the omission by the prosecution to call the elders and the investigating officer attracted no adverse inference.”
In contrast, the Eastern African Court of Appeal in Oloro and Daltanyi vs. Reginam [1956] 23 23 EACA 49 held thus: -
“Prosecution have a duty to call material witnesses. If they fail, the presumption is that if the evidence had been called that evidence would have been unfavourable to prosecution.”
Having found that the offence on the alternative charge was not proved to the required standard, I find that the issue of the legality and appropriateness of the sentence passed by the trial court is now moot.
For the reasons that I have stated in this judgment, I find that the instant Appeal is merited and I therefore allow it by quashing the conviction and setting aside the sentence passed by the trial court. I direct that the Appellant be set at liberty forthwith unless he is otherwise lawfully held.
It is so ordered.
The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act. The particulars of the charge were that on 31 st July 2022, at Kijauri area in Borabu Sub-County within Nyamira County, intentionally caused his penis to penetrate the vagina of J.O. (particulars withheld) a child aged 16 years.
The Appellant also faced the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars of the charge were that on 31 st July 2022, at Kijauri area in Borabu Sub-County within Nyamira County, intentionally touched the vagina of J.O. (particulars withheld) a child aged 16 years.
The Appellant pleaded not guilty to both charges and a trial was conducted in which the Prosecution called a total of four (4) witnesses.
A summary of the Prosecution’s case was that on 29 th July 2022, the complainant ( PW1) J.O.N (particulars withheld) met the Appellant on her way from school. The Appellant asked her to accompany him to a home where she spent the night with one Mariam. She met the Appellant the following day at a bar in Mochenwa where they drank alcohol. The Complainant’s cousin, one Supa, came and tried to take her away but the Appellant refused and started a fight with the said Supa.
The Appellant later escorted the Complainant to the house of Miriam where she spent the night. The Complainant claimed that the Appellant came back the following day and defiled her. The Complainant claimed that she returned home after the incident and that her mother escorted her to the Police Station and later, to Keroka Sub-County Hospital for medical examination. The Complainant reported that it was the Appellant who had sex with her and that it happened only once.
PW2, JK ( particulars withheld ), the Complainant’s mother testified that PW1 disappeared from home on 27 th July 2022 after which they mounted a search for her several days before she resurfaced on 1 st August 2022. The Complainant informed PW2 that she had been with the Appellant at a bar. She reported the matter to the police.
PW3, Edna Muchoki , a Clinical Officer at Keroka Sub-County Hospital produced the victim’s P3 Form (P.Exh4). She examined the victim on 2 nd August 2022 and noted that her external genitalia was normal with no spermatozoa, her hymen was absent but not freshly torn, there were no bruises noted on the labia majora and pregnancy test was negative. She did not examine the Appellant as he was not brought to their facility. She produced the victim’s treatment notes (P.Exh2) and PRC Form (P.Exh3).
PW4, No. 247270 P.C. Daniel Obiero , recorded the witness statements and escorted the victim to the hospital for examination and treatment. He explained that the Appellant presented himself to the police station for interrogation. He produced the victim’s birth certificate (P.Exh1).
When placed on his defence, the Appellant gave a sworn testimony and did not call any witnesses. The Appellant explained that he had an altercation with one Lawrence Obonyo at a bar in Mochenwa on 30 th July 2022, and that it was later alleged that he had defiled the Complainant at the said bar. He denied the defilement claim and explained that the village elders had deliberated over the matter.
The Appellant attributed his woes to a vendetta that he had with one Jared Mogaka, PW2’s cousin, who had incited PW2 to implicate him in the case because of a disagreement that they had over a motor cycle purchase. He explained that the said Jared had threatened him and his family while claiming that they were foreigners.
At the close of the case, the trial court found that the Prosecution had not proved its case on the main charge and instead convicted the Appellant of the alternative charge of committing an indecent act with a child. The Appellant was consequently sentenced to serve 10 years’ imprisonment thereby triggering the instant appeal.
The Appeal
Aggrieved by the conviction and sentence, by the trial court, the Appellant filed the instant appeal vide a homemade Petition of Appeal dated 10 th January 2024. He listed the following grounds of appeal: -
THAT the trial magistrate erred in both law and facts by convicting the Appellant to ten years’ imprisonment without considering that the offence of defilement was not proved beyond any reasonable doubt thus making his conviction unsafe.
THAT the trial magistrate further erred in both law and facts by convicting the Appellant to ten years’ imprisonment despite the graving (sic) contradictions and inconsistencies thus making his conviction unsafe.
THAT the trial magistrate further erred in both law and facts by convicting the appellant without observing that the medical report tendered by the Prosecution side had exonerated him from the act.
THAT the learned trial magistrate erred both in law and facts by convicting the appellant using shoddy and scanty investigation evidence from the Prosecution side.
The Appeal was canvassed by way of written submissions which I have considered.
The Respondent conceded to the Appeal and noted that crucial prosecution witnesses were not called to testify, in particular, the victim’s cousins Mariam and Supa who were allegedly with her during the period that she had disappeared from home. The Respondent also noted that the area Chief, who had allegedly received a missing person’s report, was also not called to testify so as to corroborate the testimonies of PW1 and PW2.
Mr. Chirchir, Learned Prosecution Counsel cited Section 143 of the Evidence Act on the Prosecution’s discretion to call witnesses. He submitted that the trial court imported extraneous matters that were not canvassed during the trial and that the trial court was determined to convict the Appellant by all means thus explaining the decision to convict him on the alternative charge.
The duty of a first appellate court was addressed in the case of John Oketch Abongo vs. Republic [2000] eKLR where the Court of Appeal held thus: -
“The duty of a first appellate court in regard to the evidence and facts is now settled in law. It is required to subject the evidence to fresh and independent analysis and, in appropriate circumstances, even to make its own independent findings and conclusions. In doing so however, the first appellate court must bear in mind that it has only the record and has not enjoyed the advantage of seeing and observing witnesses under testimony.”
I have considered the Record of Appeal and the parties’ submissions. I find that even though the Respondent conceded to the appeal, this court is still under a duty to consider the merits of the appeal in order to arrive at its own independent findings. I find that the main issues for determination are: -
Whether the Prosecution proved the charge of committing an indecent act with a child to the required standard.
Whether the sentence imposed by the trial Court was legal and appropriate.
Whether the trial Court erred in convicting the Appellant on the alternative charge of indecent act.
The trial court found that the prosecution did not proved the charge of defilement and went ahead to convict the Appellant on the alternative count of committing an indecent act with a child. The trial court held as follows: -
“The accused was in the company of the minor for 2 nights and they slept together having been in a relationship. Sex is a secret and following the evidence adduced in this matter raises a reasonable doubt if the act of penetration actually occurred and therefore the main charge of defilement cannot stand for it has not been proved to the criminal standards of beyond reasonable doubt. However, the veracity of the evidence is deficient to find the accused capable (sic) of the alternative charge of committing an indecent act with a child aged 16 years. I am therefore satisfied that the Prosecution has discharged its burden of proof vis-à-vis the alternative charge and therefore discharge him in the main charge but convict him on the alternative charge….”
I find that the trial court erred when it found that the Prosecution had not proved its case on the main charge but had proved the alternative charge when its own analysis pointed to the fact that penetration was not proved.
Section 2 of the Sexual Offences Act (the Act) provides: -
"indecent act" means any unlawful intentional act which causes—(a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;
(b)exposure or display of any pornographic material to any person against his or her will;
I have perused the trial court’s record and I note that no material was presented to show that the Appellant and the victim spent the night together or that the Appellant may have committed acts that fall under Section 2 of the Act. I note that apart from the Complainant’s claim that she had sex with the Appellant, which claim the trial Court found to have fallen short of the level of proof expected in a defilement case, no other evidence was presented to support the allegation that the Appellant touched her in a manner that could be said to be an indecent act.
I therefore find that a conviction for the alternative charge was not safe as it was be based on extraneous matters that were not supported by any tangible evidence. I find guidance in the decision in the case of Paul Otieno Okello vs Republic [2019] eKLR where it was held as follows: -
“As to whether there was any contact between any body part of the appellant with the genital organ, breast or buttocks of the complainant which act however did not cause any penetration, I must say that I have re-read the proceedings severally and did not see anywhere where the complainant alleged that the appellant touched her genital organ, breast or buttocks. The complainant talked of the appellant having had sex with her twice, an allegation which the trial court rejected for lack of proof and no appeal was lodged against the finding. The complainant was not lead to describe how the sexual act unfolded and which part of her body was touched by which part of the body of the appellant. With such state of evidence, I do not see how the offence of committing an indecent act with a child was proved. A trial court should not assume that once it finds no evidence of commission of the principal charge of defilement then the lesser charge of committing an indecent act with a child must have been committed. Every offence has the same threshold of being proved beyond any reasonable doubt.”
In sum, I find that the alternative charge of indecent act with a child was not proved beyond reasonable doubt. This finding would have been sufficient to determine this appeal but I am still minded to consider the issue of failure to call material prosecution witnesses.
The victim introduced two key witnesses namely; Mariam and Supa. She alleged that she was in the company of the said Mariam and Supa during the entire period that she was reported to be missing from home. The said witnesses were however not called to testify thereby dealing a fatal blow to the prosecution’s case.
Section 143 of the Evidence Act provides that the Prosecution is not required to call a superfluity of witnesses but only those who are necessary to prove a charge against an accused person. It states as follows: -
143. Number of witnesses.
No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
In Michael Kinuthia Muturi vs. R CRA 51 of 2002 (NRI) the Court of Appeal stated thus: -
“Although no particular number of witnesses is required to prove a fact, the failure to call certain witnesses in the instances where the evidence on record is not sufficient to sustain a conviction will attract adverse inference. However, in the instant case, the evidence on record was sufficient and therefore the omission by the prosecution to call the elders and the investigating officer attracted no adverse inference.”
In contrast, the Eastern African Court of Appeal in Oloro and Daltanyi vs. Reginam [1956] 23 23 EACA 49 held thus: -
“Prosecution have a duty to call material witnesses. If they fail, the presumption is that if the evidence had been called that evidence would have been unfavourable to prosecution.”
Having found that the offence on the alternative charge was not proved to the required standard, I find that the issue of the legality and appropriateness of the sentence passed by the trial court is now moot.
For the reasons that I have stated in this judgment, I find that the instant Appeal is merited and I therefore allow it by quashing the conviction and setting aside the sentence passed by the trial court. I direct that the Appellant be set at liberty forthwith unless he is otherwise lawfully held.
It is so ordered.