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Introduction
1. The Appellant was charged with defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between 20th August 2020 and 21st September 2021 at Makosi shopping centre in Kibwezi Sub-County within Makueni County, he intentionally and unlawfully caused his male genital organ namely penis to penetrate the female genital organ namely vagina of B.M.M, a girl child aged 16 years.
2. In the alternative, he was charged with Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that during the same period and at the same place, the Appellant intentionally and unlawfully caused his male genital organ namely penis to touch the female genital organ namely vagina of B.M.M, a girl child aged 16 years.
3. The Appellant pleaded not guilty and after a full trial, the learned trial magistrate found him guilty and convicted him on the main charge and sentenced him to 7 years imprisonment.
The Appeal
4. Aggrieved by that decision, the Appellant filed this appeal on the following grounds;
a) That the learned trial magistrate erred in both law and fact by convicting and sentencing him without observing that the charges were defective for being at variance with the evidence on record.
b) That the learned trial magistrate erred in both law and fact for presiding over a trial based on illegality by admitting and considering evidence obtained through torture or inhuman and degrading treatment contrary to the law.
c) That the learned trial magistrate erred in both law and fact by convicting him without considering that there was no evidence to prove either penetration or indecent act without which the prosecution could not prove their case against the Appellant to the required standard in law of beyond reasonable doubt.
d) That the learned trial magistrate erred in both law and fact by failing to apply section 124 of the Evidence Act and failing to appreciate that the prosecution’s evidence was greatly uncorroborated and was full of explicit inconsistencies and marred with contradictions and hence also erred by shifting the burden of proof and prejudicing him greatly.
e) That the learned trial magistrate erred in both law and fact when he dismissed his sworn defence and shifted the burden of proof to him in regard to his defence statement.
Summary of the case before the Trial Court
5. The prosecution’s case was that the complainant was a form three student at the material time and the Appellant owned a shop at a location where the complainant would pass on her way home. That on 21/09/2021, the complainant was on her way home from school when the Appellant called her to his shop and offered her milk and biscuits. He then took her to a room at the back of the shop and defiled her. That on 20/08/2020, the complainant had been sent home for school fees and the Appellant had called her to the shop where he tried to defile her but she managed to escape.
6. The prosecution called 4 witnesses to wit; the complainant (PW1), the complainant’s father (PW2), the Doctor (PW3) and the Investigating Officer (PW4). The exhibits produced were; Birth Certificate (P.Ex 1), PRC Form (P.Ex 2), P3 Form (P.Ex 3) and Lab Report (P.Ex 4).
7. The Appellant elected to give sworn evidence and to call one witness. He testified that he used to live in Athi, that he was a farmer and that he used to have a shop which was about 500m from the complainant’s home. That on 20/08/2020, he did not see the complainant as all the children were at home due to covid 19. That there is no way that she could have been sent for fees from Kasikeu school.
8. He said that on the second incident of 21/09/2021 he was at the shop and children pass from school at 5.00pm. That the path leading to the complainant’s home is far away from his shop and he could not manage to call her. That the other children would also have seen. That 21/09/2021 was a Tuesday and a busy market day and passers by could have seen. That the complainant did not leave the shop naked as people would have seen her. He said that his neighbor Mutinda used to visit the shop and would have been the first to see the complainant. That he (Appellant) cannot see the complainant branching to her home from the shop and he has never been arrested for a sexual offence.
9. He said that another person had begun a construction which obstructed his shop from the view of the complainant’s father. That no evidence, linking him to the offence, was produced.
10. On cross examination, he confirmed that the complainant was a student at Kasikeu and that there were two other shops in the area. That her family were no longer his customers as there was a boundaries dispute between them which arose a long time ago. That before the dispute, they were his customers. He confirmed that from Kasikeu, one has to pass by his place first; that on the material day, he was at his shop which he had opened at 6.00am and closed at 6.30pm; that at 4.00pm, the shop was still open and that the children pass at around 5.00-6.00pm.
11. Further, he said that there is a main shop room and another room behind the shop where he resides, that he was at the shop on 21/09/2021 at 6.00pm, that the shop is around 100 meters from the main road and one can use a motor cycle to pass and go to complainant’s home, that when passing on the lower side, the complainant’s father can see his place, that he did not know why the complainant’s father wanted to finish him and his thinking was that the grudge was caused by the boundary , that there was no pending boundary case with the complainant’s path.
12. Further, he said that Sima stayed at the shop and did his work but it was not possible for Sima to see everyone going to the shop all the time. That Sima had gone to Mombasa to sell his wares and would not get to know the customers.
13. He said that he had one dog which he chained behind the door and freed at 6.00pm, that since 2010, he was incapable of being sexually active as he was on treatment for high blood pressure and diabetes, however he did not have treatment notes, that his neighbors at the farm were the complainant’s family and one could see a person passing outside the shop. He said he had grandchildren but denied giving milk to children at the shop. That he used to sell milk, pens, biscuits and bread. That he had a TV and a bed at the back of the shop, and that the child could not have known that he had a TV and a bed in his bedroom.
14. DW2 was James Simo who testified that he lived in Kiyaoni and his work was curving. He lived approximately 500 meters from the Appellant but there was a big valley between them. He said that he knew Paul Munyao as his neighbor. He knew that the appellant had a daughter but he (DW2) did not know her name. he testified that he did his work at his house near the main road and they lived in a triangle like set up. That the complainant in the company of others children would pass near his house around 5:30pm and go to her home but she would not cross to the other side.
15. That on 21/09/2020, the complainant could not have crossed towards the Appellant’s side as she would have passed by his (DW2’s) shop and schools were not ongoing due to corona. That on 20/08/2020, he was just at his place doing his craving work outside from where he could see far. He denied having heard of past cases involving the Appellant and school going children and had never seen the complainant coming from the Appellant’s shop. That one cannot see from the ditch but the road is on top of the cliff.
16. On cross examination, he said that he was making wooden r carvings and bought materials from different sources. That his place and that of the appellant were adjacent and not facing and he could only see the verandah of his shop and not the inside. He said that the appellant had one bicycle and to go to his place had to pass through a ranch he referred to as Mmeru ranch which had trees. He did not know how many children the appellant had. He said he knew the complainant and the other children by appearance. That Kyaoni is near the bridge and from Kasikeu, one uses the same direction.
17. He told the court that he did not see the complainant every day as there were days he was not at work . He confirmed that he did not see her on 20/08/2022 and that on 22/09/2021, he saw her passing at around 5.30pm. He testified that he did not keep a record of the times he saw the complainant passing and could not remember all the activities of the week. Asked what days if the week 20/09/2022 was? He said it was a Wednesday and that 22/09/2021 was a Tuesday. Shown the calendar it turned out that 22/09/2021 was a Monday. He said that on 21/09/2021, he had gone to the Appellant’s shop to pick some few items but only stayed there for 10 minutes and could not tell what the Appellant was left doing. That on 20/08/2020 there was covid and schools were re-opened in 2021. That on 20/08/2020, he was at home and not at the Appellant’s home and could not tell what was happening at the Appellant’s home.
18. The parties elected to canvass the appeal through written submissions and appropriate directions were given.
The Submissions
Submissions by the Appellant
19. The Appellant submitted that the charges were defective for being at great and fatal variance with the evidence tendered in court and the trial court convicted him based on an uncertain charge contrary to the requirement of the law. That according to the charge sheet, the defilement occurred severally between 20/08/2020 and 21/09/2021 hence implying that there was a great deal of varying days in which he defiled the complainant.
20. He submitted that here is no evidence on record showing the alleged defilement on various distinct dates. That according to PW1, nothing happened to her on 20/08/2020 as she managed to escape and wondered why the police quoted the date in the charge sheet. He contended that the police and the prosecution were aware of these dates throughout the trial and the complainant was well aware of the calendar dates. That even the investigation officer conceded that the complainant did not discuss the incident of 2020 in detail. He pointed out the inconsistency in the way the charge sheet was drafted.
21. Citing the legal requirements for drafting a charge sheet he submitted that the police and prosecution were aware but the trial court continued to hear the matter without a regard for a fair trial to him. He submitted that the information in the charge sheet was not adequate as it did not have sufficient detail to let him answer to the charges correctly and to prepare his defence well. That the information on the charge sheet was confusing hence prejudicial to him. He relied on Rattiram-vs- State of M.P. {2012} 4 SCC 516 where the Supreme Court of India ruled: -
“Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favoritism…Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused….."
22. He submitted that the requirement in the above case cannot be met if the accused is forced to answer to an incomplete or unclear or ambiguous charge and then be expected to defend himself accordingly. That both the prosecution and the court had ample opportunity to amend the charge but they failed to use Section 214 of the CPC as would have been expected. He contended that he should get the benefit of doubt for the omission. Further, he submitted that the said errors are not capable of being cured under Section 382 of the CPC because he was exposed to prejudice by being tried for an offence without certainty of when it was committed.
23. The Appellant submitted that PW1’s evidence about the incident of 20/08/2020 was a lie because an executive order was issued on 16/03/2020 leading to the closure of schools due to the Covid 19 pandemic and they were re-opened on 04/01/2021. He contended that the police investigators and the prosecution were aware of this fact but they bought the lie hook, line, and sinker. He submitted that the complainant’s credibility was fatally affected by her lies on oath. That the fact of his ability to tender his defence in court does not take away the prejudice.
24. He submitted that a charge sheet should offer specific particulars of a crime and that failure to clearly frame the charges is a miscarriage of justice and an affront to the rule of law. He relied on Zahira Habibullah Sheikh & another -vs- State of Gujarat & Others AIR 2006 SC 1367 where the Supreme Court of India stated: -
“It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted…… Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, the condemnation should be rendered only after the trial in which the hearing is a real one, not a sham or mere farce and pretense…. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice”
25. He submitted that the defect is not a procedural rule but a critical requirement for a fair hearing which is provided by the constitution and is not limitable. He relied on Isaac Omambia -vs- R [1995] eKLR where the Court of Appeal held that, ‘particulars of a charge and the statement of the offence are an integral part of the charge’.
26. Further, he submitted that the test of whether a charge sheet is fatally defective is substantive rather than formalistic and relied on Willie (William) Slaney-vs-State of Madhya Pradesh (A.I.R. 1956 Madras Weekly Notes 391) where the Supreme Court of India held that ;
“Whatever the irregularity, it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of the guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in the labyrinth of insubstantial technicalities.”
27. The Appellant submitted that he was affected by the confusion caused by the inconsistency of the vague elements indicated in the statement of the charge as framed. That it affected his defence in that he was confused on how to defend himself against the charge and his ability to cross-examine the witnesses was affected too.
28. The Appellant submitted that the complainant’s testimony and statement to the police were obtained under duress contrary to Article 50 (4) of the Constitution of Kenya. He relied on Article 3 of the European Convention on Human Rights (ECHR) for the submission that evidence obtained through torture or inhuman or degrading treatment is not admissible in court. He relied on Gafgen-vs-Germany (2010) where the European Convention on Human Rights court at Strasbourg considered that police officers threatening the applicant with imminent pain for the purpose of extracting information constituted ‘inhuman treatment’ falling under the scope of Article 3 of ECHR.
29. He submitted that PW2 confessed to have beaten PW1 while at home purposely to coerce her to admit to having been defiled. He contended that it was against the law more so when it happened before PW1 could voluntarily decide to report the incident to him. He urged this court to note that the statement at the police station was recorded after the complainant was beaten into submission by her father. That the statement was taken in contravention of the laws governing confessions even though the statement by the complainant was not a confession per se. He relied on Njuguna s/o Kimani & Others –vs- Republic (1954) EA 316 where the former East Africa Court of Appeal held that ‘the trial court has discretion to exclude a statement which has been obtained by improper questioning or improper means.’
30. He submitted that this court is in a position to rectify this serious illegality by giving him the necessary remedy when such a crucial mandatory constitutional provision is violated to his detriment.
31. The Appellant submitted that no evidence of penetration was adduced. That PW1 was 16 years old hence old enough to differentiate good and bad. That according to her own testimony, she managed to run away during the incident of 20/08/2020 and was therefore in a position to know what could have happened if she agreed to voluntarily enter the bedroom. There is a possibility that she never took herself to such a place.
32. Further, he submitted that PW1’s evidence was that she was with a fellow student named Joyce whom the I.O did not interview and the prosecution did not call as a witness. He submitted that further evidence by PW1 was that she ate biscuits and drank milk while allegedly seated on the bed hence she had enough time to decide that it was risky and to leave the shop just as she had allegedly done previously. He wondered why PW1 took the alleged kshs 200/= if she was dissatisfied with the act and contended that if any such money was given, it is indicative of consensual sex instead of a forced sexual encounter.
33. The Appellant wondered why PW1 hesitated to tell her father if indeed she felt pain after the alleged defilement. He questioned why she behaved like someone who was comfortable with it if she did not like what was done to her. That if indeed she ran out carrying her clothes, many people would have noticed as it was a market day. He contended that a critical analysis of here testimony shows that it is shaky, unreliable, and unbelievable.
34. He submitted that the doctor, PW3, concluded that she could not rule out penetration on the date of 21/09/2021. According to the Appellant, the meaning of that conclusion is that the doctor was not sure as to whether there was penetration or not. That consequently, the prosecution cannot be said to have proved their case on the issue of defilement conclusively. He submitted that the trial court erroneously relied on the single evidence of a broken hymen which is said to have happened before the alleged defilement. He submitted that a broken hymen is not proof of defilement and relied on P.K.W -vs- R [2012] eKLR where the Court of Appeal stated;
“In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse? Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences, we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation, injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of THE QUEEN V VINCENT QUINTANILA [1999] AB QB 769.”
35. The Appellant submitted that the complainant’s evidence required corroboration as it was full of inconsistencies. He relied on Bernard Kebiba -vs- Republic [2000] eKLR where the Court of Appeal stated that:-
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
36. He submitted that the trial magistrate did not record why he believed the complainant’s testimony or where he identified the corroborative evidence to enable him to convict. That PW2’s evidence does not corroborate that of PW1 as he does not expressly state that his daughter told him that she had been defiled.
37. He submitted that there was material contradiction in the evidence and made reference to the evidence of the investigation officer where she testified that PW1 had reported about being defiled on 20/08/2020. He contended that PW1 was categorical that she was not defiled on that day. He submitted that the failure by the trial court to reconcile the contradictions caused it to shift the burden of proof to him contrary to the general rule.
38. The Appellant submitted that his defence was cogent and was never shaken by the prosecution but the trial magistrate had already formed an opinion to convict him and was looking for excuses to effect the opinion. He contended that he had no obligation to prove his innocence.
39. He submitted that the onus was on the prosecution to counter his defence but they never applied to rebut his defence. He relied on Michael Mumo Nzioka -vs- R [2019] eKLR where the court stated;
“SECTION 309 of the CRIMINAL PROCEDURE CODE states as follows: - If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.
40. He submitted that the trial court misdirected itself on the import of his defence and has urged this court to reverse the holding.
Submissions by the Respondent
41. The State, through Prosecution Counsel Nyakibia Mburu, opposed the appeal in its entirety. She reminded the court of its duty as a first appellate court and placed reliance on the case of Okeno –vs- R (1972) EA 32.
42. She submitted that the complainant’s age was well established through the birth certificate produced by the investigating officer.
43. On penetration, she submitted that there were two incidences; the first one where the Appellant did not succeed. She submitted that the Appellant managed to groom the complainant and she became vulnerable to him. That in the second incidence of 21/09/2021, the Appellant began by grooming the complainant and achieved penetration. That there was corroboration from the medical evidence where PW4 stated that there had been serial defilement of the complainant.
44. On the identity of the perpetrator, she submitted that PW1’s evidence shows that the appellant was a person well known to her as his shop was within the complainant’s neighborhood. That the duration within which the offence took place made the complainant well oriented with the Appellant hence difficult for mistaken identity to occur. Further, she submitted that the offence was committed during the daytime, making it improbable for the complainant to make a mistake in identification.
45. She relied on section 124 of the Evidence Act for the submission that corroboration is not a requirement per se in defilement cases. That regardless of that, the evidence of PW1 was corroborated by the medical evidence. That the trial court found the complainant’s evidence to be credible, truthful and unshaken by cross examination.
46. On the issue of defective charge sheet, she submitted that the same was properly drafted and in case of any ambiguity, the same would not in any way amount to a miscarriage of justice. That Article 159 of the Constitution would invariably cure any such defect.
47. She submitted that the trial was conducted legally, procedurally and the Appellant was given the right to cross examine witnesses. That he was also allowed enough time to prepare his case and was represented by an Advocate. That the allegation of using illegally obtained evidence is incorrect as the complainant gave oral evidence on oath. That the complainant’s understanding of oath was tested through voire dire even though she was not a child of tender years.
48. She submitted that the trial court did not shift the burden of proof at any time and the prosecution evidence was unshakable as noted by the trial court.
49. She submitted that the Appellant’s defense was considered as evident from the judgment. That the trial court found that there is no common boundary hence no possibility of being framed due to a boundary dispute.
50. She submitted that the sentence is proper and should be upheld.
Duty of Court
51. It is now settled that the duty of a first appellate Court is to scrutinize the evidence on record, draw its own findings and draw its own conclusions giving always alive to the fact that the trial Court had the advantage of seeing and hearing the witnesses.
52. Having considered record, the grounds of appeal, the rival submissions the following issues arise for determination;
a) Whether the charge was defective.
b) Whether the charge against the appellant was proved beyond reasonable doubt.
Whether the charge sheet was defective
53. The Appellant argued that the charge sheet was defective for indicating that the offence was committed on diverse dates as the implication was that there was a great deal of varying days in which he defiled the complainant. He contended that there is no evidence to show that he defiled the complainant on various distinct days hence the evidence is at variance with the charges.
54. In the case of Peter Ngure Mwangi -vs- Republic [2014] eKLR the Court of Appeal observed that;
“A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53, this Court stated in YONGO V R, (1983) eKLR that:
“In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:
(i) when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,
(ii) when for such reason it does not accord with the evidence given at the trial.’
55. The use of the phrase ‘diverse dates’ in the charge sheet implies that the offence happened on various days and not just one day. The evidence of the complainant however is that she was defiled on 21/09/2021 only. The evidence is therefore at variance with the charge sheet and the question which arises is whether the defect was prejudicial to the Appellant. In the Peter Ngure case (Supra), the court went on to say;
“Further guidance is found in the case of PETER SABEM LEITU V R, CR.A NO. 482 OF 2007 (UR) where this Court held thus:
“The question therefore is, did this defect prejudice the appellant as to occasion any miscarriage of justice or a violation of his fundamental right to a fair trial? We think not. The charge sheet was clearly read out to the appellant and he responded. As such he was fully aware that he faced a charge of robbery with violence. The particulars in the charge sheet made clear reference to the offence of robbery with violence as well as the date the offence is alleged to have occurred. These particulars were also read out to the appellant on the date of taking plea. The fact that PW1 was not personally robbed and did not also witness the robbery did not in any way prejudice the appellant.”
56. Similarly in this case, the defect did not preclude the Appellant from understanding that he was facing the charge of defilement. Looking at the charge sheet, it contains a statement of a specific offence, namely defilement and the particulars given informed the Appellant that he was being accused of causing his genital organ to penetrate the genital organ of, B.M.M, a girl child aged 16 years intentionally and unlawfully. In my view, the charge sheet complied with section 134 of the CPC which provides;
“Every charge or information shall contain, an
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Introduction
1. The Appellant was charged with defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between 20th August 2020 and 21st September 2021 at Makosi shopping centre in Kibwezi Sub-County within Makueni County, he intentionally and unlawfully caused his male genital organ namely penis to penetrate the female genital organ namely vagina of B.M.M, a girl child aged 16 years.
2. In the alternative, he was charged with Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that during the same period and at the same place, the Appellant intentionally and unlawfully caused his male genital organ namely penis to touch the female genital organ namely vagina of B.M.M, a girl child aged 16 years.
3. The Appellant pleaded not guilty and after a full trial, the learned trial magistrate found him guilty and convicted him on the main charge and sentenced him to 7 years imprisonment.
The Appeal
4. Aggrieved by that decision, the Appellant filed this appeal on the following grounds;
a) That the learned trial magistrate erred in both law and fact by convicting and sentencing him without observing that the charges were defective for being at variance with the evidence on record.
b) That the learned trial magistrate erred in both law and fact for presiding over a trial based on illegality by admitting and considering evidence obtained through torture or inhuman and degrading treatment contrary to the law.
c) That the learned trial magistrate erred in both law and fact by convicting him without considering that there was no evidence to prove either penetration or indecent act without which the prosecution could not prove their case against the Appellant to the required standard in law of beyond reasonable doubt.
d) That the learned trial magistrate erred in both law and fact by failing to apply section 124 of the Evidence Act and failing to appreciate that the prosecution’s evidence was greatly uncorroborated and was full of explicit inconsistencies and marred with contradictions and hence also erred by shifting the burden of proof and prejudicing him greatly.
e) That the learned trial magistrate erred in both law and fact when he dismissed his sworn defence and shifted the burden of proof to him in regard to his defence statement.
Summary of the case before the Trial Court
5. The prosecution’s case was that the complainant was a form three student at the material time and the Appellant owned a shop at a location where the complainant would pass on her way home. That on 21/09/2021, the complainant was on her way home from school when the Appellant called her to his shop and offered her milk and biscuits. He then took her to a room at the back of the shop and defiled her. That on 20/08/2020, the complainant had been sent home for school fees and the Appellant had called her to the shop where he tried to defile her but she managed to escape.
6. The prosecution called 4 witnesses to wit; the complainant (PW1), the complainant’s father (PW2), the Doctor (PW3) and the Investigating Officer (PW4). The exhibits produced were; Birth Certificate (P.Ex 1), PRC Form (P.Ex 2), P3 Form (P.Ex 3) and Lab Report (P.Ex 4).
7. The Appellant elected to give sworn evidence and to call one witness. He testified that he used to live in Athi, that he was a farmer and that he used to have a shop which was about 500m from the complainant’s home. That on 20/08/2020, he did not see the complainant as all the children were at home due to covid 19. That there is no way that she could have been sent for fees from Kasikeu school.
8. He said that on the second incident of 21/09/2021 he was at the shop and children pass from school at 5.00pm. That the path leading to the complainant’s home is far away from his shop and he could not manage to call her. That the other children would also have seen. That 21/09/2021 was a Tuesday and a busy market day and passers by could have seen. That the complainant did not leave the shop naked as people would have seen her. He said that his neighbor Mutinda used to visit the shop and would have been the first to see the complainant. That he (Appellant) cannot see the complainant branching to her home from the shop and he has never been arrested for a sexual offence.
9. He said that another person had begun a construction which obstructed his shop from the view of the complainant’s father. That no evidence, linking him to the offence, was produced.
10. On cross examination, he confirmed that the complainant was a student at Kasikeu and that there were two other shops in the area. That her family were no longer his customers as there was a boundaries dispute between them which arose a long time ago. That before the dispute, they were his customers. He confirmed that from Kasikeu, one has to pass by his place first; that on the material day, he was at his shop which he had opened at 6.00am and closed at 6.30pm; that at 4.00pm, the shop was still open and that the children pass at around 5.00-6.00pm.
11. Further, he said that there is a main shop room and another room behind the shop where he resides, that he was at the shop on 21/09/2021 at 6.00pm, that the shop is around 100 meters from the main road and one can use a motor cycle to pass and go to complainant’s home, that when passing on the lower side, the complainant’s father can see his place, that he did not know why the complainant’s father wanted to finish him and his thinking was that the grudge was caused by the boundary , that there was no pending boundary case with the complainant’s path.
12. Further, he said that Sima stayed at the shop and did his work but it was not possible for Sima to see everyone going to the shop all the time. That Sima had gone to Mombasa to sell his wares and would not get to know the customers.
13. He said that he had one dog which he chained behind the door and freed at 6.00pm, that since 2010, he was incapable of being sexually active as he was on treatment for high blood pressure and diabetes, however he did not have treatment notes, that his neighbors at the farm were the complainant’s family and one could see a person passing outside the shop. He said he had grandchildren but denied giving milk to children at the shop. That he used to sell milk, pens, biscuits and bread. That he had a TV and a bed at the back of the shop, and that the child could not have known that he had a TV and a bed in his bedroom.
14. DW2 was James Simo who testified that he lived in Kiyaoni and his work was curving. He lived approximately 500 meters from the Appellant but there was a big valley between them. He said that he knew Paul Munyao as his neighbor. He knew that the appellant had a daughter but he (DW2) did not know her name. he testified that he did his work at his house near the main road and they lived in a triangle like set up. That the complainant in the company of others children would pass near his house around 5:30pm and go to her home but she would not cross to the other side.
15. That on 21/09/2020, the complainant could not have crossed towards the Appellant’s side as she would have passed by his (DW2’s) shop and schools were not ongoing due to corona. That on 20/08/2020, he was just at his place doing his craving work outside from where he could see far. He denied having heard of past cases involving the Appellant and school going children and had never seen the complainant coming from the Appellant’s shop. That one cannot see from the ditch but the road is on top of the cliff.
16. On cross examination, he said that he was making wooden r carvings and bought materials from different sources. That his place and that of the appellant were adjacent and not facing and he could only see the verandah of his shop and not the inside. He said that the appellant had one bicycle and to go to his place had to pass through a ranch he referred to as Mmeru ranch which had trees. He did not know how many children the appellant had. He said he knew the complainant and the other children by appearance. That Kyaoni is near the bridge and from Kasikeu, one uses the same direction.
17. He told the court that he did not see the complainant every day as there were days he was not at work . He confirmed that he did not see her on 20/08/2022 and that on 22/09/2021, he saw her passing at around 5.30pm. He testified that he did not keep a record of the times he saw the complainant passing and could not remember all the activities of the week. Asked what days if the week 20/09/2022 was? He said it was a Wednesday and that 22/09/2021 was a Tuesday. Shown the calendar it turned out that 22/09/2021 was a Monday. He said that on 21/09/2021, he had gone to the Appellant’s shop to pick some few items but only stayed there for 10 minutes and could not tell what the Appellant was left doing. That on 20/08/2020 there was covid and schools were re-opened in 2021. That on 20/08/2020, he was at home and not at the Appellant’s home and could not tell what was happening at the Appellant’s home.
18. The parties elected to canvass the appeal through written submissions and appropriate directions were given.
The Submissions
Submissions by the Appellant
19. The Appellant submitted that the charges were defective for being at great and fatal variance with the evidence tendered in court and the trial court convicted him based on an uncertain charge contrary to the requirement of the law. That according to the charge sheet, the defilement occurred severally between 20/08/2020 and 21/09/2021 hence implying that there was a great deal of varying days in which he defiled the complainant.
20. He submitted that here is no evidence on record showing the alleged defilement on various distinct dates. That according to PW1, nothing happened to her on 20/08/2020 as she managed to escape and wondered why the police quoted the date in the charge sheet. He contended that the police and the prosecution were aware of these dates throughout the trial and the complainant was well aware of the calendar dates. That even the investigation officer conceded that the complainant did not discuss the incident of 2020 in detail. He pointed out the inconsistency in the way the charge sheet was drafted.
21. Citing the legal requirements for drafting a charge sheet he submitted that the police and prosecution were aware but the trial court continued to hear the matter without a regard for a fair trial to him. He submitted that the information in the charge sheet was not adequate as it did not have sufficient detail to let him answer to the charges correctly and to prepare his defence well. That the information on the charge sheet was confusing hence prejudicial to him. He relied on Rattiram-vs- State of M.P. {2012} 4 SCC 516 where the Supreme Court of India ruled: -
“Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favoritism…Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused….."
22. He submitted that the requirement in the above case cannot be met if the accused is forced to answer to an incomplete or unclear or ambiguous charge and then be expected to defend himself accordingly. That both the prosecution and the court had ample opportunity to amend the charge but they failed to use Section 214 of the CPC as would have been expected. He contended that he should get the benefit of doubt for the omission. Further, he submitted that the said errors are not capable of being cured under Section 382 of the CPC because he was exposed to prejudice by being tried for an offence without certainty of when it was committed.
23. The Appellant submitted that PW1’s evidence about the incident of 20/08/2020 was a lie because an executive order was issued on 16/03/2020 leading to the closure of schools due to the Covid 19 pandemic and they were re-opened on 04/01/2021. He contended that the police investigators and the prosecution were aware of this fact but they bought the lie hook, line, and sinker. He submitted that the complainant’s credibility was fatally affected by her lies on oath. That the fact of his ability to tender his defence in court does not take away the prejudice.
24. He submitted that a charge sheet should offer specific particulars of a crime and that failure to clearly frame the charges is a miscarriage of justice and an affront to the rule of law. He relied on Zahira Habibullah Sheikh & another -vs- State of Gujarat & Others AIR 2006 SC 1367 where the Supreme Court of India stated: -
“It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted…… Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, the condemnation should be rendered only after the trial in which the hearing is a real one, not a sham or mere farce and pretense…. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice”
25. He submitted that the defect is not a procedural rule but a critical requirement for a fair hearing which is provided by the constitution and is not limitable. He relied on Isaac Omambia -vs- R [1995] eKLR where the Court of Appeal held that, ‘particulars of a charge and the statement of the offence are an integral part of the charge’.
26. Further, he submitted that the test of whether a charge sheet is fatally defective is substantive rather than formalistic and relied on Willie (William) Slaney-vs-State of Madhya Pradesh (A.I.R. 1956 Madras Weekly Notes 391) where the Supreme Court of India held that ;
“Whatever the irregularity, it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of the guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in the labyrinth of insubstantial technicalities.”
27. The Appellant submitted that he was affected by the confusion caused by the inconsistency of the vague elements indicated in the statement of the charge as framed. That it affected his defence in that he was confused on how to defend himself against the charge and his ability to cross-examine the witnesses was affected too.
28. The Appellant submitted that the complainant’s testimony and statement to the police were obtained under duress contrary to Article 50 (4) of the Constitution of Kenya. He relied on Article 3 of the European Convention on Human Rights (ECHR) for the submission that evidence obtained through torture or inhuman or degrading treatment is not admissible in court. He relied on Gafgen-vs-Germany (2010) where the European Convention on Human Rights court at Strasbourg considered that police officers threatening the applicant with imminent pain for the purpose of extracting information constituted ‘inhuman treatment’ falling under the scope of Article 3 of ECHR.
29. He submitted that PW2 confessed to have beaten PW1 while at home purposely to coerce her to admit to having been defiled. He contended that it was against the law more so when it happened before PW1 could voluntarily decide to report the incident to him. He urged this court to note that the statement at the police station was recorded after the complainant was beaten into submission by her father. That the statement was taken in contravention of the laws governing confessions even though the statement by the complainant was not a confession per se. He relied on Njuguna s/o Kimani & Others –vs- Republic (1954) EA 316 where the former East Africa Court of Appeal held that ‘the trial court has discretion to exclude a statement which has been obtained by improper questioning or improper means.’
30. He submitted that this court is in a position to rectify this serious illegality by giving him the necessary remedy when such a crucial mandatory constitutional provision is violated to his detriment.
31. The Appellant submitted that no evidence of penetration was adduced. That PW1 was 16 years old hence old enough to differentiate good and bad. That according to her own testimony, she managed to run away during the incident of 20/08/2020 and was therefore in a position to know what could have happened if she agreed to voluntarily enter the bedroom. There is a possibility that she never took herself to such a place.
32. Further, he submitted that PW1’s evidence was that she was with a fellow student named Joyce whom the I.O did not interview and the prosecution did not call as a witness. He submitted that further evidence by PW1 was that she ate biscuits and drank milk while allegedly seated on the bed hence she had enough time to decide that it was risky and to leave the shop just as she had allegedly done previously. He wondered why PW1 took the alleged kshs 200/= if she was dissatisfied with the act and contended that if any such money was given, it is indicative of consensual sex instead of a forced sexual encounter.
33. The Appellant wondered why PW1 hesitated to tell her father if indeed she felt pain after the alleged defilement. He questioned why she behaved like someone who was comfortable with it if she did not like what was done to her. That if indeed she ran out carrying her clothes, many people would have noticed as it was a market day. He contended that a critical analysis of here testimony shows that it is shaky, unreliable, and unbelievable.
34. He submitted that the doctor, PW3, concluded that she could not rule out penetration on the date of 21/09/2021. According to the Appellant, the meaning of that conclusion is that the doctor was not sure as to whether there was penetration or not. That consequently, the prosecution cannot be said to have proved their case on the issue of defilement conclusively. He submitted that the trial court erroneously relied on the single evidence of a broken hymen which is said to have happened before the alleged defilement. He submitted that a broken hymen is not proof of defilement and relied on P.K.W -vs- R [2012] eKLR where the Court of Appeal stated;
“In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse? Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences, we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation, injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of THE QUEEN V VINCENT QUINTANILA [1999] AB QB 769.”
35. The Appellant submitted that the complainant’s evidence required corroboration as it was full of inconsistencies. He relied on Bernard Kebiba -vs- Republic [2000] eKLR where the Court of Appeal stated that:-
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
36. He submitted that the trial magistrate did not record why he believed the complainant’s testimony or where he identified the corroborative evidence to enable him to convict. That PW2’s evidence does not corroborate that of PW1 as he does not expressly state that his daughter told him that she had been defiled.
37. He submitted that there was material contradiction in the evidence and made reference to the evidence of the investigation officer where she testified that PW1 had reported about being defiled on 20/08/2020. He contended that PW1 was categorical that she was not defiled on that day. He submitted that the failure by the trial court to reconcile the contradictions caused it to shift the burden of proof to him contrary to the general rule.
38. The Appellant submitted that his defence was cogent and was never shaken by the prosecution but the trial magistrate had already formed an opinion to convict him and was looking for excuses to effect the opinion. He contended that he had no obligation to prove his innocence.
39. He submitted that the onus was on the prosecution to counter his defence but they never applied to rebut his defence. He relied on Michael Mumo Nzioka -vs- R [2019] eKLR where the court stated;
“SECTION 309 of the CRIMINAL PROCEDURE CODE states as follows: - If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.
40. He submitted that the trial court misdirected itself on the import of his defence and has urged this court to reverse the holding.
Submissions by the Respondent
41. The State, through Prosecution Counsel Nyakibia Mburu, opposed the appeal in its entirety. She reminded the court of its duty as a first appellate court and placed reliance on the case of Okeno –vs- R (1972) EA 32.
42. She submitted that the complainant’s age was well established through the birth certificate produced by the investigating officer.
43. On penetration, she submitted that there were two incidences; the first one where the Appellant did not succeed. She submitted that the Appellant managed to groom the complainant and she became vulnerable to him. That in the second incidence of 21/09/2021, the Appellant began by grooming the complainant and achieved penetration. That there was corroboration from the medical evidence where PW4 stated that there had been serial defilement of the complainant.
44. On the identity of the perpetrator, she submitted that PW1’s evidence shows that the appellant was a person well known to her as his shop was within the complainant’s neighborhood. That the duration within which the offence took place made the complainant well oriented with the Appellant hence difficult for mistaken identity to occur. Further, she submitted that the offence was committed during the daytime, making it improbable for the complainant to make a mistake in identification.
45. She relied on section 124 of the Evidence Act for the submission that corroboration is not a requirement per se in defilement cases. That regardless of that, the evidence of PW1 was corroborated by the medical evidence. That the trial court found the complainant’s evidence to be credible, truthful and unshaken by cross examination.
46. On the issue of defective charge sheet, she submitted that the same was properly drafted and in case of any ambiguity, the same would not in any way amount to a miscarriage of justice. That Article 159 of the Constitution would invariably cure any such defect.
47. She submitted that the trial was conducted legally, procedurally and the Appellant was given the right to cross examine witnesses. That he was also allowed enough time to prepare his case and was represented by an Advocate. That the allegation of using illegally obtained evidence is incorrect as the complainant gave oral evidence on oath. That the complainant’s understanding of oath was tested through voire dire even though she was not a child of tender years.
48. She submitted that the trial court did not shift the burden of proof at any time and the prosecution evidence was unshakable as noted by the trial court.
49. She submitted that the Appellant’s defense was considered as evident from the judgment. That the trial court found that there is no common boundary hence no possibility of being framed due to a boundary dispute.
50. She submitted that the sentence is proper and should be upheld.
Duty of Court
51. It is now settled that the duty of a first appellate Court is to scrutinize the evidence on record, draw its own findings and draw its own conclusions giving always alive to the fact that the trial Court had the advantage of seeing and hearing the witnesses.
52. Having considered record, the grounds of appeal, the rival submissions the following issues arise for determination;
a) Whether the charge was defective.
b) Whether the charge against the appellant was proved beyond reasonable doubt.
Whether the charge sheet was defective
53. The Appellant argued that the charge sheet was defective for indicating that the offence was committed on diverse dates as the implication was that there was a great deal of varying days in which he defiled the complainant. He contended that there is no evidence to show that he defiled the complainant on various distinct days hence the evidence is at variance with the charges.
54. In the case of Peter Ngure Mwangi -vs- Republic [2014] eKLR the Court of Appeal observed that;
“A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53, this Court stated in YONGO V R, (1983) eKLR that:
“In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:
(i) when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,
(ii) when for such reason it does not accord with the evidence given at the trial.’
55. The use of the phrase ‘diverse dates’ in the charge sheet implies that the offence happened on various days and not just one day. The evidence of the complainant however is that she was defiled on 21/09/2021 only. The evidence is therefore at variance with the charge sheet and the question which arises is whether the defect was prejudicial to the Appellant. In the Peter Ngure case (Supra), the court went on to say;
“Further guidance is found in the case of PETER SABEM LEITU V R, CR.A NO. 482 OF 2007 (UR) where this Court held thus:
“The question therefore is, did this defect prejudice the appellant as to occasion any miscarriage of justice or a violation of his fundamental right to a fair trial? We think not. The charge sheet was clearly read out to the appellant and he responded. As such he was fully aware that he faced a charge of robbery with violence. The particulars in the charge sheet made clear reference to the offence of robbery with violence as well as the date the offence is alleged to have occurred. These particulars were also read out to the appellant on the date of taking plea. The fact that PW1 was not personally robbed and did not also witness the robbery did not in any way prejudice the appellant.”
56. Similarly in this case, the defect did not preclude the Appellant from understanding that he was facing the charge of defilement. Looking at the charge sheet, it contains a statement of a specific offence, namely defilement and the particulars given informed the Appellant that he was being accused of causing his genital organ to penetrate the genital organ of, B.M.M, a girl child aged 16 years intentionally and unlawfully. In my view, the charge sheet complied with section 134 of the CPC which provides;
“Every charge or information shall contain, an
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