The Appellant was charged with the offence of defilement contrary to section 8(1) as read with section (2) of the Sexual Offences Act No. 3 of 2006.
The particulars are that on the 11th October 2022 and 14th October 2022, at Kanga Machine area in Rongo Sub-County in Migori County the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of T. A. a child aged 14 years.
In the Alternative count the Appellant was charged with the Offence of Committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars are that on diverse dates between 11th of October 2022 to 14th OCTOBER 2022 at Kanga Machine area in Rongo Sub-County within Migori County, the Appellant intentionally and unlawfully touched the vagina of T.A. a child aged 14 years.
The Trial Court considered the evidence of 6 prosecution witnesses and the Appellant’s sworn testimony and found the Appellant guilty for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The Appellant was consequently sentenced to serve life imprisonment
The Appellant was dissatisfied with the conviction and sentence of the subordinate court and he lodged his undated Petition of Appeal on 29th November 2023 on the following grounds:
a) That he pleaded not guilty to the charge herein.
b) That the Trial court erred in both law and facts by failing to consider the provisions of Article 50(2) (g) & (h) of the Constitution of Kenya 2010
c) That the Trial Courts go astray in law and facts by not considering that the ingredients of the offence were not prover to the required standard of law.
d) That the trial court blundered in both law and facts by not observing that the ingredients of the offence herein were not proven to the required standard in law.
REASONS WHEREFORE the Appellant prayed that:
a). Conviction be quashed and sentence set aside;
b). Retrial
c). Leave of the court to supplement/ Ammend more grounds after receiving the lower court proceedings or
Any other order the court may grant.
Prosecution’s case was supported by six (6) witnesses who testified as follows:
PW1 the Complainant was examined to establish whether she understood the meaning and importance of taking oath but it was found that even though she did not know what it meant to take oath she was however articulate and understood her role in court. It was therefore ordered that she gives her testimony without taking oath.
PW1 said that on 10th October 2022 she had been sent to the shop when she met the Appellant standing besides the road. That the Appellant told her that her father was calling her. That she told the Appellant that her father had already gone home. That the Appellant insisted that the Complainant’s father was calling her and she accompanied him. That the Appellant told her to wait for her father as he would be back. That as it was getting late, the Complainant told the Appellant she needed to go home as she was supposed to go to school the following day. PW1 said the Appellant forced her to go with him home. That he pulled her by force and she stayed in the house as the Appellant went to get food. That when the Appellant told her to eat but she refused. That when she requested to leave, the Appellant told her he would let her go home the following day early in the morning.
That the following day the Appellant locked her in the house and returned at 7.00pm and found her in the house. That when the Appellant brought food she refused to eat. That when the Appellant asked her to remove her clothes, she refused but the Appellant removed her blouse, skirt and panty and had intercourse with her after he undressed and remained naked. PW1 said that the Appellant asked her to sleep on bed and he slept on top of her and told her to spread her legs. That when she refused to spread her legs the Appellant forcefully spread her legs and defiled her. That after the ordeal the Appellant left her on the bed and went to sleep in the sitting room.
That in the morning the Appellant went to work and locked her in the house again. That when the Appellant returned, he told the Complainant that he would not allow her go home until schools opened. That when she threatened to shout if he did not release her the Appellant told her that if she shouted, he would kill her. That the Appellant left and returned with soda and bread which the Complainant took. That the Appellant then told her to go and sleep and he would release her the following day. That on the same night someone came to ask the Appellant if he had seen a certain child but he denied and the Appellant left in company of the person who was making inquiries and she did not see him.
PW1 said that when the Appellant returned, he defiled her again after forcefully removing her clothes when she refused to have sex and insisted that she wanted to go home. PW1 said because of fear she could not sleep. The Complainant said that the next day the Appellant locked her again in the house and went to work and on return brought for her water to shower but she refused.
The following day the Appellant again locked her in the house and went to work. That when he returned at 2.00pm the Appellant told PW1 that he had met her father who was looking for her. He instructed the Complainant to leave but tell the father that she was from school. PW1 said that she stayed at the Appellant’s place from Monday night up-to Friday. That when she left the Appellant’s house, she met her parents along the way and she was taken to Rongo Sub-County Hospital where she was treated and later matter reported to police at Kitere Police Station. PW1 identified Filter Card, PRC form and P3 form duly filled as Ex P1, 2, and 3. She also identified the Appellant as the person who detained her in his house and defiled her repeatedly.
In cross examination PW1 said that her home and the Appellant’s home is approximately 300-500 meters apart and she came to know him when he detained her in his house. She said the Appellant pulled her forcefully into his house and she did not scream because he threatened to kill her. She said the Appellant kept her in his house for 4 days and used to bring food and take her to the farm to ease herself. She said the Appellant locked her in the bedroom and the neighbors could not see her.
In re-examination PW1 said that she could not escape as the Appellant could escort her out to the shamba at night and take her back to the house.
PW2 Geroge Omondi Omollo the father to the Complainant testified that on 10th October 2022, the Complainant was sent to the shop by the mother but she never returned. That their search that night was unsuccessful and they went to sleep. He said that they inquired from relatives but they did not find the Complainant. That on 11th October 2022 they went to school and reported that the Complainant was missing.
That on 12th October 2022 they went to Kitere Police Station and reported. That on 14th October 2022 they were still searching for the Complainant when at around 2.00pm they went to the center where she had been seen, That, he went to Paul’s home which was 1km from his home to inquire if he had seen the Complainant but Paul said he saw the child on 10th October 2022 at the center and he spoke to her asking where she had come from but that she did not respond and he went away.
PW2 said that he went to all the homes. That on his way to the center he met his daughter who told him she had been locked in the Appellant’s house. PW2 took the Complainant to the hospital as she said the Appellant had repeatedly defiled her without any protection. That he also took her to Kamagambo Police Station and she was issued with P3 form which was duly filled.
In cross examination, PW2 said he knew the Appellant very well. He said that when he went to the Appellant’s home, he met him on the way to the bathroom and they spoke outside the house. He said that police investigated the matter and arrested the Appellant.
In re-examination, PW2 said the Complainant told him that the Appellant had locked her in the house for 4 days and repeatedly defiled her.
PW3 Lencer Omondi the Complainant’s mother testified that on 10th October 2022 she sent the Complainant to the shop but she did not return. That she started looking for her but know one had seen her. The following day she went to school at 3.00pm to look for her but she was not in class. That on 12th October 2022 she made inquiries from relatives and friends and also made a report at Kitere Police Station and on 13th October 2022 she left her contact with people to call incase they traced the Complainant. That on 14th October 2022 at around 11.00am she received information and she was told to go to Paul Abich’s home where she was told she would find her daughter. That she did not know Paul Abich and she waited for her husband and she reported to him that their daughter was at the Appellant’s home. That the Complainant’s father went to the village elder and reported and later the child was found at Kanga Machine center. On inquiry the Complainant explained that the Appellant had detained her at his house for 4 days and repeatedly defiled her. The Complainant was taken to hospital by the father and later she recorded her statement.
In cross examination, PW3 said that she did not know if the Appellant and PW2 had any problems.
PW4 P. C. Eric Njoroge in company of his 2 colleagues were led to the home of the Appellant by PW2 on 22nd October 2022 at 5.00am where they effected his arrest. He said they did not find PW1 at the home of the Appellant.
PW5 Clinical Officer Joyce Awino Ogolla produced age Assessment Report prepared and signed by her colleague Irene Onyinkwa confirming the Complainant was a minor. She also testified that she examined the Complainant and found whitish vaginal discharge with reddish vaginal wall and a forceful cut of the hymen. She said that there was pain on examination around the vagina. That all tests done were negative but she concluded that the minor had been defiled and she filled P3 form accordingly after putting the Complainant on PEP, E-pill, antibiotics and paracetamol.
PW5 said the approximate age of injuries was 5 days. She produced the PRC and P3 forms as well as Filter Card as Ex P2(a) & (b), 3 and 4 respectively.
In cross examination PW5 said the minor did not tell her that Paul Abich defiled her. She said she did not know the Appellant and did not treat him. She said that she was in company of a nurse when she examined the Complainant and filled the PRC and P3 forms at Rongo Sub-County Hospital.
PW6 CPL Silas Maswai from Kitere Police Station said that on 12th October 2022 the Complainant was reported missing and he looked for the minor in company of his colleagues. That on 14th October 2022 the parents of the Complainant went back to the station and reported they had traced her and she was taken to Rongo Sub-County Hospital. That he requested them to go to the station with the Complainant and they recorded statements and he issued P3 form which was duly filled. That on 22nd October 2022 he instructed his colleagues to go and arrest the Appellant in Kanga Machine area and he was charged and arraigned in court on 25th October 2022.
When the Appellant was placed on defense, he gave sworn statement and said that he did not defile the Complainant. He said that he had been in remand since 15th October 2022. He said the child was not found in his house. He said he told the girl the father was looking for her. He said he was not taken to any hospital and the minor did not identify him. He also said no DNA was done on his sperms. He said he had been on medication since 2015 but the minor was not found with any medication. He said he had issues with the Complainant’s father.
In cross examination by the Prosecuting Counsel the Appellant said he knew the father of the Complainant. He disputed that the Complainant was 14 years old and said she was 17 years old. He said that the Complainant’s father claimed that they killed his brother and that is why they had squabbles with him. He also said that he did not know the mother of the Complainant neither did he know the Complainant and he had no issues with them. He however, said that the Complainant was coached to fabricate him. He also said that the doctor lied that the minor was defiled. He said he was on antiviral drugs He said the Chief, as well as Patrick Odhiambo Omondi and Elvins Otieno knew that he had been fabricated. The Appellant said that the Complainant’s father told the doctor to lie in court.
The appeal herein was canvassed by way of written submissions.
The Appellant filed undated submissions together with amended grounds of appeal as follows:-
1. THAT, the learned trial magistrate erred in law and facts by convicting the appellant on a defective charge sheet which was not a mended as required by law under section 214 of the CPC.
2. THAT, the prosecution case was not proved beyond reasonable doubt.
3. THAT, the age of the complainant was not established.
4. THAT, penetration was not proved.
5. THAT, identification of the appellant improper.
6. THAT, vital witnesses were not brought in court to testify their testimonies would have secured my acquittal.
7. THAT, the trial magistrate erred in law and facts by basing my conviction on prosecution evidence marred with contradictions, inconsistencies discrepancies and glaring gaps.
8. THAT, the burden of proof was shifted to the appellant.
9. THAT, the trial court erred in law by failing to believe DW1's defense alibi which was truthful and cogent to secure acquittal.
10. THAT, the present case was shoddily investigated
11. THAT, the medical evidence did not support the complainants’ contention
12. THAT, the sentence awarded was not lawful.
REASONS WHEREFORE the appellant pray that may this appeal succeed to its totality, conviction quashed and sentence quashed and I be set at liberty.
The Appellant filed submissions in which he sought leave to file additional grounds of appeal including that initially he was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the sexual offences Act No 3 of 2006 at Rongo PM's court Criminal Case No. 025 of 2022 and he pleaded not guilty and after a full trial he was found guilty hence convicted and sentenced to serve life imprisonment,
He submitted that the charge sheet was incurably defective as it was not amended as required by law under section 214 of the criminal procedure code. The Appellant faulted the discrepancy between the date the offence was allegedly committed and the date report was made and the date he was arrested as shown in the P3 form, OB/02/- 22/10/2022 indicated on the side of the charge sheet is the date the appellant was arrested as shown at the date of arrest. Date of incident as stated on particulars of the offence is 11/10/2022 and 14/10/2022. Then where was the first report indicated on the P3 form,
The Appellant also submitted that he was charged with the offence under Section 8(2) of the Sexual Offences Act whereas the particulars of the charge showed that the Complainant was 14 years old. He argued that this discrepancy rendered the charge defective as the particulars did not support the charge.
The Appellant argued that he was prejudiced by the discrepancy as he was faced with difficulty of not knowing exactly what to plead or defend. He submitted that it is trite that the particulars of a charge must at any one-time support the statement of the offence. they must also be stated in such a clear and unambiguous manner so as to enable the accused to know the offence he is pleading to. That in absence of this cardinal principle an accused would get confused to know which charge he was pleading to and would defend himself. That is what obtains in the instants in the instant case which led him to conclude that the charge sheet herein was defective, as the he was supposed to be charged with the offence defilement contrary to section 8(1) as read with section 8(3) of the sexual offences act and not Section 8(2) of the Sexual Offence Act.
The Appellant submitted further, that the prosecution witness failed to prove its case beyond reasonable doubt as required by law. There was no direct evidence linking the Appellant to the commission of the said offence. The alleged offence was not witnessed by any other independent witness to corroborate the evidence of PW 1. That apart from the evidence of PW 1 which was not corroborated and which should be treated with utmost care, the prosecution did not tender any independent evidence to corroborate PW1’s testimony by linking the Appellant to the offence in question. The evidence of all the prosecution witnesses should not be believed for it was mere hearsay which cannot be admitted in evidence. The Appellant said he was suffering in prison for an offence he did not commit and the charges he was not a party to. He denied having defiled any child as alleged neither did he act indecently with a child. He said he is serving life imprisonment on a matter in question and in which he is totally green.
The Appellant submitted that the age of the Complainant was not proved beyond reasonable doubt. He cited the holding in the case of ALFAYO GOMBE OKELLO VERSUS REP. CRIMINAL APPEAL NO 203 OF 2009 the court of appeal held:-
" In its wisdom, parliament chose to categorize the gravity of that offence on the basis of the age of the victim consequently. The age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt”.
In FRANCIS ONAMU VS UGANDA, the court held that:-
"in defilement cases medical evidence is paramount in determining the age of the victim and doctor is the only person who would professionally determine the age of the victim. In the case of any other evidence apart from medical evidence, age may also be proved by a birth certificate, the victim's parents, or guardian and by observation and the common sense"
The Appellant also submitted that the Complainant was 9 years 7 months and 8 days according to the age assessment Report and P3 form produced by the Prosecution and yet the charge sheet indicates 14 years. Moreover, age assessment was carried out scientifically. He also said that there was no certificate of birth produced in court to enable the court to ascertain the exact age of the complainant. He cited the case of STEPHEN OUMA OPIYO VS REPUBLIC HCCR CASE NO 46 OF 2009 AT KISUMU in which justice J R KARANJA held that:-
“The age of the complainant was according to her mother 16 year there was nothing cogent to prove the facts and/or that the complaint was born 22/01/1993. There was no birth certificate produced in court. The only document was baptismal card from a church. This was not sufficient evidence to prove the age and as to prove and as the appellant contended, such card may be obtained by all and sundry.”
He said that in the absence of a birth certificate, the prosecution should have simply presented the complainant to a duly qualified medical doctor for purpose of age assessments. The charge sheet indicate that the complainant was aged 14 years, so did the Clinical Officer (PW 5) who however relied on information given to him by the police. He said that it could as well be that the complainant was eighteen or above at the time of the offence.
The Appellant argued that in the absence of proof that the complainant was below eighteen at the material time, the Appellant's conviction by the learned trial magistrate was not safe whether the offence was attempted defilement or defilement. He urged the court to set him at liberty forthwith unless otherwise lawfully held.
The Appellant also faulted the prosecution for purporting to produce age assessments report through PW 5 who was not the maker of the said age assessment report and the scientific method that was used to ascertain the age of the victim was never explained to the court. The Appellant submitted that there was no basis or legal justification in imposing life sentence against him without first ascertaining the age complainant.
He also relied on the case in Bungoma HCCR appeal No. 89 of 2016, KELVIN KIPROTICH AMOS alias ROTICH vs REP in which Hon. ladyship ARONI delivered on 30th March 2017 which dealt with the issue of age extensively by taking into account a wide range of information including medical opinion and scientific method in determining the age of a victim in which she held inter alia:-
"In the case of the appellant in p3 form was given as 19. He had no birth a certificate then and the issue is how this age was arrived at by the police and yet no age assessment was done”.
Secondly, he contended that even where the age assessment of the victim was done, it was done by a Clinical Office and his casual observation is that there was no specific method indicated of how she arrived at the same or whether she was qualified in the dental discipline or pediatric science or even she arrived at the conclusion.
He submitted that the exact age of the Complainant was not ascertained and the conviction should be quashed and he be set at liberty after setting aside the sentence.
The Appellant also submitted that penetration was also not proved as there was medical evidence supporting the allegation. He said the details of p3 form, PRC form and treatment note form do not corroborate allegations of penetration.
He said that the evidence presented before the trial court did not point or link him to the commission of the alleged offence. He said that PW1 was not candid and honest in her testimony as stated by the trial magistrate in his judgment. That PW1 in her testimony stated that the incident occurred on Monday 10/10/2022 until 14/10/2022 which was on Friday. She stated that the next day i.e. (14/10/2022) the appellant woke up and locked the door, returned at 2pm. He came and told me that he met my father George. He was looking for me. He told me to leave and go and tell my father I had come from school. I stayed there from Monday to Friday. Upon cross-examination by the appellant, she stated that I stayed for 4 days. I met my parents along the way. He left and went to the river. I was taken to hospital by my father.
Medical examination report PMFI -form, part 'A' on page 26 indicate date and time of alleged offense on 10/10/2022 at 6.20pm. date and time reported was on 12/10/2022 at 7.30pm. sent to hospital on 14/10/2022, time not indicated. Part Il section "B' no Il, approximate age of injury indicated was five days.
PRC form indicate date and time of examination as 14/10/2022 at 00pm date and time of the incident is on 10/10/2022 at 6.00pm. Date and time of report not indicated.
Filter clinic attendance card PMFI -2 'A' on page 22 date for attendance was not indicated. It only had a rubberstamp dated 12/10/2022. Filter clinic attendance card PMFI -Il 'B' on page 23 date and time indicted was 14/10/2022 at 6.20pm with a rubber stamp dated 17 / 10/2022.
The charge sheet indicated or state that on diverse dates between 11/10/2022and 14/10/2022 is when the incident took place. No time indicated. This means that she stayed in the said house for three days. Then the question is how many days did PW 1 spent in the appellants house? What was the approximate age of the injuries (days) was PW 1 attended to? Why were the two filter clinic attendance cards PMFI Il 'A' and PMFI Il 'B' 2 different dates of Rubber stamps? At what time was the offence committed or took place? Was PW I's evidence believable? When or which particular date was the incident committed?
It was the Appellant’s submissions that evidence of PW 5 the clinical officer was not
convincing that the complainant had been defiled. That the medical evidence relied upon by the court was contradictory and was not corroborated by the evidence of the minor.
On the issue of identification, the Appellant submitted that the same was not water tight as was held in the case of NZARO VS REP (1991) KLR 212 as quoted in the case of Joseph Otieno vs rep (2019) eKLR. He also relied on the case of WAMUNGA VS REP (1989) KLR where the court held that where only evidence against defendant is of identification the trial magistrate must carefully examine such evidence and be satisfied that the circumstances of identification is favorable and free from possible error. The Appellant argued that PW1 alleged that the incident took place around 7.00pm and it was dark. This clearly indicate that there was no proper identification. He submitted further that he was not singled out as the sole perpetrator. PW 1 on page 9 line 27 she said and I quote " I did not know you before you defiled me. I did not know your home." PW 3 the mother to PW 1 stated that and I quote " PAUL ABICH I do not know him. I saw him in court. Vide page 11 line 27&28. The prosecution's case was not proved beyond reasonable doubt. He said that since he was leaving in the morning hours then came home evening hours the minor was not able to identify him. That it was not known or recorded, what kind of light was being used while in said house to enable PW 1 identify the appellant. It is also not known that how many days the minor spent in the alleged house. This was confirmed by the contradicting evidence produced in court. PW 1 upon being cross-examined by the appellant said four days. approximate age of injury indicated on the p3 form was five days. The charge sheet stated that the incident took place on 11/10/2022 which is three days. How many days did PW 1 spent in the house? Was the complainant able to identify her perpetrator?
The Appellant also submitted that vital witnesses such as Irene who conducted age assessment vide page 14 line 18, the mentioned nurse who was with PW 5 when examining the victim (PW 1) vide page 15 line 17, PC NYABIBA and MASIRO who were with PW4 when arresting the appellant. Vide page 13 line 7. The class teacher and the pupil send. Vide page 12 line 11. No letter or any document brought in court to show that PW 1 was learning. The people that PW 3 had left her contact. Vide page 12 line 8, were the contacts produced in court? The village elder whom PW 2 went to. Vide page 12 line 12. The people who were at the center. Vide age 12 line 18. And PW 2's friends elder and relatives that he was from.
Vide page 10 line 26-27. He said that the testimony of the witnesses who were left would have warranted his acquittal.
The Appellant relied on the case of BUKENYA AND OTHERS VS UGANDA (1972) E.A 549 in which the former East African Court of Appeal addressed the legal effect of the prosecution’s failure to call certain witnesses. The Court laid down three key principles:
Duty to call material witnesses
The prosecution is under a duty to make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent.
Discretion of the court
The court has the discretion to determine whether the evidence presented is sufficient to prove the case, notwithstanding the absence of certain witnesses.
Adverse inference
Where the prosecution fails to call a material witness without explanation, and the evidence on record is barely adequate, the court is entitled to draw an adverse inference that the uncalled witness would have given evidence unfavourable to the prosecution.
The Appellant also submitted that there were contradictions. inconsistencies. discrepancies and glaring gaps in the prosecution’s evidence which weakened and destroyed the inference of guilty and which have been disregarded in totality for a safe outcome of the charge before the appellant herein. PW 1 stated that she met her parent along the road - page 9 line 6, while PW 3 stated that, the child was found at kanga machine center. vide page 12 line 13. Whereas PW 6 stated that she (PW 1) was found in the appellant’s house. It was around 17 hours vide page 17 line 12-13 and PW 4 upon cross-examined by the appellant stated that we arrested you around 5.30 am. We did not found PW 1 in your home when we arrest you vide page 13 line 13-14.
The Appellant submitted that the contradictions identified in his submissions rendered the evidence of PW1 questionable. He also said that PW2 contradicted the evidence of PW1 when he stated that he went to Paul's home. His home is I kilometer away from ours vide page 11 line 5-6. What was the exact distance from PW 1 and the appellant's home? Upon cross-examined by the appellant. PW 2 stated that your home had five houses vide page 11 line 19. Was the appellant's house between others or was a house of five houses?
In the case of DINKERAI KHAN KRISHNA PANDYA VS REP (1957)E.A 336 held "it is a trite that where the evidence is contradictory or inconsistent, the court should not rely upon. All the prosecution witnesses evidence contradicted even other. See the case of SHANTALAL M. RUWALA VERSUS REP.”
The Appellant also submitted that the trial court shifted the burden of proof to him and the defense of alibi was cogent and was enough to secure acquittal since it was not shaken by the prosecution. He said that the onus is on the prosecution to displace the defense of alibi after the defense has been raised at the trial as was stated at the court of appeal in the case of Victor Mwendwa Mulinge versus Republic (2014) eKLR.
" It is trite law that the burden of proving falsity if at all, of an accused defence of alibi lies on the prosecution" in the case of ADEDEJI VERSUS THE STATE VS THE STATE (1971) 1 ALL N.LR 75. It was held that:-
" Failure by the police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of imposed life sentence”.
The Appellant’s submissions on sentence were that the same was harsh and excessive amounting to unfair trial taking into account that he is a first offender. He said that the
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The particulars are that on the 11th October 2022 and 14th October 2022, at Kanga Machine area in Rongo Sub-County in Migori County the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of T. A. a child aged 14 years.
In the Alternative count the Appellant was charged with the Offence of Committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars are that on diverse dates between 11th of October 2022 to 14th OCTOBER 2022 at Kanga Machine area in Rongo Sub-County within Migori County, the Appellant intentionally and unlawfully touched the vagina of T.A. a child aged 14 years.
The Trial Court considered the evidence of 6 prosecution witnesses and the Appellant’s sworn testimony and found the Appellant guilty for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The Appellant was consequently sentenced to serve life imprisonment
The Appellant was dissatisfied with the conviction and sentence of the subordinate court and he lodged his undated Petition of Appeal on 29th November 2023 on the following grounds:
a) That he pleaded not guilty to the charge herein.
b) That the Trial court erred in both law and facts by failing to consider the provisions of Article 50(2) (g) & (h) of the Constitution of Kenya 2010
c) That the Trial Courts go astray in law and facts by not considering that the ingredients of the offence were not prover to the required standard of law.
d) That the trial court blundered in both law and facts by not observing that the ingredients of the offence herein were not proven to the required standard in law.
REASONS WHEREFORE the Appellant prayed that:
a). Conviction be quashed and sentence set aside;
b). Retrial
c). Leave of the court to supplement/ Ammend more grounds after receiving the lower court proceedings or
Any other order the court may grant.
Prosecution’s case was supported by six (6) witnesses who testified as follows:
PW1 the Complainant was examined to establish whether she understood the meaning and importance of taking oath but it was found that even though she did not know what it meant to take oath she was however articulate and understood her role in court. It was therefore ordered that she gives her testimony without taking oath.
PW1 said that on 10th October 2022 she had been sent to the shop when she met the Appellant standing besides the road. That the Appellant told her that her father was calling her. That she told the Appellant that her father had already gone home. That the Appellant insisted that the Complainant’s father was calling her and she accompanied him. That the Appellant told her to wait for her father as he would be back. That as it was getting late, the Complainant told the Appellant she needed to go home as she was supposed to go to school the following day. PW1 said the Appellant forced her to go with him home. That he pulled her by force and she stayed in the house as the Appellant went to get food. That when the Appellant told her to eat but she refused. That when she requested to leave, the Appellant told her he would let her go home the following day early in the morning.
That the following day the Appellant locked her in the house and returned at 7.00pm and found her in the house. That when the Appellant brought food she refused to eat. That when the Appellant asked her to remove her clothes, she refused but the Appellant removed her blouse, skirt and panty and had intercourse with her after he undressed and remained naked. PW1 said that the Appellant asked her to sleep on bed and he slept on top of her and told her to spread her legs. That when she refused to spread her legs the Appellant forcefully spread her legs and defiled her. That after the ordeal the Appellant left her on the bed and went to sleep in the sitting room.
That in the morning the Appellant went to work and locked her in the house again. That when the Appellant returned, he told the Complainant that he would not allow her go home until schools opened. That when she threatened to shout if he did not release her the Appellant told her that if she shouted, he would kill her. That the Appellant left and returned with soda and bread which the Complainant took. That the Appellant then told her to go and sleep and he would release her the following day. That on the same night someone came to ask the Appellant if he had seen a certain child but he denied and the Appellant left in company of the person who was making inquiries and she did not see him.
PW1 said that when the Appellant returned, he defiled her again after forcefully removing her clothes when she refused to have sex and insisted that she wanted to go home. PW1 said because of fear she could not sleep. The Complainant said that the next day the Appellant locked her again in the house and went to work and on return brought for her water to shower but she refused.
The following day the Appellant again locked her in the house and went to work. That when he returned at 2.00pm the Appellant told PW1 that he had met her father who was looking for her. He instructed the Complainant to leave but tell the father that she was from school. PW1 said that she stayed at the Appellant’s place from Monday night up-to Friday. That when she left the Appellant’s house, she met her parents along the way and she was taken to Rongo Sub-County Hospital where she was treated and later matter reported to police at Kitere Police Station. PW1 identified Filter Card, PRC form and P3 form duly filled as Ex P1, 2, and 3. She also identified the Appellant as the person who detained her in his house and defiled her repeatedly.
In cross examination PW1 said that her home and the Appellant’s home is approximately 300-500 meters apart and she came to know him when he detained her in his house. She said the Appellant pulled her forcefully into his house and she did not scream because he threatened to kill her. She said the Appellant kept her in his house for 4 days and used to bring food and take her to the farm to ease herself. She said the Appellant locked her in the bedroom and the neighbors could not see her.
In re-examination PW1 said that she could not escape as the Appellant could escort her out to the shamba at night and take her back to the house.
PW2 Geroge Omondi Omollo the father to the Complainant testified that on 10th October 2022, the Complainant was sent to the shop by the mother but she never returned. That their search that night was unsuccessful and they went to sleep. He said that they inquired from relatives but they did not find the Complainant. That on 11th October 2022 they went to school and reported that the Complainant was missing.
That on 12th October 2022 they went to Kitere Police Station and reported. That on 14th October 2022 they were still searching for the Complainant when at around 2.00pm they went to the center where she had been seen, That, he went to Paul’s home which was 1km from his home to inquire if he had seen the Complainant but Paul said he saw the child on 10th October 2022 at the center and he spoke to her asking where she had come from but that she did not respond and he went away.
PW2 said that he went to all the homes. That on his way to the center he met his daughter who told him she had been locked in the Appellant’s house. PW2 took the Complainant to the hospital as she said the Appellant had repeatedly defiled her without any protection. That he also took her to Kamagambo Police Station and she was issued with P3 form which was duly filled.
In cross examination, PW2 said he knew the Appellant very well. He said that when he went to the Appellant’s home, he met him on the way to the bathroom and they spoke outside the house. He said that police investigated the matter and arrested the Appellant.
In re-examination, PW2 said the Complainant told him that the Appellant had locked her in the house for 4 days and repeatedly defiled her.
PW3 Lencer Omondi the Complainant’s mother testified that on 10th October 2022 she sent the Complainant to the shop but she did not return. That she started looking for her but know one had seen her. The following day she went to school at 3.00pm to look for her but she was not in class. That on 12th October 2022 she made inquiries from relatives and friends and also made a report at Kitere Police Station and on 13th October 2022 she left her contact with people to call incase they traced the Complainant. That on 14th October 2022 at around 11.00am she received information and she was told to go to Paul Abich’s home where she was told she would find her daughter. That she did not know Paul Abich and she waited for her husband and she reported to him that their daughter was at the Appellant’s home. That the Complainant’s father went to the village elder and reported and later the child was found at Kanga Machine center. On inquiry the Complainant explained that the Appellant had detained her at his house for 4 days and repeatedly defiled her. The Complainant was taken to hospital by the father and later she recorded her statement.
In cross examination, PW3 said that she did not know if the Appellant and PW2 had any problems.
PW4 P. C. Eric Njoroge in company of his 2 colleagues were led to the home of the Appellant by PW2 on 22nd October 2022 at 5.00am where they effected his arrest. He said they did not find PW1 at the home of the Appellant.
PW5 Clinical Officer Joyce Awino Ogolla produced age Assessment Report prepared and signed by her colleague Irene Onyinkwa confirming the Complainant was a minor. She also testified that she examined the Complainant and found whitish vaginal discharge with reddish vaginal wall and a forceful cut of the hymen. She said that there was pain on examination around the vagina. That all tests done were negative but she concluded that the minor had been defiled and she filled P3 form accordingly after putting the Complainant on PEP, E-pill, antibiotics and paracetamol.
PW5 said the approximate age of injuries was 5 days. She produced the PRC and P3 forms as well as Filter Card as Ex P2(a) & (b), 3 and 4 respectively.
In cross examination PW5 said the minor did not tell her that Paul Abich defiled her. She said she did not know the Appellant and did not treat him. She said that she was in company of a nurse when she examined the Complainant and filled the PRC and P3 forms at Rongo Sub-County Hospital.
PW6 CPL Silas Maswai from Kitere Police Station said that on 12th October 2022 the Complainant was reported missing and he looked for the minor in company of his colleagues. That on 14th October 2022 the parents of the Complainant went back to the station and reported they had traced her and she was taken to Rongo Sub-County Hospital. That he requested them to go to the station with the Complainant and they recorded statements and he issued P3 form which was duly filled. That on 22nd October 2022 he instructed his colleagues to go and arrest the Appellant in Kanga Machine area and he was charged and arraigned in court on 25th October 2022.
When the Appellant was placed on defense, he gave sworn statement and said that he did not defile the Complainant. He said that he had been in remand since 15th October 2022. He said the child was not found in his house. He said he told the girl the father was looking for her. He said he was not taken to any hospital and the minor did not identify him. He also said no DNA was done on his sperms. He said he had been on medication since 2015 but the minor was not found with any medication. He said he had issues with the Complainant’s father.
In cross examination by the Prosecuting Counsel the Appellant said he knew the father of the Complainant. He disputed that the Complainant was 14 years old and said she was 17 years old. He said that the Complainant’s father claimed that they killed his brother and that is why they had squabbles with him. He also said that he did not know the mother of the Complainant neither did he know the Complainant and he had no issues with them. He however, said that the Complainant was coached to fabricate him. He also said that the doctor lied that the minor was defiled. He said he was on antiviral drugs He said the Chief, as well as Patrick Odhiambo Omondi and Elvins Otieno knew that he had been fabricated. The Appellant said that the Complainant’s father told the doctor to lie in court.
The appeal herein was canvassed by way of written submissions.
The Appellant filed undated submissions together with amended grounds of appeal as follows:-
1. THAT, the learned trial magistrate erred in law and facts by convicting the appellant on a defective charge sheet which was not a mended as required by law under section 214 of the CPC.
2. THAT, the prosecution case was not proved beyond reasonable doubt.
3. THAT, the age of the complainant was not established.
4. THAT, penetration was not proved.
5. THAT, identification of the appellant improper.
6. THAT, vital witnesses were not brought in court to testify their testimonies would have secured my acquittal.
7. THAT, the trial magistrate erred in law and facts by basing my conviction on prosecution evidence marred with contradictions, inconsistencies discrepancies and glaring gaps.
8. THAT, the burden of proof was shifted to the appellant.
9. THAT, the trial court erred in law by failing to believe DW1's defense alibi which was truthful and cogent to secure acquittal.
10. THAT, the present case was shoddily investigated
11. THAT, the medical evidence did not support the complainants’ contention
12. THAT, the sentence awarded was not lawful.
REASONS WHEREFORE the appellant pray that may this appeal succeed to its totality, conviction quashed and sentence quashed and I be set at liberty.
The Appellant filed submissions in which he sought leave to file additional grounds of appeal including that initially he was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the sexual offences Act No 3 of 2006 at Rongo PM's court Criminal Case No. 025 of 2022 and he pleaded not guilty and after a full trial he was found guilty hence convicted and sentenced to serve life imprisonment,
He submitted that the charge sheet was incurably defective as it was not amended as required by law under section 214 of the criminal procedure code. The Appellant faulted the discrepancy between the date the offence was allegedly committed and the date report was made and the date he was arrested as shown in the P3 form, OB/02/- 22/10/2022 indicated on the side of the charge sheet is the date the appellant was arrested as shown at the date of arrest. Date of incident as stated on particulars of the offence is 11/10/2022 and 14/10/2022. Then where was the first report indicated on the P3 form,
The Appellant also submitted that he was charged with the offence under Section 8(2) of the Sexual Offences Act whereas the particulars of the charge showed that the Complainant was 14 years old. He argued that this discrepancy rendered the charge defective as the particulars did not support the charge.
The Appellant argued that he was prejudiced by the discrepancy as he was faced with difficulty of not knowing exactly what to plead or defend. He submitted that it is trite that the particulars of a charge must at any one-time support the statement of the offence. they must also be stated in such a clear and unambiguous manner so as to enable the accused to know the offence he is pleading to. That in absence of this cardinal principle an accused would get confused to know which charge he was pleading to and would defend himself. That is what obtains in the instants in the instant case which led him to conclude that the charge sheet herein was defective, as the he was supposed to be charged with the offence defilement contrary to section 8(1) as read with section 8(3) of the sexual offences act and not Section 8(2) of the Sexual Offence Act.
The Appellant submitted further, that the prosecution witness failed to prove its case beyond reasonable doubt as required by law. There was no direct evidence linking the Appellant to the commission of the said offence. The alleged offence was not witnessed by any other independent witness to corroborate the evidence of PW 1. That apart from the evidence of PW 1 which was not corroborated and which should be treated with utmost care, the prosecution did not tender any independent evidence to corroborate PW1’s testimony by linking the Appellant to the offence in question. The evidence of all the prosecution witnesses should not be believed for it was mere hearsay which cannot be admitted in evidence. The Appellant said he was suffering in prison for an offence he did not commit and the charges he was not a party to. He denied having defiled any child as alleged neither did he act indecently with a child. He said he is serving life imprisonment on a matter in question and in which he is totally green.
The Appellant submitted that the age of the Complainant was not proved beyond reasonable doubt. He cited the holding in the case of ALFAYO GOMBE OKELLO VERSUS REP. CRIMINAL APPEAL NO 203 OF 2009 the court of appeal held:-
" In its wisdom, parliament chose to categorize the gravity of that offence on the basis of the age of the victim consequently. The age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt”.
In FRANCIS ONAMU VS UGANDA, the court held that:-
"in defilement cases medical evidence is paramount in determining the age of the victim and doctor is the only person who would professionally determine the age of the victim. In the case of any other evidence apart from medical evidence, age may also be proved by a birth certificate, the victim's parents, or guardian and by observation and the common sense"
The Appellant also submitted that the Complainant was 9 years 7 months and 8 days according to the age assessment Report and P3 form produced by the Prosecution and yet the charge sheet indicates 14 years. Moreover, age assessment was carried out scientifically. He also said that there was no certificate of birth produced in court to enable the court to ascertain the exact age of the complainant. He cited the case of STEPHEN OUMA OPIYO VS REPUBLIC HCCR CASE NO 46 OF 2009 AT KISUMU in which justice J R KARANJA held that:-
“The age of the complainant was according to her mother 16 year there was nothing cogent to prove the facts and/or that the complaint was born 22/01/1993. There was no birth certificate produced in court. The only document was baptismal card from a church. This was not sufficient evidence to prove the age and as to prove and as the appellant contended, such card may be obtained by all and sundry.”
He said that in the absence of a birth certificate, the prosecution should have simply presented the complainant to a duly qualified medical doctor for purpose of age assessments. The charge sheet indicate that the complainant was aged 14 years, so did the Clinical Officer (PW 5) who however relied on information given to him by the police. He said that it could as well be that the complainant was eighteen or above at the time of the offence.
The Appellant argued that in the absence of proof that the complainant was below eighteen at the material time, the Appellant's conviction by the learned trial magistrate was not safe whether the offence was attempted defilement or defilement. He urged the court to set him at liberty forthwith unless otherwise lawfully held.
The Appellant also faulted the prosecution for purporting to produce age assessments report through PW 5 who was not the maker of the said age assessment report and the scientific method that was used to ascertain the age of the victim was never explained to the court. The Appellant submitted that there was no basis or legal justification in imposing life sentence against him without first ascertaining the age complainant.
He also relied on the case in Bungoma HCCR appeal No. 89 of 2016, KELVIN KIPROTICH AMOS alias ROTICH vs REP in which Hon. ladyship ARONI delivered on 30th March 2017 which dealt with the issue of age extensively by taking into account a wide range of information including medical opinion and scientific method in determining the age of a victim in which she held inter alia:-
"In the case of the appellant in p3 form was given as 19. He had no birth a certificate then and the issue is how this age was arrived at by the police and yet no age assessment was done”.
Secondly, he contended that even where the age assessment of the victim was done, it was done by a Clinical Office and his casual observation is that there was no specific method indicated of how she arrived at the same or whether she was qualified in the dental discipline or pediatric science or even she arrived at the conclusion.
He submitted that the exact age of the Complainant was not ascertained and the conviction should be quashed and he be set at liberty after setting aside the sentence.
The Appellant also submitted that penetration was also not proved as there was medical evidence supporting the allegation. He said the details of p3 form, PRC form and treatment note form do not corroborate allegations of penetration.
He said that the evidence presented before the trial court did not point or link him to the commission of the alleged offence. He said that PW1 was not candid and honest in her testimony as stated by the trial magistrate in his judgment. That PW1 in her testimony stated that the incident occurred on Monday 10/10/2022 until 14/10/2022 which was on Friday. She stated that the next day i.e. (14/10/2022) the appellant woke up and locked the door, returned at 2pm. He came and told me that he met my father George. He was looking for me. He told me to leave and go and tell my father I had come from school. I stayed there from Monday to Friday. Upon cross-examination by the appellant, she stated that I stayed for 4 days. I met my parents along the way. He left and went to the river. I was taken to hospital by my father.
Medical examination report PMFI -form, part 'A' on page 26 indicate date and time of alleged offense on 10/10/2022 at 6.20pm. date and time reported was on 12/10/2022 at 7.30pm. sent to hospital on 14/10/2022, time not indicated. Part Il section "B' no Il, approximate age of injury indicated was five days.
PRC form indicate date and time of examination as 14/10/2022 at 00pm date and time of the incident is on 10/10/2022 at 6.00pm. Date and time of report not indicated.
Filter clinic attendance card PMFI -2 'A' on page 22 date for attendance was not indicated. It only had a rubberstamp dated 12/10/2022. Filter clinic attendance card PMFI -Il 'B' on page 23 date and time indicted was 14/10/2022 at 6.20pm with a rubber stamp dated 17 / 10/2022.
The charge sheet indicated or state that on diverse dates between 11/10/2022and 14/10/2022 is when the incident took place. No time indicated. This means that she stayed in the said house for three days. Then the question is how many days did PW 1 spent in the appellants house? What was the approximate age of the injuries (days) was PW 1 attended to? Why were the two filter clinic attendance cards PMFI Il 'A' and PMFI Il 'B' 2 different dates of Rubber stamps? At what time was the offence committed or took place? Was PW I's evidence believable? When or which particular date was the incident committed?
It was the Appellant’s submissions that evidence of PW 5 the clinical officer was not
convincing that the complainant had been defiled. That the medical evidence relied upon by the court was contradictory and was not corroborated by the evidence of the minor.
On the issue of identification, the Appellant submitted that the same was not water tight as was held in the case of NZARO VS REP (1991) KLR 212 as quoted in the case of Joseph Otieno vs rep (2019) eKLR. He also relied on the case of WAMUNGA VS REP (1989) KLR where the court held that where only evidence against defendant is of identification the trial magistrate must carefully examine such evidence and be satisfied that the circumstances of identification is favorable and free from possible error. The Appellant argued that PW1 alleged that the incident took place around 7.00pm and it was dark. This clearly indicate that there was no proper identification. He submitted further that he was not singled out as the sole perpetrator. PW 1 on page 9 line 27 she said and I quote " I did not know you before you defiled me. I did not know your home." PW 3 the mother to PW 1 stated that and I quote " PAUL ABICH I do not know him. I saw him in court. Vide page 11 line 27&28. The prosecution's case was not proved beyond reasonable doubt. He said that since he was leaving in the morning hours then came home evening hours the minor was not able to identify him. That it was not known or recorded, what kind of light was being used while in said house to enable PW 1 identify the appellant. It is also not known that how many days the minor spent in the alleged house. This was confirmed by the contradicting evidence produced in court. PW 1 upon being cross-examined by the appellant said four days. approximate age of injury indicated on the p3 form was five days. The charge sheet stated that the incident took place on 11/10/2022 which is three days. How many days did PW 1 spent in the house? Was the complainant able to identify her perpetrator?
The Appellant also submitted that vital witnesses such as Irene who conducted age assessment vide page 14 line 18, the mentioned nurse who was with PW 5 when examining the victim (PW 1) vide page 15 line 17, PC NYABIBA and MASIRO who were with PW4 when arresting the appellant. Vide page 13 line 7. The class teacher and the pupil send. Vide page 12 line 11. No letter or any document brought in court to show that PW 1 was learning. The people that PW 3 had left her contact. Vide page 12 line 8, were the contacts produced in court? The village elder whom PW 2 went to. Vide page 12 line 12. The people who were at the center. Vide age 12 line 18. And PW 2's friends elder and relatives that he was from.
Vide page 10 line 26-27. He said that the testimony of the witnesses who were left would have warranted his acquittal.
The Appellant relied on the case of BUKENYA AND OTHERS VS UGANDA (1972) E.A 549 in which the former East African Court of Appeal addressed the legal effect of the prosecution’s failure to call certain witnesses. The Court laid down three key principles:
Duty to call material witnesses
The prosecution is under a duty to make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent.
Discretion of the court
The court has the discretion to determine whether the evidence presented is sufficient to prove the case, notwithstanding the absence of certain witnesses.
Adverse inference
Where the prosecution fails to call a material witness without explanation, and the evidence on record is barely adequate, the court is entitled to draw an adverse inference that the uncalled witness would have given evidence unfavourable to the prosecution.
The Appellant also submitted that there were contradictions. inconsistencies. discrepancies and glaring gaps in the prosecution’s evidence which weakened and destroyed the inference of guilty and which have been disregarded in totality for a safe outcome of the charge before the appellant herein. PW 1 stated that she met her parent along the road - page 9 line 6, while PW 3 stated that, the child was found at kanga machine center. vide page 12 line 13. Whereas PW 6 stated that she (PW 1) was found in the appellant’s house. It was around 17 hours vide page 17 line 12-13 and PW 4 upon cross-examined by the appellant stated that we arrested you around 5.30 am. We did not found PW 1 in your home when we arrest you vide page 13 line 13-14.
The Appellant submitted that the contradictions identified in his submissions rendered the evidence of PW1 questionable. He also said that PW2 contradicted the evidence of PW1 when he stated that he went to Paul's home. His home is I kilometer away from ours vide page 11 line 5-6. What was the exact distance from PW 1 and the appellant's home? Upon cross-examined by the appellant. PW 2 stated that your home had five houses vide page 11 line 19. Was the appellant's house between others or was a house of five houses?
In the case of DINKERAI KHAN KRISHNA PANDYA VS REP (1957)E.A 336 held "it is a trite that where the evidence is contradictory or inconsistent, the court should not rely upon. All the prosecution witnesses evidence contradicted even other. See the case of SHANTALAL M. RUWALA VERSUS REP.”
The Appellant also submitted that the trial court shifted the burden of proof to him and the defense of alibi was cogent and was enough to secure acquittal since it was not shaken by the prosecution. He said that the onus is on the prosecution to displace the defense of alibi after the defense has been raised at the trial as was stated at the court of appeal in the case of Victor Mwendwa Mulinge versus Republic (2014) eKLR.
" It is trite law that the burden of proving falsity if at all, of an accused defence of alibi lies on the prosecution" in the case of ADEDEJI VERSUS THE STATE VS THE STATE (1971) 1 ALL N.LR 75. It was held that:-
" Failure by the police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of imposed life sentence”.
The Appellant’s submissions on sentence were that the same was harsh and excessive amounting to unfair trial taking into account that he is a first offender. He said that the
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