Case ID:202328

MKN v Republic (Criminal Appeal E008 of 2022) [2022] KEHC 12879 (KLR) (12 September 2022) (Judgment)

Case Metadata

Case Number:

Criminal Appeal E008 of 2022

Parties:

MKN v Republic

Date Delivered:

12 Sep 2022

Case Class:

Court:

High Court at Bungoma

Case Action:

Judgment

Judge(s):

Hedwig Imbosa Ong'udi

Citation:

MKN v Republic (Criminal Appeal E008 of 2022) [2022] KEHC 12879 (KLR) (12 September 2022) (Judgment)

Court Division:

Criminal

County:

Bungoma

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

MKN v Republic (Criminal Appeal E008 of 2022) [2022] KEHC 12879 (KLR) (12 September 2022) (Judgment)

Neutral citation:

[2022] KEHC 12879 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E008 of 2022

HI Ong'udi, J

September 12, 2022

Between

MKN

Appellant

and

Republic

Respondent

(Arising from the Judgment by G Adhiambo Principal Magistrate in the Kapsokwony Sexual Offences case no 17 of 2019 delivered on November 4, 2021)

Judgment

1.

MKN the appellant was charged with the offence of defilement contrary to section 8(1)(3) of the

Sexual Offences Act

No 3 of 2006. The particulars being that the appellant on November 5, 2019 in Mt Elgon Sub County within Bungoma County, intentionally caused his penis to penetrate the vagina of JN, a child aged 13 years.

2.

He faced an alternative count of committing an indecent act with a child contrary to Section 11(1) of the

Sexual Offences Act

No 3 of 2006. The particulars being that the appellant on November 5, 2019 in Mt. Elgon Sub County within Bungoma County, intentionally touched the vagina of JN, a child aged 13 years with his penis.

3.

He denied the charge and the matter proceeded to full hearing with the prosecution calling six (6) witnesses. The appellant gave a sworn defence without calling any witness. He was later convicted on the principal count and sentenced to twenty (20) years imprisonment.

4.

Being dissatisfied he filed this appeal against the whole Judgment raising the following grounds:

i.

That the tail magistrate erred in law and facts by basing a conviction on a charge not prescribing the sentence.

ii.

That the trial magistrate erred in law and facts by failing to realize that conviction was based on a non-existing charge in S O A no 3 of 2006.

iii.

That the charge sheet was defective was not amended and cannot be used to secure conviction

iv.

That the appellant’s arrest was improper

v.

That the medical evidence did not support he complainant’s contentions.

vi.

That the P3 form, treatment note form and P.R.C form indicate no defilement

vii.

That penetrator was not proved

viii.

That the identity of the penetrator was doubtful

ix.

That vital witnesses did not come to court to testify

x.

That this was a framed up the case against the appellant

xi.

That the appellant was convicted without discretion

xii.

That the trial magistrate erred in law and fact by failing to realize that the prosecution case was marred with inconsistencies, discrepancies, contradictions and fat grading gaps.

xiii.

That broken or missing of hymen and presence of epithelial cells not prove for penetration or defilement

xiv.

That the trial magistrate erred in law and facts by failing to warn himself against the danger of convicting the appellant on uncorroborated evidence of complainant.

xv.

That PW1 and the complainant are un-credible witnesses

xvi.

That circumstantial evidence must be treated with a lot of caution since it can bring about miscarriage of justice

xvii.

That the trial magistrate erred in law and fact by demonstrating that he was biased and prejudicial against the appellant as a result the appellant was not accorded fair trial as enshrined in article 50(2) of the

Constitution

xviii.

That the prosecution case was not proved beyond reasonable doubt

xix.

That the appellant was not medically examined to ascertain the truth of the complainant allegation

xx.

That the trial magistrate erred in law and facts by failing to believe his alibi defence which was truthful and cogent by terming it mere denial.

5.

The appellant filed written submissions on August 4, 2022. He took issue with the charge sheet which showed that he was charged under section 8(1)(3) of the

Sexual Offences Act

which he says is non-existent. The charge sheet was never amended.

Following the case of

Fappyton Mutuku Ngui v Republic

[2012] eKLR he identified the ingredients in a case of defilement to be:

a.

Penetration of the complainant’s genitalia

b.

Whether the appellant was the perpetrator

c.

The age of the victim

6.

On penetration he referred to the evidence of PW6 the clinical officer, and submitted that there was no evidence of sexual assault on the child. The clinician who first saw the victim did not testify. That PW6 did not make any conclusion in the P3 form. He contends that a broken / torn / perforated missing hymen and /or presence of epithelial cells is not proof of penetration or defilement.

7.

The appellant submitted that PW1 – PW6 were all unreliable witnesses and their evidence should not have been relied on by the trial court. In support he relied on:

i.

Ndung’u Kimanyi v Republic

[1979] KLR 283

ii.

Geoffrey Otieno Bor v Republic

Criminal Appeal Homabay High Court

8.

It his submission that the evidence of PW1 and PW4 is contradictory on what really happened. He cites the time, the form of light used, and who the other persons in the house were. He contends that crucial witnesses like Mark, Sarah Wekesa, Clinician (Francis Ongoma) and Mama Anna were never called to testify. He referred to the following cases in support of this submission:

i.

Bukenya & others v Uganda

(1972) E A 549.

ii.

Andrew Mulika Kitusi v Republic

Criminal Appeal No 217 of 2013 – High Court Machakos.

9.

On mandatory sentences he argues that the same is unfair as it denies the trial court the discretion to mete out an appropriate sentence. It is his submission that the evidence in this case is purely circumstantial. That the chain in the case is not complete as the evidence does not point out to him as the only person who may have committed the offence.

10.

Referring to the case of

Victor Mwendwa Mulinge v. Republic

[2014] eKLR he submits that his alibi defence was never displaced by the prosecution. His prayer was for the appeal to be allowed, and the conviction quashed and he be set at liberty or a retrial be ordered.

11.

The respondent’s submissions dated August 3, 2022 were filed by learned counsel Hilda Omondi. It’s her submission that the three (3) ingredients in a case of defilement were well satisfied in this particular case. On age she relied on the case of

Musyoki Mwakari v Republic

(2014) eKLR, and submitted that the mother’s evidence was sufficient.

On penetration she submits that the medical evidence by PW6 supports that of PW1 and PW4, who said the appellant was lying on top of PW1.

12.

Secondly that both PW1 and PW4 who had lived with the appellant for 7 years could not have failed to identify him. PW2 corroborated the evidence of PW1 and PW4 on the version of events that occurred. By the time PW2 came the appellant had escaped and PW1 slept in one of their neighbours houses.

13.

Relying on the case of

Philip Nzaka Watu v Republic

[2016] eKLR, she submits that some inconsistency in evidence may actually signify veracity and honesty. She dismissed the argument that the appellant did not know the court procedures. He fully participated in the proceedings and gave a lengthy defence. She urged the court not to interfere with the discretion of the trial court. In support of this she cited the case of

Republic v. Abeid

(1990) eKLR.

14.

On sentencing she submitted that the appellant was released on bond on June 12, 2020 and so did not spend too much time in custody. His mitigation was therefore considered before sentence. That the appellant abused the trust bestowed on him for protection of a vulnerable person.

15.

A summary of the evidence on record will suffice. PW 1 LN is the mother of PW4 (JN) the victim and she was also the wife to the appellant. They lived together with her two daughters whom she got before their marriage. One of them was JN, who was aged 13 years at the time of incident. The house they lived in had two (2) rooms. Her children slept in the sitting room while she and the appellant slept in the bedroom.

16.

On November 5, 2019, after supper she was in the bedroom as she boiled maize on the jiko therein. She decided to sleep a bit. She woke up later and went to the sitting room and noticed that the door was locked and the appellant was not in the bed. On checking on the children she found the appellant lying on top of JN. Her other daughter was sleeping next to them.

17.

She picked a cooking stick and hit the appellant who had unbelted his trouser. She did not know if he had unzipped it. The appellant in turn beat her up. She screamed and nyumba kumi people came. One of the nyumba kumi people called Mark left with JN for his home for her safety. She stated that on this night JN was still dressed. She never heard JN making noise and her other daughter was asleep when all this was happening. Her evidence is that the appellant was preparing to defile JN.

18.

JN was born on June 9, 2006. An age assessment was done for her and it confirmed she was 13 years old (PEX B2).

19.

PW2 Mark Olinyo Tuta is a nyumba kumi elder. He testified of having heard screams from the appellant’s house. They stay 100m apart. It was around 11.00p.m and he went to the house and found PW1, who informed her of the incident. The appellant was nowhere to be seen. He advised PW1 not to allow JN to sleep in that house, and that the matter had to be reported. JN slept at the home of Dennis a fellow nyumba kumi elder. The appellant was arrested the next day.

20.

PW3 Bonface Wangila Mumalasi Wabusela is a community oral Health officer at Mt Elgon sub county hospital. He assessed JN’s age, vide Dental Clinic number 363/19. She was found to be approximately 13 years of age, and the report was produced as PEXB2.

21.

JN testified as PW4 and under oath after a voire dire examination was conducted. She testified that on the material night at 10.00 p.m the appellant who is her father came to where she slept with the other small children. She was wearing a skirt and blouse. He removed her inner pant. He inserted his penis in her vagina and PW1 found him in the act. The electricity light was on and she saw what he was doing. PW1 made noise and the appellant beat her. He left and was later arrested. She confirmed that it was the first time he was doing that to her. In cross examination she denied any plan to frame him.

22.

PW5 No. 66165 Cpl Janet Manyorio from Kaptama police station confirmed receipt of the defilement report on November 6, 2019 at around 8.30 a.m. She undertook all the necessary steps in gathering evidence. The appellant was then arrested from his mother’s home.

23.

PW6 Godfrey Wanjala Khaemba is a clinical officer stationed at Chwele sub county hospital, but he examined JN, while at Kapsokwony sub county hospital. This was on November 6, 2019. His findings were as follows:

Normal external genitalia

No bruises nor tears

Missing hymenal membrane

No visible discharges on the genitalia

Preliminary investigations at the lab showed:

VDRL test, pregnancy test and HIV test were negative

HVS – revealed scanty epithelial cells.

Epithelial cells can present in various circumstances namely;

a.

After attending menses the shedding of the vaginal walls can come out as epithelial cells.

b.

In the event of sexual activity the epithelial cells can be seen in the urine sample on HVS.

c.

Any other instrumentation to the genitalia.

24.

He further stated that a urinalysis was done and there were scanty epithelial cells. The HVS did not reveal any motile (alive) spermatozoa. He added that the lab results only talked of motile spermatozoa and did not indicate if there was any dead spermatozoa. He produced the treatment notes by Mr. Ongoma as PEXB1a and the P3 form as PEXB1b. He did not make any conclusion in the P3 form for the reason that there were no motile sperms which exist for over 3 days in the vaginal genitalia. It was his response that there could have been penetration because of the absence of the hymen and the presence of epithelial cells.

25.

The appellant gave a sworn defence. He explained he had met PW1 as he did businesses in Chesamis area. They later got married and he accepted PW1’s two daughters. They lived together from 2013 – June 2019. It was during PW1’s grandfather’s funeral that he learnt that PW1 had five (5) other children at her home. Things started changing for the two of them. On November 5, 2019 6p.m he went to Wateh football until 8p.m. Due to stress levels he went to spend the night in a house within his parents compound.

26.

Later in the night their neighbour Mark Olinyo (PW2) woke him up. He asked him if he knew the offence he had committed. He told him he had disagreed with his wife. When he went out of the house he was slapped and he fell. He was then beaten by the men, and placed on a motorbike and taken to the police station. It was alleged he had defiled his child JN He denied it.

Analysis and determination

27.

This is a first appeal, and this court has a duty to re-consider and re-evaluate the evidence and arrive at its own conclusion. In the case of

Okeno v Republic

(1972) E A 32 the Court of Appeal stated the following in respect of the duty of the first appeal court:

“

An appellant on a fist appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (

Pandya v Republic

[1957] E A 336) and to the appellate court’s own decision on the evidence. The first appellate Court must itself weigh “conflicting evidence and draw its own conclusions (

Shantilal M Ruwala v Republic

[1957] E A 570). It is not the function of a first appellate merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses,

See

Peters v Sunday Post

//, [1958] EA 424

.”

Also see:

i.

Gabriel Kamau Njoroge v Republic

(1982 – 1988) I KSR 1134

ii.

Kiilu & another v Republic

[20005] 1 KLR 174

28.

I have carefully considered the evidence on record, grounds of appeal, both submissions, authorities cited and the law. The main issues for determination which are the ingredients for a charge of defilement to be proved are:

i.

Age of the victim

ii.

Whether there was proof of penetration of the victim’s genital organ

iii.

Whether the culprit was identified.

(i) Age of the victim

29.

There is no dispute that JN was a minor. The charge sheet put her age at 13 years. Her mother (PW1) told the court that JN was born on June 9, 2006. PW3 a community oral Health office who assessed JN’s age explained how he arrived at 13 years as her age (PEXB2). This was not rebutted. My finding is that age was proved.

(ii) Whether there was proof of penetration of the victim’s genital organ

30.

Section 2(1) of the

Sexual Offences Act

the word “penetration” is defined as follows:

“

The partial or complete insertion of the genital organ of a person into the genital organs of another person.”

31.

The witnesses whose evidence is relevant to this issue are PW1, PW4 & PW6. According to PW4, the incident occurred with full electricity lights on in the room and she could see everything. The person removed her inner pant and inserted his penis inside of her. PW1 caught the man in the act. She said, it was the first time he was doing this to her.

32.

PW1’s version is that she found the person lying on top of JN. Her daughter S was just sleeping beside them. The man had unbelted his trouser but she did not check to see if he had unzipped it. She used her lit torch to see him. Later in her evidence in chief she states as follows at page 19:

“

I was asleep in the bedroom before I found my husband on top of the child. I did not hear JN making noise. JN said that she found her father on top of her. It was evident that I found my husband preparing to defile my daughter. He had unbelted his trouser.”

33.

In these two versions of PW1, & PW4 there is an issue as to whether PW4 (JN) was defiled or the man was preparing for the act. Despite PW4 saying the room was lit by electricity light, from her mother’s (PW1) evidence there was no such light. She used her lit torch to see. She could not have used the torch if there was electricity light on. PW4 stated that the father had never done this to her before. Being a 13 years old child and being defiled (as she wants the court to believe) for the first time for sure she ought to have felt a lot of pain and screamed waking up everyone in the house. In this case her sister and other kids lying next to her were deep asleep. PW1 came to the room to look for her husband, and not because of any noise or shouts that had been made by PW4.

34.

The other evidence is that of PW6 who filled the P3 form and the produced the treatment notes. PW6 read to the court what PW4 told the Clinician who attended to her soon after the incident. This is found in the document PEXB1(a) and at page 38 – 39 of the Record of Appeal. It reads:

“

Patient was brought by 2 police officers with allegations of having been defiled by her father on 5/11/2019 at around 10p.m while she was asleep. She explained that he forcefully removed her inner-pant and defiled her. She tried to resist but he overpowered her. She screamed and that is when her mother came to her rescue.”

35.

Again what PW4 allegedly told the Clinician Francis Ongoma who first attended to her is not what is before the court in terms of the evidence of PW1 and PW4. Nowhere do they mention anything about PW4 screaming for help, as the appellant defiled her.

Secondly nowhere does PW1 state that she found the husband in the act of defiling JN.

Finally on this point is the evidence in the P3 form. According to PW6 there is no conclusion he reached after the examination. He states that the only thing that could make one think of a defilement having taken place is the missing hymen and the epithelial cells.

36.

This incident is said to have occurred on November 5, 2019. JN was first seen at the hospital on November 6, 2019 which was in less than 20 hours. The findings on this date as stated by PW6 were:-

The external genitalia was normal

There were no bruises nor tears

No visible discharges

There was therefore no bleeding.

PW6 also stated that male sperms can remain alive in the vagina for 3 days. J.N was examined in less than 20 hours. There were no live nor dead sperms found inside of her.

37.

The next issue to determine would be whether a missing hymen “per se” is proof defilement or rape. The court of Appeal in

P K W v Republic

[2012] eKLR observed thus:

“

Hymen, also known as virginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offense 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 ride, bicycle riding and gymnastics, there can also be natural tearing of the hymen.”

38.

The answer therefore is that a missing hymen “per se” is not sufficient proof of defilement. There must be some back-up evidence to support it. In this case the back up evidence would be that of JN and /or PW1. The evidence of PW1 and JN in the first place is contradictory. Secondly even if JN.’s evidence were to be relied on, the same is not supported by the medical evidence adduced, yet JN was seen at the Health facility within the shortest time after the incident.

39.

I agree as submitted by counsel for the respondent while relying on Philip Nzaka Watu (

supra

) that discrepancies may occur due to the infallibility of human recollection. When such discrepancies go to the root of the main issue before the court it seizes to be a minor discrepancy.

My finding on this issue is that penetration was not proved.

Was the alternative count proved?

40.

PW1 told the court that she found her husband lying on top of JN. To her the man was preparing to defile her. She said he had unbelted his trouser but had not unzipped it. From the observation by the clinician who first observed JN his findings are in line with the evidence of PW1, on this element.

41.

In his defence the appellant claimed not to have been at the scene, after leaving to Wateh football at 6.00p.m. That he had decided not to return home because of differences between him and PW1. PW2 heard PW1’s screams following what had happened. He rushed to the house and was informed of the happenings. By then the appellant had disappeared. He was later arrested from his parents’ home. There was no evidence to support his claims of having been away watching soccer from 6p.m and being at his parents’ home from 8.00 p.m. The issues he raised in his defence about PW1 having several other children leading to a misunderstanding were never put to PW1 in cross examination.

42.

On whether the appellant was the culprit, the evidence on record clearly points at none other than the appellant as the culprit. He was well identified by PW1 & PW4 as having been at the scene, on the material night. He was found lying on top of PW4 with his unbelted trousers. His intention was to have sex with the child. There can be no other explanation.

43.

As I wind up I would wish to point out that the appellant is a step father to JN What he did falls under Section 20 (2) of

Sexual Offences Act

.

Section 22 of the said

Act

defines the place of a stepfather. It provides:

“

Section 22(1) In cases of the offence of incest, brother and sister includes half brother, half sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the fist degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.”

The child JN was not just any child falling under section 11(1) of the Act but is a step child.

44.

I therefore set aside the conviction under section 8(1) as read with section 8(3) of the

Sexual Offences Act

No. 3 of 2006. I substitute it with a conviction for the offence of attempted incest with a child contrary to section 20(2) of the

Sexual Offences Act

.

The sentence provided for this offence is ten (10 years. The sentence of twenty (20) years is therefore set aside and substituted with a sentence of ten (10) years from the date of conviction (4

th

November 2021).

The appeal partially succeeds in terms of the above orders.

Orders accordingly.

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 12

TH

DAY OF SEPTEMBER, 2022 IN OPEN COURT AT NAIROBI.

H I Ong’udi

Judge of the High Court