REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL APPEAL NO. 3 OF 2013
N N ...............................APPELLANT
VERSUS
REPUBLIC....................RESPONDENT
(FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NUMBER 601 OF 2011
IN THE RESIDENT MAGISTRATE’S COURT AT MWINGI - H.M. NYABERI (PM) ON 16TH NOVEMBER, 2012)
Judgment
The Appellant, N N, was charged in the Senior Resident Magistrate’s Court at Mwingi with the offence of defilement contrary to Section 8(1)(2) of the Sexual Offences, 2006. It was said that on 12th September, 2011 at [particulars withheld] within Migwani District of Kitui County he caused his penis to penetrate the vagina of M. M. a child aged five years.
In the alternative, the Appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006.
At the conclusion of the trial the Appellant was convicted in the main count and sentenced to life imprisonment. He now appeals against both conviction and sentence.
In summary, the Appellant through his petition of appeal filed on 2nd January, 2013 faults the trial magistrate for convicting him on contradictory and unsubstantiated evidence.
Mr. Mulama for the state opposed the appeal stating that the Appellant’s conviction was based on cogent evidence and was therefore lawful. He contended that life imprisonment was the appropriate sentence for the crime committed by the Appellant.
From the evidence on record, M M was five years when she testified. She lived with her grandmother (PW1 A M N) and her grandfather who is the Appellant herein at [particulars withheld]in Migwani District. The mother of M M, PW5 M N, resided in Nairobi. She is the daughter of PW1 and the Appellant.
The evidence of M M who testified as PW2 is as follows:-
“The accused person is my grandfather. I stay with him together with my grandmother. The accused defiled me in the bush and another time in the house.
I may remember having gone to graze goats with him in the bush. While there, he removed my skirt and pant. He put his urinating organ into my urinating organ. I felt pain and I told him to leave me. He went on doing it.
When he defiled me in the house, he had chased my grandmother. I felt very painful. I bled from my vagina. I came and told my grandmother. When my grandmother came I told her. I washed my pant. He used to tell me not to tell my grandmother.”
PW1 told the Court that on 12th September, 2011 at about 7.00 p.m. she was with the Appellant and the complainant. After a while she realized that the Appellant wanted to beat her and she ran out of the house. She later sneaked back into the house and slept. The complainant told her she had been defiled. On examining her she saw blood in her genitalia.
On cross-examination, PW1 stated:-
“I had moved out of the house between 12th and 15th September, 2011 because you were defiling the child and I was fearing you. Since you married me, you have never beaten me.”
The medical officer who filled the P3 form, Mr. Indumwa Edmond testified that M M was taken to him by a police officer from Migwani Police Station with a history of having been defiled severally by her grandfather for many months. Upon examining her, he noted bruising on the right and left labia minora but there were no lacerations. The labia majora was normal. The hymen was broken. He noted that penetration was minimal.
PW4 Grace Mwikali Muli the Chief of [particulars withjeld] Location told the Court that on 13th September, 2011 the complainant was taken to her by her grandmother who reported that the complainant had been defiled by the Appellant several times. She referred them to Migwani Police Station.
PW5 told the Court that on 19th November, 2011 she received a call from her mother informing her to travel home urgently since her father had defiled her daughter (M.M). She travelled home and upon interrogating her daughter she denied having been defiled. PW5 told the Court that her mother had differed with the Appellant on various occasions. She further told the Court that her mother sometimes suffered from mental instability.
This being the first appeal, I have a duty to evaluate the evidence tendered and reach my independent conclusion.
The evidence that was tendered before the trial Court was riddled with inconsistencies. PW2 told the Court that she went back to the house on 12th September, 2011 but she did not hear or notice anything unusual. The following day the child told her she had been defiled. The report that was given to the authorities is that the child had been defiled several times. The child herself talked of being defiled twice. The doctor talked of minimal penetration. The child and PW1 had talked of bleeding but the doctor did not see any lacerations.
The proviso to Section 124 of the Evidence Act Cap 80 states that:-
“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
The reasons for arriving at the conclusion that the victim of a sexual offence is telling the truth must be recorded in the judgement. In the judgment of the trial Court one of the reasons given in support of the conviction is that the evidence of the complainant was supported by that of the doctor and PW1. In my view a trial Court should first believe that a complainant is telling the truth before seeking corroboration.
In the case before me, the voir dire examination administered on the complainant was inadequate and could neither have established whether the complainant understood the meaning of an oath and or knew the importance of telling the truth. The court record on the voir dire examination is as follows:-
“court - PW2 VOIRE DIRE EXAMINATION OF THE COMPLAINANT MINOR
Am M M. I learn at K M. Am in nursery. I do not know my age.
H. N. NYABERI SRM
Court: I observe that the child is tender and direct that she give unsworn evidence.
H.N. NYABERI SRM.”
The examination did not serve and neither did it achieve the purpose of voir dire interview. There is no evidence that the child appreciated the importance of telling the truth. In fact it is not clear from the voir dire examination whether the child was possessed of sufficient intelligence to enable her testify in the first place.
PW5 who is the mother of the complainant gave evidence to the effect that the complainant denied the allegation that she had been defiled by the Appellant. The evidence of the prosecution witnesses was therefore contradictory on material facts.
Considering the evidence that was adduced in the trial, I form the opinion that the charge against the Appellant was not proved beyond reasonable doubt. His conviction cannot stand. The appeal is therefore allowed and the conviction and sentence set aside. The Appellant is therefore set free unless otherwise lawfully held.
Orders will issue accordingly.
Prepared, Dated and signed this 27th November 2013
W. KORIR,
JUDGE OF THE HIGH COURT
Dated and delivered on 3rd day of December, 2013
S.N.MUTUKU
JUDGE OF THE HIGH COURT