Moses Nato Raphael v Republic [2013] KEHC 6929 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO. 24  OF 2009

MOSES NATO RAPHAEL  ......................................APPELLANT

VERSUS

REPUBLIC ..........................................................RESPONDENT

(From original conviction and sentence in criminal case Number 4499 of 2007 in the Chief Magistrate’s Court at Thika – F. Nyakundi (Ag. PM)

JUDGMENT

Introduction

1. Moses Nato Raphael, the appellant herein was tried and convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act.

Brief Facts

2. The brief particulars were that, on the 5^th day of September 2007, at [particulars withheld] Estate within Thika District of the Central Province intentionally and unlawfully, he committed an act which caused his genital organ to penetrate the genital organs of M. W. (identity concealed on account of her being a minor) a girl under the age of eleven years. 

3. In the alternative the appellant had been charged with engaging in an indecent act with a child contrary to Section 6(a) as read with Section 11(6) of the Sexual Offences Act No. 3 of 2006.  Particulars were that on the date stated above the appellant committed the offence by touching the complainant’s private parts.

Grounds of Appeal

4. Upon conclusion of the trial the learned trial magistrate convicted him on the main charge and sentenced him to life imprisonment.  Being aggrieved, the appellant lodged an appeal against both conviction and sentence and put forth four grounds of appeal which, in sum, urged that:

1.  The prosecution case was not proved beyond reasonable doubt.

2. The court relied on the contradictory evidence of a single witness.

3. His constitutional rights were violated by being held in custody for over 24 hours.

4. That his alibi defence was not considered.

Submissions

5. Miss Maina, learned State Counsel opposed the appeal and argued that there was sufficient evidence on record to support both conviction and sentence. That there was sufficient evidence that the appellant had defiled PW1 and that the minor and the appellant were all well known to each other she also urged that there was no reason for PW1 and PW2 to fabricate the case against the appellant and that although the medical report established that the appellant was HIV positive it was not a must that PW1 would become HIV positive immediately upon defilement.

Summary of the Case

6.  M.W. who was six years old and therefore a child of tender years, testified on oath because upon being subjected to voire dire examination under Section 19(1) Oaths and Statutory Declarations Act, Cap 15 LoK, she was found to understand the importance and implication of telling the truth.

7. She testified that she returned home from school at 1 p.m. on 5^th September 2007 and visited the toilet.  While in the toilet the appellant who was well known to her, emerged from the tall grass near the toilet, entered the toilet and found her having removed her inner wear.  That he lifted her and laid her by the side of the toilet and removed his trousers.  That he was not wearing underpants.  He then inserted his penis inside her private parts and proceeded to defile her.  Meanwhile he threatened to kill her using a machete, if she revealed his identity. He instructed her to say that it was a “boda boda” person who defiled her.

8. When the appellant left, PW1 sought her mother PW3, who took her to Thika District Hospital.  It was at the hospital that PW3 was referred to Thika Police Station and later on to Juja police Station where she reported the matter.  The appellant was arrested two weeks later and charged with this offence.

9. When put on his defence the appellant testified without oath and raised an alibi defence.  He told the court that he was away in Nairobi when the alleged offence occurred. That he had lived with PW3 and her children well before, but was now being framed for an offence he did not commit.  He called three witnesses to support his case.

Issues for Determination

10. The questions for determination are whether the evidence was sufficient to prove that the minor was indecently assaulted and if so, whether linked the appellant was the culprit.

Analysis of Evidence

Identification

11. As the first appellate court, I have re-evaluated the evidence afresh to make my own findings and draw my own conclusions.  In so doing I have made allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses which I did not have.
12. I am alive to the fact that the evidence against the appellant rested on the testimony of PW1 and that as observed in Abdalla Bin Wendo v Republic (1953) 20 EACA pg 166,

“Subject to certain exceptions a fact is capable of proof by the testimony of a single witness.”

I also warned myself in line with Roria v Republic (1967) EALR pg 584 that:

“There was indeed a danger in basing a conviction on the identification of a single witness and this Court had a duty in a case where this has been done to satisfy itself that in all the circumstances the conviction was safe.”

Having so laid a basis I examined the circumstances under which the appellant was identified for possibility of error.

13. There was no dispute that the complainant, (PW1) was a minor. The charge sheet stated her age to be below 11 years.  The child herself testified that she was about ten years but the evidence of PW3 her mother, PW4 the Arresting Officer, as well as the medical evidence placed her age at six years. I therefore find that although the child may not have known her age, the adult witnesses placed it at six years and this was not refuted by the appellant.  In any case the complainant was aged below 11 years.

14. From the evidence before me it is clear that the appellant and the minor were well known to each other.  In her testimony she stated thus: 

The person who defiled me in the toilet is the accused before court.  He is called Nato (Accused person identified) used to see him at Benvar”.

In the cross examination the minor also stated as follows:

“You used to come to our house and ask my mother to cook for you but you never used to buy food.  You used to stay with us”.

The appellant did not deny the minor’s averments.  Indeed the appellant and his witnesses too confirmed that PW3 and the appellant cohabited at one time.

15.   As stated earlier the appellant raised an alibi defence in which he said that he was away in Nairobi, at the time the offence was said to have occurred. An alibi raises a specific defence and an appellant who puts forward an alibi as an answer to a charge, does not in law thereby assume any burden of proving that answer.  It is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.  See the case of Kiarie v Republic [1984] KLR pg 740.
16. The appellant and his witnesses testified that they heard about the defilement when PW3, was trying to raise money to take PW1 to hospital. They however said that PW3 reported that PW1 was defiled by a person engaged in “boda boda” business.  In their view the change of story by PW3 was meant to frame the appellant, with whom she had had a relationship that went sour.

17. The defence witnesses were telling the truth when they testified that PW3 first stated that PW1 had been defiled by a “boda boda” man.   This must however, be considered in the context of the evidence of PW1 who stated that the appellant threatened to slay her with a machete, if she revealed his identity.  Out of fear she therefore told PW3 what she had been instructed to say and only revealed the truth three weeks later.
18. I also observed from the record that PW3 did not immediately blame the appellant, when she learnt that something had happened to her daughter and PW1 would not reveal what had happened.  She tried to get PW1 to speak to her and when that did not succeed, she used her older daughter to earn PW1’s confidence.  The older daughter was then aged 12 years and testified as PW2.

19. PW2 testified that she and PW1 went to the same school and that she kept on asking her who had defiled her.  Eventually PW1 told her that it was Nato who had done so.  PW2 testified that she knew who Nato was and that he lived in the same camp.  It was PW2 who relayed that information to PW3.  Nato is the appellant in court.

20. I am satisfied that, whereas there may have been some falling out between the appellant and PW3 over a love affair gone bad, PW3 did not on her own pin the offence on the appellant.  PW1 herself through the persuasion of PW2 revealed who the culprit was.  I also observed that PW1 and PW2 who were both minors gave evidence that flowed, both in examination in chief and in cross examination.  This would have been difficult if they had been coached.

21. The alibi defence was itself doubtful since the appellant said he was in Nairobi, while DW3 Mohamed Ali Taro testified that the appellant had spent the day in Gachororo.

Evidence of Defilement

22. There was no dispute that PW1 was defiled.  She said so in her testimony in which she stated as follows:

 “He removed his penis and put it in my private parts – the place of urinating.  He then defiled me”.

The lower court record used the word ‘defiled’ in the minor’s testimony. This was inappropriate.  In SAMSON OGINGA AYIEGO VS. REPUBLIC CR. APPEAL 65 OF 2006 (unreported) the court of Appeal sitting at Kisumu observed as follows:

““Defiled” is a technical term.  It is quite improper to use such term or any other technical term when recording evidence of a witness unless the witness himself or herself used it.  The correct approach is to use the words used by the witness.  We do not believe that PW1 or any other witness used that term in proceedings before the court.”

In the present case I too doubt that the minor used the word ‘defiled’. Be that as it may, the court record reads that the appellant inserted his genitals into hers.

23. The evidence of PW1 was corroborated by that of PW3, who saw blood stains on the front of her dress, when the minor came looking for her.  The appellant and his witnesses did not dispute that PW1 had been defiled.  They disputed the fact of the appellant being the culprit.

24. PW5, the doctor, filled the P3 form in regard of PW1 on 18^th September 2007 relying on the medical notes taken on her first visit.  According to the medical record PW1 was a six year old child who presented with a history of defilement and a blood stained dress. The findings included:

1. Broken hymen
2. Tenderness of the genitalia
3. Blood discharge

25. A high vaginal swab taken from PW1 showed presence of trachomonas  vaginalis.  She was found to be HIV negative but was put on post exposure treatment. The doctor formed an impression of defilement, filled and signed the P3 form and produced it in evidence.

26. Finally, the appellant complained that his constitutional rights were violated since he was held in custody for more than 24 hours before being produced in court.  If that be so his remedy lies in a different action and the criminal trial is not vitiated as a result thereof.

27. In sum, I have considered the appeal at length and find that the evidence on record was sufficient to sustain the conviction against the appellant on the charge against him.

28. I therefore find that the appeal is lacking in merit and dismiss it.  I uphold the conviction and the sentence imposed.

SIGNED DATED and DELIVERED in open court this 19^th day of December 2013.

L. A. ACHODE

JUDGE