Pushen v Republic (Criminal Appeal E015 of 2022) [2023] KEHC 25051 (KLR) (8 November 2023) (Judgment)
Neutral citation:
[2023] KEHC 25051 (KLR)
Republic of Kenya
Criminal Appeal E015 of 2022
AC Mrima, J
November 8, 2023
Between
Ngolorikey Pushen
Appellant
and
Republic
Respondent
(Appeal arising out of the conviction and sentence of Hon. M. M. Nafula, (Principal Magistrate) in Kapenguria Senior Principal Magistrate’s Court Sexual Offences Case No. E049 of 2021 delivered on 23rd August, 2022)
Judgment
1.The Appellant herein, Ngolorikey Pushen, was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that on 24th November, 2021 at around 0000 hrs. in Shalpogh Location Turken Sub-Location within Kipkemo Sub-County within West Pokot County, the Appellant intentionally and unlawfully caused his penis to penetrate into the vagina of C. S. a child aged 12 years old.
2.The Appellant faced an alternative charge of Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in the same place, the Appellant intentionally and unlawfully touched the buttocks, breasts and vagina of C.S. a child aged 12 years old.
3.When the Appellant was arraigned before Court, he pleaded not guilty to the offences. He was tried and subsequently convicted on the main charge of defilement.
4.He was sentenced to serve 10 years imprisonment.
The Appeal:
5.Aggrieved by the conviction and sentence, the Appellant lodged the instant appeal. He raised three main grounds impugning the conviction and sentence. He claimed that his rights were violated for having been held by the police for 5 days in contravention of Articles 20, 25, 27, 47, 49 and 50 of the Constitution. He also claimed the offence was not proved and that the sentence was manifestly severe.
6.In the premises, the Appellant prayed that the appeal be allowed by quashing the conviction, the sentence be set aside and that he be forthwith set free.
7.Parties disposed of the appeal by way of written submissions. According to the Appellant’s undated submissions filed on 10th March, 2023, the Appellant expounded on the above grounds.
8.The Respondent on its part relied on its written submissions dated 4th September, 2023 and filed on 25th September, 2023. It opposed the appeal in arguing that the offence was properly founded. He urged for the dismissal of the appeal.
Analysis:
9.This being a first appeal, it’s the duty of this Court to re-consider and to re-evaluate the evidence adduced before the trial Court with a view to arriving at its own independent conclusions and findings (See Okono v Republic [1972] EA 74). In doing so, this Court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial Court and, therefore, it ought to give due regard in that respect as so held in Ajode v Republic [2004] KLR 81.
10.Having carefully perused the record, this Court is now called upon to determine whether the offence of defilement was committed, and if so, whether by the Appellant.
11.However, before discharging the said duty, it is crucial to review the evidence adduced at the trial. On this, the Court wishes to point out that the trial Court summarized the evidence quite well, and the same will be part of this decision by way of reference.
12.In a nutshell, the prosecution called a total of five witnesses to establish that the Appellant committed the offence that he was convicted of. It was alleged that the complainant, C.S., who testified as PW1, was left at home with her younger siblings by their parents who went for a function on 24th November, 2021.
13.In the night, as PW1 and her siblings slept in the kitchen, someone pushed the door, entered and held PW1’s hand. PW1 usually slept naked. The person slept on top of PW1 and she screamed. One of PW1’s siblings (S) also screamed. The person threatened them as PW1 struggled to free herself. In the process PW1 bit the intruder on the hand. The intruder kept on threatening them as he inserted his male sexual organ into PW1’s sexual organ.
14.The person then walked out. There was ample moonlight and PW1 and her siblings saw him clearly. He walked away as they ran and spent the rest of the night in the neighbour’s home.
15.In the morning, PW3 one Julius Arionorok, a neighbour to PW1’s family, woke up to a surprise. At around 6am, he saw PW1 and her siblings coming out of his kitchen and heading back to their home. He asked PW1 why they spent in his kitchen and PW1 narrated the night ordeal. PW1 gave the name of the Appellant as the intruder.
16.PW2 then went to look for and informed the uncle to PW1.
17.On her return, PW2, the mother to PW1 learnt of the unfortunate events of the previous night. PW1 also gave the name of the Appellant as the assailant. PW2 informed her in-laws and shared. They proceeded to the home of the Appellant and arrested him. They took him to Chepkopegh Police Post.
18.PW4 was the investigating officer. He received a report on PW1 from PW2 on 26th November, 2021 at around mid-day. He booked the incident and accompanied PW1 to the hospital where she was treated. Later, the Appellant was arrested and brought to the station by members of public. On completion of investigations, he preferred the charges against the Appellant.
19.PW5, the Clinical officer from Chepareria Hospital examined and treated PW1. He further carried out a urinalysis test. He confirmed penetration of PW1’s vagina.
20.After close of the prosecution’s case, the trial Court found that the Appellant had a case to answer and was placed on his defence.
21.He gave a sworn defence and called no witnesses. He denied committing the offence. He recalled that on the fateful night he slept at home with his wife and did not leave. He contended that he was just being framed up since he had sold his land the father of PW1 and the father of PW1 had refused to pay the remaining balance hence the false charges.
22.He urged the Court to find him not guilty as charged and be released.
23.It is on the above evidence that the Appellant was found guilty of defiling PW1, convicted and sentenced.
24.For the prosecution to establish the charge of defilement, it must establish the following crucial ingredients: -a.Age of the Complainant;b.Penetration and;c.Identification of the perpetrator.
25.A look at the ingredients of the offence of defilement now follows.
Age of the Complainant:
26.The prosecution relied on a Certificate of Birth No. [particulars withheld] in proof of PW1’s age. According to the Certificate, PW1 was born on 1st August, 2008. On the day of the alleged ordeal, that is 24th November, 2021, PW1 was, therefore, slightly past 13 years old.
27.The Certificate was not challenged in any way and the trial Court did not find any reason to impugn that medical evidence.
28.This Court, therefore and likewise, finds that PW1 was a child within Section 2 of the Children Act.
Penetration:
29.The evidence of penetration was by two witnesses; PW1 and PW5. PW1 was the victim. She described the ordeal with the intruder. In her words, the assailant got hold of her and, since she slept naked, he lied on her top and inserted his penis into her vagina as she felt a lot of pain. PW1 screamed, but the intruder threatened her. Afterwards, the intruder walked away in bright moonlight.
30.It was PW5 who medically examined PW1 two days later. PW5 observed that the hymen had been just raptured, though not freshly. He confirmed penetration from a urinalysis test.
31.The combined evidence of PW1 and PW5 leaves no doubt that indeed a penis was inserted into PW1’s vagina. That was proof of penetration.
Identity of the perpetrator:
32.The evidence on the identity of the assailant was led by PW1. It was, therefore, a single witness evidence. PW1 contended that she recognized the assailant both visually and by voice recognition.
33.As the evidence was largely on recognition, Courts have discussed how Court’s ought to treat such evidence. The evidence of recognition was held by the Court of Appeal in Anjononi & Others v Republic [1989] eKLR to be ‘more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the person’s knowledge of the assailant in some form or other’.
34.Courts have, also and severally, held that a conviction can be based on the evidence of a single witness. As early as 1967, the Court of Appeal of Eastern Africa held in Chila v R [1967] EA 722 at 723, as follows: -
35.The import of Section 124 of the Evidence Act, Cap. 80 of the Laws of Kenya on sexual offences has also been judicially considered. The Court of Appeal in Moses Nato Raphael v Republic [2015] eKLR held that: -
36.The legal principle discussed above has been applied in many other decisions including; S C N v Republic [2018] eKLR, G O A v Republic [2018] eKLR, Martin Okello Alogo v Republic [2018] eKLR among many others.
37.The analysis of Section 124 of the Evidence Act establishes a thread running through the decisions. The legal principle is that as long as the trial Court is satisfied that the single witness is telling the truth, a conviction based on such evidence will be allowed to stand.
38.Further, in R v Turnbull & Others (1973) 3 ALL ER 549, which English decision has been generally accepted and greatly used in our judicial system, the Court addressed the considerations to be made when the only evidence turns on identification by a single witness. The Court rendered thus: -
39.In this case, PW1 allegedly identified the assailant in two ways; that was by visual and voice identification.
40.Having already dealt with the aspect of visual identification in the foregoing, the Court will now look at the legal principles guiding voice identification.
41.The way a trial Court handles evidence on voice identification is well settled. Some conditions must be met. The conditions were discussed by the Court of Appeal in Malindi Criminal Appeal No. 27 of 2016 Safari Yaa Baya v Republic (2017) eKLR as follows: -a.It was the accused person’s voice;b.The witness was familiar with it and recognized it;c.The conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who said it.
42.The Court of Appeal had also previously held in Karani v R (1985) KLR 290 and Choge v R (1985) KLR 1 that just few words like ‘break her legs’ sufficed.
43.PW1 and the Appellant were neighbours. PW1 stated that she had known the Appellant for over 10 years. She also stated that when she screamed after the Appellant pounced on her, the Appellant threatened her. That was the case when PW1’s brother [particulars withheld] also screamed.
44.PW1 testified that she was very familiar with the Appellant’s voice since the Appellant used to talk to her and her siblings. PW1 was firm that the voice could only be that of the Appellant.
45.PW1 also stated that she saw the Appellant in the bright moonlight as he walked away after the ordeal. She affirmed the position that it was possible to recognize someone using moonlight.
46.The trial Court analyzed the aspect of identification. It was satisfied that the single witness, PW1, was telling the truth and believed her testimony. It then found that the Appellant was positively identified as the assailant.
47.From the evidence, PW1 was quite consistent and well oriented of the events as they took place. She described how the intrusion was and who the intruder was. PW1 knew the Appellant well. They had also talked severally as to be sure of the Appellant’s voice.
48.While reviewing the evidence, this Court must remain alive to the fact that it neither saw nor heard the witnesses as they testified before the trial Court and, therefore, it ought to give due regard in that respect. (See Ajode v. Republic [2004] KLR 81. Therefore, unless on very convincing and congent grounds, the trial Court’s analysis and belief ought to be upheld.
49.On a careful review of the evidence, this Court finds that the totality of the evidence placed the Appellant as the perpetrator. He was positively identified as such both visually and by his voice. The prosecution’s evidence was, therefore, not inconclusive, contradictory, scanty or falsified as alleged by the Appellant.
50.The upshot is that the prosecution discharged its burden to the required standard of proof and that the trial Court, rightly so, found the Appellant guilty and convicted him.
51.Coming to the end of the discussion on this issue, this Court also notes that the Appellant alleged infringement of his fair trial rights by having been arraigned before Court five days post arrest.
52.The Appellant did not raise the issue before the trial Court. In such a case, there is no way this Court can ascertain whether the alleged infringement, if any, affected the trial. The Appellant has the option of pursuing the matter through a constitutional petition, if need be.
53.In the end, the Appellant’s challenge that the offence of defilement was not proved fails.
54.Consequently, this Court finds that the appeal against the conviction lacks merit and is hereby dismissed.
Sentence:
55.The Appellant was sentenced to 10 years imprisonment. The trial Court considered the mitigations.
56.The Court in Wanjema v. Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.
57.In this matter, the Appellant did not establish the infringement of any of the above parameters by the sentencing Court. The sentence remains lawful and it ought not to be disturbed.
58.This Court opts not to disturb the sentence. The appeal on sentence also fails.
Disposition:
59.Drawing from the above discussion, it is apparent that the appeal is wholly unsuccessful.
60.In the end, the following orders do hereby issue: -a.The appeal is wholly dismissed.b.The file is marked as closed.Orders accordingly.
DELIVERED, DATED AND SIGNED AT KAPENGURIA THIS 8TH DAY OF NOVEMBER, 2023.A. C. MRIMAJUDGEJudgment delivered virtually and in the presence of: -Ngolorikey Pushen, the Appellant in person.Mr. Makori, Learned Senior Assistant Director of Public Prosecutions instructed by the Office of the Director of Public Prosecutions for the Respondent.