JUDGMENT OF THE COURT
The appellant, Dennis Osoro Obiri, was charged on 20th December, 2007 before the Chief Magistrate’s Court, Kibera, with the offence of defilement contrary to section 8 (2) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on the 17th December 2007, at [Particulars withheld] area within Kajiado District, Rift Valley Province, he committed an indecent act which caused penetration of a male organ into the female organ of MM, (PW1), a child aged nine years. He was also charged with an alternative count of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act, the particulars of which were that on the 17th December 2007, at [Particulars withheld] area within Kajiado District, Rift Valley Province, he committed an indecent act with a child by touching the private parts (vagina) of MM, a child aged nine years.
In brief, the case against the appellant, as established by the evidence led before the trial court, was that on 17th December, 2007, at about 10.00 am, PW1, who lived with her grandmother, went out to look for firewood. She encountered the appellant working by the side of the road. The appellant held her hand and led her into some bush. There, he laid her on her back, removed her pants and defiled her. After he was finished with her, the appellant threw PW1’s pants in a toilet and warned her that he would beat her, should she ever tell anyone what had just happened.
PW1 went back home at about noon when her aunt, W M S (PW2) noticed that she was walking with a limp. While bathing her, PW2 noticed that PW1 looked fearful and had a whitish substance on her body. She also noticed that PW1 had changed her dress and pants. Upon further inquiry, PW1 informed PW2 that she had been defiled by the appellant. Subsequently PW1 lead PW2 to the scene of the defilement, thence to the appellant’s house; after which they reported the defilement at Keraropon Police Post.
Two officers from the Police Post, among them, Corporal Joshua Mosia (PW5), accompanied PW1 and PW2 to the appellant’s house and arrested him and a co-worker. PW1 identified the appellant as the person who had defiled her, before she was taken to the Nairobi Women’s Hospital for treatment.
Dr. Ketra Muhombe, (PW3) examined PW1 and found that her hymen had a tear at the 12 o’clock position. There was no bleeding or spermatozoa, and she formed the opinion that PW1 had been sexually assaulted.
The evidence of Dr Z. Kamau, PW4, who was based at the Nairobi Police Surgery and who completed the P3 form, was substantially similar to that of PW3, again establishing that PW1 had no hymen and in addition, that she had hyperaemia in her vaginal area and could not control excretion.
When put on his defence, the appellant gave an unsworn statement and called not witness. The substance of his defence was that on the material day, he was working on his employer’s farm. At noon he went for a haircut. On the way back, he passed by the place where PW1 lived and then proceeded home. Thereafter the police arrived and arrested him together with his colleague. While his colleague was later released, he, the appellant, was taken to court and charged with the offence giving rise to this appeal.
On 21st April, 2009 the trial court found the appellant guilty of defilement contrary to section 8 (2) of the Sexual Offences Act, 2006, convicted him and sentenced him to life imprisonment.
Being aggrieved by the judgement of the trial court, the appellant lodged an appeal in the High Court, contending that PW1’s evidence was not corroborated as required by law and that the trial court had erred by failing to state the provision of the law under which he was convicted, as required by section 169(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya.
On 16th May, 2011, the High Court (Ochieng, J.) dismissed the appeal, sustained the conviction of the appellant and upheld the sentence, thus precipitating the present appeal.
The appellant’s memorandum of appeal, dated 6th March 2014 sets out four grounds of appeal as follows:
“a) The learned judge of the superior court erred in law in disregarding precedent law which was binding on him;
b) The learned judge of the superior court failed to properly interpret section 124 of the Evidence Act by failing to appreciate that there was no other material evidence implicating the appellant other than the uncorroborated testimony of a child of tender age;
c) Both the learned trial magistrate and the judge of the Superior Court failed to direct themselves on relying on uncorroborated evidence of a child of tender age whose reliability was in doubt, and this was prejudicial and fatal to the conviction of the appellant; and
d) The learned judge failed to appreciate that the standard of prove (sic) required in the case was higher and requiring evidence of corroboration by other evidence irresistibly pointing at the guilt of the appellant but instead relied on conjecture and suppositions to confirm the conviction of the appellant.”
Mr Begi, learned counsel for the appellant, argued all the four grounds of appeal together. Learned Counsel submitted that the first appellate court had erred by failing to warn itself of the danger of relying on the evidence of a minor. He criticised the trial court too, for finding that PW1 was a witness of tender age, who seemed not to understand the nature of an oath, and yet accepted her evidence without corroboration and without recording the reasons why the court believed her.
Counsel relied on the judgment of this Court in NYANAMBA v. REPUBLIC [1983] KLR 599 in support of the proposition that failure by the court to warn itself of the danger of convicting on the complainant’s evidence in a sexual offence, without corroboration, is fatal to the conviction. The judgement of this Court in JOHNSON MUIRURI v. REPUBLIC (1983) KLR 445 was also cited to support the view that an accused person cannot be convicted on the unsworn evidence of a child of tender years, without material corroboration. Counsel faulted the first appellate court for failure to follow binding authority.
Learned counsel further submitted that there was no evidence to link the appellant to the offence of defilement. He contended that there was no spermatozoa found of PW1 or any DNA evidence to link him to the offence. In counsel’s view, the evidence of PW1 required corroboration in accordance with section 124 of the Evidence Act, Cap 80 Laws of Kenya.
For good measure, Mr Begi concluded by arguing that the age of PW1 was not proved, because in her evidence, she testified that she was 10 years old while Dr. Ketra Muhombe, PW3 testified that she was 9 years old. In counsel’s view, the offence was not proved beyond reasonable doubt.
Mr. Kivihiya, learned counsel for the respondent, in opposing the appeal, submitted that the evidence of both PW1 and PW2 was credible as to the identity of the person who had defiled PW1. Counsel argued that the appellant was known to PW1 and to that extent, no medical evidence was necessary so as to link the appellant to the offence. Learned counsel further submitted that the medical evidence adduced by PW3 and PW4 had confirmed that PW1 had been defiled as she claimed. In counsel’s view, the age of PW1 was not an issue because it had been confirmed by the trial court itself.
We have duly perused the record of proceedings both before the trial court and the first appellate court. We have also considered the submissions by learned counsel as well as the authorities they sought to rely upon.
Section 361 of the Criminal Procedure Code enjoins this Court to consider matters of law only when hearing and determining a second appeal. In KARINGO v. REPUBLIC (1982) KLR 219, this Court stated the principle underpinning section 361 of the Criminal Procedure Code as follows:
“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did”
See also THIAKA v. REPUBLIC (2006) 2 EA 326.
The first issue in this appeal is whether the trial court and the first appellate court erred in relying on the evidence of PW1, the minor victim, as the basis of the appellant’s conviction. Section 124 of the Evidence Act as amended by Act No. 5 of 2003 and Act No. 3 of 2006 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
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.” (Emphasis added).
The effect of the proviso to section 124 is to create, in cases of sexual offences, an exception to the general rule that an accused person cannot be convicted on the uncorroborated evidence of a child of tender years. In JACOB ODHIAMBO OMUMBO v. REPUBLIC, Cr. App. No 80 of 2008 (Kisumu), this Court made the same point as follows:
“Though P’s evidence was that of a child of tender years, the court can convict on it by virtue of the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, as amended by Act No. 5 of 2003.”
Earlier in MOHAMED v. REPUBLIC (2006) 2 KLR 138, this Court asserted:
“It is now settled that the Courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.”
In the present appeal, the trial magistrate conducted a voire dire examination and directed that PW1 should give unsworn evidence. PW1 identified the appellant as the person who had defiled her. She was known to the appellant and in fact she is the one who led PW2 to the appellant’s house. Her evidence was that the sexual assault on 17th December 2007 was the second time that the appellant had sexually assaulted her. Her evidence, as appears from the record of the trial court, was vivid and particularly graphic in the description of the act of defilement (though in the innocent words and language of a minor), which defilement PW1 attributed to the appellant.
The trial magistrate specifically recorded that she could not find any reason why PW1 would have framed the appellant, if indeed he was not the one who had defiled her. In our opinion, this is as good as stating that the trial magistrate found PW1 trustworthy and her evidence reliable. This was more the case when the evidence of PW1 was looked at against the appellant’s defence. We also find from the judgment that the trial magistrate made specific reference to the section 124 of the Evidence Act, meaning that she was alive to her duty under the provision.
We do not think there is any merit in the charge that the first appellate court erred by refusing to follow binding judgements from this Court. The judgements in NYANAMBA v. REPUBLIC (supra) and JOHNSON MUIRURI v. REPUBLIC (supra), heavily relied upon by the appellant, pre-date the proviso to section 124 of the Evidence Act which we have set out above. That proviso was introduced by the Criminal Law (Amendment) Act 2003 (Act No. 5 of 2003). It was further amended into its present wording by the Sexual Offences Act, No 3 of 2006. The effect of the proviso, as we have already noted, is to enable the court to convict, in cases of sexual offences, on the evidence of the victim alone, if for reasons to be recorded, it believes that the victim is telling the truth. It is also important to bear in mind that prior to the above amendments, this Court in MUKUNGU v. REPUBLIC (2002) EA 482, had expressed the opinion that the requirement for corroboration in sexual offences affecting adult women and girls was unconstitutional to the extent that the requirement was against them qua women or girls. We accordingly find this ground of appeal lacking in merit.
The appellant secondly contends that there was no medical evidence adduced to link him with the defilement of PW1. In our view, such evidence was not necessary the moment the trial court found that there was sufficient medical evidence to prove that the appellant had been defiled and that the appellant’s evidence was trustworthy as to the identity of the person who had defiled her. In KASSIM ALI v. REPUBLIC, Cr. App. No. 84 of 2005 (Mombasa), this Court upheld the same view in the following terms:
“... [T]he absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”
We do not see the reason why the principle should be different in a charge of defilement. The same view was repeated by this Court in GEOFFREY KIOJI v. REPUBLIC, Crim. App. No. 270 of 2010 (Nyeri) where the Court stated:
“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”
We do not find any merit, either, in this ground of appeal.
On the appellant’s complaint that the age of the appellant was not proved, we do not think much turns on that. Section 8 (2) of the Sexual Offences Act under which the appellant was charged relates to defilement of a child aged eleven years or less. To that extent, it did not matter whether PW1 was 9 or 10 years old. The critical issue is that she was less eleven years old. On that basis, it is not surprising that the trial Court did not consider the issue material or fatal to the prosecution. This ground of appeal too, lacks merit.
In ADAN MURAGURI MUNGARA v. REPUBLIC, Cr. NO. 347 of 2007 (Nyeri), this Court set out the circumstances under which it will disturb the concurrent findings of fact by the trial court and the first appellate court, in the following terms:
“As this Court has stated many times before, it has a duty to pay homage to concurrent findings of fact made by the two courts below unless such findings are based on no evidence at all or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such findings. That would mean that the decision is bad in law, thus entitling this Court to interfere.”
We are satisfied that the appellant was properly convicted of the offence of defilement contrary to section 8(2) of the Sexual Offence Act, 2006. This appeal is bereft of merit and the same is accordingly dismissed.
Dated and delivered at Nairobi this 9th day of May, 2014
P. KIHARA KARIUKI (PCA)
JUDGE OF APPEAL
K. M’INOTI
JUDGE OF APPEAL
J. MOHAMMED
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR