REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL APPEAL CASE NO. 25 OF 2013

[Being an appeal from the judgment of M.A. Nanzushi [RM] delivered on 1^st of march, 2013 in Kimilili SRMC no. 177 of 2012]

FRED WANJALA ………………………………………... APPELLANT

VERSUS

REPUBLIC ………………………..……………..…… RESPONDENT

JUDGMENT

BACKGROUND

1. The appellant was charged with the offence of defilement contrary to Section 8 (1) as read with 8 (2) of the Sexual Offences Act in SRMCC No. 177 of 2012. Kimilili SRM Court. He was found guilty of the offence, convicted and sentenced to life imprisonment.

2. The particulars of  the case were that on the 3^rd day of August, 2012 in Bungoma North District within Bungoma County  the appellant caused his penis  to penetrate the vagina  of  V W a child of 8 years.

3. Being aggrieved by the judgment the appellant appealed to this court on the following grounds;

i. The trial magistrate failed to consider the gravity of the contradiction in the prosecution evidence as the same should have been resolved in his favour.

ii. The trial court referred to   extraneous matters in arriving at the judgment.

iii. The trial court erred in laying emphasis on the prosecution case.

iv The trial court relied more on the circumstantial evidence as opposed to the direct evidence which was in favour of the appellant.

v. Sentence was harsh and excessive.

RESPONDENT’S SUBMISSIONS

4. In his oral submissions the appellant stated that he challenges the identification parade as the same was not proper. Secondly, no investigations were conducted, thirdly he was not furnished with statements, fourthly PW1 did not call witnesses and lastly he was not examined.

Respondents submissions

5. The State objected to the appeal on grounds that the offence attracts life imprisonment, all ingredients of defilement were proved, the victim  was  8 years, identification was  by the victim and there was a medical report which proved  penetration.  The state argued  for the  conviction and sentence to be upheld.

6. This is the first appellate court and it has the duty to consider the evidence on record afresh, analyze and evaluate the same in order to arrive at an independent decision See Okeno Vs. Republic [1973] E.A. 322

7. The prosecution case is that the appellant who was a neighbor of the victim  aged 8 years accosted her on two occasions and  defiled her causing the child injuries. The child reported to her grandmother after the 2^nd  incident  causing the appellant to be arrested. The prosecution called a total of 5 witnesses whose evidence  was as follows;

PW1 V W- aged 8 years testified that on  3^rd of  August, 2012 as  she came from  school,  the appellant led her to a maize plantation and put his penis in  her vagina and told her  not  to tell anyone. He promised to buy her a mandazi.  She knew  the appellant well as he was a neighour. She further testified that  this happened  again at 1.00 p.m on the 8^th of August as she went home from school. This time he promised to  buy her maize. She went home and  found her grandmother who noticed that  she could  not walk properly and   on being asked she narrated  to her grandmother the incident and her grandmother took her to hospital the following day  the 8^th of August 2012.

PW2 Esther N W   aged 50, grandmother to  PW1. She recalled that on  8.8.12 at about 7.00 p.m  she noticed her grand child  walking legs apart. She  enquired and the child  told her that  she was sick in her private parts.  She  checked and saw a torn vagina and the girl bleeding.  She  learnt from the girl that the appellant had defiled her and told her not to tell anyone. The next day  she took her to hospital, and reported the matter to the police.

PW3 Ignatius Okumu – a clinical officer at  Naitiri sub-district hospital, he examined and  treated PW1 aged 8 years  on 9.8.12, PW1 was said to have been defiled on  2^nd and 8^th august, 2012.  The girl   walked in pain, had a bloody vagina, was bruised and the hymen torn, had colorless discharge.  He formed the opinion that she had been brutally defiled.

PW5 the Investigating Officer. In his evidence a part from narrating the evidence of PW1 & 2 stated that PW1 was able to identify her defiler well as she knew him.

8. In his defence the appellant denied committing  the offence. He said That he did not know the  reason for his arrest.

9. The issues before court are;0

i. Whether the victim was a minor.

ii. Whether she was defiled

iii. Whether the prosecution have proved beyond reasonable  doubt that the appellant was culpable

10. From the  evidence of PW1,2 & 3 the victim was a girl aged 8   years which  is not in dispute and I therefore find that as a matter of fact the girl was  8 years old at the time of the alleged offence,

11. From the  evidence again of PW1,PW2 & PW3 the  victim PW1 was defiled on the  2^nd and  8^th August, 2012. A blood stained pant was produced in court and upon examining PW1 on the 9^th of August, 2016 PW3  a clinical officer  found blood stains in PW1’s vagina, bruises and a  missing hymen. He was of the view that  she had been brutally defiled.  With this evidence I find  as a matter of fact that PW1 was  indeed defiled.

12. PW1 informed her grandmother, the hospital, the  police and the court that she knew her defiler well.  She pin pointed the appellant  and was able to tell the dates  when she was well defiled. She strikes me to be a  sharp consistent and  truthful witness whose evidence   ought not to be doubted.  Secondly the court under provision to Section 124 of the Evidence Act can  rely solely on the evidence of a victim of sexual assault in  arriving at a conviction.

I believe PW1 in her evidence. I also find  that her evidence was corroborated by  PW2 & 3.

13. In considering the grounds of appeal I do not find any inconsistency in the prosecution evidence, neither any extraneous matters that the trial court considered in  arising at a conviction.

14. I am of the view that the prosecution proved its case beyond any shadow of doubt.

15. I also do find the conviction was safe and the sentence lawful. I  find no reason therefore to interfere with the sentence.

Appeal stands dismissed.

DATED and DELIVERED at BUNGOMA this 10th November, 2016

ALI-ARONI

JUDGE.