REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 2 OF 2019

EDWARD AMBECHA MUYENGO.......................................................................APPELLANT

VERSUS

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

(APPEAL FROM THE JUDGEMENT OF HON. R AMWAYI (SRM) IN MOLO

CRIMINAL CASE NO. 642 OF 2018 DATED 14^TH JANUARY 2019)

JUDGEMENT.

1. The appellant was charged with the offence of Defilement Contrary to Section 8(1), (3) of the Sexual Offences Act no 3 of 2006. The particulars of the offence were that on diverse dates between 14^th to 16^th April 2018 in Molo district within Nakuru county unlawfully and intentionally caused his penis to penetrate the vagina of AKK a child aged 14 years.

2. The alternative count was Indecent act with a child Contrary to Section 11(1) of the Sexual Offences Act no 3 of 2006. The particulars of the charge were that on the divers’ dates between 14^th April and 16^th April 2018 in Molo district within Nakuru county unlawfully and intentionally did cause your penis to come into conduct with the genital organ namely vagina of AKK a child aged 14 years.

3. After a full trial the appellant was found guilty, convicted and sentenced to serve 20 years’ imprisonment hence this appeal. In his amended grounds of appeal, the appellant argued that the evidence which the court relied on was inconsistent and circumstantial and the court ought not to have relied on the same. He said that the ground of penetration was not adequately proved and that the sentence of 20 years’ imprisonment was too harsh in the circumstances.

4. Before looking at the parties’ submissions, it shall be worthwhile to summarise the evidence as presented during trial.

5. PW 1 the complainant testified that she was a class seven pupil at [Particulars Withheld] primary school and was born in the year 2003. She said that on the 14^th April 2018 she met one Boniface who took her to the appellant’s house where she proceeded to cook supper and spent that night there. They had sex that night as well as the following days.

6. The complainant thereafter went home and on being questioned by her mother concerning her disappearance she told her where she had been and her sexual affair she had with the appellant.  Her father thereafter arrived and they went to Molo police station where a report of her disappearance had been made by her parents.

7. The police swung into action and they arrested the appellant. The complainant was referred to the hospital where she was treated and a P3 filled as well.

8. PW2 CMK the mother to the complainant testified that she was born on 11^th October 2003 and that when she went to her work on 14^th April 2018 she left the children including the complainant at home. When she came back she did not find her and she was told by her siblings that she had gone to visit her friends.

9. The following day they went to the police station and made a report of a missing child. They also supplied the police with her photograph. She however came back on 17^th April 2018 and upon interrogating her she said that she had been with the appellant.

10. They went to the police station where they reported and were referred to the hospital where she was treated and a P3 form was filled. Later the appellant was arrested by the complainant’s father in the company of other people.

11. PW3 JKK, the father of the complainant testified that he was away in Ukambani when she was told by PW2 about the disappearance of the complainant. He came back and they searched for her in vain and after she came back home he interrogated her and she told them where she had been.

12. They went to the scene where they found two boys who volunteered to take them where the appellant was. He was arrested as he attempted to flee. He was taken to Molo police station. He said that he did not know the appellant before.

13. PW4 Dr. Ema Ngarama from Molo sub county hospital produced the p3 form in respect to the complainant whom she had examined. She found that the outer genitalia were normal, vagina was normal, the hymen was torn although old. She concluded that there was penetration. She was given emergency contraceptive pills. She produced the said medical documents.

14. PW5 Cpl Betty Chepkemoi carried out the investigation and recorded witness statements. She said that a report of a missing girl had been reported on 14^th April 2018 by PW2. Later she was brought to the station and they were referred to the hospital and a P3 form issued to them.

15. The accused was arrested by the members of the public with the aid of PW3and brought to the station. She went ahead to produce the statements of one Boniface, the appellants brother, who had disappeared after recording his statements.

16. She went on to state that he complainant told her that after having supper with the appellant they engaged in sexual activity for all that time.

17. When cross examined by the appellant she said that it was Boniface who had introduced the complainant to him and that when they went to his house he had taken off and the place was totally empty.

18. When placed on his defence the appellant gave unsworn testimony denying the charges. He said that on 13^th April 2018 he was at Corebix supermarket where he works when he received a call from his brother concerning a burial at [Particulars Withheld]  in Molo. He went for the same on 14^th April 2018 and stayed till 15^th April 2018 when the burial took place and he came back home.

19. He also received a phone call from his brother J who told him about the death of his grandmother at [Particulars Withheld]  where he attended the funeral.

20. He went on to state that when he came back he met PW1 on the road and she appeared unhappy and she told her that she had quarrelled with her mother. He also told her that he had not gone to Boniface place. Later he learned that she had been with Boniface.

21. He was arrested on 16^th April 2018 for no apparent reason. He said that it was Boniface who defiled her.

22. DW2 SS testified that he received a phone call and was told to come and give evidence. He said that he had come to attend a funeral at Molo and did not know what had transpired and had no idea about the case.

23. When the matter came up for directions the court ordered the same to be disposed by way of written submissions.

Appellants submissions.

24. The appellant submitted that there was no direct evidence linking him with the offence but all were purely circumstantial. He argued that the complainant was not found in his house. He relied on the case of R.V KIPKERING & ANOTHER (1949) EA

25. The appellant submitted citing the case of MARTIN CHARO V. REPUBLIC that the complainant in any case acted like an adult and consented to the sexual activity for all those days voluntarily. He cited Section 8(5) of the Sexual Offences Act as his defence.

26. He also submitted that the element of penetration was not proved by the respondent. He however submitted that the medical report concluded that the hymen was torn and old looking but there was nothing to show that there was penetration. There was nothing to show the cause of the torn hymen.

Respondent’s submission.

27. The learned state counsel supported the findings by the trial court. He said that all the ingredients of the offence namely age, penetration and identity of the perpetrator had been established.

28. He denied that there was contradiction on the part of the respondent’s evidence and even if there was the same were too minor as was held in the case of C K M V. REP. (2019) EKLR.

Analysis and determination.

29. The duty of the court at this juncture is to re-evaluate the evidence and arrive at a fresh conclusion noting that it did not have the advantage of seeing the witness like the trial court. See OKENO V. REPUBLIC (1972) E A 32.

30. The three known ingredients of the offence at hand are now well established namely the age of the victim, the identity of the perpetrator as well as penetration.

31. As to the age of the complainant, the production of the certificate of birth clearly shows that she was 14 years as at the time of the incident. This was not in dispute at all.

32. As to the identity of the perpetrator, the incident took place in a span of about three days. The complainant must have had occasion to see the perpetrator and spent time with him. There is no doubt that she was sound enough to have been in a position to do so. Even in his defence the appellant acknowledges that they met with her on the material day.

33. She clearly described how she met Boniface who was allegedly the appellants brother and waited for the appellant from 10 am to 4pm.When the appellant arrived they went to his house and for the next two days had sexual activity without any complain or at all. There is no evidence that she was forced to engage in the same or in any manner resisted.

34. There was therefore as found by the doctor evidence of penetration although according to her the torn hymen was old looking. It is also instructive to   note that she was provided with contraceptive pills at the said hospital. The PCR form filled did not show any evidence of injuries.

35. This now brings me to the Provision of Section 8(5) of the Sexual Offences Act. The same states as hereunder.

It is a defence to a charge under this section if—

(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and

(b) the accused reasonably believed that the child was over the age of eighteen years.

36. I have read extensively the proceedings herein especially the complainant’s evidence. I have as well read the submissions by the appellant on this line of defence. There is no explanation at all on how the complainant left her home and went to see B and later the appellant. She seemed in my view to have had a predisposed mind to engage in sexual activity with the appellant.

37. In her evidence in chief she stated that;

 “On 14.4.2018 I had gone to accused’s place (points to  accused). I left home at around 10am and went to accused.  He doesn’t live far from our home. He resides in Posta. He  was living with Boniface who is his friend. At Boniface place  I did not go to accused. I waited for him and he came at  around 4pm.Boniface had told me accused had gone for a  burial. The accused when he came we talked with B for sometime and we left B place at 7pm and went to  Edwards place...”

38. A careful reading of the above evidence does indicate that the complainant knew what she was doing. How else could she wait for the appellant for over 6 hours if she was innocent as she claims? One can be tempted to conclude that this may not have been the first time she was engaging herself in the activity.

39. Looking at the statement of Boniface which was produced as evidence it is clear that there was an assumption that she was not a student as that was the reason he learned later why the appellant was arrested.

40. More importantly the complainant seemed to have acquiesce and treated the whole matter casually to suggest that this may not have been the first time she was engaging herself in the act. Although there was no evidence that she was a truant girl, she appears to me that she was a teenager experimenting with her puberty stage. At least she should have gone back home even that evening but to stay for close to three days in my view suggested that she was behaving as an adult which made the appellant believe.

41. In the premises, although all the three ingredients of the charge were proved, I find that this is an area where Section 8(5) cited above offers a defence to the appellant.

42. The appeal is therefore allowed, the appellant set free unless lawfully held.

DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 10TH DAY OF MARCH 2022.

H K CHEMITEI,

JUDGE.