REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CRIMINAL APPEAL NO. 42 OF 2019

(Appeal arising out of conviction and sentence of Hon. M. Nyang’ara Osoro (Resident Magistrate) in Kitale Chief Magistrate’s Court Criminal Case (S.O) No. 75 of 2016 delivered on the 17^th day of April 2018)

JOSEPH SIMIYU WAMALWA.........................................................APPELLANT

-VERSUS-

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

JUDGMENT

The Appellant, JOSEPH SIMIYU WAMALWA, was charged with the offence of defilement of a child contrary to Section 8 (1) as read together with Section 8 (2) of the Sexual Offences Act. The particulars of the offence were that on the 18^th day of May 2016 within Trans-Nzoia County, the Appellant intentionally caused his penis to penetrate into the vagina of CN, a child aged ten (10) years. In the alternative, the Appellant was charged with the offence 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 18^th day of May 2016 within Trans-Nzoia County, the Appellant intentionally caused the contact between his penis and the vagina of CN, a child aged ten (10) years. When the Appellant was arraigned before court, he pleaded not guilty. After full trial, the Appellant was convicted on the main charge and sentenced to serve life imprisonment.

The Appellant is aggrieved by his conviction and sentence. In his petition of appeal, the Appellant stated that the evidence before the trial court was fabricated, contradictory and circumstantial. He alleged that the trial court shifted the burden of proof from the prosecution to the Appellant. He maintained that all the elements of defilement, particularly on penetration, were not proved to the required standard of proof.  In the premises therefore, the Appellant urged this court to allow the appeal, quash the conviction and set aside the sentence that was imposed on him.

During the hearing of the appeal, both the Appellant and the Prosecution relied on written submissions in support of their respective rival positions. The Appellant submitted that the evidence of PW4 did not conclusively prove that there was penetration and therefore there was no defilement established. He stated the identification of the perpetrator was not satisfactorily proved for want of sufficient light during the alleged incident.  He maintained that he was framed as there existed a grudge between the Appellant and the Complainant’s family. He stated that the investigations conducted were so deficient that they could not sustain the charge.  He urged this court to reconsider the evidence of PW1, PW2 and PW3 that he submitted were incredible and untruthful.  He urged the court to review the sentence that was imposed on him because he was of the view that the same was harsh and excessive.

On his part, the Learned Prosecutor Mr. Omooria submitted that all the ingredients to establish the charge of defilement had been sufficiently proved. He dismissed the Appellant’s claims that the evidence was fabricated. He submitted that there was no contradiction that went to the root of the trial process or that affected the credibility of the evidence.  He submitted that the court relied on direct evidence. However, even if the prosecution adduced circumstantial evidence, it is still good evidence. He submitted that the burden of proof lay with the Prosecution and never shifted to the defence as claimed by the Appellant.  He concluded that the sentence imposed on the Appellant was lawful.   He urged this court to uphold the conviction and affirm the sentence of the trial court.

The Prosecution called five (5) witnesses in a bid to establish its case against the Appellant. PW1, CN the Complainant testified that she was a class five (5) pupil at [Particulars Withheld] Primary School.  She was aged ten (10) years at the material time.  She had lived with her grandmother since birth. She narrated that on 7^th May 2016, her grandmother sent her to buy pampers at Lessos Trading Centre. She sat on the Appellant’s (who was her neighbour) motorcycle’s pillion.  He took her to Lessos Trading centre.  On the way, the Appellant inquired whether she had a boyfriend.  She returned home the same day ignoring the Appellant’s request to meet him later that evening. Eleven days later, the Appellant bumped into the Complainant as she was purchasing kerosene.  This was about 7:00 p.m. He then gave her Kshs. 200.00. Later on that night at about 8.30 pm the Appellant followed the Complainant to her home.   He then lured her into a narrow road near the washroom, removed her clothes and in her words “tulifanya mapenzi”. She bled. She testified that they were caught in the act  by PW3 Antony Barasa.  He informed PW2 CMM what had transpired. She went home thereafter and only informed her grandmother (PW2) of the ordeal on the following day.

PW2’s evidence was that on the night of 18^th May 2016, PW1 approached the house from the washroom. She was carrying her undergarment. She noticed that she was shaking violently. She inquired from PW1 what had transpired but she was uncommunicative. She only informed her of the incident on the following day. She was informed that the Appellant had sexually assaulted the Complainant. She recognized the Appellant as their neighbour. She then took the Complainant to Bidii Dispensary, Centre Kwanza and later Kitale District Hospital.

PW3, AB testified that on the said date at around 8:00 p.m., it was reported to him that his mother was not feeling well. He decided to go and see her at her house. PW2’s house was on his way. As he approached PW2’s house, he heard the sound of breaking sticks. He lit his torch to establish the cause of the noise. He then saw the Appellant and the Complainant having sexual intercourse on the grass near the toilet. He was on top of her. He recognized them with the help of the torch and the moonlight. He then yelled “wewe mtu mzima unakuja kulala na mtoto hapa” prompting them to disperse. He followed the Complainant to her home where he met PW2 and informed her what had transpired.

The Complainant was seen at Kitale County Referral Hospital. PW4, KIRWA LABAT, a clinical officer  testified that the Complainant was seen on 25^th May 2016. On observations, nothing remarkable was detected. Her hymen was torn but old looking. There was no discharge. PW4  filled the P3 form and produced that alongside the treatment notes from Kitale County Referral Hospital and Bidii Dispensary as Prosecution exhibits 2 (b), 2 (a) and 1 respectively. PW4 concluded that there was no penetration due to the absence of injury to the Complainant’s genitalia but did not rule out the possibility of consensual sex since the Complainant was seen one week after the incident had occurred.

PW5 PC STANLEY CHEPKWONY testified that the case  was assigned to him on 7^th June 2016. He recorded statements from Kwanza Police Post. He conducted investigations and collected evidence. The Appellant was arrested in Kitale town, transferred to Endebess and then Kitale Police Station. He was then charged with the present offence. He produced the Complainant’s Birth Certificate as Prosecution exhibit 3.

The Appellant was placed on his defence. His unsworn testimony was to the effect that on 5^th June 2016 at 2:00 p.m., he was lured by an old man to the police station under the false pretext that he was a customer picking a friend at the police station. Upon arrival, the old man accosted him and surrendered him to the police. He was then remanded and arraigned in court after two (2) days. He denied the offence. He maintained that he was framed on the present charges following a land dispute with the Complainant’s family.

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 magistrate’s so as to reach its own independent determination, whether or not to uphold the conviction of the Appellant.  In doing so, this court is required to be mindful that it neither saw nor heard the witnesses as they testified and therefore cannot make any comment regarding the demeanour of the witnesses (See Njoroge -vs Republic [1986] KLR 19).  In the present appeal, the issue for determination by this court is whether the Prosecution established to the required standards of proof that the Appellant committed the offence that he was charged with. 

For the Prosecution to sustain the charge of defilement, it must establish that the following three ingredients to the required standard of proof:

1. Age of the Complainant

2. Penetration

3. Identification of the perpetrator

As regards the Complainant’s age, PW1 testified that she was ten (10) years old at the time of the offence. PW5 further produced the Complainant’s Birth Certificate (Prosecution exhibit 3) in support of the Complainant’s testimony. This court thus finds that the age of the complainant was ascertained by the Prosecution to the required standard of proof.  The complainant was at the material time a child within the meaning ascribed to the term by the Children Act.   

The next ingredient to be established is penetration. Section 2 (1) of the Sexual Offences Act defines “penetration” to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

The evidence of the Complainant was that on 18^th May 2016, the Appellant had sexual intercourse with her near the toilet at her home. In her words “tulifanya mapenzi”. PW3, who was going to his mother’s house, caught the Appellant and the Complainant in the act having sexual intercourse. He stated that the Appellant was atop the Complainant. It was when he said “wewe mtu mzima unakuja kulala na mtoto hapa” that they dispersed to their respective homes. PW4’s conclusion was that there was no defilement but did not overrule the contingency that there was consensual sex since the Complainant’s hymen was torn and old looking. His conclusions were premised on the fact that the Complainant was only seen a week after the offence had occurred. While this court notes that PW4’s medical evidence did not conclusively prove penetration to the court’s satisfaction, the evidence of the Complainant and PW3 was sufficient to prove penetration. Penetration need not be proved by medical evidence. Evidence of any nature, if sufficient, can satisfy this element.   The evidence of the complainant and PW3 established that the Appellant had sexual intercourse with the complainant.   We find fortification with the Court of Appeal decision of Fappyton Mutuku Ngui v Republic [2014] eKLR. For this reason, penetration was proved to the required standard of proof beyond any reasonable doubt.

On the identification of the perpetrator, PW1 testified that she knew the Appellant as his neighbour.  She rod on the Appellant’s motorcycle prior to the incident. PW3 who caught the Appellant in the act saw him with the assistance of the moonlight and light from his torch. There cannot therefore be a case of mistaken identity.  The Appellant was positively identified by the Complainant and PW3 at the scene. This court sees no reasons to interfere with the trial court’s finding in that regard.

This court now turns to the Appellant’s grounds of appeal not considered. On allegations that he was framed, this court dismisses the same. The Appellant was caught in flagrante delicto by PW3. His evidence was consistent and corroborate that of the Complainant. This court further notes that nothing, from the proceedings shows an error on the part of the trial court in the conduct of the proceedings.  The burden of proof was not shifted to the defence as alleged by the Appellant.  That ground is similarly dismissed.  In this regard, this court finds that the Prosecution established the ingredients of defilement to the required standard of proof beyond reasonable doubt. The Appellant’s appeal against the conviction lacks merit. It must fail.  It is hereby dismissed.

The Appellant was under the Sexual Offences Act sentenced to serve life imprisonment by dint of the provisions of Section 8 (2). The court considered his mitigation and the probation report. The Appellant maintained that he was framed. He denied the offence. The Court sentenced the Appellant to the mandatory sentence provided by the Act. The custodial sentence imposed was lawful.  This court thus sees no reasons to disturb the sentence. The appeal challenging the sentence is unmerited.  It is hereby dismissed.   The Appeal is hereby dismissed in its entirety. The conviction and sentence is upheld.  It is so ordered. 

DATED AT KITALE THIS 17^th DAY OF MARCH 2022.

L KIMARU

JUDGE