REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 37 OF 2020

JOSEPH MWANGI ALIAS BOI NDUNGU.........................................................APPELLANT

VERSUS

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

(Being an Appeal from the Judgement of Hon. E. Soita (RM)

dated 13th August 2020 in Criminal Case No. 6 of 2019 at Molo.)

JUDGEMENT.

1. The appellant was charged with the offence of Defilement contrary to Section 8(1), (2) of the Sexual Offences Act No 3 of 2006. The particulars of the offence were that on the 21^st day of June 2019 in Molo sub-county within Nakuru County, intentionally caused his penis to penetrate the vagina of JA a child aged 6 years.

2. The alternative count was Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars of the offence were that on the 21^st day of June 2019 in Molo sub-county within Nakuru county, intentionally caused his penis to penetrate the vagina of JA a child aged 6 years.

3.  The appellant was convicted and sentence to life imprisonment hence this appeal. The appellant has raised the following grounds of appeal challenging the judgement: -

a) That, the learned trial magistrate erred in law and fact by failing to note that the charge of defilement was not proved against the appellant to the required standard (proof beyond reasonable doubt).

b) That, the learned trial magistrate erred in law and in fact by failing to note that, the prosecution evidence was marred with contradictions which greatly vitiated the credibility of the prosecution evidence.

c) That, the learned trial magistrate erred in law by failing to appreciate that, the arrest of the appellant was not connected to this offence and that failure to avail those who arrested the appellant was a grievous mistake.

d) That, the learned trial magistrate erred in law by conducting a trial which was prejudicial to the appellant which was not in accordance to Article 50(1)(2)9c) (k) and Article 25(c) of the constitution.

4.   Before looking at the merits or otherwise of the appeal it shall be   worthwhile to summarize the evidence as presented during trial. 

5.   PW1 the complainant testified in her unsworn evidence that on the  fateful day she was done bad manners by a male and that she did not know his name.  She said that the appellant removed her inner   wear    and began defiling her and she felt a lot of pain. That as he   defiled her he smoked bhang and directed the smoke towards her.   The appellant then gave her Kshs. 20 which she still had. He also warned her not to tell anyone.

6.  That she told PW2 and she was taken to hospital but she could not   remember its name and they went to Elburgon police station. She   positively identified the accused in the courtroom and stated that  she was in top class and that she was 6 years old.

7.  On cross examination she stated that her father was in jail due to bad  manners. She told her mum what had happened and that the  appellant gave her Kshs. 20. That it was the first time the appellant  did that to her. 

8.  PW2 MS testified that she resided with PW1 who  was her sister in law’s child. That on 21^st June 2019, she left to take   one of her child to the clinic and she left the other children with   PW1. She testified further that when she returned she did not find  PW1  and she was told that she had been called by the appellant to  pick greens. PW2 later met PW1 at the road, she looked worried,  she   stated that she had been called by the appellant to pick greens   and   was given ugali and tea and told to sweep the house and was       taken to the bedroom.

9.   PW2 went on to testify that she checked PW1 and she saw something  that looked like mucus in her vagina and she took her to  Elburgon   hospital and later to Elburgon police station where they   wrote statements. She positively identified the appellant as the    person who defiled PW1.

10.   On cross examination, she stated that PW1 said that it was the  appellant who touched her. She added that there was no grudge  between her and the appellant.

11.   PW3 EDWARD CHELULE a clinical officer testified that he was the  one who filed the P3 form, that PW1 was examined by a doctor/clinical officer at night and that PW1 visited their facility on  24^th June 2019. He testified further that he had been given PW1  treatment notes which showed that her hymen was not intact, the inner vagina was red and there was discharge. He produced the P3 form, the lab report and treatment notes and age assessment form  where the age of PW1 was around 5-6 years.

12.  On cross examination he stated that they did not witness the incident   and that they also did not examine the appellant but only PW1. He   stated that they confirmed that there was penetration and that she  was telling the truth.

13.    PW4 101111 PC VERONICAH CHEPNGENO the investigation   officer, testified that on 26^th June 2019 she was given a case of   defilement involving PW1 who was aged 6years old and the  appellant who had defiled her. That the members of public brought  PW1 and the appellant to the police station. She testified that PW1  was taken to the hospital where she was examined and age   assessment done. She produced the age assessment as PEXB 3 and  she positively identified the accused in court.

14.  On cross examination she stated that the appellant was not examined in the hospital and that the PW1 was examined by the   doctor who received the P3 form.  

15.   When placed on his defence the appellant denied the charges and  gave unsworn evidence and called one witness. He stated that he  was arrested on 22^nd June 2019 and taken to the police station for   touching a child. That it was not the first time PW2 is bringing a case  of defilement and that there was another person in custody too. The  appellant stated further that PW2 had called him at welfare and  stated that she wanted to withdraw the case. He urged the court to  look at both sides and that there was grudge between him and PW2  because of work. That he used to stay at her house till midnight and he was therefore not sure if she wanted to be good friends with him.

16.  DW2 NICHOLAS NDAMBWA gave sworn evidence and testified  that he was with the appellant from 9.00 am at the shamba until  1500hrs. That he left and went back to his place of work and at 1900hrs the appellant came to his place and they stayed together,  had dinner and he left at 2100hrs. He testified further that the next  day a young guy came and stated that the accused was arrested and   that he found PW2 who stated that PW1 had been taken to the clinic and that the appellant had touched her. That PW2 stated that she was   not sure if the same was true or not.

17.  On cross examination he stated that the appellant was his relative  and that by the time he was arrested he was residing near them. He stated further that he was not sure of the date he was with the   appellant and if it was the date when the incident occurred. 

18.  The court directed that the matter be disposed by way of written  submissions which the parties have complied.

Appellant’s Submissions

19.  The accused submitted that penetration was not proved by the  prosecution. He urged the court to critically analyze the evidence of   PW1 on the same as she was minor and that no one else saw her  being defiled. He submitted further that PW1’s father was sent to   prison because of PW1 and thus she was used to adducing false   evidence. That PW1 did not tell PW2 that she was defiled as PW2 in  her evidence to the court stated that she had been called by the appellant to pick greens and was given tea and ugali and told to    sweep the house and was taken to the bedroom. 

20.  He went on to submit that PW2 testified that PW1 stated that the  appellant was the one who touched her and thus the evidence of the two witnesses was not corroborating. Further, the clinical officer testimony that the hymen was not intact was not proof of penetration  according to the emerging jurisprudence. The appellant submitted   that PW1 was not a credible witness as she had issues with   identification. That in her evidence she did not remember the name  of her biological mother, the date when the offence was committed  and the name of the perpetrator.

21.  He went on to submit that none of the witness explained the exact  time the offence was committed.  PW4 who was the investigating  officer did not visit the scene of crime thus it remained a fallacy whether PW1 was defiled or not. He went on to submit that there  were contradictions which were fatal as they related to material facts and were substantial to the case at hand.  He draws the court’s  attention to the cases of Kamau v Republic [1975] EA 139 and   Roria Republic [1967] EA 583.

22.  In conclusion, he submitted that the failure to call a member of  public who effected the arrest of the appellant meant that the chain  of events from the defilement to the arrest was broken and therefore   doubt was created as to whether it was the appellant who defiled the   PW1. He added that the trial court ordered that matter proceeds  even though he had told the court that he was unwell. He urged the  court to allow his appeal and quash the conviction, the sentence set  aside and he be set at liberty.

Respondents Submissions

23.  The learned state counsel on the other hand opposed the appeal and  submitted that for the offence of defilement to be successful, three  ingredients had to be proved namely; identity of the perpetrator,  age of the minor and penetration by the accused. He submitted that  it was not in doubt the appellant knew the victim and that from PW1  testimony she was confident that the appellant had done bad  manners to her.  That there was no grudge noted between PW1, PW2 and the appellant. 

24.  The learned state counsel went on submit that the arrest of the  appellant was due to defilement of a girl who was 6 years. He   submitted further that the prosecution could avail any number of   witness and the appellant cannot dictate as to who should be called. He cited Section 24 of the Evidence Act which provides that the  court was entitled to rely on the evidence of the complainant if it was  satisfied that the child was telling the truth. He added that no  contradictions had been noted and that the evidence adduced by   PW4 confirmed that PW1 had been defiled.

25.   He concluded by submitting that the prosecution had proved it case  beyond reasonable double and further that all the ingredients for    the offence of defilement had been established. He urged the court not to interfere with the conviction and sentence.

Analysis and Determination

26.  Having perused the entire record herein, the proceedings and the   parties’ submissions, the duty of this court was clearly spelt out in   the case of OKENO V.REP 1972 E.A. 32. The Court of Appeal stated          that;

 “An appellant on a first appeal is entitled to expect the  evidence as a whole to be subjected to a fresh and exhaustive  examination (Pandya v R [1957] EA 336) and to the appellate court’s own decision on the evidence. The first appellate  court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala v R [1957] EA 570). It  is not the function of a first appellate court merely to  scrutinize the evidence to see if there was some evidence to   support the lower court’s findings and conclusions; it must  make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should  be supported. In doing so, it should make allowance for the  fact that the trial court has had the advantage of hearing and  seeing the witnesses, see Peters v Sunday Post [1958] EA  424.”

27.  The key ingredients that ought to be satisfied for sexual offences to  be proved are as follows; the age of the victim, the identity of the  perpetrator as well as penetration. This was established in the case of DOMINIC KIBET MWARENG VS. REPUBLIC [2013] eKLR  where the court reinforced the same when it stated that -

          ‘The critical ingredients forming the offence of defilement  are; the age of the complainant, proof of penetration and  positive identification of the assailant.’

28.   In the instant suit the age of the complainant was established by the  production of the age assessment form and the same indicates that  at the time of the incident she was 5 to 6 years old. That report  though produced by the investigating officer as PEXB 3 was not  challenged by the appellant.

29. As to the identity of the perpetrator, although PW1 testified that she   did not know the appellant’s name, she was able to positively identify him in court as the person who did bad manners to her. PW2  in her testimony stated that PW1 siblings had informed her that the  PW1 had been called by Boi (the appellant) to pick greens. Further,  the accused in his unsworn statement stated that he had been hosted by PW2 in her house on several occasions and therefore this means  he was no stranger to the complainant or her family. 

30.  As to whether there was penetration, PW1 testified that the appellant  removed her inner wear, he removed his clothes, he told her to  open her thing for urinating and he put his thing for urinating to  her vagina for a longtime. That she felt a lot of pain and he looked  at vagina to see if she was bleeding and he smoked bhang and blew   it on her. In addition, PW3 in his testimony stated that upon  examination of PW1 by the doctor/clinical officer, the hymen was not intact and the inner vagina was red and there was discharge. He  went on to produce the P3 form and the same was marked as PEXH  2. In view of the foregoing, it is my finding that PW1 testimony was   corroborated by PW3 testimony that the complainant had been  defiled by the appellant.

31.  The appellant in his defence called one witness who testified that he  was with the appellant from 9.00 am at the shamba until 1500hrs. That he left and went back to his place of work and at 1900hrs the  appellant came to his place and they stayed together and had  dinner and he left at 2100hrs. From the said testimony it is clear that DW2 was not with the appellant the whole day. The appellant did   not provide his alibi for the time between 1500hrs to 1900hrs and  thus the testimony by DW2 did not aid the appellant’s case. Further,  the witness whom he alleges was left out would not have altered the  circumstances of the case even if he/she was called to testify.

32.  The provisions of Section 124 of the Evidence Act in my view are       clear on such a matter. The same states as hereunder.

“Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declarations Act, 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.”

33.    The court finds the testimony of the minor though unsworn truthful  and believable. She was able to recognize the assailant as he was  someone known to her. Although the issue of whether what the  appellant smoked was bhang or not, the same does not lessen the question of identity and the commission of the offence.

34.    The appeal is otherwise dismissed.

35.  On the issue of sentencing, the trial court was right in sentencing the  appellant for life imprisonment. This was right and as is the case it is discretional. The trend nevertheless and based on the several  directions by this court and other superior courts is to make the  period definite.

36.   In the premises, the sentence of life imprisonment is hereby set aside and substituted with a custodial sentence of 25 years from  the date of his arraignment in court that is 27^th June 2019.

DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 17TH MARCH 2022

H K CHEMITEI

JUDGE