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Wanjiku v Republic (Criminal Appeal 14 of 2017) [2022] KEHC 546 (KLR) (18 May 2022) (Judgment)
Neutral citation:
[2022] KEHC 546 (KLR)
Republic of Kenya
Criminal Appeal 14 of 2017
JN Mulwa, J
May 18, 2022
Between
Edwin Murimi Wanjiku
Appellant
and
Republic
Respondent
(Being an appeal from the original conviction and sentence in the Senior Resident Magistrate Court at Gichugu in Criminal Case No. 16 of 2016 delivered by Hon. A. N. Makau (SRM) on 21st February 2017)
Judgment
1.The Appellant, Edwin Murimi Wanjiku, was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 and sentenced to serve life imprisonment. The particulars were that on diverse dates between 6th of June 2016 and 8th June 2016 in Kirinyaga East Sub-county within Kirinyaga County, he unlawfully and intentionally caused his penis to penetrate the vagina of MKK, a child aged 7 years and 11 months. Aggrieved by both his conviction and sentence, he filed the instant appeal.
Grounds of Appeal
2.The Appellant raised the following seven (7) grounds of appeal in his Petition of Appeal filed on 18th March 2017:1.That the trial magistrate erred in law and facts by not considering that penetration was not proved.2.That the trial magistrate erred in law and facts by not considering that the prosecution’s evidence was full of contradictions and inconsistency.3.That the trial magistrate erred in law and facts in not considering that supportive exhibits were not produced in court.4.That the trial magistrate erred in law and facts by not considering that the case was shoddily investigated.5.That the trial magistrate erred in law and facts by failing to consider his defence.6.That the trial magistrate erred in law and facts by failing to consider that the birth certificate that was produced in evidence was not authentic as it had been cancelled.7.That the trial magistrate erred in law and facts by failing to consider that the evidence tendered by the prosecution was not credible.
Summary of Evidence
3.This being a first appeal, it is the duty of this court to reconsider, re-evaluate by analyzing the evidence adduced in the trial court so as to arrive at its own independent conclusion on the guilt or otherwise of the Appellant. In so doing however, the court must bear in mind that it neither saw nor heard the witnesses as they testified and must therefore give due allowance in that regard. ( See Okeno v Republic (1972) EA 32).
4.The prosecution’s case can be summarized as follows: PW1 MKK, the complainant, gave an unsworn testimony after a voir dire examination that on 6th June 2016 at about 5.00pm, she found the Appellant seated near a coffee farm while on her way home from school. The Appellant held her hand and took her into the coffee bushes where he forced her to lie down. He then pulled her school dress up to her shoulders and covered her mouth with one of his hands when she was about to scream out for help. Thereafter, the Appellant removed her biker and underpants, removed his own trouser and underwear, lay on top of her and inserted his penis into her vagina. After the act, the Appellant warned her not to disclose to anyone what had happened or else he would kill her. He then disappeared.
5.The complainant then dressed up and went home where she took a bath, ate supper and went to sleep. On the morning of 8th June 2016 while her grandmother PW2, EW was preparing her for school, PW1 informed her about the incident. PW2 decided to take her to Kabare hospital. On genital examination, it was discovered that her hymen was not intact. A high vaginal swab also revealed the presence of epithelial cells which results from friction and this led to the conclusion that there was forensic evidence of penetration.
6.Thereafter, PW2 reported the incident at Kianyaga police station where the Investigating Officer, PW5, No. 46455 Corporal Kioko Mutunga first gave them a P3 form to take back to the hospital for filling. The form was filled on 9th June 2016 by PW4, Peter Muchira Mbira, a clinical officer at Kabare Health Centre. He opined that penetration may have been caused by a human body part. Subsequently, PW2 took the already filled P3 form to the Childrens Department as she thought that they were also involved in the investigations. The Children Officer took the form to PW5 who then called PW1 and PW2 to record their statements.
7.Consequently, PW5 wrote a letter to the Assistant Chief of Thimu Sub-location, PW3, Henry Migwi Wambugu, to cause the Appellant’s arrest. PW3 arrested the Appellant on 26th October 2016 at about 10.00am at Kiandai Market after several failed attempts. The Appellant was then taken to Kianyaga Police Station where he was charged with the subject offence as the principal charge. During trial, PW4 produced both the PRC form and P3 forms in evidence whilst PW5 produced PW1’s birth notification serial number xxxx which shows that she was born on 23rd July 2008, and therefore about eight years old at the time the offence was committed.
8.When placed on his defence, the Appellant gave an unsworn testimony and called one witness. He testified that on the date and time of the alleged offence, he was asleep in his house as he had been injected, after suffering malaria which had made him lose his senses and consciousness. He came to know about this incident sometime in July 2016 when his uncle informed him of the allegations.
9.The Appellant’s uncle, DW1 Peter Mwangi Kariuki, testified that the Appellant had a mental illness since 2013 and he used to take him to Kerugoya hospital. That on the morning of 6th June 2016, the Appellant was sick as he had suffered a mental episode which begun on 4th June 2016 and lasted till 11th June 2016. He testified that PW2 framed the Appellant with the subject offence because of land boundary grudge between their families.
Analysis and Determination
10.The Appeal was dispensed with by both written and oral submissions which this court has duly considered. The only issue for determination is whether the prosecution proved its case beyond reasonable doubt.
11.Section 8(1) of the Sexual Offences Act provides as follows regarding the offence of defilement:
12.In determining this offence, the court is required to consider whether the prosecution proved the following ingredients:a.The act of penetration by the appellant against the female genitalia of the complainant.b.That the victim was at the time aged below eighteen (18) years old.c.That the appellant was positively identified as the perpetrator of the offence.
13.As regards the age of the victim, PW5 produced in evidence a birth notification serial number xxxx showing that PW1 was born on 23rd July 2008. The prosecution therefore conclusively established that PW1 was seven years and eleven months old at the time the offence is alleged to have been committed and was thus a child as per Section 2 of the Children Act Cap 141 of the Laws of Kenya.
14.On the issue of penetration, the Appellant contends that penetration was not conclusively established in view of the fact that the medical evidence showed that PW1’s vagina looked normal and further because PW1 did not describe the experience as painful despite that having been her first time engaging in such an act. On the other hand, learned state counsel Mr. Ashimosi submitted that PW4 confirmed that PW1’s hymen was not intact and therefore a sign of penetration.
15.In my considered view, PW1’s account of the alleged defilement was well corroborated by PW2 and the medical evidence tendered by PW4. The genital examination revealed that PW1’s hymen was perforated while the high vaginal swab revealed the presence of epithelial cells which led PW4 to conclude that there was forensic evidence of sexual penetration. PW4 was also categorical during cross examination by the Appellant that PW1’s genitalia had been interfered with. I am therefore satisfied that the prosecution established the element of penetration to the required standard.
16.As regards the identification of the Appellant, there is no doubt that PW1 knew and recognized the assailant as Murimi, the boy who stays at one Priscilla’s place. This fact was corroborated by PW2 who testified that the Appellant was well known to both PW1 and herself and that PW1 would pass near the Appellant’s home on her way to school. Further corroboration is evident in the evidence of DW1 who stated that he lived with the Appellant in the same home and PW2 was their neighbour. Additionally, the alleged offence occurred at 5.00pm in broad daylight and the Appellant obviously spent a considerable amount of time with PW1 from the moment he took her into the coffee bushes, undressed her and defiled her. This displaces any notion of mistaken identity.
17.Further, I have considered the evidence tendered by PW1 and do not find any basis for doubting her credibility despite not raising an alarm by screaming when she was being defiled. PW1 told the trial court that she was threatened by the Appellant and silenced and the trial court found her truthful. The trial court had the advantage of observing PW1 and her demeanor first hand as she testified. There is therefore no reason to interfere with that finding.
18.In addition, I am unable discern from the evidence on record, the existence of any grudge between PW2 and DW1 that would have led to the Appellant being framed up with the instant offence. I take the view that this was an afterthought as it only arose during the defence hearing. Indeed, no documentary evidence was produced to show or prove that the appellant was mentally sick and had been treated, at the relevant period and time of the commission of the offence. The defence cannot, in my considered view displace the well corroborated, consistent and watertight evidence tendered by the prosecution. I am therefore satisfied that PW1 positively identified the Appellant as the perpetrator of the offence.
19.Moreover, it was the Appellant’s submission that the prosecution’s case was full of contradictions and inconsistencies. Firstly, he pointed out that PW1 and PW2’s testimonies that PW2 took PW1 to the hospital contradicted PW4’s testimony that PW1 was taken to the hospital by her step mother. Secondly, he submitted that PW1’S testimony that the Appellant defiled her in a coffee plantation was inconsistent with the observation made by PW4 that PW1 had no physical injury on any part of her body. Thirdly, he questioned how PW1’s vagina could have looked normal without any lacerations as per PW4’s testimony if she was recently defiled. Lastly, he questioned the evidence of PW1 and PW2 that PW1’s walking style changed as a result of the incident.
20.On the other hand, learned state counsel submitted that the said inconsistencies and contradictions are curable under Section 382 of the Criminal Procedure Code. In my considered view, the inconsistencies and contradictions referred to were so minor and immaterial that they did not affect the tenor and substance of the prosecution’s case. This ground therefore lacks merit and is hereby dismissed.
21.Further, the Appellant submitted that the matter was shoddily investigated since PW5 did not carry out any further investigations to confirm that it was him who actually defiled PW1. On that line, the appellant submitted that PW5 did not visit the alleged scene of crime or questioned him. I find the prosecution case against the appellant to have been well founded and proved beyond any reasonable doubt. I have no reason to fault the trial magistrate’s findings on the facts and the law as presented before the court. The appeal against conviction is therefore dismissed for being devoid of merit.
22.As regards the sentence, it is well settled that in defilement cases, the sentence is dependent on the age of the victim. In that regard, it was established that PW1 was 7 years and 11 months old at the time she was defiled. Section 8(3) of the Sexual Offences Act prescribes a minimum mandatory sentence of life imprisonment for a person convicted of defiling a child of this age. This means that the Appellant’s sentence was proper and in accordance with the law, upon conviction. That ground of appeal is likewise dismissed.The upshot is that the Appeal lacks merit and is hereby dismissed in its entirety.
DATED AND SIGNED AT MILIMANI THIS 21ST DAY OF APRIL 2022J.N. MULWAJUDGE.DELIVERED AT KERUGOYA THIS 18TH DAY OF MAY, 2022R. M. MWONGOJUDGE.
