Njagi v Republic (Criminal Appeal E002 of 2022)  KEHC 13878 (KLR) (13 October 2022) (Judgment)
Neutral citation:  KEHC 13878 (KLR)
Republic of Kenya
Criminal Appeal E002 of 2022
LM Njuguna, J
October 13, 2022
Benard Muchangi Njagi
1.The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006; the particulars being that on August 24, 2020 at [particulars withheld] village in Embu North Sub–County intentionally caused his penis to penetrate the anus of IN, a child aged 8 years. He also faced the alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
2.The prosecution called five (5) witnesses in support of the charge and at the close of the prosecution’s case, the appellant was put on his defence wherein he testified as DW1 and called two witnesses.
3.The complainant testified and told the court how on the material day, the appellant asked her with her brother to go to him and thereafter, told the brother to go to bed while he proceeded to defile her. That he removed his penis then inserted the same in her anus. She stated that the appellant promised to take her to the salon if she kept the promise not to tell anyone.
4.She stated that when her mother arrived, she informed her of all that had transpired as she was in pain. That her mother reported the incident at Karau Police Post and thereafter, she was taken to Embu Level Five Hospital.
5.PW2, Esther Irimba testified that the appellant was her husband prior to the incident. That on the material date, she had left the complainant with her sibling brother under the care of the appellant while she went to pick tea. She stated that when she returned home, the complainant informed her that the appellant had defiled her and she proceeded to report the matter at Karau Police Post. That after reporting, she was referred to Embu Level 5 Hospital whereupon the complainant was examined.
6.In her judgment delivered on November 17, 2021 the learned magistrate convicted the appellant, and on December 18, 2021, the trial court sentenced him to serve 25 years imprisonment.
7.Being dissatisfied with the conviction and the sentence, the appellant has approached this court vide a petition of appeal which he filed on January 27, 2022 wherein he has listed the following grounds of appeal;
8.When the appeal came up for hearing, the court directed that the appeal be canvassed by way of written submissions.
9.The appellant submitted that the prosecution’s evidence was contradictory and uncorroborated in view of the evidence adduced by PW1 and by PW2.He relied on the case of Ramkrishian Padya 1967 EACA 336 where it was held that where the evidence is contradictory and inconsistent, the court should not rely on it. It was his submission that the trial magistrate disregarded his defence without giving cogent reasons and further, given that the complainant was not his biological child, PW2 chose to frame him for the reason that he failed to secure for her the funds that she wanted. Further reliance was placed on the case of Maina v Republic HC RA No 955 of 1969. The appellant argued that the learned magistrate failed to advance her reasons for believing a single witness without taking into consideration the threshold of proof. The appellant thus urged this court to allow the appeal herein.
10.The respondent submitted that the prosecution proved its case beyond any reasonable doubt and that the trial magistrate on the strength of the evidence, meted out what she considered to be an appropriate sentence considering the nature of the offence that was perpetrated. Reliance was placed on the cases of Njoroge v Republic  KLR 19 and Oketch Olale v Republic  EA.
11.I have considered and analyzed the evidence which was tendered at the trial court by both the appellant and the prosecution, the grounds of appeal and the written submissions by the both parties. I find that the issue for determination is whether the appeal has merit.
12.This being the first appellate court, it is guided by the principles enunciated in the case of Okeno v Republic where the Court of Appeal set out the duty of the first appellate court in the following terms: -
13.It is not the function of a first appellate court to merely scrutinize the evidence to see if there was evidence to support the lower court’s finding and conclusion. It must make its own finding and draw its own conclusions and only then, can it decide whether the magistrate’s findings is supported and in doing so, it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses.
14.The appellant herein was charged with 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 an alternative count of committing an indecent act with a child. The ingredients of the offence of defilement are; -
15.On the age of the complainant, the evidence available to the court is that she was 8 years when the offence was committed. A birth certificate was produced as an exhibit (1) by PW5.[See Malindi Court of Appeal in Criminal Appeal No 504 of 2010 - Kaingu Elias Kasomo v Republic].
16.On proof of penetration, PW1 gave a comprehensive account of what transpired on the material day. She stated that the appellant asked her with her sibling brother to go to him and thereafter, told the brother to go to bed while he proceeded to defile her.
17.The same was corroborated by PW3 who testified that the complainant’s genitalia had laceration on the lower part of the vagina at 6 o’clock, anal area; bloody discharge; swollen genitalia tender on touch; and that the age of the injury was two days. He therefore described the degree of the injury as harm.
18.The evidence by the complainant was consistent and cogent in that she was categorical that it is the appellant who defiled her; the incident took place in the house. The appellant is her father though not her biological father. She later informed her mother on what had transpired. I therefore find that, sufficient evidence was adduced to proof penetration.
19.On identification, the court notes that the appellant is the foster father to the complainant. He is a person she knew well and she had no doubt in her mind that it is the appellant who defiled her. I find that the complainant knew her assailant very well. [See Anjononi & Others v Republic  KLR].
20.The appellant’s other ground of appeal is that the prosecution’s evidence is contradictory and inadequate. The court has carefully gone through the evidence on record but finds no material contradictions. Even assuming that there are contradictions, the manner of treating contradictions in a case was stated by the Court of Appeal in the case of Jackson Mwanzia v Republic  eKLR where the court cited with approval the Ugandan case of Twahangane Alfred v Uganda (Criminal “Appeal No. 139 of 2000 [UGCA] 6 thus;
21.Similarly, the Court of Appeal in the case of Richard Munene v Republic  eKLR stated;
22.The court finds that the contradictions in this case were not material to the case and they do not affect the substance of the prosecution’s case.
23.On the ground that the trial magistrate relied on a single witness to reach a conviction in this case, corroboration was not necessary. As per the provisions of the Sexual Offences Act and the proviso to section 124 of the Evidence Act, the trial court can convict on the basis of the complainant’s evidence, if satisfied that the complainant is a truthful witness. [See Sahali Omar v Republic  eKLR]. That notwithstanding, it is my view that PW3’s evidence corroborated that of PW1’s evidence as to the aspect to the injuries on the complainant’s genitalia. As such the ground fails.
24.On the ground that the appellant’s defence was disregarded without cogent reasons, the trial magistrate in her judgment considered the defence by the appellant in its totality and in the end, it was satisfied that the prosecution proved its case beyond any reasonable doubt. The court noted that the appellant was placed at the scene of crime and that his defence of extortion in relation to the evidence adduced by prosecution witnesses, the P3 and PRC Forms watered down the defence by the appellant. In that regard, it is clear that the trial court indeed considered the evidence of the appellant only that it was of little or no probative value to him in disproving the allegations against him.
25.Although the appellant has appealed against both conviction and sentence, he never submitted on the sentence. Nevertheless, I will proceed to examine the same. In the case of Bernard Kimani Gacheru v Republic  eKLR the Court of Appeal stated;
26.The sentence imposed must also meet the objectives of sentencing as per the Sentencing Policy Guidelines (2016) which are retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation.
27.The appellant herein was charged under section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006. The sentence provided for under that sub-section is life sentence. The appellant herein was sentenced to serve 25 years imprisonment, which in my view, was lenient.
28.In view of the foregoing, I find that the appeal is devoid of any merit and I hereby dismiss the same and uphold the conviction and the sentence imposed by the trial court.
29.It is so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF OCTOBER 2022.L NJUGUNAJUDGE................................................for the Appellant**…………………………………….for the Respondent