Maina v Republic (Criminal Appeal 92 of 2017)  KEHC 13974 (KLR) (14 October 2022) (Judgment)
Neutral citation:  KEHC 13974 (KLR)
Republic of Kenya
Criminal Appeal 92 of 2017
J Wakiaga, J
October 14, 2022
Cyrus Nyaga Maina
(Being an appeal against the conviction and sentence in Murang’a Sexual Offences No. 11 of 2017 by Hon. V. Ochanda R.M)
1.The appellant 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 of which were that on February 23, 2016 at [Particulars Withheld] location within Muranga County, intentionally and unlawfully caused his penis to penetrate the vagina of AWW a child aged 6 years.
2.He faced an alternative charge of indecent act with a child contrary to section 11(1) of the sexual Offences Act.
3.He denied the said charges and was tried and convicted on the main count and sentenced to life imprisonment.
4.Being aggrieved by the aid conviction and sentence, the appellant filed this appeal on December 22, 2017 through his home made petition of appeal wherein he contended that he was not given time to tender his defence, his submission was not considered as well as his request for medical examination and report thereon.
5.When the appeal came up for hearing, the appellant, through his advocates on record filed supplementary grounds of appeal and raised the following additional grounds:-A.The learned magistrate erred in law and in fact by convicting the appellant without evidenceB.The prosecution evidence was contradictory, inconsistent and uncorroboratedC.The sentence was harsh and excessive in the prevailing circumstancesD.Essential prosecution witnesses were not called.
6.On behalf of the appellant it was submitted, that age of the minor, which is an essential ingredient of the offence was not proved either by way of birth certificate, notification or age assessment and neither dud the mother testify and the only evidence tendered was the estimate of age contained in the P3 form, which was no proof of age. It was contended that the trial court erred in holding that there was birth notification, while none was tendered in evidence.
7.It was contended that the act of penetration was not proved as the treatment notes submitted in evidence indicated that the external gentile was normal even though the hymen was absent, which is no proof of penetration in support of which the case of PKW v Republic  eKLR was tendered.
8.On identification, it was submitted that the court relied on the evidence of the mother and the grandmother of the victim, who were not called to testify and that whereas the appellant may be convicted on the evidence of a single witness, the evidence of the victim was that she had not seen the appellant before and therefore there was a gap in the prosecution case as regards identification which required corroboration and therefore all the ingredients of the offence were not proved.
9.It was finally submitted that the appellant alibi defence supported by DW2, giving account of where he was at 3.00pm was not considered and therefore his conviction was not safe.
10.On sentence, it was submitted that the same should be set aside based on the cases of Christopher Ochieng v Republic  eKLR and Joseph Makau Katana v Republic  eKLR.
11.On behalf of the Republic, it was submitted that there was sufficient evidence to link the appellant with the offence and that contrary to the submissions by the appellant, the complainants mother testified as PW2 and confirmed the age. Penetration was proved through the testimony of the complainant and the medical evidence on record through PW3.
12.On identification, it was submitted that the complainant indicated that it was day time when she met the appellant and since she spent enough time with him, she was able to identify him at the dock and that there were no grave contradictions on the prosecution case and that the appellant alibi defence was introduced late into the trial and further DW2 stated that she was not with the appellant throughout.
13.This being a first appeal, the court is required to re-valuate the evidence tendered before the trial court and to come to its own conclusion, giving allowance to the fact that I did not unlike the trial court have the advantage of seeing and hearing witnesses as was stated in Okeno v R  EA 32.
14.PW1 having been found too young to understand the meaning of oath stated that she was in class one and did not know her age. On the material day she left school for home alone, when she found the appellant at the mango tree and he requested her to go with him to his home which she declined but later on agreed to do so. The house had electric power and he removed his clothes and “did tabia mbaya" to her at the place girls urinate with by placing what the boys have and she stayed with him until the following morning when she went back to the mango tree, where her mother found her and took her to the hospital.
15.PW2 stated that the complainant as 6years old ad was a pupil at Muringa Primary School and that she did not return home from school at 6 pm she looked for her and did not find her until the following day when she was found near the mango tree at 8.00 am, she told them that Nyaga asked her to go with him to his house where he did to her tabia mbaya and she was not in good shape when she found her, so she took her to the hospital where she was examined and a P3 form issued.
16.PW3 Linus Muturi a clinical officer examined who examined the minor stated that she had bruises on libia majora, her hymen was broken, he therefore concluded that there was vaginal penetration. In cross examination he stated that there were no spermatozoa seen in the samples taken
17.17.PW4 CPL James Mwangi was at the station when the complainant came with her mother and CPL Thomas Thumbe to make the report, they advised them to report to Murang’a police station, he later on arrested the appellant at a club at muringa shopping centre and on arrest he told them that he knew why they had arrested him.
18.PW5 CPL Ann Wamutali a companied the complainant to the hospital and later on collected the results and the p3 form. She was given the birth notification showing that she was aged 6years
19.DW1 the appellant stated that he woke up on February 23, 2016 and went to the shamba until 1.00 pm. At 6.00 pm he went to the shopping centre and was arrested by the police fir something he knew nothing about. In cross examination, he stated that he had not seen the complainant before.
20.DW2 Alice Njeri stated that on 24th, she went to the shamba with the appellant and at about 5 pm she sent him to go and buy maize floor but did not return back. In cross examination, she stated that on 23rd they went to the shamba up to 1.00 pm and later show him at 7.00pm, she confirmed that she knew the complainant and her grandmother as neighbours and that the complainant was not well behaved in the village.
Analysis and Determination
21.In determining this appeal, I will turn to the appellant’s grounds of appeal and analyse the same as I reach to the conclusion thereon.On the age of the complainant, the evidence on record through the testimony of her mother, who testify contrary to the submission of the appellant, safe for the fact that she was not cross examined, was six years. This was corroborated by post rape care form produced as pext 2, p3 form pext 3 and the treatment card pext 1.
22.Whereas birth notification card was not produced contrary to the finding of the court, I find and hold that the age of the minor was proved beyond any reasonable doubt as the jurisprudence emanating from the superior courts is that age can be proved through any other means over and above the birth certificate.
23.On penetration, the complaint at her age was very clear in her testimony that the appellant did tabia mbaya to her by putting by placing what the boys have at her place the girls use for urinating. This evidence was corroborated by the medical evidence of the clinical officer and her mother’s evidence as to the shape she was in when found.
24.Contrary to the submissions by the appellant the lack of hymen in this case was evidence of vaginal penetration as confirmed by the clinical officer and therefore the case of RKW v R (supra) cannot come to his rescue.
25.On identification, the complainant spent the entire night with the appellant having waylaid her on her way from school, the appellant alibi defence did not lodge the fact that the complainant spent the night with the appellant. The mothers evidence that she failed to return home and was found the following day at the same spot from where the appellant had taken her the previous day, placed the appellant with her and she was able at her age to identify the same at the dock, thereby confirming that his identification was free from error.
26.It therefore follows that the conviction of the appellant was safe and therefore find no merit on the appeal against conviction.
27.On sentence, the same remains at the discretion of the trial court and the appellate court can only interfere with the same if the conditions set by the court in Philip namaya v R  eKLR as follows are met:
28.In sentencing the appellant, the trial court stated as follows
29.I have taken note of the age of the complainant and the fact that the appellant was a neighbour, who owed a fiduciary duty of care towards the same and who should not have used her a sexual object to gratify his misplaced sexual urge and in this I find support in the Court of Appeal decision in the case of Athanas Lijodi v Republic  eKLR where the court stated that the life sentence imposed by the trial court and affirmed by the High Court was not unconstitutional and can still be mated out in deserving cases muruatetu case not withstanding if it is passed upon exercise of proper sentencing discretion and consideration of facts of each case. I therefore find no fault with the sentence herein which I hereby affirm.
30.In the final analysis I find no merit on the appeal herein both on conviction and sentence which I dismiss and affirm the judgement of the trial court.
31.The appellant has a right of appeal.
32.And it is ordered.
SIGNED DATED AND DELIVERED AT MURANGA THIS 14TH DAY OF OCTOBER, 2022.J WAKIAGAJUDGEIn the presence ofCourt assistant: Carol Mutahi