|Criminal Appeal 417 of 2010
|N.K v Republic
|25 Mar 2011
|Court of Appeal at Eldoret
|Riaga Samuel Cornelius Omolo, Alnashir Ramazanali Magan Visram, Philip Nyamu Waki
|N.K v Republic  eKLR
|An appeal from a judgment of the High Court of Kenya at Eldoret (Mwilu, J.) dated 29th April, 2010 in H.C.CR.A. NO. 24 OF 2008
|Individual v Government
|History Docket No:
|24 OF 2008
|Philomena Mbete Mwilu
Criminal practice and Procedure – defilement – appellant convicted and sentenced to serve life imprisonment – appeal against conviction and sentence – grounds that the High Court had not warned itself of the fact that the prosecution had not availed all the necessary witnesses - whether the prosecution had proved the case beyond reasonable doubt
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
CRIMINAL APPEAL NO. 417 OF 2010
(An appeal from a judgment of the High Court of Kenya at Eldoret (Mwilu, J.) dated 29th April, 2010
H.C.CR.A. NO. 24 OF 2008)
JUDGMENT OF THE COURT
It was proved beyond reasonable doubt before the trial court, as alleged in the charge sheet, that on diverse dates between 20th December, 2006 and 6th March, 2007 the appellant had defiled E. W, a nine year-old girl. The appellant was E’s father, and her evidence was not challenged in cross-examination although she testified on oath, that she was residing with her parents in L Estate in Eldoret and was attending K Primary School in Standard 2. Her mother died on 20th December, 2006 and she was buried in Nakuru after which E returned to L with her father in January, 2007. It was suggested by one of her uncles that they return to Nakuru but her father refused. They were staying in single room in L. It was E’s testimony that on several occasions the appellant sexually molested her after forcefully taking off her pants. He also beat her and forced her not to go to school. In March, 2007, E ran off to another home, Mama A’s, where the good samaritan took her to Moi Teaching and Referral Hospital for examination and treatment. The medical examination was performed by Dr. Paul Kipkorir Rono who found several marks on E’s left eye, an injury on her right hand on the thumb, an inflamed Tibia minora and a rugged hymen. He found no discharge from her genitalia and on conducting VDRL for syphilis, she found her “negative”. He also testified she was HIV negative. Dr. Rono formed the opinion that there were “features of repeated sexual assault with actual penetration”.
The appellant was also medically examined by Dr. Rono and he confirmed that he was H.I.V positive. On being cross-examined by the appellant as to why E was found H.I.V negative, the doctor stated that H.I.V appears after about three months. In his defence, the appellant simply denied the charges after admitting the child was his but complained that he was not given an opportunity to talk to her. He further blamed the woman, Mama A, where E had taken refuge, claiming that she had framed him with the offence because he had sold her bicycle and eaten all the money.
“There is no question of mistaken identity. The accused is the complainant’s own father. He took advantage of the demise of her mother and the fact that they lived in a one roomed house to severally defile her. There is medical evidence to show the girl was defiled. I am satisfied the prosecution have proved their case beyond reasonable doubt. I convict the accused person on the main charge.”
“At the trial the appellant did not cross examine his daughter – the complainant on her evidence that the appellant started sexually molesting her in January, 2007 when her mother died. What she told the court about being sexually molested by her father then remained uncontroverted and the trial court was right in accepting that evidence. The complainant told PW2 of her ordeal at the hands of her own father. When PW2 narrated before the trial court how the complainant said she was molested by her father the appellant herein did not cross-examine PW2. PW3’s evidence that the complainant repeated to her that she was defiled by her father also went unshaken. All that the appellant was interested in appears to have been whether or not he had infected his daughter with the HIV virus for when the doctor gave evidence he questioned him on the HIV status of both himself and his daughter. And the doctor’s answer that HIV appears after about 3 months simply silenced appellant as he chose not to ask any further questions. The trial court was right in rejecting the empty and bare defence of the appellant.”
“1. That the learned Lady Justice erred in law by so being fully convinced that I was guilty yet not withstanding or having warned herself under the fact that the prosecutions side never availed all the necessary witnesses/vital, to prove the above case beyond any reasonable doubts.
We think for ourselves that the case rested on the credibility of the child E whose evidence the appellant did not challenge. The trial court had the advantage of seeing and hearing her in the witness box and was therefore a better judge on credibility. We have no reasonable basis for interfering with that assessment. Medical evidence further confirmed her complaint that there had been penetration in her private parts which was a finding of fact. The law does not require any number of witnesses to be called for proof of corroboration of the facts stated by the complainant and therefore the first ground of appeal has no legal basis. As to whether, as pleaded by the appellant, the commission of the offence was negated by medical evidence that at the time of their examination the appellant was H.I.V positive when the complainant was not, we think the essence of the offence under the Act is penetration of the female organ and this was established by the doctor and found as a fact by the two courts below. The doctor also explained why it was possible to have two different results of the examination.
It is so ordered.
Dated and delivered at Eldoret this 25th day of March,2011.
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL