[2018] KEHC 6328 (KLR)
The court found that the prosecution failed to prove the act of penetration beyond reasonable doubt, as the testimony of PW 1 did not state or allude to any act of penetration and the medical evidence was inconclusive, especially given the delay in examination. However, the evidence established that the appellant...
Source-derived case information.
- Citation
- [2018] KEHC 6328 (KLR)
- Parties
- Appellant: Abdi Noor Kamisa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 153 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; conviction for defilement set aside; conviction for indecent act with a child substituted; sentence of 10 years' imprisonment imposed.
- Judges
- DAS Majanja
- Legal Topics
- Defilement, Indecent Act With Child, Sexual Offences Act, Standard of Proof, Evidence Evaluation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdi Noor Kamisa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the offence of defilement beyond reasonable doubt.
- 2 Whether the evidence supported a conviction for the alternative charge of indecent act with a child.
Ratio Decidendi
The court found that the prosecution failed to prove the act of penetration beyond reasonable doubt, as the testimony of PW 1 did not state or allude to any act of penetration and the medical evidence was inconclusive, especially given the delay in examination. However, the evidence established that the appellant committed an indecent act with a child, as PW 1's testimony was clear and credible regarding the appellant's conduct. There was no suggestion of fabrication, and the appellant was known to the complainant. The court therefore set aside the conviction and sentence for defilement and substituted it with a conviction for the alternative charge of indecent act with a child under...
Court Disposition
Appeal allowed in part; conviction for defilement set aside; conviction for indecent act with a child substituted; sentence of 10 years' imprisonment imposed.
Orders
- Conviction and sentence for defilement set aside.
- Conviction for indecent act with a child under section 11(1) of the Sexual Offences Act substituted.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL APPEAL NO. 153 OF 2017
CORAM: D.S.MAJANJA J.
BETWEEN
ABDI NOOR KAMISA..........................APPELLANT
AND
REPUBLIC...........................................RESPONDENT
(Being an appeal from the original conviction and sentence ofHon.J.W.
Wanganga,RMdated 15th November 2017at theChief Magistrate’s
Courtat MauainCriminal Case No. 41 of 2014)
JUDGMENT
1. The appellant, ABDI NOOR KIMISI was charged with the offence of defilement contrary tosection 8 (1)and(2)of theSexual OffencesAct. It was alleged that on diverse dates between 28th December 2013 and 31st December 2013 at [particulars withheld] in Garbatulla Sub-county of Isiolo County, he intentionally caused his penis to penetrate anus of RA, a child aged 7 years. He also faced an alternative charge of indecent act with a child contrary to section 11 (1) of the Sexual Offences Act grounded on the same facts. He was convicted and sentenced to life imprisonment and has now preferred this appeal.
2. The questions raised by counsel for appellant is whether penetration was proved. She submitted that the child (PW 1) did not give any evidence that he was subjected to penetration of the anus. She pointed out that although he told his grandmother (PW 2) that he had been sexually assaulted previously, PW 1 did not testify to this fact. Moreover, she submitted that the medical evidence was uncertain as to whether there was penetration.
3. Counsel for the respondent opposed the appeal. He submitted that the testimony of PW 1, PW 2 and the Clinical Officer, PW 3, taken together proved penetration and in terms of section 2 of the Sexual Offences Act, penetration includes partial penetration.
4. I am obliged to re-evaluate the evidence adduced so as to reach an independent conclusion as to whether or not to uphold the appellant’s conviction bearing in mind that I neither heard nor saw the witnesses testify (see Njoroge v Republic [1987] KLR 19).
5. PW 1 gave unsworn testimony that he was with the appellant while they were taking care of goats on 28th December, 2012. He narrated what took place as follows, “He removed my trouser, then told me to hold my feet and he was on top of me.” He thereafter reported the incident to his grandmother, PW 2. PW 2 recalled that PW 1 told her on 1st January 2014 that he had difficulty in going to the toilet because the appellant had defiled him and threatened him if he reported the matter. She decided to report the matter to the police station.
6. The P3 form was filled by a Clinical Officer (PW3). He examined PW 1 on 22nd January 2013. After examining, the child he noted that there was possible penetration in the anus as there was a laceration on the anus although he did not see any bleeding or discharge.
7. The appellant elected to exercise his right to remain silent in his defence.
8. After considering the entirety of the evidence, I am not satisfied that the prosecution proved the act of penetration. The testimony of PW 1 did not state or allude to any act of penetration. Further he did not give evidence on what he told PW 2 particularly that the he had been sexually assaulted before. Given that PW 1 was examined about a month after the incident, it is not surprise that the PW 3 concluded that there was probably penetration.
9. But thus not the end of the matter, PW1 clearly testified that DW1 told him to remove his trouser and lie on top of him. In my view and that of the appellant did satisfies the ingredients of an indecent act with a child. There was no reason for PW 1 to lie nor was it suggested in cross examination that he had reason to implicate the appellant. There is also no doubt from the testimony of PW 1 and PW 2 that the appellant was known to them.
10. Consequently, I allow the appeal and set aside the conviction and sentence for defilement and substitute it with a conviction for the alternative charge of indecent act with a child contrary to section 11 (1)of theSexual Offences Act.Accordingly, the appellant is sentenced to 10 years’ imprisonment.
DATED and DELIVERED at MERU this 29th day of May 2018.
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Kiarie, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.