[2004] KEHC 1018 (KLR)
The court found that the evidence of the complainant (P.W.1) was credible and corroborated by P.W.2, who witnessed the appellant with his trousers and underwear removed and the complainant without underwear. The contradictions cited by the appellant were deemed immaterial to the charge of indecent assault. The court...
Source-derived case information.
- Citation
- [2004] KEHC 1018 (KLR)
- Parties
- Appellant: Alex Mwagure; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 17 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Indecent Assault, Sexual Offences, Evidence Evaluation, Credibility of Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Mwagure
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence adduced was sufficient to sustain a conviction for indecent assault of a female contrary to section 144(1) of the Penal Code.
- 2 Whether contradictions in the prosecution evidence created reasonable doubt in favour of the appellant.
- 3 Whether the sentence of 15 years imprisonment was harsh or excessive.
Ratio Decidendi
The court found that the evidence of the complainant (P.W.1) was credible and corroborated by P.W.2, who witnessed the appellant with his trousers and underwear removed and the complainant without underwear. The contradictions cited by the appellant were deemed immaterial to the charge of indecent assault. The court rejected the appellant's claims of bias and fabrication as afterthoughts, noting they were not raised at trial. The court concluded that the prosecution had proved the charge of indecent assault beyond reasonable doubt and that the sentence imposed was not harsh given the circumstances. The appeal against both conviction and sentence was therefore dismissed in its entirety.
Court Disposition
appeal dismissed
Orders
- The appeal against conviction is dismissed.
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO. 17 OF 2004
(From Original Conviction and Sentence in Criminal Case No. 209 of 2004 of the
Chief Magistrate’s Court at Mombasa J.S. Mushelle, Esq., SPM)
ALEX MWAGURE ………………………………………………… APPELLANT
Versus
REPUBLIC ……………………………………….………………. RESPONDENT
J U D G M E N T
The Appellant was convicted of the offence of indecent assault of a female contrary to section 144(1) of the Penal Code and sentenced to 15 years imprisonment with hard labour. He has appealed against both the conviction and sentence. He listed six grounds of appeal which he argued together.
The Appellant in his written submissions stated that there was no evidence to support his conviction. The complainant P.W.1 and P.W.4 having given contradictory evidence in that P.W.1 said there was penetration while P.W.4 said there was none. He also argued that P.W.2 said that he had removed his trousers half way contrary to what P.W.1 said. The latter, he argued, said that he had completely removed his trousers. Appellant also wondered why the complainant’s friend who was playing with her was not called by the prosecution.
The State Counsel Mr. Monda urged me to dismiss the appeal as there was ample evidence against the Appellant.
The prosecution case was that the Appellant found the complainant playing with another girl. He took her to an incomplete building and gave her Sh. 4/= to buy chips. He then undressed her and he also removed his own trousers and underwear apparently with the intention of defiling her but before he could do that P.W.2 intervened and raised an alarm. The complainant’s mother with members of the public rushed there, chased and arrested the Appellant and took him to Changamwe Police Station. The complainant was taken to hospital but after examination the doctor reported that there was no penetration.
The Appellant does not deny that he was arrested by P.W.2 and P.W.3 together with members of the public. What he said in his unsworn statement is that he had gone to the incomplete building to urinate when P.W.2, who held a grudge against him, raised an alarm. He did not give any details of the grudge P.W.2 held against him. He did not put that to her while cross examining her or even raise it in his unsworn statement. He alleged that P.W.2 held a grudge against him for the first time in this appeal. Also raised for the first time in this appeal is the allegation that P.W.3 gave P.W.1 Sh. 4/= and instigated her to testify against him. He does not say why P.W.3 would do that.
I have carefully examined the lower court record and the evidence adduced before the trial magistrate. P.W.1 stated that the Appellant removed her underwear after removing his own trousers and underwear. P.W.2 also saw the complainant child, P.W.1, without an underwear. She also saw Appellant’s penis. Like the trial magistrate I also believe the evidence of P.W.2 and see no reason why she would give false testimony against the Appellant. The allegation that she held a grudge against him raised for the first time in this appeal is clearly an afterthought and has no basis. Whether the Appellant completely removed his trousers or lowered it is immaterial. As I have already said I believe the evidence of P.W.2 which corroborates that of the complainant that the Appellant exposed his penis and also removed the underwear of the complainant. With that evidence the charge of indecent assault against the Appellant was clearly proved and I therefore dismiss the appeal against conviction.
On sentence, it is clear from the evidence adduced before the trial magistrate that the Appellant wanted to defile the young girl. Were it not for the timely intervention of P.W.2 he could definitely have defiled the young daughter of a neighbour whom he is supposed to protect from such heinous acts. The likes of the Appellant should be kept away from civilized society. The sentence of 15 years imprisonment is not harsh in the circumstances and the appeal against sentence is also dismissed. In the circumstances this appeal is hereby dismissed in its entirety.
DATED and delivered this 22nd day of November 2004.
D.K. Maraga
Ag. JUDGE