[2017] KEHC 3350 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL 2 OF 2016

BENARD MURATHI NYAGAH……………APPELLANT

VERSUS

REPUBLIC…………………………...….RESPONDENT

JUDGMENT

The Appellant herein was on 15th January, 2016 convicted for the offence of defilement Contrary to Section 8(3) of the Sexual Offence Act No 3 of 2006.

The particulars of the offence were that, on the 12th day of April, 2014 at Riandu location in Mbeere North District within Embu County intentionally caused his penis to penetrate the vagina of E K I, a child aged 14 years.

He also faced an alternative count of committing an indecent Act with a child contrary to Section ll (l) of the sexual Offences Act No. 3 of 2006, the particulars being that on the 12th day of April, 2014 at [particulars withheld] village Riandu location Mbeeere North District within Embu County intentionally touched the vagina of E K I, a child aged 14 years.

He was convicted and sentenced to serve a term of 20 years imprisonment and being dissatisfied with the sentence and conviction has appealed to this court and has listed 8 grounds of Appeal in his petition of Appeal.

In support of the prosecution’s case, four witnesses testified. The defence called 4 witnesses when the Appellant was put on his defence.

This being the first appeal the court is under duty to re-evaluate the evidence adduced and come up with its own conclusion considering that it did not have the benefit of seeing and hearing the witnesses testify.

PW1, the complainant, testified that on the 12/4/2014 she was at home when the Appellant called her to hold the baby for them so that they could go to pick Miraa. She went to the Appellant’s house and he and his wife left her with their young child.

After having dinner, they went to pluck Miraa leaving the complainant at the sitting room alone. At some point, the baby started to cry and the wife to the Appellant went and took the baby to sleep. It is at this point that the Appellant told the complainant to walk out of the house as his wife was asleep. The Appellant followed her to the miraa farm and told her to remove her under pant and defiled her. After that, he told the complainant to go back and sleep and he was left picking Miraa. The following morning, PW1 explained to her mother what had transpired and in the company of her parents and one Peter Njagi they went to the Appellant’s home and told his mother what the Appellant had done. The Appellant was later arrested.

PW2 is the mother to the complainant. She was at home on 12/4/2014 when the Appellant called the complainant to go and hold their young child so that the Appellant and his wife could go and pick Miraa. She permitted her to go and she did not return home that night. She trusted the complainant was in safe hands since the Appellant and the complainant are cousins. The following day when she went back home she told her what the Appellant had done to her. In the company of the complainant (PW1) they went to the Appellant’s mother and told her what the Appellant did to the complainant but he denied having defiled the complainant. She reported the matter to the police and was advised to take her daughter to hospital for medical examination. It was her evidence that her daughter was born on 22/5/2000 but the birth certificate had not yet been processed.

PW3 is the clinical officer who examined the complainant on the 17/4/2014. On examination, she was in fair general condition. There was old penetration, the hymen had been raptured long time and there was a whitish discharge which was not normal. The discharge had some microorganism, yeast cells and there was no spermatozoa. There were no signs of struggle as there were no traumatic marks on her thighs or buttocks. He produced the P3 as an exhibit.

In cross examination, he stated that it was about the 4th time that the complainant had been defiled.

PW4 investigated the case. He produced the notification of birth for the complainant that shows that she was born on 22/5/2000.

The Appellant gave unsworn statement and stated that the case against him was false and that he was framed. He also told the court that on the said date, he had gone to his wife’s home to take bride price, in the company of family members and the complainant was also there. The ceremony went up to the night and the complainant and her parents were the first people to leave the home while he stayed behind until late.

DW2 is the mother of the Appellant. Her evidence was to the effect that there is a grudge between her and the father of the Appellant which was brought about by a land dispute following which, she was chased away from the said land. It was her evidence that on the date the offence is alleged to have been committed, they had gone to take bride price to the Appellant’s wife’s home where they stayed until 1 am when they returned home.

DW3 and DW4 are both relatives of the Appellant. Their evidence revolves around the events of 12/4/2014. According to them, on the alleged date they had accompanied the Appellant to his wife’s home for dowry where they stayed until late.

The Appeal proceeded by way of written submissions which I have duly considered.

The Appellant was charged with the offence of defilement. The critical ingredients of the offence are; age, penetration and the identity of the assailant.

On the age of the complainant, PW1 and PW2 told the court that the complainant was aged 14 years when the offence was committed. PW4, the investigating officer produced the birth notification as an exhibit showing that the complainant was born on 22/5/2000. Though the Appellant averred that age was not proved as no birth certificate was produced, I find that the prosecution did proof the age of the complainant as the birth certificate is not the only document by which age can be proved. See the case of Francis Omuroni Versus Uganda Criminal Appeal No 21 of 2000 which was cited in the case of Uganda Versus Magidu Othieno Criminal Section Case No 0097/2010 where the court of Appeal held that age may be proved by the victim’s parents or guardian and by observation and common sense.

On penetration, the evidence of PW1 is clear on how she was defiled by the Appellant. She told the court in details how the Appellant called her from his house when the wife was asleep, led her to the Miraa farm and defiled her. It was not the first time that the Appellant was defiling her. In fact, she stated that it was the 4th time. She revealed this to her mother the following day and in the company of her parents and her uncle they went to the Appellant’s mother and told her what had happened.

The appellant in his 1st and 5th grounds of Appeal averred that the court erred in relying on the evidence of PW1 and PW2 and that the evidence of PW1 was not corroborated. He also contended that he was not examined and that no DNA was conducted to connect him with the offence. With regard to that assertion, it is clear that under the Sexual Offences Act, the court can convict on the evidence of the victim alone if it believes the victim is truthful and records the reasons for that belief. See the case of George Kioji Versus Republic Criminal Appeal No 270/2010 (Nyeri) and that of Jacob Odhiambo Omumbo Versus Republic Criminal Appeal No 80/2008 (Kisumu).

It is noted that in the Judgment by the learned Magistrate he stated;

“It is my observation that she is a truthful and believable witness.”

And that in both examination -in- Chief and cross examination, the victim was not shaken, she did not contradict herself but was very candid and clear. She narrated the events of the night as if it had just happened.

In addition to those reasons given by the learned trial Magistrate, it is also clear that the evidence of the complainant was corroborated by that of PW3, the clinical officer who examined her. He stated that the complainant told her that she had been defiled on four other occasions by the Appellant and for that reason, the hymen was not intact though in his opinion, the hymen can be broken by other causes.

The Appellant also took issue with the fact that no spermatozoa were noted on the complainant’s vagina. In this regard I wish to rely on the case of Mark Oiruri Mose Vs Republic Criminal Appeal No.295/2012, where the court of Appeal held that the absence of the spermatozoa in the vagina of the complainant is not evidence that there was no penetration.

The other ground of Appeal is that the Appellant was not examined and that no DNA was conducted on him to connect him with the offence. Section 36 (l) of the Sexual Offences Act No 3 of 2006 does not make it mandatory for the assailant to undergo medical examination. It can only be applied if the court directs, which was not the case herein. The trial court must have found that it was not necessary for such examination to be undertaken. See the case of Fappyton Mutuku Ngui Versus Republic [2014] eKLR which was cited in the case of FKN Versus Republic Criminal Appeal No 32 of 2012 where the court of Appeal held;

“In our view, such evidence was not necessary and in any event, the trial court found that there was sufficient medical evidence in support of PW2’s testimony which was trustworthy as to the person who defiled her.”

The Appellant in his 4th and 8th grounds of Appeal raised a defence of alibi and averred that on the 12/4/2014 he and the rest of the family had visited his wife for dowry where they stayed until very late in the night. The complainant was also in their company. The learned Magistrate in his Judgment considered the defence by the Appellant which was a two limb defence. With regard to that of alibi, he noted that the evidence of PW1 was strong enough and that it was not shaken by the Appellant’s defence. Secondly, it is on record that the Appellant had formed a habit of defiling the complainant and that it was not the first time he was doing so.

On the contention that there was a grudge between the Appellant’s mother and the father to the complainant, the evidence by DW2 is clear that the same did not extend to the children and that is why she allowed the complainant to go and assist the Appellant and his wife to look after the baby. It is noted that this was not the first time that she was being allowed to do so. I would therefore dismiss the Appellant’s defence and find that it does not hold any water.

Having re-evaluated and analyzed the evidence as hereinabove, I find and hold that the Appeal has no merits and I hereby dismiss the same.

It is so ordered.

Dated, Signed and Delivered at Embu this 2nd Day of October, 2017.

………………

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

………………………for the Respondent