[2022] KEHC 17271 (KLR)

CKF v Republic (Criminal Appeal 45 of 2018) [2022] KEHC 17271 (KLR) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17271 (KLR)

Republic of Kenya

In the High Court at Garsen

Criminal Appeal 45 of 2018

SM Githinji, J

December 13, 2022

Between

CKF

Appellant

and

Republic

Respondent

(Being an appeal from the judgement of the Lamu PM’s Court in Sexual Offences case No. 180 of 2015 by Hon. Ireri M.D – Resident Magistrate delivered on 19th May, 2016)

Judgment

1. The appellant herein in count No 1, was charged with the offence of defilement, contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No 3 of 2006.

2. The particulars of this offence are that on the diverse dates between the year 2014 and March 26, 2015 at Hongwe location, Mpeketoni division in Lamu West district, within Lamu county, the appellant herein intentionally and unlawfully caused his penis to penetrate the vagina of JK a child aged 14 years.

3. In the alternative to this count, the appellant was charged with the offence of committing an indecent act with a child, contrary to section 11 (1) of the Sexual Offences Act No 3 of 2006.

4. The particulars of this offence being that on diverse dates between the year 2014 and March 26, 2015 in Hongwe location, Mpeketoni division, Lamu West district within Lamu county, the appellant intentionally touched the vagina of JK a child aged 14 years with his penis.

5. In count two, the appellant was charged with incest contrary to section 20 (1) of the Sexual Offences Act No 3 of 2006. The particulars hereof being that on diverse dates between the year 2014 and March 28, 2015 at Hongwe location, Mpeketoni division, Lamu West district, within Lamu county, the appellant herein caused his penis to penetrate the vagina of JK a female person aged 14 years, who to his knowledge was his cousin.

6. The prosecution case is that the complainant in this case was born on January 21, 2000 as shown on her birth certificate which was produced as prosecution exhibit – 1. They were living in a homestead with four structures. There were three separate rooms and a resting shade in the middle. The complainant was sharing one room with her mother, the PW-2 in this case.

7. The appellant who is complainant’s cousin, was sharing another room with her brother called H. The third one was used as a kitchen. From December, 2014 whenever the complainant’s mother was away, the appellant could take advantage of her absence and have sex with the complainant. He did so up to March 26, 2015. The complainant missed her menstrual periods on January 5, 2015. She had conceived. She informed the appellant about it who simply told her not to tell anyone. She did not tell anyone but the secret could not be kept for too long. Her belly had grown big by March 26, 2015 and PW-2 noted of it. PW-2 questioned the complainant about it, but she started crying. PW-2 took her home and pleaded with her to disclose the truth. Its then she said that the appellant herein was responsible for the pregnancy. PW-2 informed her brother who also informed the headman. The matter was reported at Mpeketoni Police Station. The appellant was arrested on March 27, 2015 by PW-3 and taken to Mpeketoni Police Station.

8. The complainant was examined by PW-4 at Mpeketoni sub-district Hospital. He noted that she had a normal genitalia with no bleeding or lacerations. She was however 12 weeks pregnant and had a white discharge. There was no evidence of any sexually transmitted disease. He filled the P3 form on March 30, 2015.

9. PW-5 investigated the case. He visited the scene and drew a sketch plan of the homestead showing the structures and the use for each. The appellant was then charged with the offences as aforementioned.

10. During the trial, the complainant on January 1, 2015 gave birth to a boy namely CT. The prosecution opted for a DNA test to establish his paternity. The appellant did not object to it. It was carried out using saliva samples. The report of December 17, 2015 from the Government Chemist in Mombasa shows that the appellant is 99. 99% the biological father of CT. The report was produced as prosecution exhibit 5.

11. The appellant when he was placed on his defence gave unsworn testimony. He denied the offence and alleged he was tricked by one Nichodemus Karani to go to Mpeketoni Police Station to meet the OCS. When he went there he was arrested.

12. The trial court evaluated the evidence and found the offence in court one proved by the prosecution beyond reasonable doubt. The appellant was thus convicted of it and acquitted of the offence in count 2 as it particulars did not disclose an offence as charged. The appellant was consequently sentenced to 20 years imprisonment.

13. Dissatisfied with the conviction and the sentence, the appellant appealed to this court on the following grounds; -1. The trial court failed to weigh his defence of deception.2. The trial court misconstrued the relevant penal law.3. The trial court failed to weigh his mitigating factors.

14. The appeal was canvassed by way of written submissions and each side filed theirs. I have considered the charges preferred against the appellant, evidence adduced by the prosecution in support, the defence by the appellant, the judgment by the trial court, sentence meted, grounds of appeal and submissions.

15. The judgment by Honorable Ireri dated May 19, 2016 address all the issues in the matter in a legally sound manner. It’s is a very good judgment, considering that it was delivered by a Resident Magistrate. The three ingredients for the offence of defilement, namely, the age of the victim, penetration, and identification of the purported perpetrator, were well analyzed and the right decision arrived at. The age of the complainant (PW-1) was supported by production of a copy of a birth certificate showing she was born on January 21, 2000. By the time of the offence she was 14 to 15 years old. She was therefore a child.

16. Out of the act she conceived. This definitely unless it’s shown otherwise, must have happened in an act that caused penetration. The culprit though well recognized as the appellant, a cousin to complainant who was living with them in the same compound and was therefore very well known to the victim, had DNA test which with finality pinned him down as the culprit. DNA test given its accuracy is more than opinion evidence, and is greatly considered as direct evidence. Given it, even in absence of any other evidence, it would be sufficient and safe for the court to conclude that the appellant was the real culprit.

17. The sentence of 20 years imprisonment is legally correct. The court considered the relevant factors in arriving at it. Given the circumstances of the case, where the appellant took advantage of a minor relative he was living with to defile her to a point where he even impregnated her, the sentence is deserved. The appeal therefore lacks merit and is hereby dismissed.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 13th DAY OF DECEMBER, 2022…………………………………………………S.M. GITHINJIJUDGEIn the Presence of; -1. Ms Mkongo for the State2. The Appellant