[2023] KEHC 25183 (KLR)

CMM v Republic (Criminal Appeal E054 of 2021) [2023] KEHC 25183 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25183 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal E054 of 2021

GMA Dulu, J

November 8, 2023

Between

CMM

Appellant

and

Republic

Respondent

(From the judgment in Sexual Offence Case No. 33 of 2020 at Wundanyi Law Courts delivered on 10th August 2021 by Hon. E. M. Nyakundi (RM))

Judgment

1. The appellant was charged in the Magistrate’s court with incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 17th June and 19th June 2020 at around 0700hours at Mwatate Sub County within Taita Taveta County, intentionally caused his penis to penetrate the vagina of BW a child aged 13 years who is to his knowledge his step-daughter.

2. In the alternative, he was charged with indecent act with a child contrary to Section 11(1) as read with Section 2(A) of the Sexual Offences Act, the particulars of which being that on the same dates, at the same place and time intentionally and unlawfully touched the vagina of BW a child aged 13 years with his penis.

3. He denied both charges. After a full trial, he was convicted on the main count of incest and sentenced to 30 years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds:-1. That the trial Magistrate erred by convicting him yet failed to consider that the complainant did not provide credible evidence to clear or prove the alleged matter beyond reasonable doubt.2. The learned Magistrate erred in law and facts by failing to consider that the total evidence by witnesses ought (not) to contradict to that of each other.3. The learned magistrate erred by failing to observe that there was no proof in evidence produced to the alleged case of incest.4. The learned Magistrate breached the provisions of Article 50(2)(h) of the Constitution of Kenya 2010. 5.The learned Magistrate failed to adequately consider his defence statement.

5. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.

6. This being a first appeal, I have to start by reminding myself that I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno v Republic (1972) EA 32.

7. In proving their case, the prosecution called four (4) witnesses. On his part, the appellant tendered sworn testimony and did not call any additional defence witness.

8. The prosecution had the burden to prove all the elements of the offence of incest beyond reasonable doubt – see Section 107 of the Evidence Act (Cap.80), and the case of Sawe v Republic (2003) eKLR.

9. On the relationship between the complainant PW1 and the appellant, both the prosecution evidence and defence evidence is in agreement that the appellant was the step-father of complainant having married the mother of PW1, who was PW2 PM. I thus find that the prosecution proved the relationship between PW1 and the appellant beyond reasonable doubt.

10. The age of the complainant (PW1) was also proved beyond reasonable doubt to be 13 years at the time of the incident as a birth certificate was relied upon and produced as an exhibit by the investigating officer PW4 PC Damari Njeri.

11. With regard to sexual penetration, the evidence of the prosecution and the defence is also clear that the complainant was treated at Mwatate Sub County Hospital on 30th June 2020 and medical examination report, (P3 form) filled. The complainant had fresh lacerations in the vagina. So she was penetrated in her vagina or sexual parts. In my view therefore the prosecution proved fresh sexual penetration on 30th June 2020.

12. Was the appellant the perpetrator? In my view, the prosecution did not prove beyond reasonable doubt that the appellant was the perpetrator. The first reason is that key witnesses like the Assistant Chief and nyumba kumi official to whom the first reports were made were not called by the prosecution to testify and no reason was given for that.

13. The second reason is that the complainant PW1 stated that the incident occurred on 17th and 19th June, and yet fresh lacerations and epithelial cells were found in her vagina on 30th June 2020 a period of almost 12 days. In my view therefore, the friction on the vagina of the complainant cannot be traceable to 17th and 19th June. The friction must have been due to fresh or later incidents.

14. Thirdly, from the evidence of PW2 the mother of the complainant on record, there was existing strained relationship between herself and the appellant due to perceived infidelity of the appellant, which might be a reason for implicating the appellant. From the evidence of PW2 also, she was the one who coerced the complainant through persuasion to mention the appellant as the perpetrator. The truthfulness of what PW1 said therefore is in great doubt. It cannot be saved by the provisal to Section 124 of the Evidence Act (Cap.80).

15. As the prosecution did not prove beyond reasonable doubt that the appellant sexually penetrated the complainant (PW1), this appeal will succeed.

16. For the above reasons, I allow the appeal quash the conviction and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED THIS 8TH DAY OF NOVEMBER 2023 AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantAppellantMr. Sirima for the State