[2022] KEHC 13998 (KLR)

EWN v Republic (Criminal Appeal 91 of 2021) [2022] KEHC 13998 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13998 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal 91 of 2021

SN Riechi, J

October 3, 2022

Between

EWN

Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence by Hon G.P Omondi (S.R.M) in original Bungoma C.M.C’s Sexual Offence Case No. 41/2017 delivered on 18/3/2019)

Judgment

1. CJK, the appellant herein was charged in the subordinate court with the offence of defilement contrary to section 8(1) as read with 8(4) of the Sexual Offences Act, 2006 the particulars being that on the April 7, 2018 at [particulars withheld] location Cheptais sub county within Bungoma county intentionally caused his penis to penetrate the vagina of ANS, a child aged 16 years.

2. He faced an alternative count of committing an indecent act with a child contrary to section 11(a) of the Sexual Offences Act, 2006 the facts being that April 7, 2018 at Chebich, Kapkateny location Cheptais sub county within Bungoma county touched the vagina of ANS, with his penis against her will.

3. The appellant denied both charges and evidence was led as follows;.PW-1 ANS stated that she was born in the year 2002. That the appellant was their neighbour separated by a corridor and had married her auntie’s daughter who had run away due to family disagreements. That on the material day, the appellant called her to assist him put the child to sleep and while at it, the appellant caught her pushing her to the verandah where he defiled her and offered her Kshs 50/- to buy her silence. The appellant threatened to kill her if she raised alarm although she confided in her friend Lavenda who told other students about the ordeal.

4. That she was later called by her class teacher who inquired of her pregnancy, the issue later escalated to the head teacher and her mother and the administration. She came to know of her pregnancy 2 months later after missing her periods. The incident was reported to police wherein they were referred to hospital where her pregnancy was confirmed and the appellant arrested. She delivered her child on January 11, 2019.

5. In cross examination, she stated that there was no one at her home on that day.

6. PW-2, JN, the minor’s mother stated that the minor was born on January 24, 2002 and that the appellant was their neighbour and married to her husband’s niece. That she was away from home on the day of the defilement while the appellant’s children were at her house. On September 2, 2018, she was called to school where she came to know that her daughter was expecting where she took her to hospital. The minor later confided in her that the appellant was responsible for the pregnancy.

7. PW-3, Catherine Akiru, a clinical officer stated that the minor came to the hospital complaining of having been defiled by a person known to her. On physical examination, she had 32 weeks foetus, the genitals were normal with no hymen. She concluded that the minor had penetrative sex resulting to the pregnancy.

8. PW-4, IP Okembi Sagea stated that he investigated the matter and charged the appellant on identification by the minor a year after committing the offence.

9. The appellant was subsequently put on his defence and gave an unsworn statement to the effect that the case was a fabrication. He stated that he is a businessman and the case had led to the destruction of his home.

10. After consideration of the matter, the trial magistrate convicted and sentenced him to 15 years imprisonment thus the instant appeal which is anchored on the following grounds;1. The prosecution failed to serve the applicant contrary to article 50(2)(i) of the Constitution.2. The appellant is a family man and disabled3. The trial magistrate grossly erred both in law and fact to convict the appellant on contradictory, inconsistencies and uncorroborated evidence.

11. This being a first appeal, the duty of this court is as was espoused inDavid Njuguna Wairimu v Republic [2010] eKLR where the court held;….. to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.

12. It is now trite law that for the offence of defilement to be proved, the following ingredients have to be established;1. Age of the complainant2. Penetration3. Identity of the perpetrator of the defilement.

13. On the complainant’s age, the minor stated that she was born in the year 2002. She could not remember the exact date but her mother stated that her daughter was born on January 24, 2002. This information is corroborated by the post rape care form and certificate of birth produced as pexh 4 and Pexh 7 respectively.

14. From the evidence on record, there is sufficient evidence on the minor’s age which was proved to be 16 years.

15. On the element of penetration, the minor testified that the appellant defiled her when she had gone to put the appellant’s child to sleep. Her evidence was that the appellant dragged her to the corridor where he defiled and threatened to kill her if she raised alarm.

16. The minor further testified that after the ordeal, she confided in her friend. She later became pregnant from the defilement and a child born. The medical examination showed that the minor was pregnant after penetrative sex. In sum total, the only conclusion that can be arrived at is that the minor was defiled.

17. On the assailant’s identity, the minor stated that they are neighbours to the appellant and only separated by a corridor. The appellant had married a daughter to the minor’s aunt. It was clear during testimony that the minor had been cooking for the accused’s children after their mother ran away.

18. From the evidence on record, I am satisfied that this limb has been adequately proved and to the required standards.

19. Lastly, on the issue of the sentence meted out, section 8(4) of the Sexual offences Act states;

20. A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

21. The trial magistrate handed down a 15-year prison term. I find this sentence to be within the law and is not excessive in the circumstances. In the circumstances I hereby uphold the sentence.

22. Having carefully considered the matter, I find that the prosecution proved its case to the required standards. There is no merit in this appeal which is hereby dismissed.

DATED AT BUNGOMA THIS 3RD DAY OF OCTOBER, 2022. S.N. RIECHIJUDGE