[2017] KEHC 376 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL APPEAL NO: 16 OF 2016

[From Original Conviction and Sentence in Criminal Case No: 905 of 2013 of the Chief Magistrate’s Court at Kiambu]

GACHUI WAMBUI……………………………….…….APPELLANT

-V E R S U S-

REPUBLIC…………………………………............…RESPONDENT

J U D G M E N T

1. This is the judgment of the court in the Criminal Appeal No.16 of 2016. The appellant is EVANS GACHUI WAMBUI. He was charged with the offence of Defilementcontrary to Section 8 (1) (3) of the Sexual Offences Act No: 3 of 2006.

The particulars thereof were that on the6th & 7thday ofMay, 2013 at Gachielocation within Kiambu County, you intentionally and unlawfully caused your penis to penetrate the vagina of J W a child aged 14years.

2. Alternative charge was, committing an indecent act with a child contrary to Section 11 (1) of Sexual Offence Act No: 3 of 2006.

The particulars being that on 6th and 7thday of May, 2013at Gachiearea of Kiambu country, you intentionally touched the vagina of J W W a child aged 14years with your penis.

3. The accused denied the offence and a fully fledged trial ensued at the end of which he was found guilty, convinced and sentence to ten (10) years imprisonment.

4. Appeal

Being aggrieved and dissatisfied, the appellant has filed this appeal against both the conviction and the sentence.

His grounds of appeal are:

1. THAT the trial magistrate erred in law and fact by relying on the inconsistent and untruthfulness statements of facts by the victim and PW2 to convict the appellant.

2. THAT it was an error in law and fact to convict on evidence of a single witness.

a) No record why the court believed a single witness.

b)The court convicted on uncorroborated evidence of a single witness.

c)The court did not interrogate the lack of identification.

3. The court erred in law and fact

a)To conclude that the watchman was compromised without calling him as a witness.

b)No finding made why Dr. Kariuki who first examined the victim wasn’t arrested to give her crucial evidence.

4. THATthe conviction was against the weight of evidence, in view of the fact that they had earlier on wanted to withdraw the case for lack of evidence as per page9 of the proceedings.

5. THATthe trial court failed to consider the appellants defence and wished it away in one sentence.

5. SUBMISSIONS

a) The appellant through his counsel, Murioki submitted as follows:

1. The appellant relies only on amended grounds of appeal as filed on 6th March, 2017.

2. On Ground 1 of appeal, PW1’s evidence on page 23 & 26 was contradicted by the evidence of PW3 – Doctor Maundu Exhibit I on page 14 of the bundle of proceedings. It is my submission that this witness PW1 is not reliable and not credible.

On page 12, the evidence of the mother PW2, his uncle live in the same compound with the appellant and the family of PW1. I submit that there are glaring contradiction, the court must give the benefit of doubt to the appellant due to inconsistent testimonies.

3. On ground 2 of the appeal, that the trial court did not regard the reasons as to why it believed the evidence of a single witness. I rely on legal authority, No 1 of my list of authorities: Julius Kiunga Mbirithia Vs Republic [2013] e KLR.

The P3 form filled by Dr. Maundu said: there were no signs whatsoever of sexual intercourse, no injuries, both external and internal genitalia.

Look at evidence of PW3, page 14 – 15 of the bundle of the proceedings. The Doctor was clear.

2 (b) of grounds of appeal, the minor’s evidence has not been

corroborated by material evidence, especially of PW3, the doctor.

2 (c) of grounds of appeal, on matter of identification. The court ought to have addressed itself to this. My legal authority No. 1 of my list of authority. This was addressed by the trial court.

On grounds 3(a) of the appeal, there is evidence to the effect that the appellant walked out of the compound in the company of the minor and PW1, PW4 who both live in that compound confirmed that the watchman was present at all material times and it be noted that this watchman was never called as a witness. No evidence was attributed to the conduct of this watchman. However, the magistrate proceeds, on page 24, misdirects herself on facts and wrongly makes a conclusion that the watchman must have been compromised.

I submit that this is a for-fetched conclusion by the trial magistrate, leading to a wrong inference on facts, hence judgement arrived at is based on this wrong inference. I submit further that failure by the prosecution to call the watchman was to conceal a fact that was against the prosecution evidence.

On grounds 3(b) of appeal, the trial court had issued a warrant of arrest for Dr. Kariuki. Thus failure by the court not to address itself to this failure was prejudicial to the appellant. It was a great lapse on the part of the court. The prosecution having not procured the attention of this critical witness can lead to the conclusion that the evidence by Dr. Kariukiwas not going to be favourable to their case. See the proceedings of 4th April, 2014, page 16/26 thereof. The court had a duty to look at the evidence of this doctor. PW1 referred to MF1, the same was not produced as an Exhibit.

On grounds 4 of the appeal, at page 13 of the bundle of proceedings on 14th March, 2014, the Hon. Prosecutor, informed the court that they wanted to withdraw the case for lack of adequate evidence. However, he was over ruled and was ordered to proceed on the same day in the afternoon.

However, the court found the appellant guilty of the lesser charge of attempted defilement.

We submit that these erroneous findings as highlighted in grounds 1, 2, & 3 above. This is based on the fact that these proceedings did not place the accused person at the scene, has not been identified by the victim, PW1, her evidence has not been corroborated by material evidence. The evidence of PW2, PW4 – the duties has been termed as hearsay evidence by the trial court. It was therefore erroneous for the court to have made such conclusion.

The evidence on…………is strong that PW2 & PW4 resurfaced on 8th Marchat2. 30 and said she had spent two nights in the appellant’s house which is in that compound. There is no circumstances evidence pointing to the guilty of the appellant, nor is there direct evidence.Look at case No.3 of my list of authority: that a person has a duty to disclose to court, will lead the court to make an erroneous judgment both on facts and law.

On grounds 5 of the appeal, conviction is not based on weaknesses of the defence case but on the strength of the prosecution case.

On issue of age, see my list of legal authorities, No. 5 of page 6 thereof, it is essential that age must be proved. And because there was no thoroughness in this trial, the benefits must be in favour of the appellant.

I pray that this appeal be allowed, the conviction quashed and the sentence be set-aside.

b) The Respondent, through the learned counsel, Madam Muthei opposed this appeal, vehemently.

On ground I of the appeal, the evidence tendered in court was consistent, PW1disappeared from home. PW2 – her mother made the report at the police station. The investigating officer, (I.O) also investigated and noted that she was away from home for two days. The doctor’s report was also consistent with the charges that were later reduced to attempted defilement. PW1’s evidence when he attempted to penetrate but was unable because she felt pain, page 10 of the bundle of proceedings. PW1 felt some wetness. This would be consistent with the doctor’s report which indicated she had an infection which would come from the exchange of sexual fluid.

PW3 – the doctor, says the hymen was not freshly torn, it is common knowledge, that the hymen is always torn by sex activities but also other actions. That is not enough to say that the evidence is not credible because of that statement.

The fact that PW2 didn’t see the victim in the appellant’s house, does not mean that there was a contradiction. See page 10, PW1says, she feared going home. The trial court was to observe the demeanor of the victim, page 24, noted that she appeared honest and truthful.

On grounds 2(a) & 2 (b) of the appeal, the court warned itself, see page 25 of the bundle of proceedings and even quoted the case of Abdallah Bingwendo which talks about the evidence of single witness is enough. Section 124 of Evidence Act also applies and the court also took recognition of that section. And the court was convinced that PW1was telling the truth.

On grounds 2 (c) of appeal, on identification, PW1 said she knew the appellant, page 10 of the bundle. The appellant had earlier gone to look for house to rent. He was given a house to rent within the compound and had stayed there for about two (2) weeks, thus issue of identification was, therefore, not in question.

On grounds 3 of appeal, the prosecution decides which witnesses to call. Section 143 of Evidence Act says, no particular number of witnesses are needed to prove an act.

On the issue of warrant not being executed against Doctor Kariuki, the appellant did not suffer any prejudice because the notes he filed were used to fill the P3 form, so if he came he could have been reporting on the same information contained in clinical notes.

Thus waiting for the doctor could in the end, have instead, prejudiced the appellant’s fair hearing due to inordinate delay.

On grounds 4 of appeal, the magistrate did not comment on the prosecution to withdraw the case earlier, because Section 87 (a) of criminal Penal code (C.P.C.) is not compulsory, it is discretionary. The accused on page 13 of the bundle wished the case to go on. The prosecution had wanted to withdraw the offence of defilement, but in the end, the evidence that adduced was able to prove a lesser charge of attempted defilement.

On ground 5 of the appeal,the magistrate indeed considered the defence and it is up to the appellant to poke holes into the prosecution case and create reasonable doubt. He did not do this. And that is why he was put on his defence.

On issues of hearsay, this may come up because the mother and auntie were not present during the incident but were able to clearly bring out the facts that the minor was missing from home.

On issues of age, not being proved, there is a recent judgment of Judge Kimondo, where he says age can be proved in various ways:

1. By witness in evidence, in this case, PW1 & PW2, were able to state the age in court.

2. Can be discerned from the P3 form, in this case, the doctor PW3, was able to give the age of the minor.

3. It can also be discerned from the appearance of the minor, if the age was an issue, the court would have noted and the doctor denied during the cross-examination. Therefore, age in this case was not in dispute.

I pray therefore, that the convicts of sentence be uphold. The elements of the offence of attempted defilement.

6. First Appeal.

This being the first appeal this court is enjoined to read the proceedings of the lower court evaluate the evidence and come to its own conclusion bearing in mind that it neither saw nor heard the witnesses when they testified before the lower court which fact is the only allowance this court must make in this consideration. See generally Okeno Vs Republic [1972] E.A. page 32.

7. Issues for Determination

1. Did the PW1spend two days at the appellant’s house?

2. While at the accused’s house did attempted defilement take place between PW1 and the accused person?

8. Analysis of the testimonies

PW1, then aged 15 years, disappeared from home on 6/05/2013 having left home with her mother’s permission to go and buy shoe polish. She was called in one of the rented rooms in the same compound. The accused person touched her breasts and back and forcefully put her in his bed and forcefully had sex with her. PW1felt great pain. She screamed as a consequence but he raised the radio volume high to maffle her screams. PW1 admits that he did not penetrate her due to unbearable pain.

However, she admits that she felt wetness in her vagina. She feared to return home and face her mother and grandmother. She was forced to stay in that room for two days. The accused would bring her some food. There was further attempt to have sex with the victim but she refused.

PW3 – Dr. Joseph Maundu examined and opined that hymen was broken. She had acute discharge. The missing hymen was not freshly torn. The Doctor saw her on 13/05/2013 but act took place on 07/05/2013. The infection is caused by sharing of sexual fluids, amongst others. This testimony is corroborative of PW1’s testimony. However, Section 124 of Evidence Act lends credence to the testimony of PW1 alone and uncorroborated.

9. FINDINGS

For those reasons, this appeal has no merit. The conviction and the sentence is upheld. The appeal is therefore dismissed.

Right of appeal – 14days.

JUDGMENT WRITTEN AND SIGNED BY:

C. B. NAGILLAH

JUDGE

JUDGMENT DELIVERED, DATED AND COUNTERSIGNED IN KIAMBU BY:

THIS 5TH DAY OF OCTOBER 2017

JOEL NGUGI

JUDGE

In the Presence of:

……………………………the Appellant

……………………………for the Respondent

……………………………for the Court Assistant