[2022] KEHC 13744 (KLR)

GKK v Republic (Criminal Appeal E002 of 2020) [2022] KEHC 13744 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13744 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal E002 of 2020

AN Ongeri, J

October 7, 2022

Between

GKK

Appellant

and

Republic

Respondent

(Being an Appeal from the conviction and sentence by Hon. Karani (RM) in Kericho Criminal Case No. S.O. 10 of 2018 delivered on 25/5/2018)

Judgment

1. The Appellant in this case GKK was sentenced to 10 years imprisonment for the offence of Incest Contrary to Section 20 (1) of the Sexual Offences (SO) Act No.3 of 2006.

2. The particulars of the offence were that on 22/2/2018, at [particulars withheld] Location, Belgut Sub-County in Kericho County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of SC a girl aged 12 years, who was to his knowledge his daughter.

3. The Appellant was charged with an alternative count of Indecent Act Contrary to Section 11 (1) of the Sexual Offence Act, in that in the same material particulars as in Count 1 (above) the Appellant unlawfully caused his penis to come into contract with the vagina of SC a girl aged 12 years.

4. The Appellant pleaded not guilty to the charges and the prosecution called a total of seven (7) witnesses whose evidence in summary was that the complainant, a girl aged 12 years told the court after voire dire examination that the appellant who is her father defiled her on the material day in the presence of PW.2 (her brother). The Complainant who testified as PW.1 said the Appellant put his “rat” into her vagina and she felt a lot of pain.

5. PW.2, also a minor told the court after voire dire examination that he saw the Appellant doing “Tabia Mbaya” (bad Manners) to PW.1. It was PW.2 who reported to their mother (PW.3).

6. PW.3 said when PW.2 reported to her what the Appellant had done, she waited for PW.1 to come from school. She checked her and said she saw the child had bruises on her vagina. PW.3 said she had differed with the Appellant over money to get a birth certificate and she had gone to her Uncle’s home when the incident occurred.

7. PW.7 Alex Kipyegon Ngetich a Clinical Officer in-charge of Fort Ternan Sub-County Hospital said he examined the complainant on 24/2/2018 and said there was no abnormality detected. He deduced probable attempted defilement.

8. The Trial Court found that the appellant had a case to answer and placed him on his defence. The Appellant denied that he defiled the child and said on the material day when he came home, his wife (PW.3) was not at home. He said the Complainant opened the door for him and he went to bed. The same day, he was arrested and charged with this offence.

9. The Trial court found the Appellant guilty with the offence of attempted incest Contrary to Section 20 (2) of the Sexual Offences Act and convicted him in accordance with Section 179 (1) of the Criminal Code and sentenced him to 10 years imprisonment.

10. The Appellant who was aggrieved with conviction and sentence has appealed to this Court on the following grounds:-(a)That the trial magistrate erred in law and in fact in convicting the appellant without considering that the charge sheet was defective within the meaning of section 214 of the CPC;(b)That the learned trial magistrate erred in law and in fact by reaching to conviction nervously without observing that the age of PW1 was not proved credibly as required by section 143(1) of the Children Act;(c)That the learned trial magistrate erred in law and in fact by not considering that instance case was found on differences between PW3 and the appellant on matters of money to get another birth certificate for PW1.

11. The parties filed written submissions in this Appeal which I have duly considered.The appellant submitted that the charge sheet was fatally defective as it indicated the age of PW1 as 12 years whereas she is 10 years of age, and further that the trial magistrate upon giving her judgment agreed that the charge should be attempted incest, contrary to section 20(2) of the Sexual Offences Act and not incest contrary to section 20(1) of the Act, and as a result the appellant suffered prejudice, and the same cannot be cured by section 382 of the Criminal Procedure Code.

12. The appellant also submitted that the age of the complainant, which is a critical component of the charge was not proved by the prosecution to the required standard and further, that had the trial court subjected all the evidence to an exhaustive examination and scrutiny, she would have found that there was evidence of differences between the appellant and FC the mother to PW1.

13. This being the first Appellate Court, it is my duty to re-evaluate the evidence adduced before the Trial Court and to arrive at my own conclusion whether or not to support findings of the Trial Court.

14. The court of appeal in Gitobu Imanyara & 2 Others v Attorney General[2016] eKLR, stated as follows: - “This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the finding of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.”

15. In Abok James Odera T/a A.j Odera & Associates v John Patrick Machira T/a Machira & Co. Advocates [2013] eKLR, the court of appeal stated as follows: - “This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

16. The element of incest are as follows:-(a)Knowledge that the person is a relative; and(b)Penetration or indecent act.

17. This elements were stated in the high court case of GMM v Republic, as follows: - “The ingredients for the said offence-incest and attempted incest are: (1) knowledge that the person is a relative and (2) penetration or indecent act. There is a difference in defilement of a child under Section 8(1) of the Sexual Offences Act, and Section 20(2) that being the relationship of the offender to the child victim.”

18. The high court in JKM v Republic [2020] eKLR, stated as follows :- “The offence of incest is created by Section 20(1) of the Sexual Offences Act which provides as follows: “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge, is his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years. Provided that, if it is alleged in the information or charge and provided that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” To establish a case under the above Section, the prosecution must prove the elements of the offence which are:There must be:1. An indecent act or an act that causes penetration;

2. The victim must be a female person who is related to the perpetrator in the degrees set out in Section 22 of the Act.”

19. I find that the Appellant attempted Incest on his own daughter. There is no dispute that the Complainant was the daughter of the Appellant.

20. The Complainant’s evidence was corroborated by that of the brother (PW.2). I find that Section 124 of the Evidence Act states that in an offence of this nature, the Court can rely on the evidence of the victim alone. It states as follows: - “Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

21. The court of appeal in Stephen Nguli Mulili v Republic[2014] eKLR, stated as follows: - “As a general rule of evidence embodied in Section 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section make an exception in sexual offences and provides as follows: “Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

22. The appeal herein lacks in merit.I find that the conviction is secure and the sentence lawful.

23. I dismiss the Appeal and direct that the Appellant serves the remaining sentence.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 7TH DAY OF OCTOBER, 2022. A. N. ONGERIJUDGE