[2017] KEHC 2224 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NANYUKI

CRIMINAL CASE APPEALNO. 39 OF 2017

ISAAC MUTINDA MUTUA.............APPELLANT

VERSUS

REPUBLIC...................................RESPONDENT

(Being an appeal from the original conviction and sentence by Hon. E. Ngigi Senior Resident Magistrate dated 21st October 2016 at Nanyuki Chief Magistrate Court Criminal Case No. 875 of 2015)

JUDGMENT

1. ISAAC MUTINDAMUTUAwas convicted before the Nanyuki Chief Magistrate’s Court of the offence of defilement Contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act.He was sentenced to serve 20 years imprisonment on conviction. The appellant being aggrieved by that conviction and sentence has filed this appeal against both.

2. The duty of the first appellant was discussed in the case David Njuguna Wairimu V Republic [2010] eKLR where the court, relying on the holding of the Court in Okeno– v - Republic (supra) held that:

“[The duty of the first appellate court] is 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 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”.

3. The prosecution’sevidence wasthat C M W a 15 years old girl on 10th August 2015 was grabbed by the appellant at knife point and dragged into his house as she fetched water. While in the house and still under threat of a knife the appellant defiled her. Later C M W’s mother together with others who were assisting her to look for her missing daughter, C M W, demanded the appellant to open his door and when he did they found CMW lying on a bed inside the appellant’s house. The appellant and C M W being taken to AP post and on C M W being examined by Administration police (AP) Esther Thige it was found that she had been defiled. Indeed C M W informed the A P that the appellant had previously defiled her but that she feared to tell her mother because the appellant had threatened to kill her. Further C M W informed the officer that the appellant had defiled her in the month of June.

4. Dr. Julia Maina from the Nanyuki Teaching and Referral Hospital examined C M W the day after the incident. On examining her the doctor found her hymen was perforated but there were no bruises or lacerations. The doctor concluded in her evidence thus:

“More findings were that the 15 year old owing to the perforated hymen and fact that she was pregnant confirmed that she had been defiled”.

5. In his sworn defence the appellant stated that on the subject dated , 10th August, 2015 in the evening after eating dinner he slept and at midnight he heard people knocking at his gate. Because he was not from that area he feared and presumably for his safety went to the police station. He denied the charge.

6. The appellant on his first ground of appeal referred to what he called inconsistencies in the prosecution’s evidence. I however dare say there were no inconsistencies in the prosecution’s evidence. The appellant indeed erred to say that the evidence of Paskikwali Mikundi( P W 3) and the evidence of C M W’s mother was in consistent.

P W 3 did not say that C M W’s mother said “she had sent her daughter(C M W) to fetch water”. What P W 3 said in that regard was:

“She (C M W’s mother) told me that her daughter (C M W) had disappeared from 5 p.m., after going to fetch water”.

It was then that P W 3 agreed to assist C M W’s mother look for C M W.

7. The appellant also erred to submit that there were inconsistencies in the evidence of P W 3 and C M W’s mother with regard to where C M W was when they opened the door of the appellant’s house. The fact is that C M W’s mother said that when they opened the door she saw C M W lying on bed. P W 3 in evidence said:

“I saw the minor (C M W) sleeping …..We found the complainant (C M W) sleeping on the floor, which was used as a bed”.

8. In my view there are no inconsistencies in that evidence, perhaps it could be said P W 3 was more detailed in saying the bed was on the floor while C M W’s mother simply said she saw he daughter, C M W, lying on the bed. The court of appeal in the case PHILIP NZAKAWATU – V- REPUBLIC [2016] eKLR stated that no two witnesses can recollect or recall exactly the same thing with same minute detail. That there must be expected that human recollection will have discrepancies. That court in considering that case PHILIP NZAKA (supra) referred with approval to a court of appeal decision of Tanzania, the case DICKSON ELIANSAMBA SHAPWATA & ANOTHER - V- REPUBLIC CR. APP NO. 92 OF 2007 where it was held:

“In evaluating discrepancies contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether inconsistencies and contradictions are minor, on whether they go to the root of the matter.

9. In this court’s view the slight differences in the evidence of C M W’s mother and P W 3 does not go to the root of the matter on the offence. The two witnesses testified of how C M W was found in the appellant’s house and in his bed only later to be discovered that C M W had been defiled and according to C M W’s testimony she was defiled by the appellant.

10. The appellant further submitted that his trial was conducted by two different Magistrates, namely E. Bett (S R M) and E. Ngigi (S R M). That on E. Ngigi taking over his trial he failed to comply with the provision of Section 200 of the Criminal Procedure Code. That Section 200 (3) requires the succeeding Magistrate to inform an accused of his right to demand the re-summoning of witnesses who had testified before the previous Magistrate’s and also inform such an accused of his right to request for the hearing of his case de novo.

11. It is within my own personal knowledge that E. Bett and E. Ngigiare one and the same person. Learned trial Magistrate in the course of trial changed his name, by deed, from E. Bett to E. Ngigi. The appellant who was all the while present at his trial indeed knows that although the trial Magistrate’s name changed in the course of his trial it was indeed one and the same person who conducted his trial. There is therefore no merit in the submissions of the appellant on the alleged non-compliance with Section 200 of the Criminal Procedure Code.

12. Lastly the appellant submitted that the medical evidence adduced by the prosecution did not prove defilement.

13. It is important to note that C M W was seen at a Lamuiria dispensary on the subject night she was defiled. The Clinical officer on examining C M W found that the hymen was already broken but did not detect any bruises. The tests also confirmed C M W was pregnant. Other investigations were referred to be done at Nanyuki Teaching and Referral Hospital.

14. Dr. Julia Maina from Nanyuki Teaching and Referral Hospital in her evidence stated that C M W confirmed the appellant had previously defiled her. The examination of C M W confirmed that C M W’s hymen was perforated and she was pregnant. The doctor concluded she had been defiled.

15. That evidence of defilement corroborated C M W’s evidence. The evidence was corroborated by C M W’s mother and P W 3, who found C M W in the appellant’s bed, and also evidence of the police Officer Esther Thige who examined C M W on the night the offence was committed , where upon the police officer found C M W had white discharge and a smell in her private parts.

16. That evidence, in this court’s view proved beyond reasonable doubt that C M W was defiled by the appellant.

17. The submissions by the appellant that his trial was conducted by a Corporal rather than an inspector is of no consequence in view of Section 85 of the Criminal Procedure Codewhich Section empowers the Director of Public Prosecution to gazette and appoint Public Prosecutors. Those appointments are not done on the basis of police rank and accordingly the appellant’s sub mission in that regard is rejected.

18. The sentence of 20 years which the trial court passed against the appellant was lawful and cannot attract interference of this court.

19. The upshot is that the appellant’s appeal against conviction andsentence is rejected and dismissed. The trial court’s conviction is upheld and the sentence is confirmed.

Dated and Delivered at Nanyuki this 8th November, 2017

MARY KASANGO

JUDGE

Coram

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

Appellant: Isaac MutindaMutua

For state: ………………………………

Language …………………………………

COURT

Judgment delivered in open court

MARY KASANGO

JUDGE