[2012] KEHC 1263 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Criminal Case 685 of 2010

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JAIRUS ONDIEKI MARIGA...................................................................APPELLANT

VERSUS

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

(From original conviction and sentence in criminal case Number 4609 of 2006 in the Chief Magistrate’s Court at Makadara – Mrs. T.W. Murigi (SRM) on 22nd October 2010)

JUDGMENT

1. The appellant Jairus Ondieki Mariga was charged with one count of defilement of a child contrary to Section 8(1) and (2)of theSexual Offences Act No. 3 of 2006 and with one count of indecent act with a child contrary to Section 11(1)of theSexual Offence Act. The brief particulars were that on the 15th day of August 2006 at [particulars withheld] in Nairobi within Nairobi Province, intentionally and unlawfully committed an act which caused penetration with his male genital organ into the female genital organ of J.N. (name withheld to protect the minor’s identify) a child aged 7 years, in count I, and that on the same date and place he unlawfully and intentionally committed indecent act with J. W. (name withheld to protect the minor’s identity) by touching her private parts, namely vagina, in count II.

2. In the alternative to count I, he was charged with indecent act with a child Contrary to Section 11(1) of the Sexual Offences Act No. 3of 2006. It was alleged that he unlawfully and intentionally touched the private parts of J. N namely vagina.

3. At the end of the trial, the learned trial magistrate convicted the appellant on count I under Section 8 (1) and 8 (2)of theSexual Offences Act No. 3of2006 for the offence of defilement of a child aged below 11 years, and sentenced him to serve life imprisonment. The learned trial magistrate also convicted him on count II for indecent act with a child contrary to Section 11(1)of thesexual offences Act and sentenced him to serve 10 years, imprisonment. The sentences were ordered to run concurrently.

4. The appellant appealed to the superior court against conviction and sentence on both counts and relied on four grounds that can be summed up as follows:-

a)That the evidence was insufficient and contradictory.

b)That the Learned trial Magistrate erred in Law by her failure to sum up the prosecution case and give directions contrary to section 211 of the CPC Cap 75 of the Laws of Kenya.

c)That the Learned trial Magistrate failed to protect the Appellant’s constitutional rights.

d)That the sentence was manifestly harsh.

5. Being the first appellate court I have analyzed and re-evaluated all the evidence on record, to come to my own conclusion in line with AJODE VS. REPUBLIC 1972 EA 32, in which the Court of Appeal held that:

“In law it is the duty of the first appellate court to weigh the same conflicting evidence and make its own inferences and conclusions but bearing in mind always that it has neither seen nor heard the witnesses and make allowance for that.”

6. On the first ground, the appellant urged that the learned trial Magistrate grossly misdirected herself in Law by convicting the appellant on insufficient and contradictory evidence.His reasons were that, the medical reports of Nairobi Women’s Hospital exhibit1 and exhibit 2 stated that PW1andPW2 were examined on 16th August 2006 while PW6the investigating Officer stated that she took the children and had them examined on 18th August 2006. I have examined the court record and find that PW6did testify that she interrogated the appellant on 18th August 2006 and later on interviewed PW1 andPW2 whom he reffered to Hospital. In the same breath she testifies that she saw PW1andPW2 on 16th August 2006.

7. The medical reports were produced as exhibits 1 and 2 and were dated 16th August 2006. The report by PW6 was made on 17th August 2006. I find that these are indeed contradicting statements byPW6 that the trial court should have noted, but do not go to the core of the case since the P3s are stamped and duly dated.

8. From the record PW1, a minor was defiled by the appellant on 15th August 2006 while at home with her sister PW2. The appellant entered their house while her mother PW3 was away and entered their bed where he requested PW2 to move and go take a shower in the bathroom where he would join her. He touched PW2 on her vagina. When PW2 moved out of the bed the appellant was left alone in bed with PW1. Her evidence was that he inserted his private part inside her vagina and that she felt pain.

9. PW1andPW2 identified the appellant in court. He was not a stranger to them as he lived near them and used to frequent their house when PW1 was in class 1. He also used to come and repair their fridge and electricity. PW1 testified that the appellant had defiled her before and she reported to her mother PW3 who did nothing. I find that this evidence is corroborated by that of PW3 who testified that PW1 had earlier informed her of the appellants conduct towards her.

10. PW3did testify that PW1 informed her that the appellant had defiled her while PW2 informed her that the accused had inserted his finger inside her vagina. PW1’s evidence was corroborated by PW4who testified that although PW1’s hymen was intact, her cervix was irregular. This was further corroborated by PW5 who produced the medical report on behalf of Dr. Muhombe who examined her on the 16th August 2006 and found that her hymen margins were viserated and irregular at 3 O’clock position. Dr. Muhombes diagnosis was that sexual assault involving penetration had occurred.

11. I wish to add here that the fact of the hymen being intact does not negate the PW1’s assertion that the appellant inserted his penis into her vagina.

Section 2of theSexual Offences Act No. 3 of 2006 interprets the act of penetration as follows:

“Penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person”.

12. The appellant submits that PW3 testified that PW1andPW2 were treated at a clinic on 15th August 2006 and examined at Nairobi Women’s hospital after 2 days. The court record bears him out that she took them to the clinic on 15th August 2006 before taking them to Nairobi women’s hospital. However, the record does not indicate that she took them to Nairobi women’s hospital after two days as indicated by the Appellant, but that she took PW1and PW2 to hospital for two consecutive days.

13. As to whether PW3 tampered with exhibit 1 and 2 to read 16th August 2006, I note that the trial court found that PW3 did amend exhibit 2 to read 16th August 2006 although she was not aware it would be used in Court. The trial court found her statement to be truthful. This notwithstanding, the veracity of this exhibit was put to rest byPW5 who confirmed that the medical documents were authentic documents from the Nairobi women’s hospital.

14. PW4Dr. Zephaniah Kamau the police pathologist testified that he examined PW1 on 21st August 2006 and saw that she had a small scar over the lower pubic area. The injury was caused by a sharp object and her genitalia was normal with no injury on the vulva or vagina. The hymen was intact though the cervix was irregular. He produced her P3 form as exhibit 3. PW2 was also examined. She had no injuries to the vagina and her hymen was intact. Her genitalia was normal. He produced her P3 form as exhibit 4. The appellant was also examined by PW5. He found that his genitalia were normal. He produced his P3 form as exhibit 5.

15. PW5Dr. Aden Rilwan testified on behalf of Dr. Muhombe who had examined PW1 and PW2, and produced a report on her behalf marked as exhibit 1 contrary to the appellant’s submissions that PW 5 confirmed that the medical report from Nairobi Women’s Hospital was to the effect that the external genitalia of the minors were normal, the court record indicates that the Dr. testified that PW1 had lacerated anterior commissure extending to the anterior part of the vagina. The hymen margins were viserated and irregular. A further report indicated that PW2’s external genitalia was normal and her hymen margins were viserated all round. PW5 produced the report as exhibit 2.

16. The second ground is that the learned trial Magistrate erred in Law by her failure to sum up the prosecution case and give directions contrary to Section 211of theCriminal Procedure Code Cap 75 of the Laws of Kenya. The said section provides as follows:-

211. (1) At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).

(2)If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of those witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take other steps, to compel the attendance of the witnesses.

17. I have perused the record of the proceedings of the lower court and find that the trial court recorded the following at page 65:-

Accused in custody - present

Interpretation–English/Swahili

Nyachoti for the accused

“Accused will give unsworn defence

We shall call one witness

We are ready”

18. I find that even though the record does not indicate in writing that Section 211 of the Criminal Procedure Code was complied with, I am satisfied that the provisions of that Section complied with since the Appellant was represented, and his counsel addressed the court and made an election of how the appellant intended to make his defence. I find that failure to write in the proceedings that the court had read over and explained provisions in Section 211 of the Criminal Procedure Code to the Appellant was irregular but that no prejudice or failure of justice was occasioned to the appellant.

19. The third ground is that the learned trial Magistrate grossly misdirected herself by her failure to protect the Appellant’s constitutional rights under Section 77 of the repealed constitution. The appellant submitted that PW6 the Investigating Officer had kept him in custody from 18th August 2006 to 25th August 2006, a period of six days beyond the statutory 24 hour limit, and denied him bond before being arraigned in court.

20. PW6however in re-examination submits that the delay was due to the difficulty in booking an appointment with PW5 Dr. Zephaniah Kamau the police pathologist and was not intentional. In the case of JULIUS KAMAU MBUGUA VS REPUBLIC CR. APPEAL No. 50 OF 2008, the Court of Appeal reviewed a wide range of previous decisions on the issue of remedies available to accused persons who are taken to court later than provided for. The court rendered itself in the following manner:

“Moreover, it was not shown that the alleged unlawful detention had any link or effect on the trial process itself or that it caused trial related prejudice to the appellant which affected the validity of the trial. The alleged unlawful detention occurred long before the appellant was charged. The alleged unlawful detention does not exonerate the appellant from the serious crime he is alleged to have committed. The breach could logically give rise to a civil remedy – money compensation as stipulated inSection 72 (6).That is the appropriate remedy which the appellant should have sought in a different forum.”

21. The fourth and final ground is that the sentence imposed against the appellant was manifestly harsh. I note that the sentencing is in accordance with Section 8 (2) and Section 11(1) of the Sexual Offences Act under which the appellant was charged and convicted. The said Section 8(2) Sexual Offences Act which is coached in mandatory terms provides that:

“A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to life.”

While Section 11(1) provides that

“Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”

Therefore harsh as the sentences may be, it is what is provided for by law.

22. The learned state counsel Mr. Mulati in opposing the appeal on behalf of the state, urged that the appellant was not a stranger to the minors and that they knew him from when they were much younger by name. He further urged that the minors positively identified the appellant and were categorical even on cross-examination that the appellant was the one who defiled and sexually assaulted them.

23. The learned trial magistrate did evaluate the defence evidence and state as follows:

“I find that the prosecution has proved it’s case beyond reasonable doubt against the accused on the main count and in count II. I discredit his defence as a mere denial lacking any credibility. His defense that both complainants did not inform anyone in the plot has no basis at all.”

24. After a careful reassessment of the evidence on record, the petition of appeal and the submissions advanced, I am in agreement with the conclusions drawn by the learned trial magistrate from the evidence. I therefore uphold the conviction and affirm the sentence imposed by the learned magistrate.

I dismiss the appeal.

SIGNED DATEDand DELIVERED in open court this 1st day of November 2012.

L. A. ACHODE

JUDGE