[2017] KEHC 1963 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL NO. 21 OF 2015

[From the original conviction and sentence dated 11/12/2015 in Criminal Case No. 1898 of 2014 in the Chief Magistrate’s court at Narok, R. v. Jeremiah Sawe Marita]

JEREMIAH SAWE MARITA ………………………………..APPELLANT

VERSUS

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

JUDGEMENT

1. The appellant has appealed against his conviction and sentence of life imprisonment in respect of the offence of defilement contrary to section 8(1) (2) of Sexual Offences Act No. 3 of 2006.

2. The state has supported both the conviction and sentence.

3. The appellant was convicted on the direct evidence of D M (initials) (PW 2) who was the complainant, D N (PW 2) and Osoro Geoffrey Kerage (PW 4).

4. The appellant made an unsworn statement in his defence. He stated that he had been framed due to grudges between him and some of the prosecution witnesses.

5. The appellant has raised 4 grounds in his amended petition of appeal in this court. In ground 1, the appellant has faulted the trial court for convicting him on evidence that was contradictory and unreliable. In this regard, the complainant (D N) gave unsworn evidence in which she stated that the appellant lives in their plot. She further testified that the appellant did bad manners to her in his house. Furthermore, she also testified that he first removed her tights and after that he removed his pair of trousers. He then lay on top of her and put something into her female organ. As a result she felt pain. When she look at her private parts she saw what looked like saliva. The appellant then released her and told her to get out of his one-roomed house. Thereafter, the mother came and took her to hospital. It is important to point out that the complainant was four years old and that she testified through her mother (PW 1) as a court appointed intermediary.

6. The mother of the complainant (PW 1) testified that she is a shopkeeper at [particulars withheld] Estate in Narok. She testified that the complainant was born on 5/12/2010, a matter in respect of which she produced a copy of the birth certificate as exhibit PEX 1. She further testified that the appellant was a neighbour and a tenant in the same plot. It was also her evidence that on 16/11/2014, a young boy who was the son to her neighbour gave her information that the appellant was doing bad manners to the complainant. As a result, she dashed out of the shop and went to the appellant’s house which was opposite her shop. She then saw the complainant coming out of the appellant’s house. She then examined her private parts and found sperms on her private parts. As at that time, the complainant was trying to pull up her underpants as she walked out of the appellant’s house. The mother of the complainant then went straight to the one-roomed house of the appellant whom he found resting on his bed. She found the appellant dressing up in a shirt and a pair of trousers.

7. PW 1 then asked the appellant as to what he had done to the complainant. In response the appellant stated that he had done nothing. She then walked out of the house and found Osoro Geoffrey Kerage (PW 4). PW 1 requested PW 4 to help her in arresting the appellant. PW 4 pushed the appellant back to the house and locked him inside. PW 1 then raised an alarm. As a result, a large crowd gathered outside the appellant’s house. The appellant sensed danger.

8. The appellant then broke his window carrying a knife and injured PW 4 in the process of escaping. He was chased and arrested and thereafter handed over to the police.

9. The evidence of PW 1 is supported by that of PW 4, which I do not intend to reproduce. I only need to state that he found PW 1 crying inside her shop; stating that the appellant had defiled her daughter. He then advised PW 1 to have the appellant arrested to avoid his being killed by the members of the public. He then locked the appellant inside the house, who managed to break his window and escaped.

10. I find the evidence of these witnesses namely PW 1, PW 2 and PW 4 cogent and consistent. Their evidence was rightly believed by the trial court and I have also come to the same conclusion that their evidence is truthful and consistent. In the circumstances, I find no contradictions in the evidence of these witnesses. I further find that it is reliable evidence. For these reasons, I find that this ground of appeal is lacking in merit and is hereby dismissed.

11. In ground 2, the appellant has faulted the trial court both in law and fact for convicting him on a defective charge. I find that section 8(2) of the Sexual Offences Act provides for a penalty of life imprisonment if the victim of the crime is 11 years or less. The submission of the appellant that he was convicted on a defective charge is without merit. This ground of appeal fails and is hereby dismissed.

12. In ground 3, the appellant has faulted the trial court both in law and fact in the absence of any proof that he committed this offence. In this regard, I find that the evidence of PW 1 , PW 2 and PW 3 was cogent and consistent that the appellant defiled the complainant. In this regard, the evidence of Benjamin Tum (PW 5) who was the clinical officer found, upon examination of the complainant, that the female organ of the complainant had been penetrated by a male organ. He did not find any spermatozoa but he found red blood cells in the complainant’s female organ. He also found that her hymen was torn. Finally, he found the complainant to be 3 years old. He put in evidence the medical treatment notes as exhibit PEX 2A and the P3 form. Upon close examination of that form, I found on page 4 in paragraph 6 which is in relation to additional remarks by the doctor the following remarks:

“No penile penetration of the vagina.”

When I examined this remarks and the evidence of PW 5, I was under impression that the P3 form had been interfered with because it is in bright blue ink while the rest of the P3 form is in pencil dark colour. As a result, I called the clinical officer who testified that those remarks had actually been cancelled by him by the use of capital E signs. In the light of this evidence and that of the other prosecution evidence, I find that this ground of appeal is lacking in merit and is hereby dismissed.

13. The appellant has faulted the trial court both in law and fact for dismissing his defence evidence. The defence of the appellant was that he was framed by the prosecution witnesses. In this regard, he testified that he owed her a debt of the goods he had taken from the shop of the complainant’s mother. He further testified that when he told her that she did not have money, she went away in a sad mood. I find that the defence of the appellant was fully considered by the trial court and found to be untruthful and was therefore rightly rejected. In the circumstances, I find no merit in this ground of appeal and is hereby dismissed.

14. This is a first appeal. As a first appeal court, according to Okeno v. R. (1972) EA 32, I am required to reassess the whole evidence and make my own independent findings of fact. I have done so and I find that the appellant was convicted on sound evidence.

15. As regards the sentence of life imprisonment, I find that it was merited, in view of the fact that the victim was a 3 years old child.

16. The upshot of the foregoing is that the appellant’s appeal is hereby dismissed in its entirety.

Judgement delivered in open court this 9th day of November, 2017 in the presence of the Appellant and Ms Nyaroita for the Respondent.

J. M. Bwonwonga

Judge

9/11/2017