[2022] KEHC 11407 (KLR)

JMN v Republic (Criminal Appeal E007 of 2020) [2022] KEHC 11407 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11407 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E007 of 2020

GMA Dulu, J

May 18, 2022

Between

JMN

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. Sagero (SRM) in Makueni Chief Magistrate’s Court CMCR Case (S.O) No. 16 of 2019 pronounced on 23rd day of September, 2020)

Judgment

1. The appellant was charged in the subordinate court with incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on diverse dates between June 2018 and 26th October 2018 at [Particulars withheld] Village, Mavindini Location, Kathonzweni Sub-County within Makueni County being a male person caused his penis to penetrate the vagina of EM a female person who was to his knowledge his daughter aged 17 years.

2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act the particulars of which being that on the same date and at the same place unlawfully and intentionally touched the vagina of EM with his penis who was to his knowledge his daughter.

3. He denied both charges. After a full trial, he was convicted on the main charge of incest and sentenced to ten (10) years imprisonment.

4. Dissatisfied with the conviction and sentence of the trial court, the appellant has come to this court on appeal on the following grounds-1)That the trial magistrate erred in convicting and sentencing him without observing that the charge sheet was defective due to the way the charges were framed which omitted the ingredients, and were rendered to be duplex charges.2)The learned trial magistrate erred in law and fact when he convicted and sentenced him without regard to his basic rights for disclosure of prosecution evidence which were intended to be brought against him as laid out in Article 50(2) (i) of the Constitution.3)The trial magistrate erred in failing to observe that the trial was conducted in contravention of section 19 of the Oaths and Statutory Declarations Act concerned with reception and admissibility of evidence of a child of tender years (age), Article 4 of the Constitution and section 2 of the Sexual Offences Act.4)The trial magistrate erred both in law and facts by convicting him without considering incest (defilement) to the required standard in law of beyond reasonable doubt.5)The learned trial magistrate erred both in law and f act by failing to apply section 124 of the Evidence Act and to observe that the prosecution case was full of contradictions and inconsistencies which rendered the Prosecution case unbelievable.6)The trial magistrate erred in law and fact when he dismissed the sworn defence which alleged the possibility of being framed up due to an existing grudge without giving cogent reasons as provided under section 169 of theCriminal Procedure Code.

5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by the appellant as well as those filed by the Director of Public Prosecutions.

6. This being a first appeal, I am duty bound to evaluate all the evidence on record afresh, and come to my own independent conclusions and inferences. See Okeno –vs- Republic(1972) E.A 32.

7. In proving their case, the prosecution called five (5) witnesses. Pw1 was Dr. Makau Alex a Medical Officer at Makueni County Referral Hospital who filled the medical examination report (P3 form) on the alleged victim (Pw3) and produced the medical report, treatment notes and Post Rape Care (PRC) form as exhibits. According to his evidence, the alleged victim was 22 weeks pregnant.

8. Pw2 Henry Kiptoo Sang a Government Analyst from Nairobi who produced the DNA examination report for the tests done on 03/05/2019 on blood samples from JMN, IM, and JM (child). He produced the report as an exhibit with findings that the child JM was 99. 9% chances of being biological child of the appellant JMN.

9. Pw3 was the alleged victim EMM whose evidence was that she was born on 15/10/2001 and a daughter of the appellant. It was her evidence that twice between June 2018 and 16/10/2018 the appellant forced her to have sexual intercourse with him and she thus became pregnant. It was after the second sexual act on 16/10/2018, that her mother Pw4 EMM, on noticing a difference on the bed spread, enquired from her and she disclosed the two incidents. A report was thus made to the police, and she was taken to hospital for treatment, and after birth of the child, she was taken for DNA tests. She produced her birth certificate as an exhibit.

10. Pw4 was EMM the wife of the appellant, whose evidence was that the alleged victim was her daughter with the appellant born on 15/10/2001 and in 2018 was in Form 1 at [Particulars withheld] School. It was her evidence that on 16/10/2018 she went to the market at 4pm and, on coming back, found her bed disturbed. On enquiry and persuasion to the alleged victim, she disclosed the defilement, thus a report was made to the police and the alleged victim taken to the hospital for treatment and later to Kenyatta National Hospital for DNA tests. The appellant was subsequently charged in court.

11. Pw5 was No. xxxxxx woman PC Sussy Chepkemoi Ndiema the Investigating Officer, whose evidence was that on a report on the incident was made at Kavumbu Police Post on 27/10/2018. She conducted investigations, took the victim to hospital for medical examination and treatment. Later, after the alleged victim gave birth, she organized for blood samples of the child, the alleged victim, and the appellant to be taken to the Government Analyst for DNA tests. She later arrested the appellant and charged him in court after some months, because according to her, the appellant had disappeared from home.

12. When put on his defence, the appellant tendered sworn defence testimony. He denied committing the offence and stated that he was implicated in this matter because of a disagreement between him and his brother in law one Mutua who had lent him Kshs.100,000/= but had delayed in payment. He stated that on 26/10/2018 he was away in Nairobi, only to be called on the phone by his wife in April 2019, and on arrival on 06/04/2019 he was arrested and later charged. He admitted that the alleged victim was his biological daughter.

13. The appellant has raised technical grounds of appeal. First, that the charge was duplex. I have perused the charge and see no duplicity in the same. I dismiss that ground.

14. The appellant has also complained that he was not supplied with prosecution evidence before the trial. I have perused the proceedings and I note that initially he was represented by an advocate Edith Onyango, but before trial the advocate withdrew from acting. Thereafter, the appellant did not complain until when the Investigating Officer was to testify and he asked to be furnished with the witness statement of the officer, which he was provided with.

15. In my view, the witness statements must have been provided to the advocate, who should have availed the same to the appellant on withdrawal from acting. In any event, the appellant did not ask to be supplied with any prosecution witness statements, but only asked for a statement before the Investigating Officer testified, and was promptly supplied with the statement. He thus cannot complain on appeal that his rights under Article 50 of the Constitution were violated. I dismiss that ground.

16. I now turn to the elements of the offence. The prosecution was required to prove the age of the alleged victim. With the evidence of the birth certificate produced in court as an exhibit, I find that the prosecution proved beyond any reasonable doubt that the alleged victim was aged 17 years at the time of the alleged incident.

17. The second element of the offence to be proved by the prosecution was whether the alleged victim and the appellant were daughter and father. From the evidence of Pw3 the alleged victim, Pw4 the mother of the alleged victim, and the admission of the appellant in his defence, there is no dispute or doubt that the alleged victim was a daughter of the appellant. I thus find that the prosecution proved beyond any reasonable doubt that the two were a daughter and a father.

18. The third element of the offence to be proved by the prosecution was the penetration of a sexual nature. On this, the evidence of Pw3 is clear that she was penetrated sexually. Her evidence is corroborated by the medical evidence that the hymen was broken and she was pregnant. In my view therefore, the prosecution proved beyond any reasonable doubt that penetration of a sexual nature did occur on the alleged victim.

19. The last element is the identity of the culprit. On this, Pw3 and Pw4 stated that the appellant had sexual intercourse with the alleged victim on 26/10/2018. The appellant on the other hand, raised a defence of alibi- saying that he was in Nairobi then. I am aware that the appellant has no burden to prove his alibi defence.

20. Considering the evidence on record herein, I find that the appellant is the culprit. Firstly, there was no reason why Pw3 and Pw4 would have lied against him. They have nothing to gain from such lies. Secondly, the appellant’s allegation of a disagreement with Mutua was an afterthought as it was not raised in cross-examination. Thirdly, the evidence and charge relate to sexual intercourse which occurred on 26/10/2018, as well as earlier up to June 2018 and the pregnancy of the alleged victim showed that conception was around June 2018 which was within that period. Lastly, the DNA report confirms that the biological father of the child was the appellant. In my view therefore, the prosecution proved beyond any reasonable doubt that the appellant was the culprit. I will thus dismiss the appeal on conviction.

21. With regard to sentence, in my view the appellant was lucky to have been sentenced to serve ten (10) years imprisonment. He betrayed his trust to his daughter. I will not interfere with the sentence.

22. For the above reasons, I find no merits in the appeal. I dismiss the appeal and uphold both the conviction and the sentence.

DELIVERED, SIGNED & DATED THIS 18THDAY OF MAY, 2022, IN OPEN COURT AT MAKUENI.…………………George DuluJudge