[2022] KEHC 10118 (KLR)

Kasimu v Republic (Criminal Appeal E066 of 2021) [2022] KEHC 10118 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10118 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E066 of 2021

GMA Dulu, J

May 18, 2022

Between

Richard Mutune Kasimu

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. C. A Mayamba (P.M) in Kilungu Principal Magistrate’s Court PMCR Case (S.O) No. 56 of 2020 pronounced on 21st April, 2021)

Judgment

1. The appellant was charged in the magistrates’ court with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 8th November 2020 in Kasingo Division, Mukaa Sub-County within Makueni County intentionally caused his penis to penetrate the anus of JN a child aged 6 years.

2. In the alternative, the appellant 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 day and at the same place unlawfully and intentionally touched the anus of NN (name withheld) a child aged 6 years with his penis.

3. He denied both charges. After a full trial, he was convicted on the main count of defilement and sentenced to (16 years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds –1. The crime was framed on him because of personal grudge.

2. He was sentenced when there was no plea of guilty entered.

3. The medical examination records did not show whether the crime was specifically done by him.

4. He prays for leniency in the decision on appeal.

5. If found guilty he be granted non-custodial sentence.

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 and those filed by the Director of Public Prosecutions.

6. This being a first appeal, I have to be guided by the legal principle that I am expected to freshly evaluate the evidence on record and come to my own independent conclusions and inferences. In this regard, I will cite the case of Okeno –vs- Republic(1972) E.A 32 in which the East African Court of Appeal stated as follows –“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh exhaustiveexamination (Pandya –vs- R (1957) E.A 333) and the appellate court’s own decision on the evidence.The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal Ruwala –vs- R)”.

7. At the trial, the prosecution called four (4) witnesses. Pw1 was the alleged victim whose evidence was that in the morning of 08/11/2020 she was sent by his grandmother (Pw2) to buy milk and on the way back Richard Mutune (the appellant) pulled him and sodomised him. It was his further evidence that the appellant threatened him with a machete and warned him not to disclose the incident to anybody otherwise he would kill him. It was his further evidence that he did not inform anybody about the incident, but later the grandmother MM (Pw2) noticed him limping and insisted that she should know what was wrong with him and that is when he disclosed what had happened, and a report made to the police and he was taken to hospital.

8. Pw2 was MM who testified that the alleged victim was born on 16/3/2014 and relied on the birth certificate. It was her evidence that on 08/11/2020 in the morning she sent the alleged victim to buy milk but he delayed. When he came back she did not notice anything unusual, but on 10/11/2020 she noticed him limp while walking and on persuading him, he disclosed that he had been sodomised by the appellant andthus a report was made to Sultan Hamud police station and the alleged victim taken to hospital.

9. Pw3 was Daniel Mutune a Clinical Officer who produced medical treatment notes and the medical examination report (P3 form) on the alleged victim. According to him, treatment of the victim was done by another Clinical Officer, but he filled the P3 form, and he produced both the treatment notes and the P3 form as exhibits. It was his evidence that there were tears and bruises in the anal orifice of the alleged victim.

10. Pw4 was woman Police Constable Mwanaidi Hussein whose evidence was that on 11/11/2020 at 10am, a report on the incident was made at Sultan Hamud police station. She directed that the alleged victim be taken for medical treatment and examination, carried out investigations, and charged the appellant in court. She produced the birth certificate of the alleged victim in court as an exhibit.

11. When put on his defence the appellant tendered sworn defence testimony and called no other witness. It was his defence that he worked for Pw2 up to 07/11/2020 and quit the job and got another job. That the pw2 refused to pay him his money because he had left the job without respect, and promised to teach him a lesson, thus she fabricated charges against him herein.

12. This being a defilement case, the prosecution was required to prove beyond any reasonable doubt the age of the alleged victim. A birth certificate was relied upon and produced in court. There is no dispute that the trial court and even the appellant saw the victim in court. In my view, there is no doubt that the prosecution proved the age of the alleged victim to the required standard in criminal cases.

13. The second element of the offence to be proved was penetration. On this, the evidence of Pw1, the victim, that of Pw2 MM the grandmother of the victim who checked Pw1’s anus, and the medical evidence of Pw3 Daniel Mutune, are all consistent. In my view, the prosecution proved beyond any reasonable doubt that penetration did occur on the alleged victim through the anus.

14. The third element of the offence to be proved by the prosecution was the identity of the culprit. In this regard, Pw1 the victim stated that it was the appellant who penetrated him through the anus. He knew him before and the incident occurred in broad day light. He did not inform Pw2 immediately but gave the reasons as a threat by the appellant. This evidence of a single sexual offence victim can sustain a conviction under the provisal to section 124 of the Sexual Offences Act.

15. I note that the appellant, in his defence, said that the charge was a frame up because of a disagreement with Pw2, first due to leaving the job and then, in cross examination, due to his refusal to accept her sexual advances.

16. In my view, the defence of the appellant is an afterthought, as he did not put any question to any prosecution witness to suggest evidence of a grudge or sexual harassment. In addition, all the prosecution witnesses were recalled and cross-examined by the appellant’s counsel, and there was no suggestion of any disagreement existing between the appellant and Pw2. The appellant also said in his defence that he did not know the victim, which I dismiss as lies, as he could not work for Pw2 without knowing Pw1.

17. I find that the prosecution proved beyond any reasonable doubt that the appellant was the culprit. I will thus uphold the conviction.

18. With regard to sentence, in my view, the appellant was lucky to have been sentenced to 16 years imprisonment. As the State has not asked for enhancement of sentence, I let the matter rest there.

19. Consequently, and for the above reasons, I find no merits in the appeal and dismiss the appeal and uphold conviction and sentence. Rights of appeal explained.

DELIVERED, SIGNED & DATED THIS 18TH DAY OF MAY, 2021, IN OPEN COURT AT MAKUENI..............................GEORGE DULUJUDGE