[2022] KEHC 9890 (KLR)

Maseki v Republic (Criminal Appeal E055 of 2021) [2022] KEHC 9890 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9890 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E055 of 2021

GMA Dulu, J

July 21, 2022

Between

Victor Maseki

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. J.N Mwaniki (C.M) in Makueni Chief Magistrate’s Court CMCR Case (S.O) No. E003 of 2020 pronounced on 31st May, 2021)

Judgment

1. The appellant was charged in the magistrates’ court with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 20th September 2020 in Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of SNN (name withheld) a child aged 14 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 intentionally and unlawfully touched the vagina of SNN a child aged 14 years with his penis.

3. He denied both counts. After a full trial, he was convicted on the main count of defilement and sentenced to serve seven (7) years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds –1. The learned magistrate erred both in law and fact by convicting him without considering that there was no evidence to prove the offence of defilement to the required standards of law beyond reasonable doubt.2. The learned trial magistrate erred in both law and fact by failing to consider that there was no evidence to prove the alternative count of indecent act with a child hence erred by convicting him based on extraneous evidence which was motivated by his own opinion without relying on evidence on record.3. The learned trial magistrate erred in law and fact in failing to observe that the prosecution case was full of contradictions and inconsistencies, coupled with poor police investigations, which rendered the prosecution case unbelievable.4. The learned trial magistrate erred both in law and fact when he dismissed his sworn defence without giving cogent reasons as provided under section 169 of the Criminal Procedure Code.

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

6. In proving their case, the prosecution called four (4) witnesses. When put on his defence, the appellant tendered a sworn defence testimony and called one witness.

7. On the side of the prosecution Pw1 was the alleged victim SNN whose evidence was that she was a 14 years girl in Form 1 at [particulars withheld] Secondary School. That on 26/09/2020 she used her mother’s (Pw2) mobile phone and called the appellant who was a neighbour and told him that she would visit him after church. She then did so, and the appellant took her into the farm to avoid being seen by his parents. Later, after night fall the appellant took the victim to the house, took supper and both proceeded to his room where they slept and engaged in sex using a condom.

8. It was her evidence that when she went back home in the morning, her grandmother told her that her parents had gone to report her disappearance to the chief and the police. She was then taken to the police station at Wote where she narrated the story and was taken to hospital.

9. Pw2 was NN the mother of the victim whose evidence was that on 26/09/2020 the victim failed to come back home from church at 5:00pm as expected. Based on information received, they went to the home of the appellant to enquire about the victim and the mother of the appellant informed them that the victim had not been seen there. The victim did not come back home that night, and they thus made a report of the incident to the chief and the police. According to this witness, when the victim came back home, she said that she was at the appellant’s home. It was her evidence that the victim was born on 14/02/2006, and produced her birth certificate as an exhibit. She took the victim to hospital for medical examination and treatment.

10. Pw3 was Stella Nthambi Muasya a Clinical Officer at Makueni Referral Hospital whose evidence was that on 27/09/2020 the victim was escorted to the hospital by a Police Officer and on examination she was found to be normal, but her hymen was broken but not freshly.

11. Pw4 was PC Purity Kagwira of Makueni Police Station the Investigating Officer whose evidence was that on 27/07/2020 the victim came to the police station with her parents with a report that on 26/09/2020 she agreed on phone to meet with the appellant, and she proceeded to the appellant’s home where they engaged in protected sexual intercourse with the appellant. Pw4 then escorted the victim to hospital for medical examination, and later charged the appellant in court.

12. When put on his defence, the appellant tendered sworn defence testimony and called one witness, his mother. He testified as Dw1, and it was his evidence that he was aged 25 years old and a neighbour of the victim. He denied interacting with the victim on 26/09/2020 and stated that he was in Wote town that day and arrived back home at 8:15 pm, and slept at 10:00 pm. In cross examination however, he said that he had sex with the victim using a condom.

13. Dw2 was Mary Maseki, the mother of the appellant whose evidence was that on 26/09/2020 at 7:30 pm two men and a woman came home and asked where the appellant was, alleging that he was with the victim. She stated that Victor (the appellant) was not at home and might have been at Wote. It was her evidence that the appellant came home later and said that he had not seen the victim.

14. Having considered the evidence on both sides, I find that the prosecution proved the age of the victim beyond any reasonable doubt that she was 14 years old at the time of the incident. In this regard, the evidence of Pw1, as well as Pw2 her mother and the birth certificate was sufficient evidence to prove that the victim was aged 14 years.

15. With regard to penetration, Pw1 said that she was penetrated sexually. The medical evidence was that her hymen was broken but not freshly. Like the trial court, I believe the evidence of the victim that she was sexually penetrated that day as she gave a detailed account of all what happened, and how the penetration occurred. She even disclosed that she lost her virginity earlier with an agemate when she was much younger. In my view, she was a truthful witness, and as such the prosecution proved beyond any reasonable doubt that penetration had occurred.

16. With regard to the identity of the culprit, in my view the appellant was proved beyond reasonable doubt to be the culprit. This was because of the believable evidence of Pw1 the victim who gave the minute details of what happened that day and night. In addition, though the appellant initially denied penetrating the victim, he admitted as much in cross – examination. I thus find that the prosecution proved beyond reasonable doubt that the appellant was the culprit.

17. I have considered the provisions of section 8(5) of the Sexual Offences Act which provides a defence to an accused person charged with such an offence. In the circumstances of this case, I find that such a defence is not available to the appellant for the reason that though the victim voluntarily went to his house on her own, her parents looked for her at 7pm in that same house, and instead of releasing her, the appellant did not do so and instead went ahead to defile her even after his own mother informed him that the victim had been sought for that night. He thus cannot claim that he was misled in any way. I will uphold the conviction.

18. With regard to sentence, I note that the appellant was sentenced to serve seven (7) years imprisonment. It was a lenient sentence. I uphold the sentence imposed.

19. Consequently and for the above reasons, I dismiss the appeal and uphold both the conviction and sentence of the trial court.

20. Right of appeal explained.

DELIVERED, SIGNED & DATED THIS 21ST DAY OF JULY, 2022, IN OPEN COURT AT MAKUENI................................GEORGE DULUJUDGE