[2022] KEHC 13361 (KLR)

MFM v Republic (Criminal Appeal E030 of 2021) [2022] KEHC 13361 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13361 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E030 of 2021

GMA Dulu, J

October 4, 2022

Between

MFM

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. T.A Sitati in Makindu Principal Magistrate’s Court PM (S.O) Case No.74 of 2019 pronounced on 18th November 2019)

Judgment

1. The appellant was charged in the magistrate’s court with two counts of defilement and two alternative counts of committing an indecent act with a child.

2. Under count I, he was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The particulars of offence were that on diverse dates between the month of January 2018 and June 27, 2019 at [particulars witheld] in Nzau Sub-county within Makueni County intentionally and unlawfully caused his genital organ namely penis to penetrate into the female genital organ namely vagina of EKR (name withheld) a child aged 12 years.

3. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that between the same dates and at the same place willfully and unlawfully touched the vagina of EKR a child aged 12 years using his penis.

4. Under count II he was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, the particulars of which being that on unknown date in the month of June 2019 at [particulars withheld] in Nzau Sub-county within Makueni County intentionally and unlawfully caused his genital organ namely penis to penetrate into a female genital organ namely vagina of AKR a child aged 10 years.

5. In the alternative to count II, 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 unknown date in the month of June 2019 at [particulars withheld] in Nzaui Sub-county within Makueni County willfully and unlawfully touched the vagina of AKR a child aged 10 years using his penis.

6. He denied all the charges. After a full trial, he was convicted on the two main counts of defilement and sentenced to life imprisonment on each of the two counts.

7. Dissatisfied with the conviction and sentence of the trial court, the appellant has come to this court on appeal and relied on the following grounds –1. The evidence of the prosecution varied with the charge sheet.2. That the prosecution failed to produce necessary exhibits to prove the offences alleged.3. That vital ingredients of the offence were not proved.4. That the evidence of the prosecution was insufficient, uncorroborated, and incredible, and thus the trial magistrate came to the wrong decision that the appellant had defiled both Pw1 and Pw2. 5.That the magistrate erred in convicting him without giving sufficient consideration to his plausible defence.

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

9. This being a first appeal, I have to start by stating that as a first appellate court, I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno v Republic(1972) E.A 32.

10. In proving their case, the prosecution called six (6) witnesses. On his part, the appellant elected to keep quiet.

11. Having considered the evidence on record, I find that the ages of the two victims Pw1 and Pw2 were proved beyond reasonable doubt by the prosecution. The two testified on their own in court, as their mother had died. Pw1 stated that she was aged 12. Pw2 said that she was born in 2010. Age assessment reports were also relied upon, which were not disputed.

12. Thus, just like the trial magistrate, I find that the prosecution proved the ages of each of the two victims beyond any reasonable doubt to be what was alleged in the charge sheet.

13. I now turn to penetration. Again, both victims Pw1 and Pw2 tendered evidence in court describing that penetration of a sexual nature had occurred. The medical evidence tendered by Pw5 Anthony Gitonga a Clinical Officer at Masimba Health Centre was that perforation of the hymen of both victims had occurred. For the second victim Pw2 under count II, the perforation of the hymen was fresh according to the medical evidence.

14. In my view, from the evidence on record, the prosecution proved beyond any reasonable doubt that each of the two victims Pw1 and Pw2 had been sexually penetrated.

15. I now turn to the third element of the offence; that is the identity of the culprit. The incidences occurred at night. However, both Pw1 and Pw2 knew the appellant well as an uncle they lived with.

16. They knew his voice, and the evidence on record is that he talked during the incidents, and came with a lighting gadget when he committed the acts. It is of note also that the appellant did not ask any questions to challenge the evidence of the two victims. In addition, he also chose to say nothing in his defence. Thus the evidence of Pw1 and Pw2 on the appellant being the culprit was not challenged at all.

17. In my view, therefore, from the evidence on record, the prosecution proved beyond any reasonable doubt that the appellant was the culprit.

18. Though the appellant now complains on appeal, that his credible defence was not considered by the trial magistrate, the fact of the matter was that he chose to keep quiet and not say anything in his defence. Thus there was no defence of the appellant that the magistrate was to consider.

19. Thus, I find that the prosecution proved all the elements of the two offences beyond any reasonable doubt. I will thus uphold the conviction.

20. With regard to sentence, I note that the appellant took advantage of these two children who were put under his care due to the death of their mother, who is his sister. The statutory sentence for count I is imprisonment for not less than 20 years and that for count II is life imprisonment.

21. As the trial magistrate did not take into account the difference, I will thus interfere with the sentence imposed on count I and reduce the sentence for count I to 20 years imprisonment. The two sentences will run concurrently.

22. Consequently and for the above reasons, I dismiss the appeal on conviction and uphold the conviction. With regard to sentence, I set aside the sentence for count I and substitute it with 20 years’ imprisonment. The sentence for count II remains life imprisonment. Sentences will run concurrently.Right of appeal explained.

DELIVERED, SIGNED & DATED THIS 4TH DAY OF OCTOBER 2022, IN OPEN COURT AT MAKUENI.............................GEORGE DULUJUDGE