[2022] KEHC 13663 (KLR)

M’imboi v Republic (Criminal Appeal E124 of 2021) [2022] KEHC 13663 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13663 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E124 of 2021

EM Muriithi, J

October 6, 2022

Between

Andrew Karish M’imboi

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence by Hon. M.C Nyigei SRM in Maua CMCC S.O No. 53 of 2017 delivered on 31/5/2021)

Judgment

1. Andrew Karish M’Imboi, the appellant herein, was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006. It was alleged that on August 12, 2017 at Imenti North Sub County within Meru County, he intentionally and unlawfully caused his penis to penetrate the vagina of HK a girl aged 13 years old. He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. It was alleged that on the same day and place, he unlawfully and intentionally caused his penis to come into contact with the vagina of HK a child aged 13 years.

3. He denied the charges but upon full trial, he was convicted on the main charge of defilement and sentenced to 15 years’ imprisonment.

The appeal 4. On appeal, the appellant raised 4 amended grounds of appeal as follows:1. That the learned trial magistrate erred in law and fact by relying on evidence that was not corroborated, contradictory and marred with falsehood.2. That the learned trial magistrate erred in law and fact by failing to find that crucial and vital witnesses were not summoned before court to prove the allegations, in line with section 150 of the Criminal Procedure Code.3. That the learned trial magistrate erred in law and fact by failing to note that the evidence by the clinician was inconclusive to support a safe conviction.4. That the learned trial magistrate erred in law and fact by rejecting the appellant’s defence.

Duty of appellant court 5. The duty of this court as the first appellate court was set out in Okeno v R (1972) EA 32 as follows:- 'an appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya Vs Republic [1957] EA 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M Rulwala Vs Republic [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.'

Evidence 6. PW1, HK and the complainant herein, gave sworn testimony that, 'In 2017 I went to my grandmother’s house. At 5. 00 pm in [particulars withheld], I was with my sister EG. She is my cousin. We were with YG while on the way we met Karis seated next to the gate of BR his employer. He called us to give us loquats then we went. I was older than the others so he told the others to wait for us at the gate and I accompany him. He went inside the house and brought a paperbag and I went to the tree. He came and then put me on the ground and removed my pant. I had a skirt and white vest. I tried to scream but he closed my mouth with his mouth. He had a knife- a panga which can cut grass. He said he can cut me. Then he told me to run and tell my sister. I was lying face up. He dropped his trouser and his sister and inner wear too. He lied on top of me. He inserted his penis to my vagina and I felt pain in my vagina. When he left me I pulled my skirt down and then I ran. We went to my grandmother’s loquats. We went and told our aunt the next day. We went to report at Laare Police Station. I went to Maua Hospita-Methodist- P3 Form- MFI-1 PRC form- it bears my name-MFI-2. I had seen Karish before on the road. He is in court today. We had never spoken before. What I have said is what happened to me.'

7. On cross examination, she stated that, 'you called us. I was going to my grandmother’s house. You saw me where you used to work. We have been coming to court. We knew the date today.'

8. PW2 PK, a preacher at [particulars withheld] and a bodaboda rider testified that, 'On August 13, 2017 at about 6. 00 pm I was at home when EG and HK called me and told me that Karis had done something to HK. EG told me that when they were at their grandmother’s house Karis called them to give them loquarts and went to the tree with HK only. HK told me Karis defiled her. I took her to Maua Methodist Hospital where she was examined. I later took her to the police station where I was given P3 form which was filled at Laare Hospital MFI-1-P3 form. I was given PRC form for the child- MFI-2. It took the P3 form and PRC form to police station. Accused was later arrested. HK was 13 years old. She was born on October 14, 2004. HK said it is Karis who had defiled her. I did not know Karis before. HK showed me Karis and then I arrested him when he was taking milk. We wee with a Police Ofiicer- A. Where Karis works is far from my home.'

9. On cross examination, he stated that, 'the incident happened at their grandparents home. The child led us to you. The child said it is you who defiled her. The child took the investigation officer to the scene where the incident occurred. The child said it was Karis and she led us to you. She never said any other person. The person identified by name and face too. She pointed you out to us at the time arrest.'

10. PW3 EG, a 12 year old minor testified that, 'I do not remember the date but it was during school holidays before we went for our third term in school. We were going to our grandparents home in [particulars withheld]. I was with HK and YG. We met Karis by the gate of [particulars withheld] and he told us to go with him so that he will give us loquats. [particulars withheld] is Karis’s employer. We went and then he told us the young ones to wait at the gate as the eldest HK goes with him. He waited and they went. We waited for a while then HK came back when she had urinated on herself. I asked her what had happed and she said she had been strangled by Kais. They took time before they came back when HK came we went to our grandmother’s house. I had seen Karis before. We did not get the loquats. HK said they went to the farm. What I have said is what happened on that day. Karis is in court today.'

11. On cross examination, she stated that, 'I never heard her screaming. We knew you before that day.'

12. PW4 Faith Kagendo, a clinical officer at Laare Health Centre produced the complainant’s P3 form, PRC form together with the appellant’s P3 form as exhibits in court. On examination, the complainant’s hymen was torn, she had lacerations on labia minora and majora, tenderness of the neck and there was a foul smelling discharge from the vagina. There was nothing of importance noted from the appellant’s examination.

13. On cross examination, she stated that she was not at the scene of the incident. She did not know the appellant, who was examined after the incident. She affirmed that the complainant had pain on the neck.

14. PW5 PC ODS of Laare Police Station, took over the matter from Sgt T, the initial investigating officer. He produced the receipt for the complainant’s birth certificate, the letter for age assessment and the age assessment report as exhibits in court.

15. On cross examination, he stated that he was not the one who arrested the appellant, and that the appellant had been identified by the complainant.

16. In his sworn defence, the appellant stated that he lived in [particulars withheld] and he was a herdsboy. The gate was locked with a padlock and his boss would usually call when he was coming. He denied defiling the complainant and maintained that he had been framed up.

17. On cross examination, he denied knowing the complainant or PW3, and insisted that he had been framed up.

18. DW2 JK, testified that the appellant worked and lived in the homestead of his employer with his wife and children. The appellant lived well with people and was of good character.

19. On cross examination, he stated that he was at home on August 12, 2017 and his home and that of the appellant were not far apart.

Submissions 20. The appellant submitted that the evidence by the prosecution was contradictory and uncorroborated, thus failing short of proof beyond reasonable doubt, and relied on Bukenya v Uganda EAC 1972 pg 549, DPP v Woolmington (1935) UKHL and Festus Mukati v Republic (2013) eKLR. He faulted the trial court for rejecting his defence, which contained some reasonable facts to support his acquittal, and urged the court to find that he was erroneously charged and convicted.

21. The respondent submitted that it had proved all the ingredients of the offence beyond reasonable doubt, and relied on the Court of Appeal cases ofMark Oiruri Mose v R(2013) eKLRand Erick Onyango Ondeng v Republic(2014) eKLR, where it was held that the slightest penetration of a female sex organ by a male organ is sufficient to constitute the offence. According to the respondent, it availed all relevant witnesses to prove the charges against the appellant, and relied onGeorge Kioyi v R Cr App No 270/2012(Nyeri) and Jacob Odhiambo Omumbo v R Cr App No 80/2008 (Kisumu). It termed the appellant’s defence as an afterthought, which was rightfully dismissed, and urged the court to find the appeal to be meritless. It submitted that the sentence passed on the appellant was proper, and relied on Arthur Muya Muriuki v Republic(2015)eKLR and Ambani v Republic(1990)KLR 161.

Analysis and determination 22. The issues for determination are whether the evidence adduced to proof the offence was sufficient to sustain a conviction; whether crucial witnesses were called to testify; and whether the appellant’s defence was taken into consideration.

23. The ingredients of this offence which the prosecution was required to prove beyond reasonable doubt are age, penetration and identity of the perpetrator. PW5 produced the complainant’s age assessment report which proved that she was 13 years old.

24. On penetration, PW4 stated that when she examined the complainant, her hymen was torn, she had lacerations on the labia minora and majora, tenderness on the neck and a foul smelling discharge. It is therefore this court’s finding that penetration was proved beyond reasonable doubt.

25. On whether the appellant was the perpetrator of the offence, PW1 testified that she was going to her grandmother’s place with PW3 and one YG when they found the appellant seated next to his employer’s gate. The appellant then called them, but when they went, he told her to accompany him to some tree where, 'He came and then put me on the ground and removed my pant. I had a skirt and white vest. He dropped his trouser and his sister and inner wear too. He lied on top of me. He inserted his penis to my vagina and I felt pain in my vagina' That evidence was corroborated that of PW2 and PW3. PW2 and PW5 testified that the appellant was identified by the complainant.This offence occurred during the day, and although the appellant was unknown to the complainant prior to the incident, she was able to identify him and point him out to PW2 and the police at the time of arrest. This court thus finds the circumstances for identification of the appellant by the complainant were favourable. It thus follows that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt, and the appellant’s conviction was therefore safe.

Failure to call crucial witnesses 26. The appellant accuses the prosecution of failing to call some vital witnesses to testify in court. It is not clear who those allegedly vital witnesses who were not called to testify were. In this court’s view, no particular number of witnesses shall, in the absence of any provisions of the law to the contrary, be required for proof of any fact. (See section 143 of the Evidence Act). The prosecution paraded a total of 5 witnesses in support of its case, and this court finds that the evidence adduced therein was sufficient to sustain the appellant’s conviction.

The appellant’s defence 27. According to the appellant, the trial court fell into error when it dismissed his defence without considering it. What was that defence? A mere denial on account that he had been framed up by the complainant and her father. The appellant tried to raise an alibi defence, which could not hold water, because DW2 testified that he was not with the appellant on the material day. This court holds that the appellant’s defence was properly dismissed after due consideration by the trial court.

Sentence 28. Although the appellant’s appeal does not in any way touch on sentence, this court will still consider whether the same was appropriate in the circumstances. Section 8(1) as read with 8(3) of the Sexual Offences Act provides that, 'A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

29. The appellant was sentenced to 15 years’ imprisonment, and he was out on bail the entire trial period, and therefore, the provision of section 333(2) of the Criminal Procedure Code, is inapplicable.

Orders 30. Accordingly, for the reasons set out above, the court finds that the appellant’s appeal is without merit, and it is dismissed.

Order accordingly.

DATED AND DELIVERED THIS 6THDAY OF OCTOBER, 2022. EDWARD M MURIITHIJUDGEAPPEARANCES:Appellant in PersonMr Chelule Prosecution Counsel for DPP.