[2022] KEHC 11213 (KLR)

MMN v Republic (Criminal Appeal E021 of 2020) [2022] KEHC 11213 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11213 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E021 of 2020

GMA Dulu, J

June 16, 2022

Between

MMN

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. Otieno J. (R.M) in Makueni Chief Magistrate’s Court (S.O) Case No.34 of 2020 pronounced on 9th September, 2020)

Judgment

1. The appellant was charged in the magistrates’ court with attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 19th June 2020 in Makueni Sub-County within Makueni County intentionally attempted to cause his penis to penetrate the vagina of NK (name withheld) a child aged 12 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 day and at the same place intentionally touched the vagina of NK a child aged 12 years with his penis.

3. He denied both charges. After a full trial, he was convicted on the main count of attempted defilement and sentenced to 6 years imprisonment.

4. Dissatisfied with the conviction and sentence of trial court, he has come to this court on appeal relying on the following grounds –1. That the charge sheet was defective.2. The prosecution case was not corroborated and incontrovertible.3. That the elements of defilement were not proved beyond reasonable doubt.4. That the elements of the offence of indecent act was not proved beyond reasonable doubts.5. That the provisions of section 107(1), (2), 108 and 109 of the Evidence Act were not considered.6. The prosecution did not rebut the appellant’s alibi defence.7. That attempted defilement was not proved in terms of section 179(1) and (2) of the Criminal Procedure Act.8. That the prosecution witnesses evidence did not prove acts of commission or omissions.

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

6. This being a first appeal, I am required 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 six (6) witnesses. The appellant on his part tendered unsworn defence testimony and called no other witness.

8. The appellant has raised both technical and substantive grounds of appeal. I will deal with the technical grounds first.

9. With regard to defective charge, the appellant argued that the charge sheet omitted the word unlawfully, and also revealed the names of the alleged victim contrary to the provisions of the Sexual Offences Act.

10. Though the appellant relied on the case of Erro Oba –vs- Republic [2009] eKLR, I note that in that case both the words intentionally and unlawfully were omitted from the charge sheet. In the present case however, the word “intentionally” appears in the charge sheet. In my view, the word “intentionally” used in the charge meant that the appellant herein was not under any compulsion or any illusion when he did the alleged act.

11. Also, the alleged victim herein being a minor, such act alleged would be unlawful anyway, even if the word “unlawfully” was not mentioned in the charge. Thus the fact that the word “unlawfully” was missing no adverse legal effect.

12. The name of the victim being mentioned in the charge also, though it might be a defect is not fatal, as not mentioning her name was meant for the protection of her identity and not for anything else.

13. I thus find that the appellant not having been prejudiced by the apparent defect on the charge sheet, the defects are curable under section 382 of the Criminal Procedure Code (Cap. 75).

14. On the substantive grounds of appeal, I will have to consider if all the elements of the offence of attempted defilement were proved by the prosecution beyond reasonable doubt.

15. The first element is the proof of the age of the alleged victim. Pw1 the alleged victim stated in evidence that she was born on 18/07/2007 and relied on a child immunization card. Pw5 SM the victim’s mother also said that she was born on 18/07/2007 and produced the child immunization card as an exhibit. In my view, from the evidence on record, the prosecution proved beyond any reasonable doubt that the victim was 12 years old at the time of the alleged incident.

16. Was there an attempt to defile the victim? The alleged victim Pw1 stated that the culprit fell her down near the river, pulled her skirt and inserted his male organ into her vagina and that when she managed to get home, she immediately informed her brother Pw3 MM about the incident, who screamed and attracted Pw4 MSK. As a consequence, the matter was reported to the police and the victim taken to hospital.

17. The alleged victim however, later told Pw6 PC Winny Ochieng, the Investigating Officer, that the culprit only slept on her, and that though he tried to penetrate her he failed, and the charge was thus framed as an attempt to defile.

18. In my view, from the evidence on record, an attempt to defile the alleged victim was proved by the prosecution beyond any reasonable doubt.

19. The last element of the offence is the identity of the culprit. In this regard, the evidence of Pw1 and also that of the appellant was that they knew each other well before the incident as neighbours and cousins. The incident occurred in broad daylight. Besides, there was no evidence of an existing grudge between the two. Lastly, the alleged victim reported the incident to her brother immediately after the incident and Pw4 MSK, an independent witness, confirmed in evidence that the appellant was in the local area, but went into hiding in the bush and was later found in Nairobi.

20. In my view, the prosecution proved beyond any reasonable doubt that the appellant was the culprit, and that merely went to Nairobi as a hiding place.

21. The sentence is also fairly lenient. I will uphold the sentence. This disposes of all the grounds of appeal.

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

Right of appeal explained.

DELIVERED, SIGNED & DATED THIS 16TH DAY OF JUNE 2022, IN OPEN COURT AT MAKUENI...............................GEORGE DULUJUDGE