[2022] KEHC 9764 (KLR)

Musumba & another v Director of Public Prosecutions (Criminal Appeal 43 of 2019) [2022] KEHC 9764 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 9764 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 43 of 2019

WM Musyoka, J

May 18, 2022

Between

Fanuel Musumba & another

Appellant

and

Director of Public Prosecutions

Respondent

(From original conviction and sentence in Hamisi PMCCR No. 589 of 2018, Hon. M. L. Nabibya Principal Magistrate, of 23rd April 2019)

Judgment

1. The appellant had been charged with attempted defilement contrary to section 9(1)(2) of the Sexual Offences Act, No. 3 of 2006. The particulars were that he had attempted to defile PW1, the complainant in the matter before the trial court, who was then aged 14 years. There was an alternative offence of committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act.

2. He denied the charge and a trial was conducted. Six witnesses testified., PW1, the complainant, testified that as she passed by the appellant’s shop, he called her and pulled her into his shop. He caressed her breasts, and asked her sit on a bed, and asked her if he could sleep with her. She refused, and he torched her again. A chief and AP officer came and interrogated both of them, and arrested the appellant. She started that the appellant had already removed her underpants and touched her thighs. PW2 spoke of how PW1 was found at a shop at Gambogi.. PW3 was the Assistant Chief of Tigoi Sub-Location. He got information that the appellant was with a minor in his shop. He went there, but the appellant denied that there was a child. He and the police forced their way in and found PW1 seated on a bed. Upon interrogation, the child said she had been defiled. PW4 was the AP officer who accompanied PW3, and found PW1 in the shop of the appellant, seated on a bed. She said nothing had happened. PW5 was the clinical officer, who examined PW1, and found no evidence of defilement. She had no discharges, neither had the appellant, who he had also examined. PW6 was the police officer who investigated the matter.

3. In the end, the appellant was put on his defence. He gave a sworn statement. He conceded that he knew PW1, and that he saw her on the material day. She came to his shop with intent to buy socks, and as he attended to other customers, she took cups and other utensils, that he had used to take tea, to wash them. PW3 and PW4 then came. They entered the shop and pushed PW1 to the back of the shop, to his bedroom. They then arrested him.

4. The court found that the offence of an indecent act with a child was established, from the fact that the appellant touched the thighs and breasts of the child. It was found that the offence of attempted defilement was not established. The appellant was sentenced to twelve years’ imprisonment.

5. The appellant was aggrieved, hence the appeal. He raises four grounds: that the evidence of PW1 required careful consideration because of discrepancies; that the evidence had irregularities and was uncorroborated; that his evidence was no considered; and that the medical evidence established no contact between him and PW1.

6. The appellant filed written submissions. The respondent did not. In his submissions, he has pointed at what he describes as contradictory evidence, and aspects of the evidence that he says were not corroborated.

7. I have looked at the trial record. The appellant admitted that PW1 was in his shop, in the inner part of it, where she was washing utensils, as he served customers. That placed both PW1 and the appellant at the scene. They both had access to each other, away from the eye of anyone else. PW1 told the court that the appellant touched her breasts and thighs, and the court believed her. The court had opportunity to see and observe both PW1 and the appellant testify. I cannot fault the trial court, therefore, for coming to the conclusion. There was opportunity for them to be together, unseen by anyone else, for such a thing to happen.

8. Was that evidence corroborated? The fact that PW1 was at the appellant’s shop was conceded by the appellant himself, and PW3 and PW4 found PW1 seated on a bed in that shop. The fact of being touched inappropriately was reported to PW2 by PW1. In any case, under section 124 of the Evidence Act, Cap 80, Laws of Kenya, the trial court may convict an accused person on uncorroborated evidence of the victim, if it is the only evidence, and the court is satisfied that the victim was telling the truth. The touching of the breasts and thighs of PW1 happened away from the eye of anyone else. The court found that the two were together in the shop, at the time, and the appellant had admitted PW1 was washing his dishes.

9. An indecent act is defined in 2 of the Sexual Offences Act, as the intentional contact between a key part of the body of person with the genital organs, breast, and buttocks of another, which does not include penetration. PW`1 talked of her breasts being touched, and of being asked to have sex with the appellant. That would suggest an intentional act of touching. The conduct by the appellant came within the definition of an indecent act. PW1 was proved to be a person of under 18 years of age, which brought the conduct under Section 11(1) of the Sexual Offences Act. Consequently, I find that the appellant was properly convicted. Section 11(1) provides for a penalty of not less than ten years in prison. The appellant got 12. He was 60 years old, and PW1 15 years. He should have known better. He took advantage of an underage girl. He got what he deserved.

10. Overall, I find that there is no merit in the appeal, and I hereby dismiss the same. The conviction is affirmed, and the sentence confirmed.

11. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 18TH DAY OF MAY 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.Fanuel Omusumba, the appellant, in person.