[2019] KEHC 5631 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HC. MISC. APP. CR. NO. 6 OF 2018

MUTISO MUNYWOKI MBONDO.....APPELLANT/APPLICANT

-VERSUS-

REPUBLIC...................................................................RESPONDENT

JUDGMENT

INTRODUCTION

1. The Applicant with another was charged with DEFILEMENT CONTRARY TO SECTION 8(1) AS READ WITH SECTION 8(2) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.

2. Particulars being that on diverse dates between 20th April and 13th day of May, 2015 in Makindu location within Makueni county, intentionally and unlawfully caused your male genital organ namely penis to penetrate into a female genital organ namely vagina of MJ being a child aged 10 years.

3. Alternative charge was COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION II(I) OF THE SEXUAL DEFENCES ACT NO. 3 OF 2006.

4. On diverse dates between the 20th day of April 2015 and 13th day of May 2015, in Makindu location, within Makueni county willfully and unlawfully committed an indecent act by causing your male genital organ namely penis to come into contact with a female genital organ namely vagina of MJ being a child aged 10 years.

5. COUNT II: DEFILEMENT CONTRARY TO SECTION 8(1) AS READ WITH SECTION 8(2) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006. On diverse dates between 20th day of April and 13th day of May 2015 in Makindu location within Makueni County you intentionally and unlawfully caused your male genital namely penis to penetrate into a female genital organ namely vagina of NW being a child aged 8 years.

6. Alternative charge was COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION II(I) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006. On diverse dates between 20th April and 13th May 2015, in Makindu location within Makueni county you willfully and unlawfully committed indecent act by causing your male organ namely penis to come into contact with a female genital organ namely a vagina of NW being a child aged 8 years.

7. COUNT III DEFILEMENT CONTRARY TO SECTION 8(1) AS READ WITH SECTION 8(2) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006. On the diverse dates between the 20th April and 13th May 2015, in Makindu location within Makueni county, intentionally and unlawfully caused your male genital organ namely penis to penetrate into a female genital organ namely vagina of JW being a child aged 10 years.

8. Alternative charge was COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION II(I) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006. On diverse dates between 20th April 2015 and 13th May 2015 within Makueni county willfully and unlawfully committed an indecent act by causing your male genital organ namely penis to penetrate into a female genital organ namely vagina of MK(name withheld) being a child aged 10 years.

9. COUNT IV DEFILEMENT CONTRARY TO SECTION 8(I) AS READ WITH SECTION 8(2) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006. On diverse dates between 20th April and 13th May 2015 in Makindu location within Makueni county intentionally and unlawfully caused your male genital organ namely penis to penetrate into a female genital organ namely vagina of MK being a child aged 11 years

10. Alternative charge was COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION II(I) OF THE SEXUAL OFFENCE ACT NO. 3 OF 2006. On diverse dates between the 20th Day of April and 13th day of May, 2015 in Makueni willfully and unlawfully committed an indecent act by causing your male genital organ namely penis to come into contact with the female genital organ namely vagina of MK being a child aged 11 years.

11. He pleaded not guilty and was convicted and sentenced to serve life imprisonment.

12. Being aggrieved, the Appellant lodged instant appeal and set out four grounds namely: -

1) THAT, the pundit trial magistrate erred in both law and facts when he convicted him in the present case yet failed to find that evidence adduced was by hostile witness.

2) THAT, the pundit trial magistrate erred in both law and facts when he convicted him in the present case yet failed to observe that the charges were defective in nature.

3) THAT,the pundit trial magistrate erred in both law and facts when he convicted me in the present case yet failed to comply with the provisions of article 50(2) (j) of the Constitution Laws of Kenya, 2010.

4) THAT the pundit trial magistrate erred in both law and facts when he convicted him in the present case when he rejected his plausible defense that was capable of dislodging the prosecution’s case.

13. The appeal came for hearing and Appellant relied on his submissions.

14. The state counsel submitted orally as follows: -

a) That the prosecution opposed the appeal in that the evidence tendered was watertight and justified conviction and the sentence is lawful.

b) That in his appeal, there is no evidence of hostility on any of witness. The charge sheet presented in court was properly drafted. The requisite particulars of the offences, in all count I – IV and alternative counts were properly set.

c) That on violation of Appellant rights during trial, the trial court observed same from commencement of proceedings to the end. The language was in Kiswahili which he understood. The trial was fair and went through well up to defense.

d) That the Appellant never complained of any violation of his rights, he was ready to proceed with the matter. The court did properly analyze the evidence and concluded all elements of the offence were proved see pages 9-10 of record of appeal judgment.

e) The prosecution further submits that the court found penetration took place through the medical evidence that confirmed hymen of victim was broken.

f) The defense of the Appellant was considered and the court made an observation that prosecution was credible. There was no grudge and Appellant and mama N as alleged. And at no time during trial Appellant proved grudge. Thus the prosecution submits to this court that the appeal should be dismissed.

APPELLANT’S SUBMISSIONS

15. The appellant submitted that, the eye witnesses contradicted themselves on events allegedly committed in broad day light.

16. The Appellant further submits to this Honorable Court that not even a single witness (PW1 – PW4) claimed felt pain or bled during what they claimed to have happened to them. Without the outright signs associated with penetration the Appellant says that penetration was not proved beyond doubt.

17. He relied on the case of AGUSTINO NJOROGE RITHO & ANOTHER –VS- REP.CR.APP NO.99 OF 1986, where it was held that:

“contradicted and inconsistent evidence is unreliable and cannot relied on to convict”

18. He also submits that he was charged tried and convicted on a totally defective charge-sheet in that the evidence given at the trial is at great variance with the particular of the charge sheet.

19. The particulars of the charge sheet were to the effect that between April and 13th day of May 2015. PW1 told the court that “in the month of March April and May, 2015 …”

20. He cites the case of JASON OLUMU YONGO –VS- REP CR. APP NO. 1 OF 1983 AT PAGE 3 where it was held that: -

“In our opinion a charge sheet is defective under section 214 of the C.P.C where: -

a) It does not accord with the evidence in committal proceedings because of in accuracies or deficiencies in the charge because it charges offence in the charge sheet not disclosed in such evidence or fails to charge an offence ……

b) It does not for such reasons accord with the evidence given at trial or it gives a mis-description of the alleged particulars”

21. The Appellant submits that, he was not given the witnesses statements nor documentary exhibits relied upon by the prosecution thus violation of the provisions of Article 25(c), 50(2) (b) and 50(2)(j) of the constitution of Kenya 2010. Thus the Appellant did not benefit from equal benefits and protection of the law as provided for under Article 27(1) of the Constitution of Kenya (2010).

22. He further submits that he severally applied for witnesses’ statements and vide trial record at Page 47 line 3: Thus on 21/09/2016, the Appellant had no witness statements or documentary exhibits. So the Appellant cross – examined PW1 – PW4 without knowing what was contained in their police statements.

23. He submits that his defense was strong and was not rebutted under Section 212 of the criminal procedure code cap 75 laws of Kenya.He cites Section 213 CPC and 310 and the case of ROBERT FINALI AKHUYA –VS- REP APP. NO. 42 OF 2002.

THE DUTY OF THE APPELLANT COURT

24. The duty of the first Appellate Court is to subject the whole of the evidence to a fresh exhaustive scrutiny and make any of its own conclusions about it bearing in mind that it did not have the opportunity of seeing or hearing the witnesses first hand. See the case of SELLE & ANOR –VS- ASSOCIATE MOTOR BOAT CO. LTD 1968 EA 123.

EVIDENCE

25. The prosecution called nine (9) witnesses and closed their case. PW1, EMK., aged 11 years, class 3 student at (name withheld) primary school, told court in the month of March, April and May, 2015, the appellant who is a neighbor and nicknamed” Nda” called her to his house, took her to his bed, undressed her and asked her to lie on the bed.

26. He removed his three quarter trouser and underpants and then inserted his penis in her vagina making her feel a lot of pain. He ordered her not to scream. The appellant then asked her not to tell anyone or else he would bet her. After defiling her, the appellant sent her to call other children, J, M and N and promised to give her Kshs.20/=.

27. She went and called J, M and N and took them to the house of the appellant. She left them inside the appellant house and went outside.

28. When J, M and N left the appellant house they told her the appellant had removed their clothes and defiled them. She later told M who informed the class teacher Mrs. M and she then informed the Deputy Head teacher. She was taken to Makindu district Hospital for treatment. During cross examination he stated that the appellant defiled her and the other girls severally.

29. PW2, MJ, aged 10 years, student at (name withheld) primary school told court on 24/04/2015, MK (PW1) called her to accompany her to their plot and found JW (PW3) and PW1 told them the appellant whom she referred as ‘Nda’ was calling her and 3 other girls N, M and J to his house.

30. While there, the appellant told them to lie on the bed and removed their underpants. He inserted his penis in her vagina. He defiled each one of them in their presence. The appellant then told them he would beat them if they told anybody.

31. on 13-5-2015, PW1 informed M what had happened who then informed their class teacher Madam M. Madam M informed the deputy head teacher Madam P. On 14/05/2015, they were told to go to school with their parents. They were then taken to Makindu Hospital.

32. The appellant was arrested and taken to court. During cross examination he stated the appellant defiled them on five different occasions.

33. PW3, JW, 10 years, class 4 student at (name withheld) primary school told court between 20/04/2015 and 13/05/2015 she was at home when PW1 came and told her the appellant whom she referred to as ‘Nda’ had sent her to call her and M and N to his house.

34. They were four girls inside the appellant’s house. The appellant forced them to remove their clothes. While lying on the bed he inserted his penis in her vagina. He defiled each one of them one by one. He defiled M (PW2) then N (PW4) and then her.

35. They were all inside one room and thus saw what the appellant did to each. He threatened to beat them if they told anybody. She further confirmed PW1 told M who informed Mrs. M who then informed the deputy head teacher. During cross-examination she stated that the appellant defiled her five times on different dates.

36. PW4, N.W., 9 years, class 4 student at (name withheld) primary school confirmed that between 20/04/2015 and 13/05/2015, came to call her after school to the appellant house together with PW2 and PW3.

37. The appellant asked each to lie on the bed after removing her clothes and then inserted his penis in her vagina. He defiled each one by one. He started with J (PW3), then her, M (PW2) and finally PW1. He threatened to beat them if they told anybody.

38. They went to the appellant house five times thereafter and he did the same thing to them. She confirmed PW1 told Mrs. M who reported to the deputy head teacher who summoned their parents. She further told court her immunization card shows that she was born on 26/12/2005. During cross examination she stated the appellant house is in the same plot as PW1’s.

39. PW5, MMK, teacher at (name withheld) primary school told court on 13/05/2015 she was in the standard 3 classroom when she heard the students saying that on that day they would pass through that place. She stopped marking the books and got concerned with the students’ talk. She inquired from the students where they wanted to pass by. MK told her that NW (PW4), MJ (PW2) and MK (PW1) had been doing tabia mbaya with Nda.

40. PW1 had requested her to join the group but she had refused. She called the four girls who had been mentioned by MK and asked them about it. PW4 told her that Nda had threatened to kill them if they disclose.

41. The girls told her that PW1 is the one who had been taking them to the house of Nda.

42. They told her that Nda had been having sex with them. PW1 told her that Nda had sex with her on the first occasion then sent her to bring other girls to him for sex. The girls told her that they had not informed their parents.

43. PW1 also told her that she used to live in the same plot with her father and Nda. She later took the students to the deputy head teacher and informed her of the matter.

44. PW6, AMI, deputy head teacher at (name withheld) primary school confirmed on 13/05/2015 the class teacher of standard 3 Madam M (PW5) went to her office accompanied by PW1, PW2, PW3 and PW4 all of class 3 and informed her that someone was defiling the children.

45. She interrogated the children who acknowledged they had been engaging in sex with one Nda. She summoned the parents the following day who told her they were not aware of the matter. A report was made at Makindu Police Station.

46. The children were examined and treated. The girls told her that Nda had threatened to kill them if they told their parents.

47. PW7, WNJ, committee member of (name withheld) primary school told court in the year 2015, she was the school committee representative for standard three.

48. On 14/05/2015, she rece3ived a phone call from the school deputy head teacher asking her to quickly go to school since there was a problem.

49. She found the deputy head teacher in her office speaking with four students, PW1, PW2, PW3 and PW4 and two parents. The girls informed them that they had been going to the house of a person called Nda in the afternoons when they leave school and would have sex with him.

50. They reported the matter at Makindu Police Station. When the appellant was arrested and escorted to Makindu Police Station where the girls identified him.

51. PW8, Doctor Mohamed Abdulahi, medical officer at Makindu sub-county hospital told court he had worked at the hospital since 2015. The P3 forms were filed by Doctor Mibei who had since proceeded for further studies in September, 2015 and would be away for five years.

52. He confirmed to have worked with doctor Mibei for nine months before he went for further studies and was conversant with his handwriting and signature. The P3 form (P.exh 2) for M.J. (PW2) aged 10 years show there was broken hymen.

53. There was no tear of the vagina. The anus and other organs were normal. She had no HIV on being tested. She was treated with antibiotics. Post rape care form and treatment notes. (P.exb 3 and 1). The second P3 form P.exb 4 is for JW (PW3) aged 10 years old show her hymen was broken.

54. Laboratory examination was normal on the specimens taken. She was treated with antibiotics and analgesics.

55. The degree of injury was harm. Treatment notes (P.exb 5) and post rape care form (P.exb 6). The third P3 form (P.exb 7) for MK (PW1), aged eleven years show her hymen was broken. The other parts of the body were normal

56. She was treated with antibiotics and analgesics. Degree of injury was harm. Treatment notes (P.exb.8) and PRC form (P.exb 9). The fourth P3 form (P.exb.10) is for NWM (PW4) eight years old show her hymen was broken. The other parts of the body were normal. She was treated with antibiotics and analgesics.

57. The degree of injury was harm. PRC forms (P.exb.12). all the four P3 were filed and signed by Doctor Mibei on 14/05/2015. During cross examination he stated no blood stains or spermatozoa was seen on any of the four children. Medical examination revealed that the four children had been defiled. A man can have sex and rape many women.

58. He can make 20 rounds of sexual intercourse if he has taken inducement drugs. The children may have taken a bath and gone to the toilet several times before they were taken to hospital thus blood and spermatozoa was not seen.

59. During re-examination he stated physical bodily injuries may not have been occasioned if the children did not resist. Also several days had passed before the children were taken to hospital.

60. PW9, NO.77322, CPL Joyce Iha, investigation officer herein, currently attached at Makueni Traffic Police Base as the in-charge formely of Makindu Police station told court on 14/05/2015 at about 1:00pm. One lady known by the name WN (PW7) who was a committee member of (name withheld) primary school went to Makindu Police station accompanied by four girls.

61. The 1st child was MK (PW1) aged 11 years, the 2nd child MJ (PW2) aged 10 years, the 3rd child was JW (PW3) aged 10 years and the 4th child NW (PW4) aged 8 years. The complainants alleged they had been defiled by the appellant who was referred to as Nda and resided at [Particulars Withheld] area, Makindu town on diverse dates between 20th April, 2015 and 13th May, 2015.

62. The children stated that the appellant used to call them to his house after they came from school, and then defile them one by one. The report was booked. PC Karanja accompanied by PC Mailu went to [Particulars Withheld] area, looked for the appellant and managed to arrest him at [Particulars Withheld] area, Makindu town. The appellant was brought to the station.

63. She and PC Wafula escorted the victims and the appellant to Makindu Hospital for medical examination and filing of the PRC and P3 forms. Later they returned to the station and she recorded statements from the victims and other witnesses.

64. She charged the appellant with these offences after completing investigations. The p3 forms were filed on 14/05/2015. The complainants resided within [particulars withheld] area.

65. The appellant was their neighbor. The children identified the appellant. The name Nda is the nickname of the appellant. His actual name is Mutiso Munyoki. The four children were aged between 8-11 years. Child Health card (Pexb. 13) for NW (PW4) show she was born on 26/12/2005. she took the other 3 children for age assessment.

66. The age assessment report (Pexb. 14) indicates that MJ (PW2) aged between 9-10 years. Age assessment report (Pexb. 15) for MK (PW1) was found to be aged between 11-13 years. Age assessment report (Pexb. 6) for JW was found to be aged between 9-12 years.

67. The parents did not record statements since the children did not report the matter to their parents. The children informed their class teacher and the school head teacher. The parents leant of the matter when it was reported to school. The evidence of the parents was not necessary.

68. The parents did not witness the incident. During cross examination she stated the children were defiled several times on diverse dates. The appellant threatened the children not to disclose the incident. He had threatened to beat them if they disclose.

69. The appellant was also examined by a doctor and the findings of his examination was recorded at the back of the children’s P3 forms.

70. The children told the class teacher that they were defiled by a person they knew by the name Nda. He defiled the children several times on diverse dates.

71. At the close of the prosecution case the prosecution had made out a case against the appellant person. The appellant gave a sworn statement and called no witness. DW1, Mutisya Munyoki Mbondo, told court he did not defile any children. He further stated that Mama N was not happy when he refused to sell her land she promised to buy it in his absence; she used the women to frame him.

72. ISSUES

After going through the evidence and submission on record, I find the issues are;whether the charge was defective? Whether appellant constitutional right of fair trial was violated? Whether the prosecution proved case against appellant beyond reasonable doubt?

ANALYSIS DETERMINATION

73. The court has perused the charge sheet and particulars thereof, and has come to conclusion that, the same charge sheet presented in court was properly drafted. The requisite particulars of the offences, in all count I – IV and alternative counts were properly set. The appellant never complained over same but has just raised same now in appeal. The same appears to be an afterthought.

74. The appellant complains that he was not supplied with witnesses’ statements. However on page 10 of proceedings, he is recorded to state on 5/10/015, that the I O supplied him with witnesses’ statements but not copy of P3 form.

75. On 12/10/015, the appellant sought case to proceed with hearing and he never mentioned the issue of the p3 form.

76. The matter later came for hearing on 21/10/015 and appellant stated he was ready to proceed and did proceed. No issues of p3 and statements were raised.

77. The court observes that, the trial court observed rights to fair trial from commencement of proceedings to the end. The language was in Kiswahili which appellant understood. The trial was fair and went through well up to defense.

78. PW1, the 4th complainant testified she was 11 years old, born in March, 2007. According to P3 form (Pexb. 7) the estimated age of PW2 was 11 years. PW9 was 11 years. PW9, the Investigation Officer testified the age assessment report indicated PW2 was aged 11 years or between 11-13 years confirming age of PW1 and produced a copy of her age assessment report ((Pexb. 15)

79. LPW2, the 1st complainant, testified she was 10 years old. According to P3 form (Pexb). 2) the estimated age of PW2 was 8 years. PW9, the investigating officer testified the age assessment report indicated PW2 was aged 10 years or between 9-10 years confirming age of PW2 and produced a copy of her age assessment report (Pexb. 14)

80. PW3, the 3rd complainant told court during voire dire she was 10 years. According to P3 form (P.exb.4) the estimated age of PW4 was 10 years. PW9, the investigation officer testified the child health card indicated PW2 was born on 26th December, 2005 confirming age of PW2 and produced a copy of her child health card (Pexb.13).

81. HILARY NYONGESA VS- REPUBLIC (ELDORET CRIMINAL APPEAL NO. 123 OF 2009) where Mwilu J. (as she then was) stated that: -

“Age is such a critical aspect in Sexual offences that it has to be conclusively proved …… And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim”

82. The child health card (Pexh.13) and age assessment report (Pexb. 14, 15 and 16 above) prove the ages of the respective complainants. This court therefore finds that the 1st, 2nd, 3rd and 4th complainants herein were children aged 10, 9, 10 and 11 years respectively.

83. Defilement is defined under Section 8(1) of the Sexual Offence Act: -

‘A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.’

84. Penetration on the other hand is defined in Section 2 of the Sexual Offences Act:-

‘Means the partial or complete insertion of the genital organs of a person into the genital organs of another person’.

85. PW1 told court that the appellant called her into his house and took him to his bed where he undressed her and asked her to lay on the bed. He removed his trouser and underpants and inserted his penis in her vagina making her feel pain.

86. The appellant defiled her severally. She further told court on that first occasion the appellant asked her to call PW2, PW3, and PW4. PW2 confirmed to court she was called by the PW1 to go to the appellant’s house together with PW3 and PW4 where he asked them to lie on the bed. He then asked her and the other girls to remove their underpants and then inserted his penis in her vagina and the other girls in her presence.

87. The appellant defiled her severally. PW3 also confirmed to court that PW1 called her and PW2 and PW4 to the appellant house where he asked her and the other girls to remove their clothes and while on the bed inserted his penis in her vagina.

88. She further confirmed that he defiled her and the other three girls in their presence. PW4 confirmed PW1 called her and PW2 and PW3 to go to the appellant house where he asked her and the others to lie on the bed, removed her clothes and then inserted his penis in her vagina.

89. Each child confirmed he defiled them one after the other. They also confirmed he defiled them severally.

90. Upon examination it was confirmed PW1’s hymen was broken, other parts of the body were normal. PW2’s hymen was absent, no tears on the vagina and anus and other organs were normal. PW3’s hymen was broken.

91. Laboratory results for specimen taken were normal. PW4’s hymen was broken and other parts of the body were normal. It was ascertained that PW1, PW2, PW3 and PW4 were defiled upon examination of genitalia. For the offence of defilement to be proved there has to be an act of partial or complete penetration.

92. The absence of hymen confirmed there was penetration. The evidence of the complainants proves penetration. Their evidence of penetration is corroborated by the medical evidence. This court therefore finds that there was evidence of penetration of the genital organs of the respective complainants.

93. If defilement has been proved, who committed it? In the case of MUTONYI VS- REPUBLIC (1970) KLR 203 (COA) defined corroboration as follows: -

“… an important element in the definition of corroboration …. is that it affects the appellant by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the appellant committed it”

94. PW1 told this court that the appellant called her to his house and defiled her. He then asked her to call PW2, PW3 and PW4 which is confirmed by PW2, PW3, and PW4 further confirmed that the appellant defiled each one of them in turns in the presence of the other girls.

95. They further told court the appellant had defiled them severally before PW1 told M who then told Madam M (PW5). PW5 confirmed when she learnt of what was happening from MK, she called PW1, PW2, PW3 and PW4 who told her ‘Nda’ had been defiling them and had threatened to kill them if they reported to anyone.

96. The children were also interrogated by PW6, PW7 and PW9 and confirmed the appellant whom they referred to as Nda had been defiling them after school. All the complainants knew the appellant whom they referred to as ‘Nda’ as known in the community and a neighbor to PW1. He defiled them severally. There is no chance for lack of recognition from the complainants. This court finds that the appellant was positively and properly identified as the person connected to the offence committed.

97. The appellant simply denied defiling the complainants. He further stated Mama N was not happy when he refused to sell her land and she promised to buy it in his absence. He further told court she used women in her group to frame him.

98. There is no iota of evidence he had any differences with Mama N and as such used the complainants’ mothers to frame him. It is also not possible for a single person to convince four adult females to frame the appellant. The evidence of the appellant does not displace or controvert the prosecution evidence.

99. This court has evaluated the evidence tendered by the prosecution and is persuaded that the nine witnesses called gave consistent evidence to the offences to which the appellant is charged.

100. Section124 of the Evidence Act provides that the evidence of a complainant or the victim in Sexual offences can on its own stand the test of law so long as the trial court for reasons to be recorded has basis to believe that the witnesses are speaking the truth, in this present case, the complainants were very clear and consistent in their respective testimonies.

101. The evidence of PW5, PW6, PW7 and PW9 gave a clear account of events that took place and corroborated the evidence of the complainants in some material particular. They also gave circumstantial evidence that corroborated the evidence of the complainants.

102. Although the court found that the children evidence was corroborated in some material particular, the court warned itself of the danger of acting on that uncorroborated testimony of the complainants, children of tender years. The court was satisfied that the complainants’ testimonies were truthful.

103. They were credible witnesses. Each and every testimony was clear and consistent. Neither had any reason to lie against the appellant.

104. The witnesses were credible and trustworthy. The evidence that there was penetration, identity of the appellant and that he was behind the crime and the age of the complainants were proved beyond any reasonable doubt.

105. Thus the court no merit in appeal and finds same to be baseless. Thus the court makes the following orders ;

i. -The appeal is dismissed, the conviction is affirmed and sentence confirmed.

SIGNED, DATED and DELIVERED this 31ST DAY of MAY, 2019, IN OPEN COURT

.......................

C. KARIUKI

JUDGE