[2022] KEHC 14055 (KLR)

Mutwiri v Republic (Criminal Appeal E034 of 2020) [2022] KEHC 14055 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14055 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E034 of 2020

TW Cherere, J

October 13, 2022

Between

Kennedy Muriithi Mutwiri

Appellant

and

Republic

Respondent

(Being an appeal against judgment, conviction and sentence in Nkubu Court Criminal No. 1066 of 2012 by Hon. C.N.Ndubi on 01st March, 2013)

Judgment

Background 1. Kennedy Muriithi Mutwiri (appellant) was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006 (the Act). The offence was allegedly committed on April 30, 2012 against LK a child aged 7 years.

2. The prosecution called seven (7) witnesses in support of the charges. Complainant stated that she was 7 years. She recalled that on the material day, she was sleeping in her grandmother’s house when appellant found her and defiled her. She stated that appellant had previously defiled her twice and that she had reported the incidents to her grandmother who had not taken any action. Her father PW2 upon receiving information that appellant that worked for his mother (complainant’s grandmother) reported the matter to the area assistant chief Stephen Kiruja Miriti and later to police who escorted complainant to hospital. Complainant was examined on May 2, 2012 by Davis Kevin Kinyua, a clinical officer who found that the hymen was broken and the labia minora and majora were swollen from which he opined that complainant had been defiled. He tendered complainant’s P3 form as Pexh 1. PC Ativi upon receiving complainant’s report commenced investigations and subsequently caused appellant to be charged. Complainant’s age was assessed to be 7 years and a report dated October 19, 2012 to that effect was tendered in evidence.

3. Appellant stated that he lived with complainant and her grandmother. He stated that complainant’s parents had separated and he is the one who took care of complainant. He said he was framed by complainant’s father because he was to take away the complainant from her grandmother. and took care of her since had mother had separated from her father.

4. In a judgment dated March 1, 2013, appellant was convicted and sentenced to serve 25 years’ imprisonment.

Appeal 5. Being dissatisfied with the sentence, the appellant lodged the instant appeal mainly on the grounds that the prosecution case was not proved beyond any reasonable doubt.

Analysis And Determination 6. The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant.

Age of complainant 7. The appellant was found guilty of committing an offence contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The provisions stipulate:(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

8. It is trite that the age of a minor is a critical component of a defilement charge and that it is an element which must be proved by the prosecution beyond reasonable doubt. In Kaingu Kasomo v Republic criminal appeal No 504 of 2010 the Court of Appeal stated as follows:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.

9. Proof of the age of a victim of defilement is crucial because the prescribed sentence is dependent on the age of victim. Dire consequences flow from proof of the offence of defilement. (See Hadson Ali Mwachongo v Republic criminal appeal No 65 of 2015 [2016] eKLR &Alfayo Gombe Okello v Republic Cr App No 203 of 2009[2010] eKLR).

10. Complainant’s age was assessed to be 7 years and the trial magistrate’s finding that complainant’s age had been established was well founded.

Penetration 11. Section 2 of the Act defines penetration to entail: -“partial or complete insertion of a genital organ of a person into the genital organ of another person.”

12. The P3 form Pexh 1 reveals that complainant had a broken hymen and her hymen was broken and her labia minora and majora were swollen from which it was opined that there was penetration. I am persuaded that the trial magistrate correctly found that penetration was proved.

Appellant’s culpability 13. As a general rule of evidence embodied in section 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section make an exception in sexual offences and provides as follows:“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

14. The evidence on record reveals that the complainant identified the appellant as the one who had defiled her. Appellant and complainant lived with complainant’s grandmother. Appellant was therefore not a stranger to complainant. Complainant’s evidence that appellant had defiled her three times was comprehensive and was corroborated by medical evidence. with this evidence, the learned trial magistrate ruled, a finding which I agree with that complainant was telling the truth as to the fact that it was appellant that defiled her.

15. Whereas it is true that complainant’s grandmother did not testify, her evidence would have been hearsay since she did not witness the incidents although the same had been reported to her.

16. Turning to the issue of defense, appellant, I find that it was duly considered and in the light of well corroborated prosecution case rightfully rejected.

17. From the foregoing, I find that appellant was rightly convicted and sentenced. Appellant has been in custody for 10 years’ and 5 months since he was arrested on May 28, 2012.

18. Consequently, the conviction is upheld but the sentence of 25 years is set aside and substituted thereof with a sentence of 15 years’ imprisonment term commencing from May 26, 2012 when he was arrested.

DELIVERED AT MERU THIS 13TH DAY OF OCTOBER 2022WAMAE. T. W. CHEREREJUDGECourt Assistant - KinotiAppellant - Present in personFor the State - Ms. Mwaniki