[2023] KEHC 26316 (KLR)

Njoki v Republic (Criminal Appeal E063 of 2022) [2023] KEHC 26316 (KLR) (Crim) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26316 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E063 of 2022

DR Kavedza, J

December 8, 2023

Between

Stephen Kimani Njoki

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence delivered by Hon. R.M. Kitagwa (RM) on 18th October 2021 sexual offences case no. 100 of 2018 Republic vs Stephen Kimani Njoki)

Judgment

1. This is an appeal against the conviction and sentence of the trial court sentencing the appellant to 20 years imprisonment. In his appeal, the appellant raised five (5) grounds.

2. The main grounds are that, the charge sheet was defective. In grounds 2 and 3 the Grounds raised were that all the elements of defilement were not proved. The 4th ground was that there were inconsistencies and contradictions in the testimony of the witnesses.

3. As this is the Appellants first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno vs. Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oruri Mose vs. R [2013] e-KLR that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.

4. EAA (Name withheld) (PW1) after a voir dire examination testified that on 14/10/18 at around 4. 00pm while at home the appellant called her and took her to Dumbers. He then told her to remove her clothes, he too removed his short which he was wearing. The appellant then made him to lie on the ground. He then slept on top of her and they had sex. The complainant admitted that she knows what sex is and that it was her first time. She further stated that another woman found them in the bush then went to report to the complainant’s mother. She was later taken to Nairobi Women hospital.

5. MA (PW2) the mother to the complainant stated that she is a business lady and had gone out to sell groceries. Upon arrival a lady came to her carrying a t-shirt and a phone after which she told her that she had found her daughter in the bush with a man. The complainant later came back and on being interrogated by the mother she said that it was not her first time to engage in sex. She later took her daughter to the hospital.

6. John Njuguna (PW3) the medical officer attached to Nairobi Women Hospital produced the PRC form for the complainant. She stated that upon examination she noted that the minor had no physical injuries, she also had a whitish vaginal discharge, there were no tears nor lacerations and the hymen was torn and old looking. The conclusion made was that there was no penetrative injury.

7. (PW4) No.102243 P.C Emmy Mutai the investigating officer stated that the case was assigned to her and she accompanied the complainant to the hospital. She presented the original birth certificate which indicated that the minor was born on 4/2/2005. She later effected the arrest of the appellant.

8. After the close of the prosecution’s case the trial court concluded that the appellant had a case to answer and he was put on his defence. He gave sworn evidence and he did not call any witnesses. He denied ever defiling the minor.

Analysis and Determination 9. In grounds 1, 2, and 3 the appellant challenged the totality of the prosecution’s evidence as hearsay and not sufficient to warrant a conviction. He submitted that the evidence of the complainant wasfull of material contradictions. He claimed that the complainant’s mother told the court that Martha gave her the T-shirt yet in December when the appellant was arrested she said that Martha came with the T-shirt. The prosecution further did not call the said Martha as a witness.The appellant submitted that thesecontradictions cast a doubt on whether the complainant was defiled by the appellant as alleged.

10. Section 8(1) and (2) of the Sexual Offences Act, No. 3 of 2006 provides thus: -8. Defilement(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.

11. Bearing in mind the above provisions, I will now analyze the evidence on record to ascertain whether the essential ingredients of the offence preferred against the appellant were established to the required standard of proof. Regarding proof of age, I wish to state at the outset that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim.

12. The Investigating Officer (PW 4) produced the victim’s birth certificate – PEx 3 which confirmed that the victim was 13years old at the time of the commission of the offence. The prosecution, therefore, adduced credible evidence to prove that indeed the complainant was a child at the time the offence was allegedly committed.

13. The question I must now grapple with is whether the prosecution adduced sufficient evidence to prove that the appellant defiled the child victim as alleged. PW 1 after a voire dire examination gave an unsworn statement in which she narrated how the appellant who was their neighbor beckoned her and she followed. The appellant then took the complainant to a place called Dumbers and asked her to remove her shorts, the appellant then slept on top of her and they had sex. The complainant was categorical on how the appellant inserted his penis into her vagina. The two were found by a lady called Martha who informed the complainant’s mother.

14. The medical evidence presented confirmed that the complainant’s hymen was broken and old looking, there were no lacerations nor tears. There was a white discharge which was not normal. The conclusion made was that there were no suggestive penetrative injury.

15. Regarding the identity of the perpetrator, the complainant knew the appellant and identified him as the one who had sexually assaulted her. The identification was therefore by recognition. From the evidence, the complainant was very clear on the events that took place and the identity of the perpetrator.

16. After my appraisal of the evidence on record, I am unable to fault the finding of the learned trial magistrate. The prosecution evidence leaves no doubt in my mind that the appellant defiled the complainant and the elements of the offence have been proven.

17. The appellant further submitted that the prosecution failed to call witnesses who would have proved his innocence. He argued that failure to call the Lady called Martha who claims to have witnessed the incident was fatal. He relied on the case of Bukenya & others vs Uganda [1972] EA 549. In the said case, the court addressed itself thus :-“(i)The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.(ii)That Court has a right and the duty to call witnesses whose evidence appears essential to the just decision of the case.(iii)Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.”

18. From the record, Martha did not give evidence in court. However, failure to call her is not fatal to the prosecution case in all situations. Having said so, I however do not think that the evidence of Martha could have made any difference in this matter. In addition, the evidence in the instant case was adequate to prove the ingredients of the offence the appellant was charged with at the trial court. The ground therefore fails.

19. The upshot is that the conviction is safe and upheld.

20. On sentence, the appellant was sentenced to serve 20years imprisonment.I equally take into account the circumstances under which the incident took place.In this regard, I set aside the 20years imprisonment and substitute it with 10 years’ imprisonment, which shall run from date of conviction.

JUDGEMENT DATED AND DELIVERED THIS 8TH DAY OF DECEMBER 2023. D. KAVEDZAJUDGEIn The Presence Of;Kiragu for the StateAppellant presentNaomi/Nelson C/A