[2018] KEHC 26 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL APPEAL NO. 25 OF 2016

NOAH MBAKA NJERU......APPELLANT

VERSUS

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

(Being an Appeal from original conviction and sentence of Hon. Omwange J. Resident Magistrate Siakago in Criminal case No.269 of 2014)

JUDGMENT

The appellant was charged with the offence of attempted defilement contrary to Section 9(1) (2) of the Sexual Offences Act No.3 of 2006. The particulars of the offence are that the appellant on the 26th day of March, 2014 at [particulars withheld] Sub-location in Mbeere North District within Embu County intentionally attempted to cause his penis to penetrate the vagina of YMN, a child aged 11 years. The trial Court convicted the appellant and sentenced him to ten (10) years imprisonment.

The grounds of appeal are:-

1. That the appellant pleaded not guilty to the charge.

2. That the learned trial Magistrate erred in both points of law and facts when he failed to consider that the medical report did not support the alleged charge.

3. That the learned trial Magistrate erred in both points of law and fact when he relied on evidence adduced by PW1, PW2 & PW3 who are all from one family, a mother and her two children.

4. That the learned trial magistrate erred in both points of law and facts when he failed to consider that there existed a long feud between the appellant and PW3, the mother to PW1 based on love issues which lead PW3 to use her daughter PW1 to frame the appellant with the offence.

5. That the appellant was never medically examined to help in clearing doubts in this case as Section 36(1) of the Sexual Offences Act stipulates.

6. That no independent witnesses found the appellant in the act in the house of PW3 committing the alleged offence.

7. That the learned trial Magistrate still erred in both matters of law and fact when he failed to consider that essential witnesses were not summoned to prove the case beyond reasonable doubts.

The appellant submit that the evidence of PW2, PW3 and PW4 does not place the appellant at the scene of crime. The Medical evidence does not establish whether an indecent act did occur. There is no evidence that the appellant touched PW1’s buttocks. PW2, PW3, and PW4’s evidence does not corroborate the evidence of PW1. The appellant contends that PW1’s evidence that her mother found the door closed from inside but asked PW1 to give her a panga from another house is unbelievable. PW1’s mother was outside and was better placed to go for the panga. How could the appellant who was a stranger tell the children not to go to school. PW1’s evidence lacks credibility. PW1’s evidence contradicts that to her mother, PW4, who did not testify on the issue of a panga. The case was a frame up.

The appellant further contends that PW4 did not testify that she sent PW2 to call her father but PW2 testified that she was sent to call her father. The evidence of PW1, PW2, PW3 and PW4 was full of contradictions and ought not to have been relied upon. The appellant contends that there was an existing grudge between him and PW4. PW4 used to be his casual worker. PW4 wanted him to be her lover. The appellant was not taken to hospital for examination. None of the prosecution witnesses, PW2, PW3 and PW4 found the appellant at the alledged scene of crime. PW7 did not investigate the case. PW1’s pantie was not produced in Court. The prosecution did not prove its case beyond reasonable doubt.

Miss Nandwa, Prosecution Counsel, opposed the appeal. The appellant was convicted of the offence of attempted defilement. There was no need to produce a medical report. PW1’s evidence proved that the appellant committed the offence. PW1’s evidence was supported by that of PW2 and PW4. PW3 was an independent witness and not a family member. The same applied to PW5. Counsel submit that there was no feud between the appellant and the complainant’s mother. There was no reason to send the appellant for medical examination. PW4 found the door was closed from inside. The Prosecution proved its case beyond reasonable doubt.

This being a first appeal the court is duty bound to evaluate the evidence on record and make its own conclusion. PW1 was the complainant. She testified Under oath. It is her evidence that she was 11 years old. She was a class five pupil. On 26. 3.2014 at around 7. 00am her parents had left home. She was to go to school with her younger sister (PW2). The appellant went to their home and told her that they were not going to school. He sent pW2 to the market, closed the door and made her to lie on the ground. He then removed her pantie. She heard her mother calling from outside asking her to go out for a panga. She climbed over the door where there was space. The appellant escaped through the same space. Her father also appeared. They reported to the Chief and she was taken to hospital.

PW2 is PW1’s sister. She also testified under oath. She was 8 years old. On 26. 3.2014 they were preparing to go to school. Their mother had left for the market. The appellant went to their home. He sent her to the market to buy chapatti and vegetables. She met her mother at the market and explained to her. She told her mother that she had been sent by Njeru. She went back home with her mother. She heard PW1 crying. She was sent to call her father. The appellant then ran away upon seeing her father.

PW3 FIM is the village elder. On 26. 3.2014 at about 8. 30am he heard shouts from PW4’s home. He went there and PW4 was complaining that the appellant had defiled PW1. They went to the area chief. It is his evidence that the appellant is a farmer and his home was about 500 metres away from PW4’s home. He later assisted in arresting the appellant.

PW4 AM is PW1 and PW2’s mother. On 26. 3.2014 at 7. 30am she went to the market. PW2 went there holding a Ksh.50 note. She told her that she had been sent chapatti and dengu by a person who told her is called Njeru. PW4 rushed home and found there was someone inside her house with PW1. He found the appellant partly naked and PW1 was on the ground. PW1 came out of the house from an opening on top of the door. Her husband also went home. The appellant then escaped from the same opening. She knew the appellant.

PW5 IINis the area chief. On 26. 3.2014 at about 11. 00am PW4 and her two children together with PW3 went to his office. The incident was reported to him. The appellant was arrested on the same day.

PW6 JOHN MWANGI was stationed at the Mbere District hospital. He examined PW1 on 3. 4.2014 and filled a P3 form. PW7 PC James Kuria was based at the Siakago Police station. He took over the investigations from his colleague, PC Njeru who was on transfer. The appellant was charged with the offence.

The appellant was placed on his defence and he opted to remain silent.

The appeal raises the issue whether the appellant attempted to defile PW1. The appellant contends that the case was framed against him. PW4 wanted to have a love affair with him but he declined. That the prosecution evidence is contradictory and from the same family members.

The Prosecution evidence proves that PW1 and PW2 were left at home on 26. 3.2014. They were to go to school. Their mother was at the market. The chain of events show that PW4 saw her daughter PW2 at the market holding a Ksh.50 note alleging that she had been sent chapatti and dengu by one Njeru. It is further established that PW4 rushed home and found the appellant with PW1.

According to PW1, the appellant locked the door, made her to lie down and removed her pantie. There was no defilement as PW4 appeared at home and called PW1. The appellant contends that it would have been illogical for PW4 to ask PW1 to give her a panga yet she was outside. PW1 did not know that her mother had gone back home. PW1 escaped from the door and the issue of a panga came up after PW1 had gone outside the house. Further, PW4 sent PW2 to call her father and PW2 was to bring the panga. The fact that PW4 did not talk about the panga does not mean that PW1’s evidence is not true.

The issue is whether there was an attempt to defile PW1. The evidence proves that the appellant locked the door and remained inside with PW1. It is also proved that pW4 came back to her home and found the appellant with PW1. She knew the appellant. PW1 testified that she was in the house with the appellant. There is no evince that PW4 used her daughter to frame the appellant. PW4 was already married. The appellant’s contention that PW4 wanted him to be her lover is just but an afterthought. It does not appear anywhere in the proceedings. The appellant did not testify.

The evidence does prove that the appellant went to PW4’s home on 26. 3.2014 in the morning. He sent PW2 to the market so that he could remain with PW1. He was caught trying to defile PW1. There was no defilement committed and therefore there was no need to take the appellant for medical examination. There was also no need to produce the torn under pantie of PW1. PW3 heard PW4’s noise and went to the scene. Why would PW4 make noise if there was no incident. PW5 received pW4 and her children on the same day at 11. 00am in his office. PW3 was with them.

Given the evidence on record, I do find that an attempt to defile PW1 was made by the appellant. The appellant sent PW2 to the market so that he could fulfill his mission. He was cut shot when PW4 went back home. PW4 knew the appellant and she saw him when he escaped. The evidence of PW1 is quite clear and is believable. The appellant was not framed. He was properly convicted.

The upshot is that the appeal lacks merit and is hereby disallowed.

Dated and Signed at Marsabit this ………. Day of July, 2018

S. CHITEMBWE

JUDGE

Dated, Signed and Delivered at Embu 25th Day of July, 2018

F. MUCHEMI

JUDGE