[2017] KEHC 1545 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HIGH COURT CRIMINAL APPEAL NO. 109 OF 2017

PAUL MULWA NDIKU..............................................APPELLANT

- VERSUS -

REPUBLIC.............................................................PROSECUTION

JUDGEMENT

1. The appellant was charged with the following charges;

2. COUNT I: DEFILEMENT CONTRARY TO SECTION 8(1) (3) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.

3. On the 1st day of February 2016, within Makueni County, Paul Ndiku Mulwa intentionally and unlawfully caused his male organ namely penis to penetrate the vagina of N K, a child aged 13 years.

4. COUNT II: DEFILEMENT CONTRARY TO SECTION 8(1) (3) OF THE SEXUAL OFFENCES ACT NO 3 OF 2006

5. On the 1st day of February 2016, within Makueni County, Paul Ndiku Mulwa, intentionally and unlawfully caused his male organ namely penis to penetrate the vagina of M M, a child aged 14 years.

6. ALTERNATIVE TO COUNT I: COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION II(1) OF THE SEXUAL OFFENCES ACT NO.3 OF 2006.

7. On the 1st day of February 2016, between 1800 hrs to 0500hrs within Makueni County, Paul Ndiku Mulwa intentionally and unlawfully touched the vagina of N K a girl aged 13 years with his penis.

8. ALTERNATIVE TO COUNT II: COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION II (I( OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006

9. On the 1st day of February 2016, between 1800hrs to 0500hrs within Makueni County, intentionally and unlawfully touched the vagina of M M a girl aged 14 years with his penis.

10. The appellant pleaded not guilty and the matter went into trial.

11. The court convicted appellant and sentenced him to serve 20 years imprisonment in respect of the main counts and same to run concurrently.

12. Being aggrieved by the trial magistrate decision, the appellant lodged appeal and set out four grounds in the memorandum of the appeal as follows:

-Thathe pleaded not guilty to the charges,

-Thatthe learned trial magistrate erred in both law and fact by misdirecting herself by holding that the prosecution side proved their case beyond reasonable doubts whereas on the basis of record, the burden of proof wasn’t discharged.

-Thatthe learned trial magistrate erred in both law and fact and misdirected herself for ignoring his argument that the investigating officer conducted a shoddy work and thus justice was prejudiced to the accused during trial.

-Thatthe sentence is excessive and harsh.

13. The appellant later lodged three amended grounds of appeal namely:-

i.-That,the learned trial magistrate faulted the points of law and fact when holding that the prosecution have proved their case beyond all shadows of doubts while failing to observe that the burden of prove was not discharged as per the basis of the records.

ii.-That,the trial court grossly faulted the points of law when passing the verdict to convict while failing to observe that the medical evidence adduced by PW8 had totally exonerated him from the charges that were preferred against him by the prosecution side.

iii.-That,his subsequent conviction was unjustified and manifestly unsafe.

14. The parties agreed to canvass appeal via written submissions.

15. The appellant filed and served but the prosecution opted to tender oral submissions.

16. This being the first Appellate court, it is enjoined to look at the evidence before the trial court afresh, re-evaluate and examine the same and reach its own conclusion whether or not to uphold the conviction of the Appellant. In reaching its decision, this court has to bear in mind the fact that it did not have an opportunity of seeing the witnesses as they testified and therefore is not expected to make any findings as to the demeanor of the said witnesses.

17. Finally, this court is expected and mandated to consider the grounds of appeal put forward by the Appellant in reaching its judgment. See KINYANJUI –VS- R (2004) 2KLR P.364.

18. PW1 testified that on 01/02/2016, N.K left home and went to school and she did not come back in the evening as is the norm. PW2 also testified that MM did not spend that night at home and that was also the evidence of NK and MM did not spend the night at their respective homes.

19. PW1 testified that NK told her that she spent the night of 01/02/2016 at the accused house. PW2 also testified that upon interrogating MM, she said she and NK had spent the night at the accused house. PW3, N.K testified that she in the company of MM escaped from school and went to her aunt’s place at Kisaulu.

20. She testified that when night approached, they needed somewhere to sleep and they went to the accused’s house and found him inside the house and that they spent the night there till the following day when they went back home.

21. Dw1, who is the accused did not deny that on 01/02/2016, there are people who entered his house. The accused conceded that some people entered his house but his main contention was that they entered the house in his absence.

22. MM testified that she knows the accused house as he is their neighbor and there is no possibility that MM mistook the house they spent the night in the accused house. There has therefore was sufficient proof that MM and N.K spent the night of 01/02/2016 at the accused house.

23. NK testified that when they entered the accused house, they found the accused in the house and MM, the accused and her slept on the same bed, she testified that the accused touched her vagina using his penis before penetrating her vagina using the penis. She testified that the accused had sex with her three times that night.

24. MM corroborated the evidence of N.K and testified that when they entered the accused house, they all went to the same bed and the accused removed his clothes. She testified that the accused touched her on the organ she uses to urinate.

25. MM further stated that after touching her, the accused used the thing he uses to urinate and inserted it in the thing she uses to urinate and he did so three times. The evidence of these two witnesses has been corroborative and consistent.

26. From the evidence, it emerges that N.K and M.M had not arrived home by night fall and that is why they decided to seek shelter in the accused home. The witness did clearly explain how they shared the same bed with the accused and the accused touched their vagina before using his penis to penetrate her vagina one after the other.

27. In his defence, the accused gave an unsworn statement and stated that on 01/02/2016 he did not spend the night at home but spent at his friend’s house. He stated that his friend is called Mutuku. The accused did not call any witness to corroborate his defence of alibi.

28. In his submissions the appellant stated that:-

29. The prosecution was duty bound to prove as to how he had penetrated the vagina of the victims PW3 and PW4 by the means of his penile organ. In his submission he contends that at the end of the day, the prosecution failed to discharge the burden placed upon it.

30. As a prove to his contention, he submits that the medical evidence that was adduced by PW8 was categorical that N K was 14 years old and on examining her private parts, she (pw-3) had no visible injuries but her hymen had been perforated, that after the test there was no any abnormality detected but just concluded that PW3 was defiled.

31. The learned magistrate had failed to consider properly the evidence of PW8 and the documentary evidence that was put across which confirmed clearly that there was no any penetration reflected by PW8.

32. It is from the evidence of PW1 and PW2 that both PW3 and 4 are their daughters and PW3 was 13 years old having been born on 06/09/2001. Interestingly, there was no documentary evidence adduced and produced to confirm or either to establish and prove the ages of these two victims.

33. There was only an immunization card that was produced by pw1 in the respect of PW3’s date of birth which was not enough proof to confirm the exact age of the PW3, while PW2 had nothing to support her evidence on the age of her daughter (PW4).

34. It is therefore submitted that the court would have thoroughly inquired the age of the purported victims by production of the birth certificates or by involving the age assessment expert to clear the doubts of the victims’ ages before conviction.

35. The prosecution reply was orally tendered Via Ms Gitau SC. She submitted that there was prove of penetration. PW1 victim No 1 mother and PW2 victims 2 mother confirmed that their daughters confirmed to them that they had spent night with the appellant and had sex with him at his home. The two victims’ PW3 and 4 also confirmed to court the same facts in their testimonies.

36. PW8 a doctor produced P3 forms of the victims and confirmed that the same disclosed that the victims were penetrated. They had broken hymens.

37. In Appellant’ un-sworn defence he pleaded alibi which could not be tested as he offered not to swear in his testimony. In cross examination, he never raised the issue of alibi. The victims knew him and identified him.

38. The clinic cards confirmed the age of the victims. Thus the prosecution proved its case beyond reasonable doubt.

39. After going through the evidence tendered and the parties submissions, I find the issues arising are:-

- Whether the offence charged was proved beyond reasonable doubt?

40. PW8, Doctor Charles Mwendwa Mutisya testified that he examined both N.K and M.M and the two did not have any visible injuries in their genitalia. He testified that laboratory tests were also done on the minors and no anomalies were detected.

41. The witness testified that the hymen of the two children were perforated and this is shown in the P3 forms of N.K and M.M and in the post rape care forms produced in evidence by the Doctor. The doctor did not testify whether the hymen of the two minors was freshly perforated or not.

42. The trial court made a finding that lack of injury on the genitalia of a victim of a sexual offence does not in itself rule out that the offence did not occur. Not all acts of sexual intercourse result into injuries and in cases where no violence accompanied the sexual act, it is unlikely for one to have injuries.

43. In this case the trial court considered the evidence of the two minors and the same was corroborative and consistent and the accused did not challenge that evidence even in cross-examination of the witnesses. The trial court believed that N.K and M.M told the court the truth.

44. N.K clearly identified the accused as Mulwa and stated that he stays at Uvilani. M.M stated that she knows where the accused stays and lives. M.M and N.K are therefore not strangers to the accused. There has therefore been positive identification of the accused.

45. All ingredients necessary for a charge of defilement were proved by the prosecution. The age of the victims was proved via produced clinic cards and P3 forms produced. It was proved that on the night of 01/02/2016, the accused did defile N.K and M.M. The trial court was therefore justified in convicting the appellant.

46. The court finds that the appeal has no merit and makes the following orders.

1) That the appeal is dismissed, conviction is affirmed and sentence confirmed.

SIGNED, DATED AND DELIVERED THIS 2ND DAY OF OCTOBER, 2017.

C. KARIUKI

JUDGE

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