[2016] KEHC 2305 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CRIMINAL APPEAL NO. 173 OF 2015

PETER MAINA CHOI...................APPELLANT

Versus

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

(Being an appeal from the original conviction and sentence in

Nanyuki Chief Magistrate’s Court Criminal Case No. 962 of 2014

by Hon. J. W. GICHIMU Principal Magistrate on

6th August 2015).

JUDGMENT

1. PETER MAINA CHOI was charged before the Nanyuki Chief Magistrate’s Court with the offence ofdefilement contrary to section 8(1)(2) of the Sexual Offences Act and in the alternative was charged with the offence ofindecent act to the child contrary to section 11 (1) of the Sexual Offences Act. After trial he was convicted of the offence ofattempted defilement contrary to section 9 of the Sexual Offences Act.He was sentenced to serve 10 years imprisonment. He was aggrieved by his conviction and sentence and has presented this appeal against both conviction and sentence.

2. The duty of this court as the first appellant court was well stated in the case C.W.K. vs REPUBLIC (2015) eKLR as follows:-

“This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced before the trial court so as to reach its own independent determination whether or not to uphold the conviction of the appellant. As was held by the Court of Appeal in Njoroge vs Republic (1987) KLR 19 at P. 22:

‘As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the question of facts as on questions of law, to demand a decision of the court on the first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect (see Pandya v. R (1957) EA 336, Ruwalla v. R (1957) EA 570)”

3. A. W. a minor of 8 years was subjected to voir dire examination by the learned trial magistrate. After that examination the trial court was satisfied that the minor understood the meaning of the oath and of speaking the truth. She therefore gave her testimony under oath. She narrated that on 24th October 2014 at evening time she was at the homestead of the appellant. She had gone to that home to see a boy also called Maina. She witnessed the appellant conversing with someone in the compound. The appellant and that person then walked towards the road. The minor was left in the kitchen of that homestead in the company of the boy called Maina. After a while the boy called Maina left her in the kitchen. She attempted to move out of the kitchen but by then appellant who had come to the kitchen and whom she knew as Choi pushed her into the kitchen. He knelt down removed his trousers and her trousers then began to defile her. She said that she felt pain and she screamed. She managed to free herself and she went away. He threw a sweet at her as she ran away. She went home and informed her mother what had happened.

4. PW 2 the mother of minor stated that she was at her home on the material date when the minor came running. She noticed that she looked scared. When she inquired what the problem was the minor informed her how the appellant had defiled her in the kitchen. The mother examined the minor’s private parts which she found was reddish in colour. The matter was reported by her to the police and the minor was referred to the hospital for treatment. PW 2 produced the treatment notes and the P3 that had been issued in respect of that complaint. She too confirmed that the appellant was her neighbour.

5. PW 3 was doctor Joseph Karimi. He was stationed at Nyahururu sub-county hospital. He was the one who examined the minor and filled the P3 form. The minor was admitted to the hospital and on being examined the doctor found that her hymen had not been broken but it was reddish in colour. In his view there was no vaginal penetration of the minor. He informed the court that in his opinion there was an attempt to penetrate the minor and this he based on the facts that the minor’s private parts were bruised.

6. The appellant on being put to his defence opted to give an unsworn statement. In his defence the appellant did not deny having committed the offence he faced. Instead he testified that he is a casual labourer and that at one time worked for the minor’s mother.

7. In respect of this appeal the appellant filed written submissions. These submissions can be summarised into 3 issues that he raises. Those are:-

(a) The appellant faulted the prosecution for having failed to prove that he was identified as the perpetrator of the offence.

(b) The appellant submitted that the prosecution failed to meet the burden of prove.

(c) The appellant faulted the trial court for having failed to consider his defence.

8. In respect to identification the appellant relied on the minor’s mention of a boy who shares a similar name to the appellant known as Maina. In that regard he submitted that the prosecution did not show which of the two Maina’s committed the offence. In my view having considered the evidence of the minor there is no basis for the submissions made by the appellant. The minor quite clearly identified the appellant by his last name Choi and thereby differentiated him from the young boy Maina she had gone to visit. That submissions is therefore rejected. Much more than this PW 2 the mother of the minor stated in evidence which was not contradicted by the appellant that the appellant was a neighbour. It therefore follows that the appellant was correctly identified by the minor as someone she was familiar with. It ought to also been noted that the offence occurred during the day. There was therefore no difficulty in identifying the appellant.

9. The appellant submitted that the prosecution did not meet the burden of proof. He submitted that the prosecution’s evidence was misleading and inconsistent. In this court’s view nothing could be further from the truth. In my perusal of the evidence of the minor, her mother and the doctor’s evidence the prosecution met the required standard of proof. Indeed the trial court warned itself of the fact that the evidence of the minor was not corroborated but in consideration of the proviso of section 124 the trial court was satisfied that the minor was telling the truth. Indeed the trial court stated as follows:-

“Firstly, I observed the demeanour of the child (complainant) as she testified and she struck me as a truthful witness. Her evidence was not shaken and even challenged by the accused person in cross examination. Secondly the complainant explained in detail and clearly what transpired on the material date.”

10. A case in point is FAPPYTON MUTUKU NGUI vs REPUBLIC (2014) eKLR where the court stated:-

“The effect of the proviso to section 124 was aptly captured by this court in Mohamed vs. Republic (2006) 2 KLR 138, when it stated that:-

‘It is now settled that the courts shall no longer be hamstrung by requirement of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.”

11. It follows therefore that section 124 of the evidence Act was well met by the prosecution.

12. In respect to the second issue identified above the appellant submitted before court that whereas the minor was examined by the doctor he was not examined and accordingly that there was no evidence implicating him in the offence. The case of AML vs REPUBLIC (2012) eKLR the court considered what evidence would suffice to prove the offence under the Sexual Offences Act. In this regard the court stated as follows:-

“The fact of rape or defilement is not proved by way of DNA test but by way of evidence.

This was further affirmed in the case of KASSIM ALI vs REPUBLIC Cr. App. No. 84 of 2005 (Mombasa)where the court stated:-

“…….(the) absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

13. The prosecution in my view proved its case beyond reasonable doubt by presenting the clear evidence of the minor which evidence was corroborated by the evidence of the minor’s mother and by the doctor. In respect of the second issue identified above the court responds in the negative.

14. The third issue identified above was in respect of the appellant’s submissions that his defence was not considered by the trial court. That submission in my view is in error. The trial court considered his defence and even considered his intimation that the charge was preferred against him because of a grudge he had with the minor’s mother. That defence was rejected by the trial court and in this court’s view that rejection was right. As stated before the appellant did not deny in his defence having committed the offence. It is even pertinent to note that he orally submitted before this court in support of his appeal he stated thus.

“I sought (seek) forgiveness. I will not repeat what I did.”

15. In the end the finding of this court is that there is no merit in the appellant’s appeal against conviction. Similarly the sentence imposed by the trial court was in accordance with section 9(2) of the Sexual Offence Act. Consequently the appellant’s appeal against conviction and sentence is dismissed.

DATED AND DELIVERED THIS 26TH DAY OF OCTOBER 2016.

MARY KASANGO

JUDGE

CORAM:

Before Justice Mary Kasango

Court Assistant – Njue

Appellant: Peter Maina Choi …………………….

For the State: ….....................................

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE