[2022] KEHC 16535 (KLR)

PNK v Republic (Criminal Appeal 19 of 2020) [2022] KEHC 16535 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16535 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Appeal 19 of 2020

J Wakiaga, J

December 15, 2022

Between

PNK

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in Criminal Case no 53 of 2019 at Kandara)

Judgment

1. The appellant was charged with the offence of defilement contrary to section 8(1) as read with 8(3) of the sexual offences Act No 3 of 2006 , the particulars of which were that in the month of June sat unknown time and date in [particulars withheld] village of Gatanga sub – county within Murang’a county , intentionally caused his penis to penetrate the vagina of RMN a child aged 15 years.

2. He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the act.

3. He pleaded not guilty to the charges, was tried, convicted and sentenced to serve twenty (20) years imprisonment. Being dissatisfied with the said conviction and sentence, he filed this appeal and raised the following grounds of appeal;A.That the trial magistrate occasioned illegality by denying him a chance to mitigateB.The sentence was harsh.

4. The appellant further filed an amended grounds of appeal together with written submissions in which it was that the offence was not proved and that the complainant’s evidence was contradictory on where, when and how the appellant defiled her. It was contended that there was no evidence of penetration, as no medical examination was conducted on the complainant for which the case of Chrispine Waweru Njeru v R [2015] eKLR was submitted in support .

5. It was contended vital witnesses including the person who conducted the DNA test were not called to testify and therefore an adverse inference should be made against the prosecution case as was stated in Joseph Lishir v Republic and David Mwigwiri v Republic. It was contended that the said DNA report was not produced as required for which the case of JA v R [2016] e KLR was tendered in support of the contention that production must be done in the manner envisaged in law.

6. It was submitted that the prosecution case was full of contradictions and inconsistencies upon which conviction cannot be founded as was stated in the case of Philip Nzaka Watu v Republic [2016] e KLR. It was submitted further that his defence was rejected without giving reason thereon.

7. On behalf of the State it was submitted that the age of the complainant was proved through the birth certificate, penetration by the evidence of PW1and as corroborated by the Doctor, while the appellant was identified through recognition as he was an uncle to the complainant. It was submitted that the fact that the complainant became pregnant was sufficient corroboration of penetration as was stated in the case of Kyalo Kioko v R [2016] eKLR.

8. It was contended that the complainant had not informed anyone of the act of defilement since the appellant had threatened to cut her neck and that explained the delay in conducting medical examination and that the DNA report was produced in compliance with the provisions of section 77 of the Evidence Act.

9. This being a first appeal the court is under a duty to re-evaluate the evidence tendered and to come to its own determination as was stated in Okeno v R.

10. PW1 RMN stated that the appellant was her father’s cousin. On the material day when her grandmother and sister had gone to the market, he asked her to put for him water while he was in his bedroom, he then pushed her onto the mattress undressed her and defiled her. He then warned her that he would cut her neck and take to the chief called Timothy Kandiki. The appellant then told her to go the shamba where he followed her and defiled her again. She stated that this continued until she got pregnant.

11. In cross examination, she stated that the appellant was married with two children and that her mother had separated from her father. She stated that the appellant had raped her and her brother when they were young and denied having framed him.

12. PW2 PM confirmed that the appellant was the complainant’s uncle and that when she became sick, her father called her and told her to take her to the hospital where it was confirmed that she was pregnant. When the doctor asked her who was responsible, she mentioned the appellant. Since she was a candidate, her father decided to wait until after the exams before taking action.

13. In cross examination she stated that after the pregnancy test turned positive, the threated the complainant until she gave the name of the appellant as the person responsible and that he thereafter wrote a letter indicating that the complainant had been defiled by her father and denied that they wanted to take his land.

14. PW3 Lawrence Njoroge a clinical officer filed the P3 form for the complainant who was aged 16 years on June 6, 2019 with a history of having been defiled in September of 2018 and that she delivered on April 20, 2019 which was evidence of penetration.

15. PW4 PC Joseph Mbushu booked the report and advised the complainant to return after delivery which she did. At that time the appellant was in machakos and that when DNA was conducted it proved that the appellant was the father of the child and he produced the report. In cross examination, he stated that he visited the scene and that he never heard that the complainant’s father had raped his wife.

16. When put on his defence he gave a sworn statement and testified that he was a hawker in machakos and on June 14, 2019 he was arrested by two police officers and informed of the charges which he denied. It was his evidence that he was an orphan and had a grudge with the family of the complainants over land and that the victim’s father had raped his wife and that he was framed since they wanted to grab his land. in cross examination, he stated that he did not know where he was in June of 2o18 and that the DNA report was doctored.

Determination 17. From the proceedings herein and the submission, the following issues are identified for determination:a.Whether the appellant was positively identified as the perpetratorb.Whether the prosecution case was provedc.Whether the appellants defence was considered.

18. On the identification of the appellant, the same was identified by recognition, he was the complainant’s uncle and they were staying in the same compound, the fact that was confirmed by PW 2 and corroborated by the appellant in his defence. I have taken note of how the offence herein was reported and the fact that DNA test conducted confirmed that the appellant was the father of the child born out of the defilement herein which corroborated the evidence of PW1 and find that the appellant was positively identified.

19. On prove of the charge herein, the age of the complaint was proved through the production of the birth certificate while the fact that the complainant became pregnant corroborated her evidence on penetration and therefore find that the offence was proved beyond reasonable doubt.

20. On the appellants defence, the trial court had this to say “the accused said that DNA result were fabricated by the victims aunt however the expert report ws presented in court indicating that he was the father of the victims child ….. further DNA result are not the only way to prove defilement since court can convict if it finds the victims testimony truth full”.

21. It is clear to my mind that the appellants defence was considered and properly rejected by court and find no merit on this ground of appeal.

22. Upon re-evaluation of the evidence tendered before the court I am unable to find any contradiction on the testimony of the witnesses and therefore find no merit on the appeal as failure to call the expert evidence of the person who conducted the DNA test did not prejudice the appellant case as the same only corroborated the evidence of the complainant which under the provisions of section 124 of the Evidence Act does not require corroboration.

23. The appellant’s conviction was safe and free from error. In sentencing the appellant, the court considered the pre-sentencing report and stated that the offence was serous and the act of the appellant would forever haunt the victim. I am therefore unable to interfere with the courts exercise of discretion on sentence.

24. The upshot is that the appeal is dismissed both on conviction and sentence and the trial court’s decision thereon is affirmed. The appellant has right of appeal and it is ordered.

DATED SIGNED AND DELIVERED AT MURANGA THIS 15th DAY OF DECEMBER, 2022. J. WAKIAGAJUDGEIn the presence of ;-Appellant in personMs Otieno for the stateCourt Assistant Carol Mutahi