[2017] KEHC 523 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 173 OF 2014

REPUBLIC.............................................................STATE

VERSUS

KURIA WAITHANJI PETER.......................ACCUSED

(Appeal from the Judgment of the Chief Magistrate’s Court at Nakuru Hon. R. Amwayi – Resident Magistrate delivered on the 27th July, 2014 in CMCR Case No.200 of 2013)

JUDGEMENT

The appellant KURIA WAITHANJI PETER has filed this appeal challenging his conviction and sentence by the learned Senior Resident Magistrate sitting at the Nakuru law courts.

The appellant had been charged in the lower court with the offence of DEFILEMENT CONTRARY TO SECTION 8(1) as read with SECTION 8(2) OF THE SEXUAL OFFENCES ACT. The particulars of the charge were that

“On the 27th day of September, 2013 at [Particulars withheld] Estate Njoro in Nakuru County within the Rift Valley province unlawfully and intentionally committed an act by inserting a male genital organ (penis) into a female genital organ (vagina) of G Na child aged 6 years and 7 months which [act] caused penetration”

In addition the appellant faced an alternative charge of INDECENT ACT WITH A CHILD CONTRARY TO SECTION 11(1) of the SEXUAL OFFENCES ACT.

The accused pleaded ‘Not Guilty’ to both counts of the charge. His trial commenced on 28/11/2013 at which trial the prosecution led by INSPECTOR OCHIENG called Four (4) witnesses in support of their case.

The complainant ‘G N’ who testified as PW1 was minor. She was taken through a ‘voire dire’ examination after which the trial court ruled that she would give sworn evidence.

PW1 told the court that on 27/9/2013 she was walking home from school in the company of her friend W. They met the appellant who lured the complainant into his house. Whilst there the appellant removed the child’s clothes and proceeded to defile her. After the incident he released the complainant to go home but warned her not to tell anyone what had happened.

PW3 E W is the complainant’s mother. She told the court that on 28/9/2013 (the day after the incident), her daughter revealed to her that she had been defiled the previous day PW1 checked the child and noted that her private parts were swollen. She took the complainant to Njoro Health Centre for treatment. Thereafter the matter was reported to police. The child identified the appellant as her assailant and he was arrested and charged.

At the close of the prosecution case the appellant was found to have a case to answer and was placed onto his defence. The appellant gave a sworn defence in which he denied having defiled the complainant. On 27/7/2014 the learned trial magistrate delivered her judgment in which she convicted the appellant on the charge of defilement and thereafter sentenced him to life imprisonment.

Being aggrieved by both his conviction and sentence the appellant filed this appeal. The appellant who was not represented by counsel during the hearing of his appeal relied entirely on his written submissions which had been duly filed in court. MR. MOTENDE learned State Counsel made oral submissions in which he opposed the appeal.

This being a first appeal the court is obliged to re-examine and re-evaluate the entire prosecution case and draw its own conclusions on the same [see AJODE Vs REPUBLIC [2004] KLR 81. Similarly in MWANGI Vs REPUBLIC [2004]2 KLR, the court held that

“1. An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to have the appellate court’s own decision on the evidence.

2. The first appellate court must itself weigh the conflicting evidence and draw its own conclusions”.

In any case of defilement the prosecution has a duty to prove beyond reasonable doubt the following three ingredients of the offence.

(i) The age of the victim

(ii) The fact of penetration

(iii) The identity of the perpetrator

The age of the victim is a crucial factor in defilement cases as it is this age which will determine the sentence to be imposed if a conviction is rendered. In KAINGU ELIAS KASOMO Vs REPUBLIC Malindi Crim App No. 504 of 2010, in discussing the question of determination of age in defilement cases the Court of Appeal stated thus

“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved in the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed upon conviction will be dependent on the age of the victim…….”

In this case the complainant herself told the court that she was six (6) years old having been born on 25th February, 2007. PW3 who was the child’s mother confirms this evidence as she too told the court that the complainant was born on 25th February 2007. This was a testimony from the mother who herself bore the complainant. In RICHARD WAHOME Vs REPUBLIC [2014]eKLR, the Court of Appeal remarked

“What better evidence can one get than that of the mother who gave birth”.

Aside from the oral evidence age was also proved in this case by way of documentary evidence. PW3 identified and produced, as an exhibit the original copy of the complainant’s birth certificate P. exb 2. That birth certificate Serial No. [Particulars withheld] indicated that the child was born on 25th February, 2007. A birth certificate is an original government document which provides prima facie proof of the fact as well as the date of birth of a person. This document corroborates the testimony of both the complainant and PW3 regarding her date of birth. I am therefore satisfied that the age of the complainant has been proved beyond reasonable doubt.

Having been born in February, 2007 I find that the complainant was aged 6 years old in September, 2013 when this incident occurred.

Having proved the age of the child the prosecution is required to tender evidence to prove the second ingredient being the fact of penetration. Section 2 of the Sexual Offences Act, 2006 defines the term ‘penetration’ as follows

“‘Penetration’means the partial or complete insertion of the genital organs of a person into the genital organs of another person”

The complainant in her evidence told the court that as she and her friend ‘W’ walked home from school, the appellant accosted them. He lured the child into his house on the pretext of having her shelter from the rain. In her own words the complainant gave a narration of the events that occurred inside that house as follows

“The accused then started to wipe my head as it was raining. He used a trouser to wipe. He then put me on his bed. He removed my shoes, I was wearing my school uniform and he pushed it up. It was a dress. I had a trouser and he removed it. He then removed my panty. He then removed his trouser and his underwear. He then inserted his penis into my vagina. He then threatened me that if I told my mother he would kill me. I felt a lot of pain but I did not cry because he had threatened me that he will kill me. After he had defiled me he then told me to dress up and go home. He then opened the door that he had locked and I went home. He is the one who dressed me and even put my shoes on….”

The complainant had given a very clear and detailed account of what happened to her. There would be no reason for a child of 6 years to claim that she had been defiled if no such incident had actually occurred. The complainant was a young child. She gave her evidence in a clear and consistent manner. She remained unshaken under cross-examination by the accused. I have no doubt that she was telling the truth.

PW3 the child’s mother told the court that the next day the complainant had problems waking up. When PW3 went to wake her up, the child disclosed to her mother that she had been defiled. PW3 as a mother immediately checked the child. She noted that her private parts were swollen. This is an indication that a sexual assault had occurred.

PW2 JACOB CHELIMO was a clinical officer who was based at the Njoro Health Centre. He told the court that on 28/9/2013 he examined the complainant. He told the court that his findings were as follows

“On external genitalia there was laceration of labia majora and swelling on labia and freshly broken hymen and whitish discharge from the vagina”.

The bruises on the external genitalia, swelling on the labia and the freshly broken hymen are all very clear evidence that the complainant had recently been sexually assaulted. Indeed PW2 told the court that

“I concluded that there was evidence of penetration”.

PW2 gave expert medical evidence. He was a doctor who had actually examined the complainant and recorded his observations. PW2 filled and signed the P3 form which was produced in court as an exhibit P exb 1. His evidence was neither challenged nor controverted. The evidence of PW2 corroborates the testimony of the complainant that she had been defiled. I am satisfied that the fact of penetration has been proved beyond reasonable doubt.

The third ingredient requiring proof is that of identification of the assailant. The complainant has identified the appellant as the man who defiled her. She identified him by the name ‘Osama’ and stated that he was a fellow villager whom she knew well. PW3 the complainant’s mother confirms that when the complainant reported that incident to her, she named ‘Uncle Osama’ as the man who had defiled her. PW3 also confirmed that the accused was a resident of their estate and was a man whom the child knew well.

The incident occurred at 3. 00pm. The child was alone with the appellant in the room. Indeed the child in her evidence confirms

“When Osama took me to his house there was no other person inside the house…..”

Thus the child was alone in the house with the appellant and given that the act of defilement involves close physical contact, she was in close proximity with her assailant. I find that the complainant has adequate time and opportunity to see her assailant very well. The appellant was a man who was well known to her. She referred to him by his nickname ‘Osama’. PW3the complainant’s mother also referred to the appellant as ‘Osama’. At no time did the appellant deny that this was the name by which he was known in the village.

There was therefore clear evidence that the complainant recognised the appellant since he was a man he knew well. In the case of ANJONONI & OTHERS Vs REPUBLIC [1980]KLR it was held that

“………….. recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”

In his defence the appellant claimed that he had been framed. The appellant told the court that the child had been coached by her mother to testify against him due to the fact that he had previously cohabited with the complainant’s mother and they later disagreed. The appellant did not put these allegations to PW3 when he was granted the opportunity to cross-examine her. These allegations were only raised by the appellant in his defence. They are clearly an afterthought.

Further, the fact that the child’s mother may have disagreed with the appellant would not in my view motivate a 6 year old child to make such a damming claim against him. The child herself had nothing against the appellant. In addition there is no way the medical evidence could have been fabricated. I therefore concur with the learned trial magistrate dismissal of the appellant’s defence.

From the evidence available I am satisfied that there has been a clear positive and reliable identification of the appellant as the man who defiled the complainant.

Based on the foregoing I am satisfied that the prosecution did prove this case of defilement beyond reasonable doubt. The appellant’s conviction was sound and I confirm that conviction.

Section 8(2) of the Sexual Offences Act 2006 provides for a mandatory sentence of life imprisonment for the defilement of a child aged eleven years and below. The complainant in this case was aged 6 years. Thus the sentence imposed by the trial court of life imprisonment was lawful and I do uphold that sentence.

The upshot is that this appeal fails in its entirety and is hereby dismissed.

Dated and delivered in Nakuru this 6th day of October, 2017

Appellant in person.

Maureen A. Odero

Judge