[2022] KEHC 10684 (KLR)

TCM v Republic (Criminal Appeal E069 of 2021) [2022] KEHC 10684 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10684 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E069 of 2021

A. Ong’injo, J

May 19, 2022

Between

TCM

Appellant

and

Republic

Respondent

(An Appeal from the judgment of Hon. R.M. Amwaya, Senior Resident Magistrate delivered on 30th day June 2021 in the Chief Magistrate’s Court Sexual Offence Case No. 81 of 2020)

Judgment

1. The appellant TCM was charged with offence of incest contrary to section 20(1) of the Sexual Offences Act 3 of 2006.

2. Particulars of the charge are that TCM on diverse dates between March 2020 and May 2020 in Likoni Sub-county within Mombasa County unlawfully and intentionally caused his penis to penetrate the vagina of ST a female person who was to his knowledge his daughter a child aged 11 years.

3. Upon considering the prosecutions 4 witnesses and the appellants unsworn statement the trial magistrate concluded that the charge againstappellant had been proved beyond all reasonable doubt and he was convicted and sentenced to serve 30 years imprisonment.

4. The appellant was aggrieved & dissatisfied with the conviction and sentence and he preferred the appeal herein on the following amended grounds filed on February 17, 2022:-i.That the trial Magistrate failed inlaw & fact by not seeing that the identification evidence was insufficient.ii.That the trial Magistrate erred in both law & fact when she failed to observe that the prosecution evidence was marred with material contradiction.iii.That the trial court erred in fact by failing to see that the conduct of the complainant was incompatible with that of a minor who had been defiled.iv.That the trial court erred both in law & fact when it failed to see that the matter in question was a frame up resulting fromappellants disharmony with the complainants mother.v.That the trialmagistrate imposed a sentence that did not take into consideration this appellants mitigation.

5. The prosecution’s case was that the complainant was left with her father the appellant herein together with her siblings A & R when her mother went to Giriama after she disagreed with the appellant.

6. PW 1 said they lived in one roomed house where her 2 sisters slept on a mattress while the appellant slept on the bed alone. That while she was sleeping the appellant went to the mattress and did bad manners to her after blocking her mouth and telling her not to tell anyone as he would kill her. She said theappellant defiled her on three different occasions. That it is A who saw the appellant defile the complainant and reported to their mother and matter was reported to police and complainant taken to hospital.

7. PW 2 testified that she witnessed the appellant go to where they slept on the mattress and touch the complainant. She later told police what she saw and her statement was recorded.

8. PW 3 Clinical Officer at Likoni Sub-County hospital examined the complainant and filled P3 form in which he found her hymen was absent. He said that the complainant had foul smell discharge from her vagina. He said the complainant was put on treated and counselled as she was disturbed psychologically and mentally. P3 form & PRC form were produced – Exhibit 3 & 4. PW 3 said that he didn’t know anything about the Appellants family but the complainant told him she was defiled by the father.

9. PW 4 the mother of the complainant testified that her daughter - PW 2 reported to her that the Appellant was touching the complainants private parts. She reported to police against the will of her bother-inlaw and she was referred to the hospital where it was established the child had been defiled.

10. The investigating officer was not called as she was ailing. The appellant in his unsworn statement said that he found his wife with another person in the toilet and the landlord gave him notice to vacate the house.

11. That his wife left with all the children from May to August. That on coming back she brought a letter from chief. When she went to the chief he met his wife with her friend and 3 young men. That they asked about his money and phone. That he went back home on a bodaboda.

12. The following day he went to the chief and his wife was called to the office and they had a discussion but didn’t agree. That chief gave them an appointment for 17th August 2020 but on 14th August 2020 at 8. 30pm while he was going home he met police officers who ordered him to lie down and he was arrested and taken to police station. That he met his wife at the police station and he was charged with an offence he didn’t commit.

13. The appeal herein was canvassed by way of written submissions.

14. This court has considered the grounds of appeal the records of the lower court and the submissions and find that PW 1 was categorical that theappellant, her father had defiled her on several occasions and that he threatened to kill her if she told anyone. It is true she did not tell her mother what happened to her in her absence but PW 2 witnessed one of the episodes on a night she was unable to sleep due to illness and she reported to her mother. When the complainant’s mother told appellant about it he didn’t comment.

15. There is no evidence any other man entered the one roomed house which theappellant occupied with his 5 children. There is no evidence that PW 1 mistook someone else for his father. Medical examination confirmed the complainant had an old scar in her vagina confirming she had been defiled. The evidence of defilement given by PW 1 is corroborated by that of her sister PW 2 and the medical evidence.

16. The evidence of identification of the perpetrated given by PW 1 is also corroborated by that of PW 2 that it is the Appellant who defiled his daughter.

17. This court finds no material contradiction in the prosecution’s case that would vitiate the conviction of the appellant. It is unfortunate that theappellant who is also biological father to the complaint can allege that the conduct of his daughter was incompatible with that of a minor who had been defiled and yet he had threatened to kill her she revealed that he had sexually abused her. The appellant used his position and masculinity to abuse his own child.

18. As the trial Magistrate indicated the issue of disharmony between the appellant and his wife cannot be drawn into the charge because the finding by the doctor would have been negative. There was no evidence to show that PW 2 was influenced to lie against the Appellant.

19. The appellant had succeeded in gagging the complainant by threatening to kill her if she told anyone that he had sexually abused her but when PW 2 saw the appellant touching the complainant’s private parts she promptly informed the mother and she reported to police.

20. The sentence for the offence of incest where the female is less than 18 years is life imprisonment. The appellant was granted 30 years. I think that his beastly conduct deserves such deterrent sentence.

21. The appeal is therefore dismissed for lack of merit.

JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURTTHIS 19TH DAY OF MAY 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:-Ogwel – Court AssistantMr. Ngiri for Respondent/StateAppellant – Present in personHon. Lady Justice A. Ong’injoJudge