[2022] KEHC 13646 (KLR)

Wanjiru v Republic (Criminal Appeal E016 of 2022) [2022] KEHC 13646 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13646 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E016 of 2022

LM Njuguna, J

October 4, 2022

Between

John Mbugua Wanjiru

Appellant

and

Republic

Respondent

Judgment

1. The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No 3 of 2006, the particulars are that on the December 22, 2020 at [particulars withheld] in Embu North sub-county within Embu County, intentionally caused his penis to penetrate the vagina of 'SW' a child aged 16 years.

2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars were that; on the December 22, 2020 at [particulars withheld] in Embu North sub-county within Embu County, intentionally touched the vagina of 'SW' a child aged 16 years with his penis.

3. In support of the charge the prosecution called four (4) witnesses and upon the close of its case, the appellant was put on his defence wherein he gave a sworn statement and called no witnesses.

4. The complainant testified that on the December 22, 2020, at 2 pm, she had gone to fetch water from the tank, within their compound and on her way back to the house, he saw the appellant following her. He approached her from behind and he grabbed her hand and took her to the bedroom in their house. He removed her trouser and panty and defiled her.

5. The appellant told her never to tell her mother and promised that he will marry her after she finished school. She was categorical that the appellant had removed his penis and had placed it on her vagina and the encounter took an hour from 2. 00 pm – 3. 00 pm.

6. That thereafter, the complainant went to her mother’s friend namely A and requested her to assist her with her phone which she used to call her mother and she explained to her what had happened to her. She was taken to hospital by A and they reported the incident at Manyatta police station and a lady officer took her to Embu Level 5 Hospital for further treatment. It was her evidence that she knew the appellant as he used to visit her mother’s work place. She had known him for about two (2) months.

7. The mother to the complainant gave evidence as PW2. She stated how she was called on phone, on the material date by A who told her that her daughter, the complainant had been defiled by the appellant herein. She requested A to take her daughter to the police station. She gave the age of her daughter as 16 years and referred to the birth certificate which was produced as an exhibit in the case. It was her evidence that they used to stay in the same plot with the appellant.

8. PW3, was the investigating officer. She took the complainant and her mother to Visioners Medical Centre for treatment since the nurses at Embu Level 5 Hospital were on strike. On the following day, she went with the complainant to Embu Level 5 Hospital where the P3 and post rape care forms were filled. She produced the birth certificate showing that the complainant was born on the March 28, 2003. She arrested the appellant on the December 24, 2020 but she did not visit the scene.

9. PW4 was the clinician who examined the complainant at Embu Level 5 Hospital on the December 23, 2020. On examination her private parts had a laceration on the left side of the vagina which was 1 cm long with tenderness. There was a reddish fluid. He classified the same as defilement and the injury as grievous harm. He produced the P3 as an exhibit. He also filled the post rape form for the victim. From the post rape care form, the laboratory tests on SWAP showed presence of epithelial and pus cells and the urine showed traces of blood. According to him, there was penetration and the same was confirmed by presence of blood in the urine, pus cells and the laceration to the opening of the vagina. He also relied on the treatment notes from Visioners Medical Centre.

10. In his defence, the appellant denied having committed the offence. He stated that on the December 20, 2020, he took a walk at Mbuvori forest and returned at 5. 25 pm. On December 22, 2020 he went and opened the complainant mother’s shop where he spent the day after which he went to his place to sleep. According to him the complainant was coached to lie against him by her mother because she wanted to extort money from him which he refused. That the complainant’s mother was his side chick and he had sexual relations with her. It was his evidence that he did not know the complainant and only came to know her when she was testifying in court but he admitted that the complainant’s mother was his neighbour.

11. The appeal was disposed of by way of written submissions which both parties filed.

12. This being the first appeal, the court is guided by the principles enunciated in the case of Okeno Vs Republic where the court set out the duty of the first appellate court.

13. The appellant was charged with the offence of defilement contrary to section 8(1) and 8(4) of the Sexual Offences Act and an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.

14. The ingredients of the offence of defilement are;1. Age of the complainant2. Proof of penetration3. Positive identification of the assailant

15. The evidence before the court is that the complainant was 16 years when the offence was committed. She was born on the March 28, 2003 according to her own evidence and that of her mother who gave evidence as PW1 and PW2 respectively. A copy of the birth certificate was produced by the investigating officer which shows her date of birth as March 28, 2003.

16. On proof of penetration, PW1 gave a comprehensive account of what transpired on the material day when the appellant approached her from behind as she was going back to the house after fetching water from the tank within the compound where she was staying with her mother and the appellant was also staying in the same compound. He grabbed her hand and took her to the house; removed her trouser and her panty and put his penis into her vagina.

17. Her evidence was corroborated by that of PW4, a clinician from Embu Level 5 Hospital who examined her and found that she had laceration on the left side of the vagina opening measuring 1 cm long with tenderness and a reddish fluid. He classified the same as defilement and the injury as harm. He confirmed that there was penetration.

18. On identification, though the appellant in his evidence stated that he did not know the complainant, the evidence available to court from PW1 and PW2 is that he was living in the same compound with them. The complainant further told the court that she had known the appellant for a period of 2 months and that he used to see the appellant at her mother’s place of work and had seen him at their home prior to this incident. The incident happened during the day which means that the complainant was able to clearly recognize the appellant as he is a person she knew and she used to see I have no doubt in my mind that the appellant was positively identified by the complainant as the person who defiled her.

19. The appellant’s other contention is that the prosecution’s evidence was full of contradictions and inconsistencies. The court has gone through the evidence and finds no material contradictions. Even assuming that there were contradictions, the Court of Appeal in the case of Jackson Mwanzia Vs Republic [20117] eKLRwhere the court cited with approval theUgandan case of Twahangane Alfred Vs Uganda Criminal Appeal No 139 of 2000 (UGCA) 6 stated;'With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually not necessarily lead to the evidence of a witness being rejected. This court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case'.(See also the case of Richard Munene Vs Republic [2018] eKLR).

20. The court finds that the contradictions in this case were not material to the case and they do not affect the substance of the prosecution’s case.

21. On the ground that the appellant’s defence was not considered. I note that the learned magistrate considered the appellant’s defence in the judgment. The court noted that the complainant knew the appellant and it dismissed the assertion by the appellant that he did not know the complainant. In that regard, the evidence of the appellant was considered to be of little or no probative value in disproving the allegations against him.

22. In view of the foregoing, I find the appeal is devoid of any merit and I hereby dismiss the same and uphold the conviction and the sentence imposed by the trial court.

23. Orders accordingly.

DELIVERED, DATED AND SIGNED AT EMBU THIS 4TH DAY OF OCTOBER, 2022. L NJUGUNAJUDGE......................for the Appellant....................for the Respondent