[2022] KEHC 14562 (KLR)

Waweru v Republic (Criminal Appeal 10 of 2019) [2022] KEHC 14562 (KLR) (Crim) (1 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14562 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 10 of 2019

DO Ogembo, J

November 1, 2022

Between

George Macharia Waweru

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence arising from Makadara Chief Magistrate Court Criminal (Sexual Offences) Case no. 73 of 2017, by the Hon. Stephen Jalang’o Senior Resident Magistrate, dated 7. 9.2018)

Judgment

1. The appellant, George Macharia Waweru, was charged before the lower court with the offence of defilement contrary, to section 8(1) as read with section 8(2) of the Sexual Offences Act, No 3 of 2006. The particulars of the charge sheet were that on May 15, 2017 in Njiru sub-county within Nairobi County, he intentionally and unlawfully committed an act which caused penetration of his penis into the vagina of PNM, a child of 5 years.

2. He 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. That on May 15, 2017, in Njiru sub-county, Nairobi County, he intentionally and unlawfully committed an indecent act with PNM, a child aged 5 years by use of his hands, touched her genital organ (vagina).

3. After a full hearing, the appellant was convicted of the main charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act as charge. On September 7, 2018, he was sentenced to serve 20 years imprisonment.

4. The appellant is dissatisfied with his conviction and sentence and he has appealed to this court against the same. The petition of appeal filed on December 13, 2018, raised grounds that were more or less grounds for revision. they were as follows:-1. That this court be pleased to invoke the provision of section 333(2) of the criminal procedure Code, that the period spent in remand custody be factured in the sentence.2. That the court be pleased to find that the court do make a different order pursuant to Article 50(2)(p) and (q) of the constitution.3. That the court do consider the entire trial process, the evidence adduced, and find that the sentence awarded is inappropriate.

5. Thought this court granted the appellant leave the amend grounds of appeal, there is no evidence that the appellant ever filed such amended grounds of appeal. This appeal was otherwise canvassed by way of written submissions.

6. The appellant, in his filed submissions brought up fresh issues over and above the grounds of appeal as originally filed. the appellant has submitted now based on the following grounds:a.That the learned trial magistrate erred in law and in fact by failing to find that the elements of the offence of defilement were not proved beyond reasonable doubt as required by the law.b.That the learned trial magistrate erred in law and fact by relying on the prosecution’s evidence that was contradictory and inconsistent.c.That the learned trial magistrate erred in law and fact by failing to find that PRC form was produced in violation of the law.d.That the learned trial magistrate erred in fact and law when he failed to properly evaluate the evidence on record and relied on insufficient, uncorroborated and incredible evidence and came to the wrong decision that the appellant had defiled the 2 minors.e.That the learned trial magistrate erred in fact and law by failing to note that the burden and standard of proof by the prosecution was not discharged and thus the prosecution case was not proved beyond reasonable doubt as provided for under the law.

7. These new grounds clearly are a departure from the grounds of appeal as originally filed. in the interest of Justice, I shall nonetheless consider them accordingly.

8. In submitting on need to prove the essential elements of the offence, the appellant relied on Charles Wamukoja Karani Versus Republic, Criminal Appeal No 72 of 2013, where it was held;"The critical ingredients forming the offence of defilement are, age of the complainant, proof of penetration and positive identification of the assailant.”

9. That the evidence of who committed the alleged offence from the evidence of PW8 is questionable. That examination is chief, the witness said she did not know the appellant only to change in re-examination that she had seen the appellant before. That there was a contradiction on where the offence was committed i.e whether it was in a farm (PW2) or in a house according to PW8. Third, that one other person arrested was released. The appellant also queried at what distance PW3 saw the appellant with the complainant. And also contradictions between the evidence of PW3 and PW4 regarding the clothing the appellant was wearing. In this view, an identification parade ought to have been organized.

10. On identification the appellant relied on the case of Michael Norman Mbacho Njoroge Versus republic (2016)eKLR, that;"Given that none out of ten persons convicted on the basis of visual identification could be innocent, the court needs to examine evidence of identification of an accused person with the greatest care to avoid a situation where an innocent person is convicted merely because of evidence of witnesses who may be honest, but are nonetheless, mistaken on their identification of the accused person or persons.”

11. He also submitted that the evidence did not prove identification beyond reasonable doubt as required.

12. On the contradictions in the prosecution’s case, the appellant raised the issues of where the offence occurred (PW2 and PW8) and the clothing of the appellant (PW3 and PW4). He relied on Philip Nzaka Watu Versus Republic(2016)eKLR, that;"… ultimately whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

13. The appellant also challenged the evidence of PW5, producing the PRC form on behalf of one Maureen Akenga under section 77 of the Evidence Act. That being off duty is not a good enough reason (JA Versus Republic(2016)eKLR.

14. Lastly, relying on the English case of Bater Versus Bater (1950)ALLER 458, the appellant submitted that;"In criminal cases, the charge must be proved beyond any reasonable doubt, and if there may be degrees of proof, that standard must be great. Judges have said that in comparison as the criminal activity is enormous, so ought the proof to be clear.”

15. He has pleaded that this appeal be allowed, conviction be set aside and that he be set free.

16. The Respondent has opposed this appeal. The Respondent has submitted that the case before the lower court was proved beyond any reasonable doubt as required by the law. That the issues of age, penetration and identification of the appellant were exhaustively dealt with. The Respondent urged that this appeal be dismissed and that the finding of the trial court be upheld.

17. This court is seized of this matter as a 1st appellate court. The Court of Appeal, in David Njuguna Kariuki Versus Republic (2010)eKLR, held;"The duty of the 1st appellate court, is to analyse and re-evaluate the evidence which was before the trial court, and itself come to its own conclusions.”

18. This court is bound by this direction of the Court of Appeal. It is therefore mandatory that this court do wholly consider the evidence as presented before the court below as to come up with its own determination.

19. From the record of proceedings of the trial court, the case of the prosecution commenced with the evidence of PW1 MMA, whose evidence was that she is the mother of PNM, 6, who was born on July 21, 2011 as per the clinic card (MFI-1). That on May 15, 2017 at about 5:00pm, her child come home while crying and with dust in her head. The child told her a man had defiled her. She took her child to hospital and reported the matter to the police.

20. PW2 was PNM, a pre-unit student. Her short evidence on oath was that she met the appellant on the road in [Particulars Withheld] near the railway. That the appellant held her hand, removed her clothes and placed his finger in her vagina. The witness also added that the appellant removed his underwear and inserted his penis in her vagina and that she felt pain and cried. That it was in a farm on the ground. He lay on her. That when she went home, she told her mother. On cross examination, she stated that 2 people had been taken to the police station, and that one was injured. She added on re-examination that she had seen the appellant before.

21. JN, was PW3. Her evidence was that on May 15, 2017, her last born son, PW told her that PW2 had been taken by another man. That in company of others including one Wambui, they set out to look for the suspect, the appellant. That the appellant, on seeing them, tried to escape. They however caught him. A mob attacked him. They took him to the police station. And PW4, JWN, on her part, testified that on May 15, 2017, she had been in her farm harvesting vegetables, when she suddenly saw a child following the appellant, with the appellant carrying a bag for the young girl. The 2 were walking very fast and went away. Later in the day, she met the complainant and her mother who told her, the child had been defiled. With other members of the public, they traced appellant in the same clothes, a white short. He was chased, caught and taken to the police station. This witness confirmed that she knows the appellant well, even his wife and children. That he is married to a neighbor to her mother.

22. PW5, Babra Salaro Kere, a Clinical Officer, produced the medical certificate and PRC form of the complainant as exhibits herein (Exh 2, 3) on behalf of her colleague Maureen Akenga. This was after an application made under section 77 of the Evidence Act. Her testimony was that on examination, the complainant had an injury at posterior facet and opening of vagina. The hymen was red.

23. And Dr Joseph Maundu, (PW6), a police surgeon, examined the complainant on May 17, 2017. He noted that she had inflamed outer genitals, red in colour, bruise on lower part of the genital and hypermeric hymen. He also examined the petitioner who had several injuries on his body. He produced the 2 P3 forms he filled after the examination (Exh. 4, 5).

24. The arresting officer, PC Lucy Mikwaya was PW7, while the investigating officer, PC Sudi Halali was PW8.

25. On his part, the appellant gave an unsworn defence in which he testified that on May 15, 2017, while on the way home from work, he met some men. It was dark, and in the area that is dangerous and crime prone. That the men attacked him, only for him to find himself at the police station. He denied the charges.

26. This basically is the evidence that the 2 protagonists tendered before the trial court. This is a case of defilement. I find the following issues up for determination in this appeal:-i.Whether the prosecution proved the ingredients of defilement.ii.Defence of the appellant.iii.Whether the prosecution proved the case against the appellant beyond any reasonable doubt as required by the law.iv.The issue of sentence.

27. On the first issue of the ingredients of the offence of defilement, this court gets guidance from the decision in the case ofCharles Wamukoya Karani Versus Republic, Criminal Appeal No 72 of 2013, where it was held that:"The critical ingredients forming the offence of defilement are, age of the complainant, proof of penetration and positive identification of the assailant.”

28. Without a doubt the complainant herein, PW2 was a minor. Her evidence was that she was in pre-unit. Her birth certificate and clinic cards were also produced in court as exhibits (Exhibits 1, 2). Both showed that she was born on July 21, 2011 and so was aged 6 years as at the date of this offence.

29. The prosecution had the duty to prove the element of penetration. It is in this regard important to clearly discern what penetration really is section 2 of the Act defines penetration, thus;"Penetration is … the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

30. In this regard, it was the evidence of the compliant, that the appellant held her hand while on the road and led her to a farm. That he removed her clothes. He also removed his clothes, lay on her and inserted his penis inside her vagina. That she felt pain and cried. She then went home and told her mother.

31. This court notes that there was no eye witness to this incident. But the evidence of this witness found corroboration in the evidence of PW5, Babra Salaro Kere, that on examination on the same date of the occurrence, injuries were noted on the posterior facet and opening of the vagina of the compliant. The relevant PRC form was produced as an exhibit in this case. There was further corroboration from the evidence of PW6, Dr Joseph Maundu, who also examined the complainant, (The following day) and filed in her P3 form (Exh. 4-5). He noted several injuries. To me, this evidence leaves no doubt that the element of penetration was sufficiently proved and that the complainant was indeed defiled.

32. That takes us to the issue of identification of the assailant. Again, it is worth noting that there was no independent witness to this incident. The prosecution’s case was based on the evidence of the complainant (PW2) that it is the appellant who defiled her. This incident was during daylight as PW2 was from school. The evidence of PW2 was very coherent and clear on how the appellant led her to the farm and defiled her. And that when she reached home, she told her mother (PW3) what he had done to her. Her mother (PW3) and PW1, and other members of the public then setout to look for the appellant. PW2 confirmed, at least in re-examination, that she knows the appellant. I am convinced that PW2 was accurate in her identification of the appellant and was truthful in her evidence. Has she not been truthful, accurate and candid in her evidence, her mother (PW3), PW1 and the other members of the public would not have set out specifically to look for the appellant, arrest him and take him to the police station.

33. Another crucial evidence of the prosecution is that given by PW4, JWN that on the material date and time, she saw the appellant with PW2. He was carrying the school bag of PW2 as they walked fast and disappeared. This witness knows the appellant only too well, including his wife and children. Again, it was during the day as she worked in her farm that she saw appellant and PW2. She later joined the others in the search team in tracing the appellant, catching him and taking him to the police station. In these circumstances, I am convinced that this witness, PW4, indeed saw the appellant with the complainant at about the same time of the alleged offence.

34. It is also worth taking into account the behavior of the appellant when he saw the search team. He started running away to escape and had to be chased and caught. There is no evidence to show that the search team threatened his life in any way before he started to run away. To me, only one conclusion can be deduced from this conduct of the appellant. That he is the one who had defiled PW2 and that this fact had become known to the members of the public, including PW1, PW3 and PW4. He must have then started to run away to escape from arrest and possible prosecution.

35. Lastly, there is no evidence whatsoever on record to show that PW2 was with any other man after PW4 saw her with the appellant. In her evidence, she walked home straight after the appellant released her after defiling her.

36. All these factors put together, leave no doubt in my mind that the evidence of the prosecution proves that it was the appellant, and not any other person, who defiled the complainant on the material day. The identity of the appellant as the assailant was therefore sufficiently proved.

37. When the appellant was put on his own defence, his testimony was that he was on his way home when he was attacked by unknown people at a dark spot, and injured, only to later find himself at the police station. to me, this evidence is totally unbelievable. If he was attacked by thugs as he allege, how then did he end up at the police station? Was this ever recorded in the Occurrence Book of the police station? And which police station was it in the first place? Thugs, in any case are not known to take their victims to the police station. I find this defence lacking in any merit and I dismiss it.

38. In the submissions of the appellant he has raised a number of issues which court finds necessary to have considered, first is the submissions on identification of the appellant based on his clothings. With respect, the evidence on record by PW2 and PW4 was not based on the clothes he wore, but rather recognition by persons who knew him before the date of this incident. The defence based on the clothes he were is therefore lacking in any merit.

39. On the issue that another man had apparently also been arrested, there is absolutely no evidence on record as to who this man was, the circumstances of his arrest, reasons for the arrest, how he was released or his relationship with this case. I do not therefore see how the appellant can claim this as a defence in his case. I dismiss this claim.

40. As to any contradictions in the prosecution’s case, the case of Philip Nzaka Watu Versus Republic (2016)eKLR, gives this court guidance, that;"… some discrepancies must be expected because of human recollection which is infallible and that no two people perceive the same phenomena exactly the same way, and that discrepancies in evidence render it believable or otherwise must depend on circumstances of each case.”

41. The appellant has not pointed out the specific areas of contradictions or discrepancies in the case of the prosecution. As to the clothing, I do not find the same to be material as to challenge the case of the prosecution.

42. This court has been referred to the case of Bater Versus Bater (1950)AllER 458, on the issue of standard of proof. (see alsoDPP Versus Woolmington (1935) VKHL 1, and Ministry of Pensions (1947)2AllER 372). That it is the burden on the part of the prosecution to prove the guilt of an accused person beyond any reasonable doubt. In this case, I have considered the evidence on record and I reach the same finding as that of the learned trial magistrate, that the prosecution duly discharged this burden.

43. On the issue of sentence, it is noted that the sentence provided for under section 8(2) of the Sexual Offences Act, is imprisonment for life. The appellant was sentenced to serve 20 years imprisonment. I find this sentence to be both legal and proper and I have no reason to interfere with the same. The appellant shall serve out the sentence as meted out by the trial court. For avoidance of doubt, the sentence of the appellant shall run from the date of sentence on September 7, 2018. the appeal of the appellant, George Macharia Waweru, filed herein on December 13, 2018 in accordingly wholly dismissed.

HON. D. O. OGEMBOJUDGE1STNOVEMBER, 2022. Court:Judgment read out in open court (on-line) in the presence of the appellant (Kamiti) and Ms. Ntabo for the state.HON. D. O. OGEMBOJUDGE1STNOVEMBER, 2022.