High Court 2687 of 2007

injuries she sustained. PW2, the mother of PW1 testified that on 6 th December, 2003 her daughter (PW1) had not spent the night at home. On the following day, PW2 and her aunt began a search for PW1. They met PW1 at the market, but she would not speak about the previous night. After the two took PW1 to the Chief’s Camp, she opened up and told of her ordeal the previous evening. The two, together with the appellant, and Police officers, then went to the appellant’s house, and there, PW1 pointed out the man who had defiled her; and the appellant was thereupon arrested. PW3, Dr. Zephania Kamau testified that on 10th December, 2003 (four days after the alleged defilement), he had examined PW1 at Nairobi Women’s Hospital, and a vaginal swab had shown no spermatozoa. PW3 saw no hymen, though no recent tear of hymen was noticeable. He produced the P3 form as an exhibit on the medical examination which he had conducted on PW1. PW3 could not say with certainty if PW1 had been defiled. PW4, who is PW1’s grandmother, testified that PW1 had left her house at 6.00 p.m., on 6 th December, 2003 to return to her mother’s house. She did not arrive at her mother’s house, and on the following day PW4 went to PW2’s mother, in connection with this matter. As PW2 and PW4 searched for PW1 in the neighbourhood, they met her at the market, and they took her to the Chief’s Camp as part of their investigation of the previous evening’s incident. PW1 took them to the house where she had spent the night, and she pointed out the appellant as the man who had defiled her. PW4 testified that she did a physical check of PW1’s body and found her vaginal area to be swollen. The appellant made an unsworn statement in defence. He said that on the day he was arrested, he was working at a certain Kwa-Ngotho Hotel, when two men and a lady entered; he served them with food, and after they paid for their food they complained that they had been overcharged, dragged the appellant outside, and announced that they were Police officers; and the appellant was then arrested, and the defilement charge brought against him. He denied the charge. The learned Magistrate defined the issue in this case: “to determine…whether the [appellant] unlawfully had carnal knowledge of PW1.” The critical portion of the judgement, in the determination of the question, was as follows: “PW1 told the Court vividly how she was walking home and the [appellant] accosted her and [defiled] her. PW1 consistently described how the accused [dragged] her –[into] the stall and without her consent, had sexual intercourse with her. The place where the [appellant] attacked her, PW1 said, was well lit with security electric bulbs. She said she clearly identified the accused. PW1 said the accused then took her to his brother’s house and she slept there. There was candle light in the house and she [properly] identified the accused. PW1 was able to know her bearings so that the following day after she escaped, she led the Police back to the house and pointed out [the appellant] to the Police. PW2 and PW4 tell a similar story of how PW1 did not spend the night in…[the house of] the mother or the grandmother…I find that these two prosecution witnesses’ evidence corroborates PW1’s evidence, rendering the same weighty [enough]…” The learned Magistrate expressed his belief that the testimony given by PW1, PW2 and PW4 was not at all part of a frame-up on the appellant. He noted that the appellant, in his cross-examination, and in his defence, had not rebutted the complainant’s allegations, and had given no alibi in respect of the material night. The Court formed the view that the prosecution case had been proved beyond reasonable doubt. The accused was convicted of the offence as charged, and sentenced to a six-year term of imprisonment. The appellant had the following grounds of appeal: (1) that the learned Magistrate erred in law and fact by attaching undue weight to the complainant’s evidence;

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(2) that the complainant had not known her defiler prior to the day the offence was committed, and so her identification of the appellant as the suspect was only dock identification; (3) that scientific proof had not been undertaken, confirming the appellant as the man who had committed the offence; (4) that the complainant’s evidence was uncorroborated; (5) that the trial Magistrate failed to consider the appellant’s defence; (6) that the sentence imposed was harsh and excessive, and contrary to the weight of the evidence adduced. In his oral presentation, the appellant said he had suffered much on account of his imprisonment, and his specific prayer was this: “I pray for reduction of sentence.” Learned counsel Ms. Gateru opposed the appeal, and urged that the sentence imposed against the appellant, of six years’ imprisonment, was not harsh or excessive – as under the law then in force, a sentence could have been imposed of as much as life imprisonment. Learned counsel urged that the trial Magistrate, in meting out sentence, had taken into account all the relevant circumstances including the mitigation address, as well as the fact that the appellant was a first offender. Although in the petition of appeal the appellant disputes the conviction, on basic elements such as identification, in Court he gave the clear impression that all he wanted was to have the sentence of imprisonment shortened. This Court, however, in the discharge of its obligation as a first appellate Court, to review all the evidence adduced in the trial Court, has come to the conclusion that the appellant had been properly identified as the offender, and had been tried and found guilty on overwhelming evidence, so that the verdict arrived at by the learned trial Magistrate must be upheld. Firstly, the complainant had had a full opportunity, twice in the night – and not for fleeting moments – to set her eyes upon the appellant, in well-lit conditions. Secondly, the very act of defiling the complainant, a young girl, had brought her face-to-face, as she continuously experienced physical pain, with her assaulter. Thirdly, the complainant had been so visually alert she was able to perceive all the preparatory handiwork the appellant performed before invading her person. All this was first-hand visual identification which admitted of no fault, such as the appellant has alleged in his petition of appeal. But in addition, the complainant very well remembered the house to which she had been taken in the night after being sexually assaulted; she was able to take the Police officers as well as her mother and relatives to that house on the following day; and on that day the appellant was found sleeping in the said house and was arrested and then charged in Court. This chain of events amounts, in my judgement, to a substantial amount of corroboration for the complainant’s evidence of identification; indeed, at the time of arresting the appellant when he was pointed out by the complainant, it was no longer a process of identification, but was that of recognition. I hold that the appellant was properly identified as the offender who, on the night of 6 th December, 2003 defiled the complainant. He was properly convicted, and I now uphold that conviction. I am not in agreement that a sentence of six years’ imprisonment, as was awarded by the trial Court, was in any way harsh or excessive; indeed the appellant should be thankful the learned Magistrate had exercised her discretion as she did. I confirm that sentence, and dismiss this appeal. Orders accordingly. DATED and DELIVERED at Nairobi this 4th day of June, 2007. J.B. OJWANG JUDGE

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Coram: Ojwang, J Court Clerk: Tabitha Wanjiku For the Respondent: Ms. Gateru Appellant in person

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