BENARD YEGON...............................................................................................APPELLANT -VERSUSREPUBLIC......................................................................................................RESPONDENT JUDGMENT (Being an appeal from the conviction and sentence of the Senior Resident Magistrate’s Court at Kilgoris Hon. B. Ochieng in Criminal Case No. 1014 of 2010 dated 25th March, 2011) The appellant, Benard Yegon was charged with the offence of defilement contrary to section 8 (1) as red with section 8(3) Sexual Offences Act, 2006 hereinafter the Act. The particulars of the charge were that on 1st December, 2010 at 2.00a.m. at {particulars withheld} in Transmara District within Narok County, he defiled the minor, one M. C then aged 12 years. He faced an alternative charge of indecent assault contrary to section (1) of the Act. He pleaded not guilty to the charges and was tried and convicted by the SRM’s court at Kilgoris. He was sentenced on 25th March, 2011 to serve 20 years imprisonment. The appellant was dissatisfied with the conviction and sentence and has appealed to this court. In his undated petition filed on 11th April 2011, the appellant has listed grounds that he never pleaded guilty to the charge; the court did not consider his defence; and, that the key witnesses were not called. He later filed supplementary grounds to include that no exhibits were produced in court; there were no eye witnesses; the evidence was not corroborated; the age of the complainant was not established; that medical evidence did not suggest the complainant was defiled; and, that he was not taken for a DNA test. When the appeal came up for hearing before me on 8th February, 2012 the appellant presented his written submissions. In summary, the submissions relate to the medical examination, identification and the age of the complainant; and the alibi of the appellant. The appeal was opposed by the state through the learned counsel Mr. Mutai. He submitted that the conviction was safe as it was based on sound evidence. In his submissions he stated that the evidence of PW1, was not corroborated by PW2, PW3 and PW4. He prayed that the appeal be dismissed. As a first appellate court, I am under duty to subject the evidence to a fresh evaluation and arrive at an independent conclusion. This duty has been stated repeatedly since the decision in Pandya –vs- Republic (1957) E. A 336. Briefly the facts of the case were that the minor complainant attended an initiation ceremony at a neighbour’s home in the company of her friends on the evening of 1st December, 2010. In the early night, the complainant and the two other girls went out of the house to answer a call of nature. The appellant together with another man accosted the girls with the appellant grabbing the complainant and taking her to his house nearby. He had sexual intercourse with her, kept her for the night and released her in the morning. In her testimony before court, the complainant narrated how the appellant defiled her. One Paulo who was
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said to have been present at the function reported the incident to the complainant’s mother the following morning. The mother who testified as PW3 stated that she first made a report at the World Vision offices then at the Kilgoris Police Station. She testified that her daughter was 12 years old and was in class 4. She also testified that she knew the appellant as they were from the same village. PW4 one Paul Rugut testified that he saw the accused and another man take away the girls and he reported to their mothers the following day. PW5 PC Elizabeth Onduso of Kilgoris Police Station testified that she took the complainant to hospital where she was examined. The clinical officer (PW5) who examined the complainant testified that the girl’s hymen was not intact and she had a white discharge. PW2 one Philos Cherotich testified that she was with the complainant and saw the appellant grabbing and taking her away. She knew the appellant. I find that testimony of PW2, PW3 and PW4 consistent and not contradictory as stated by the appellant. The medical report produced by PW5 further corroborates the testimony of the other prosecution witnesses. I therefore find that the appellant’s complaint that the complainant’s evidence was not corroborated to be baseless. On identification as earlier stated, the appellant and PW1, PW2, PW3, PW4 and PW6 all came from the same neighbourhood. They all knew the appellant. There is no doubt that they recognised him. He was a person well known to the complainant. The appellant stated in her testimony that he took her to his house and was there the whole night. She could not have mistaken his identity. Her testimony was unshaken even in cross-examination. I therefore find the appellant’s ground of appeal in this regard to be without basis. The appellant has also raised an issue that his alibi was not considered by the court and that the court failed to consider his defence. The issue of alibi was never raised during the trial. It is featuring for the first time as a ground of appeal. The appellant did not present to the court an alibi. During the defence hearing, the appellant gave sworn testimony in which he admitted being present at the circumcision ceremony but denied having grabbed the complainant and taken her to his house. He testified that he stayed at the party until 1.00a.m when he left. He presented no alibi. Even in his submissions before this court he has not brought up the issue. I therefore find the same to be without basis. On the whole, I find that the trial court’s conviction was safe. I therefore affirm it. On the issue of sentence, the complainant was found to be 13 years old. An age assessment was done at the Transmara District Hospital and presented in court as exhibit 2. The sentence for defilement of a girl aged 13 is provided for under section 8 (3) of the Act. It is a minimum of 20 years. The court’s hands were tied. Since the sentence was lawful, I confirm the same. The appeal is accordingly dismissed. The appellant has a further right of appeal to the Court of Appeal. Judgment dated, signed and delivered at Kisii this 25th day of September, 2012. R. LAGAT-KORIR JUDGE In the presence of: Benard Yegon: appellant (present/absent) .................................... counsel for respondent (present/absent)
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.................................... R. LAGAT-KORIR JUDGE court clerk
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