REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CRIMINAL APPEAL NO. 179 OF 2011 JOSHUA KARIUKI NJIRU ……........................APPELLANT VERSUS REPUBLIC .................................................PROSECUTOR FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NO. 391 OF 2011 AT THE SENIOR RESIDENT MAGISTRATE’S COURT AT RUNYENJES BY HON. M.W. MUTUKU - SRM ON 5/10/2011 JUDGMENT JOSHUA KARIUKI NJIRU the Appellant was charged with the offence of defilement contrary to section 8(1) (3) of the Sexual Offences Act No.3 of 2006. The particulars as stated in the charge sheet were as follows; JOSHUA KARIUKI NJIRU: On the 16th day of June 2011 in Embu County within Eastern Province intentionally and unlawfully caused his penis to penetrate the vagina of RAW a child aged 15 years. ALTERNATIVE COUNT Committing an indecent act with a child contrary to section 11(1) of Sexual Offences Act No.3 of 2006. The particulars as stated in the charge sheet were as follows; JOSHUA KARIUKI NJIRU: On the 16th day of June 2011 in Embu County within Eastern Province intentionally touched private parts of RAW a child aged 15 years. The Appellant pleaded not guilty to the charges and the matter proceeded to full hearing. He was convicted of the Principal Count of defilement and sentenced to 20 years imprisonment. The Appellant was dissatisfied with the Judgment and filed this appeal citing the following grounds; 1. That the learned trial Magistrate erred in both law and fact by failing to consider the fact that the Appellant was not taken for any medical examination especially DNA. 2. That the learned trial Magistrate erred in both law and facts by failing to consider the fact that the doctor who examined PW1 testified that she had no spermatozoa and there was no penetration. 3. That the learned trial Magistrate erred in both law and fact by failing to consider the fact that
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PW2 and PW3 were only giving hearsay evidence and relied on a single witness to convict. 4. That the learned trial Magistrate erred in law and fact by failing to consider the fact that the Appellant’s constitutional rights were violated when he was held in police custody for more than 24 hours. When the appeal came for hearing, the State through the learned State Counsel conceded the appeal on the ground that though the complainant was said to have been aged 15 years then, the said age was not established. She asked the Court to order for a retrial as there was sufficient evidence. The record shows that there was no record produced to confirm PW1’s age. No age assessment was called for inspite of the lack of documentary evidence on age. I have considered the evidence on record which I will not get into at this point. Relying on the cases of; 1. ELIREMA & ANOTHER –V- REPUBLIC [2003] KLR 537 2. SINARAHA & ANOTHER –V- REPUBLIC [2004]2 KLR 328 3. EKIMAT –V- REPUBLIC [2005]1 KLR 182 I do find that on a proper consideration of the admissible or potentially admissible evidence a conviction might result. Secondly the Appellant was convicted on 5/10/2011. He was sentenced to twenty (20) years imprisonment. He has served only two years of this. The interest of justice would be best served if a retrial was ordered. I therefore allow the appeal and set aside the conviction and sentence. The Appellant will be remanded in custody and produced before the Principal Magistrate Runyenjes for plea and other directions on 14/11/2013. The trial should be conducted and finalized within six (6) months. DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 7TH DAY OF NOVEMBER 2013. H.I. ONG'UDI JUDGE In the presence of; M/s Ing’ahizu for State Appellant Njue – C/c
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