REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CRIMINAL APPEAL NO. 165 OF 2011 CHARLES CLEMENT MUGENDI........................APPELLANT VERSUS REPUBLIC.........................................................RESPONDENT (Being an Appeal from the Sentence and Conviction of W.E.K. NYUTU Resident Magistrate Embu in Criminal Case No. 1486 of 2009 on 2nd September, 2011) JUDGMENT CHARLES CLEMENT MUGENDI the appellant was charged with the offence of attempted defilement of a girl contrary to section 9(1) (2) of the Sexual Offences Act 3 of 2006. The particulars are that: On the 2nd day of September at 1400 hours Embu district within Eastern Province, intentionally and unlawfully attempted to have sexual intercourse with JN a minor aged 6 years. In count II, the appellant was charged with assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars are that: On the 2nd September, 2009 at around 1400 hours in Embu District within Eastern province, unlawfully assaulted JN thereby occasioning her actual bodily harm. The appellant denied the charges and the matter proceeded to full hearing. The appellant was then convicted on both count 1 and count 2 and sentenced to 15 years and 3 years imprisonment respectively. He was aggrieved by the judgment and has filed this appeal citing the following grounds: 1. That he pleaded not guilty before the trial magistrate. 2. that the learned trial magistrate failed to consider the fact that his constitutional rights were violated when he was kept in police custody for more than 24 hours. 3. That the learned trial magistrate erred in both law and in fact by convicting him using a single evidence of mother and her daughter.
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4. That the learned trial magistrate erred in both law and fact by failing to read for the appellant the judgment. 5. That the learned trial magistrate erred in both law and fact by failing to consider the contradiction present in the prosecution witness. The facts of the case are that PW1, who was aged 6 years then was on 02.09.09 sent to the shops to buy salt. She found the shop closed. On her way back, she met the applicant who greeted her and asked her where she was from. She explained. He asked her to accompany him to another shop to buy salt. They got there and he gave her 5/= to buy sweets which she did. The appellant promised to take her to her brother Githinji. She had not known him before. When they reached a bushy place, he told her to remove her clothes and lie down. She started screaming and the appellant held her by the throat and she felt pain. He forcefully removed her black pant and tore it (exhibit 1). PW1 heard her mum (PW2) screaming. PW2 came to the scene and that is when the appellant let go of her. He ran towards Rupingazi river. She was taken to hospital and to the police. A P3 was later filled for her (exhibit 2). In his sworn defence, he denied the charge saying PW2 and others framed him and that PW3 said she was paid to testify. And that PW2 wanted him to give her Kshs.40,000/= to terminate the case. She had also framed up Kinyua he said. This is a 1st appeal and this court has a duty to re-evaluate the evidence and come to its own conclusion. It should bear in mind that it did not see nor hear the witnesses. I stand guided by the case of MWANGI VS REP (2004) 2 KLR 28 where the court of appeal stated thus: 1. An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to have the appellate court's own decision on the evidence. 2. The first appellate court must itself weigh the conflicting evidence and draw its own conclusions. 3. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witness. I have evaluated the evidence on record together with the grounds of appeal. I have equally considered the submissions of the appellant and the state. I now wish to address the grounds of appeal. Ground 2: The appellant was arrested on 29.09.10 and arraigned in court on 01.10.09. It is true that he was kept in cells for over 24 hours. The law at that time did not inhibit that, if the offence complained of was a serious one. Sexual offences are very serious offences and in a case as this one, a day or 24 hours then was not unlawful. The ground therefore fails. Ground 4: The record shows that judgment was delivered in open court on 30.08.11. The appellant even gave his mitigation (page 47). This ground is also not successful. Ground 3 and 5: PW1 did not know the appellant prior to this incident. However, PW3 testified that she had that day seen the appellant and PW1 walking on the road together. She even informed PW 2 when the latter asked her if she had seen PW1 before PW2 started screaming. PW2 heard PW1 screaming and actually saw the
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appellant holding her daughter's neck before releasing her and taking off. PW2 knew the appellant for many years before this incident. PW1 confirmed in court that the appellant is the man who had given her 5/= to buy sweets. He is the one she walked away with and he is the one who led her to the bush. The evidence of PW2 and PW 3 corroborates it. My finding is that the appellant is the person who was seen with PW 1 from the shop and he is the one who was found by PW 2 holding her neck. Secondly, he led her to a bushy area asking her to remove clothes and lie down. He forcefully removed her pant and even tore it (exhibit 2). Tearing the pant was what his thoughts were about the minor from the beginning. There would be no other explanation for it. PW5 examined PW1. He found her to have a bruise on the neck mid-line measuring 1 cm superiorly. She also had a temporal region swelling and a bruise on the anterior chest. These injuries were inflicted by the appellant as he forcefully removed her pant in order to defile her. The appellant in his defence stated that he did not know PW1 and PW2 prior to this incident. He however on the other hand states that PW2 framed her to extort money from her. PW2 had no reason whatsoever to make her do that. Had they been true he could have put them to the witness by way of cross-examination. He did not. These two grounds also must fail. Finally, the complainant was said to be aged 6 years at the time of the offence. Even though no documents were produced to prove age, the evidence of Dr M. Ngare (PW5) as shown in the P3 form (exhibit 2) is that the child was approximately 6 years old. The learned trial magistrate who saw this minor observed at page 13 “Witness appears to be a child of tender years. Court to conduct a voire dire examination.” She proceeded and conducted a voire dire examination for PW1. She allowed her to testify and the appellant cross-examined her. My finding is that the learned trial magistrate analyzed the evidence well and arrived at the right decision. I have no reason to interfere with it. The record shows that the appellant was a 1st offender. The minimum sentence for count 1 is ten (10) years. I therefore reduce the sentence on count 1 to 10 years imprisonment. The result is that appeal on both convictions is dismissed. The sentence of 15 years imprisonment is set aside and substituted with a sentence of 10 years imprisonment on count 1. The sentence on count 2 is upheld. Sentences to run concurrently. To that extent only does the appeal succeed. Right of appeal explained. DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF NOVEMBER 2013. H.I. ONG'UDI JUDGE In the presence of:Ms. Ingahizu for State Appellant
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Njue CC
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