REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CRIMINAL APPEAL NO. 129 OF 2012 JOSPHAT IRERI NJERU...............................APPELLANT VERSUS REPUBLIC..............................................RESPONDENT (Being an Appeal from the Sentence and Conviction of S.M. Mokua Senior Principal Magistrate Embu in Criminal Case No. 1931 OF 2010 on 27th July, 2012) JUDGMENT JOSPHAT IRERI NJERU the appellant was charged with the offence of Defilement contrary to Section 8(1) (2) of the Sexual Offences Act. The particulars as stated in the charge sheet were as follows: That on the 9th day of December, 2010 in Mbeere district within Embu County of the Republic of Kenya, intentionally caused his penis to penetrate the anus of NM, a girl aged 11 years. ALTERNATIVE CHARGE The appellant was charged with Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act number 3 of 2006. The particulars are that:On the 9th day of December, 2010 in Mbeere South District within Embu County of the Republic of Kenya committed an indecent act to NM a child of 11 years by inserting his penis into the said NM's anus. The matter proceeded to full hearing and the appellant was convicted on the alternative count and sentences to ten (10 years imprisonment. He filed this appeal citing the following grounds. 1. The learned trial Magistrate erred in law and facts when he failed to consider the fact that the medical officer who examined PW1 testified that there was no spermatozoa or penetration noted. 2. The learned trial Magistrate erred in law and in facts when he failed to consider the fact that the right examination test (DNA) was not conducted to ascertain the truth. 3. The learned trial Magistrate erred in law and in facts when he convicted him relying on evidence which was inconsistent and uncorroborated. 4. The learned trial Magistrate erred in law and in facts when he convicted him relying on a single evidence and which was highly doctored. The brief facts of the case are that PW2 aged 11 years visited her uncle and aunt during the
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December school holidays. On 09.12.10 morning both parents were away and PW2 was washing utensils in the kitchen when the appellant (an employee of PW7) came asking her to have sex with him. She declined. He then locked the kitchen door and pulled her onto the kitchen floor, removed her pantie, unzipped his trousers and inserted his penis into her anus. Though she screamed, no one responded as the place was deserted. He offered her Shs 1,000/= to silence her but she refused. She went to the home of PW7 and reported to her. PW7 called the minor's aunt (PW8) and informed her. PW2 was taken to hospital immediately. She was treated and a P3 form was filled after she was examined. The appellant was arrested the same day and charged. The appellant in his unsworn defence denied the charge saying he was framed. He said on the fateful day, he was at home with PW2 and another employee. He went to look for grass and upon his return, he found people there and he was arrested. There was a grudge because of his having stopped working for the complainant. When this appeal came for hearing, the appellant presented the court with written submissions expounding on the grounds of appeal. Ms. Ing'ahizu conceded the appeal on the ground that the complainant's age had not been ascertained. She however requested for a retrial. This is a first appeal and thus this court is enjoined to re-evaluate the evidence adduced and come to its own conclusion bearing in mind that it did not see nor hear the witnesses. I refer to: i. OKENO VS REPUBLIC [1972] EA 32 ii. NGUI VS REPUBLIC [1984] KLR 729 iii. KINYANJUI AND ANOTHER VS REPUBLIC [2004] 2 KLR 364. The appellant was convicted on the alternative count which talks of a person committing an indecent act with a child. Section 11 of the Sexual Offences Act is not very specific about years as is Section 8 of the same Act. It is therefore sufficient even without ascertainment of the real age to confirm that the victim was a child for an offence under Section 11(1) Sexual Offences Act to be proved. And a child is defined under the Children's Act as “Any human being under the age of eighteen years.” The learned trial magistrate who saw the witness PW 2 appreciated that she was not only a human being under the age of eighteen years but also a child of tender years when the offence took place in December 2010. In his judgment, the learned trial magistrate clearly addressed himself to the issue of age and why he convicted the appellant on the alternative count. That reasoning is well founded and that answers well the Learned State Counsel's submissions, in conceding the appeal and asking for a retrial. I have otherwise considered the submissions by both the appellant and the State together with the grounds of appeal. I have equally considered the evidence on record. I therefore now wish to address the grounds of appeal. Ground 2 & 3: PW 1 who saw and treated PW 2 on 09.12.10 when this incident occurred confirmed that the anal examination of PW1 revealed that she had bruises on the external anal area. There was fresh blood oozing from the anus. The lab investigation of the rectal sample revealed the presence of grand. The conclusion was that there was anal penal penetration. This corroborated PW1's evidence that she had been penetrated through the anus and not the vagina. Dr Maingi (PW3) extracted blood and pubic hair from the appellant on 17.12.10 for DNA analysis purposes. The samples were taken to the Government Chemist together with the complainant's skirt on
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21.12.10. There was no way semen or spermatozoa could be found on the complainant's skirt almost 2 weeks after the alleged offence. Their life line had expired. And that is why the report by PW5 was negative. It is also to be appreciated that the presence of semen and/or spermatozoa is not the only proof that penetration has occurred. Ground 4 & 5: PW2 explained what happened to her. The said PW 8 and her husband were not at home at the time. This child went to report the matter to PW7 (a neighbour) who alerted PW8. She acted fast and that is how she was treated. There is no dispute that she was penetrated through the anus even if no spermatozoa were found. She had injuries and blood was oozing therefrom. The only issue to determine is whether it was the appellant who did this to her. This incident occurred during daytime. The complainant stated that she knew her attacker who worked for her uncle and aunt. The appellant in his defence admitted having been home with PW2 and another and on this day, had breakfast and left to go and look for grass. Upon his return, he was arrested. He therefore knew the complainant well. Thirdly, PW2 first reported the incident to PW7 since the parents were not home. PW7 in her evidence at page 28 line 1 – 3 stated: “On 19.12.10 at 8.00 a.m, I was at home when Nelly Mwende came home crying. She informed me that Ireri – accused herein had defiled her while she was in the kitchen.” PW2 gave the name of the appellant to PW7. Apparently, the appellant worked for PW7's grandfather. He was therefore known. PW2 had been examined under voire dire examination and the court found her to be a reliable witness. Her conduct after the incident also confirms her truthfulness. She mentioned to PW5, PW7, PW8 that the appellant was the one who had sodomized her. Section 124 Evidence Act allows the court to act on the victim's evidence alone to convict if the victim is a credible witness in a sexual offence. In his defence, the appellant also said he had been working for the complainant's family but had moved elsewhere hence the frame up. This cannot be true because the appellant was not working for the complainant and her family. The complainant had just visited the home where she was abused from. All in all, I do find that the Learned Trial Magistrate analyzed the evidence well and arrived at the correct decision in convicting the appellant. He was sentenced to ten(10) years imprisonment which is the minimum sentence for the said offence. I find no merit in his appeal which I dismiss. The conviction and sentence are upheld. Right of appeal explained. DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF NOVEMBER 2013. H.I. ONG'UDI JUDGE Ms. Ingahizu for State Appellant Njue CC
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