Joshua Mulei Muthembe v Republic

evidence of PW3 who was the mother of the complainant where she testified that no such a crime was reported to her. The Prosecution called six (6) witnesses. The evidence was that on 18/7/2010 at 11am PW1 then aged 13 years was looking after their cattle. As she stood under a tree she just felt somebody holding her skirt which got torn in the process. She checked and saw it was the Appellant who is their neighbor. He pushed her to the ground and covered her mouth. He removed her pant and had sex with her. When he saw the children who were grazing nearby he ran away. PW2 went and called their brother (PW3) who came. The matter was reported and PW1 was taken to Kiritiri Health Centre for treatment. Later a P3 form was filled (EXB1) and accused was also arrested the next day. In his evidence the Appellant denied any knowledge of the charge facing him. When this matter came for hearing the Appellant presented the Court with written submissions where he has referred the Court to the entire evidence on record. M/s Ingahizu the learned State Counsel opposed the appeal on the grounds that; i. The documentary age proved that PW1 was a minor ii. PW1 had been defiled iii. The Appellant was identified well as the incident occurred during the day Since this is a 1st appeal this Court has a duty to reevaluate the evidence and arrive at its own conclusion. It should also bear in mind that it did not hear nor see the witnesses. The Court of Appeal in the case of KIILU & ANOTHER –V- REPUBLIC [2005]1 KLR 174 held thus; i. 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 the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. ii. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and 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 has had the advantage of hearing and seeing the witnesses. I have considered the submissions by the Appellant and the State together with the grounds of appeal. I have equally evaluated the evidence on record. I will first deal with Ground 3 of the appeal, and state that the correct position is that PW3 was an elder brother of PW1 called JMM. He was therefore not the mother of PW1. PW3 received the report from PW2 and ran to the scene. It is therefore not true that he denied receiving any report of the incident. Ground 3 must therefore fail. PW4 is the clinical officer who produced the P3 in respect of PW1. He said the complainant on examination had the following; a. Torn clothes b. Stains/bruises around the neck c. Labia minora and majora had bruises d. Presence of discharge The evidence of PW4 confirmed that PW1 had been defiled. Secondly the child health care card (EXB4) produced confirmed that PW1 was born on 27/4/1995. This confirms that when the incident complained of occurred she was aged 15 years. The particulars of the charge showed that the complainant was 13 years. The age bracket under section 8(3) Sexual Offences Act is 12 years – 15 years. This did not prejudice the Appellant at all. The evidence so far has established that PW1 was defiled and her age then was 15 years. The next issue for determination was whether the Appellant was the defiler. The evidence of PW1, PW2 and PW3 is that the incident occurred in broad daylight, around midday.

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PW1 was in the field grazing cattle. The Appellant is their neighbor at home. PW2 heard his sister (PW1) crying and he went near. He found the Appellant holding her. He knew the Appellant. PW2 went and called his big brother (PW3). PW3 received the report from PW2 and others and he went to the scene. He found PW1 crying and her skirt and blouse were torn. He followed the direction the Appellant had taken. When the Appellant saw him he ran away from his home. The sub-area PW5 got the report on 18/7/2010 at 3pm. They reported the matter. The next day he learnt that the Appellant had disappeared after the incident. He crossed over to Mwingi. Why was he running away if he had not done anything wrong? All that the Appellant said was that he knew nothing about the offence. The evidence adduced by the Prosecution witnesses squarely placed the Appellant at the locus quo. I am satisfied that the learned trial Magistrate arrived at the correct decision and I have no reason to interfere with it. The sentence of 20 years imprisonment is lawful. The result is that the appeal is dismissed. The conviction and sentence are confirmed. Right of appeal explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 7 TH DAY OF NOVEMBER 2013. H.I. ONG'UDI JUDGE In the presence of; M/s Ingahizu – State Appellants Njue- C/c

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