REPUBLIC OF KENYA High Court at Kitale Criminal Appeal 2 of 2012 ANGECHEL LOTIP ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT. VERSUS REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT. (Being an appeal from the original conviction and sentence of T. Nzioki – SRM. in Criminal Case No. 708 of 2010 delivered on 13th December, 2011 at Lodwar.) J U D G M E N T. The appellant, Angechel Lotip, was charged with defilement contrary to section 8 (1) read with section 8 (2) of the Sexual Offences Act in that on the 9th October, 2010 at (particulars witheld) Turkana county, defiled A.A, a girl aged eight (8) years. After a full trial before the learned Senior Resident Magistrate at Lodwar, the appellant was convicted and sentence to life imprisonment. However, the appellant was dissatisfied with the conviction and sentence and preferred this appeal on the basis of the grounds in his petition of appeal filed herein on 27th December, 2011. He appeared in person at the hearing of the appeal and presented written submissions which he relied upon. The learned prosecution counsel, Mr. Chelashaw, appeared for the Republic and opposed the appeal on the basic ground that there was sufficient evidence to establish that the complainant was defiled and that the appellant was the person responsible for the offence. The learned prosecution counsel submitted that the prosecution case was proved beyond reasonable doubt and that the variance in time between the charge and the evidence was irrelevant in terms of section 214 CPC. Both submissions by the appellant and the Republic have been considered by this court whose duty is to re-visit the evidence and arrive at its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses. The prosecution called a total of seven (7) witnesses whose collective evidence may be summarized as follows:On the material date at about 5.00 p.m., the complainant, A.A (PW1), was at home when the appellant went there. She knew him by his name of Angechel and they had earlier met at a dry river bed while she was carrying a baby. In the house, he laid her down and parted her thighs. He then proceeded to defile her. She screamed for help. Her sister, A.A (PW2), arrived at the scene and found the appellant in the act. He saw her (PW2) and ran away.
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The incident was reported to the father of the two sisters, A.R (PW3). He in turn reported to the police at the AP camp Turkwel. He was assigned two police reservist to effect the arrest of the appellant. These included Ekidor Ebei (PW4) who arrested and handed the appellant to the police at Lodwar. Simon Akundunyang (PW6), a clinical officer at Lodwar District Hospital produced a P3 form which was completed and signed his colleague Wycliff Rangima who carried out a medical examination of the complainant and concluded that indeed the complainant had been defiled. A dental technologist, Michael Loposh Engor (PW5), based at the Lodwar district Hospital assessed the age of the complainant and placed it at eight (8) years. He produced the necessary age assessment report. P.C. Evans Momanyi (PW7), based at Lodwar police station received the necessary report and investigated the case together with a colleague. Thereafter, he preferred the present charge against the appellant. The appellant's defence was a denial. He said that he was found sleeping at a goats shed and apprehended. He was taken to the chief's office whereupon he was handed over to the police. He was assaulted and threatened by police officer before being taken to Lodwar police station. Later, he was taken to court and was shocked when the charge was read to him. The learned trial magistrate considered all the foregoing evidence and concluded that the case against the appellant had been proved beyond reasonable doubt. In this court's opinion, the learned trial magistrate was justified to arrive at that conclusion. This is because, on its own consideration of the evidence, this court notes that the fact that the complainant was defiled was not disputed and was indeed established by her own evidence together with that of her sister (PW2) and the clinical officer (PW6). The basic issue for determination was therefore the identification of the appellant as the offender. This was clearly and credibly resolved by the complainant's evidence as supported by that of her sister (PW2). The two had previously known the appellant very well. They recognized and identified him as the culprit. The complainant's sister (PW2) found him defiling the complainant. He was literally caught in “flagrante delicto” (caught in the act). His denial of the offence and his defence was generally discredited by the very strong evidence against him. Consequently, his conviction by the learned trial magistrate was sound and proper. With regard to the sentence, it was established that the complainant was aged eight (8) years at the time of the offence. The sentence imposed against the appellant was in accordance with the law and cannot be interfered with by this court. In sum, this appeal is without merit and is hereby dismissed. [Delivered and signed this 14th day of May, 2013. J.R. KARANJA. JUDGE.
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