F K v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA CRIMINAL APPEAL NO. 53 OF 2014 F K …….……….…………….……… APPELLANT VERSUS REPUBLIC ……..……………………………………..……. RESPONDENT (Appeal arising from the judgment of [P.N. ARERI, SRM] delivered on 27.2.2012 from the original Criminal Case No.1307 of 2011 in the Chief Magistrate’s Court at Kakamega) JUDGMENT The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 23.6.2011, he unlawfully and intentionally contacted his genital organ namely penis with the genital organ namely vagina of W A a girl aged 14 years. The appellant was found guilty of the alternative charge of indecent act with a child and sentenced to serve 10 years imprisonment. The grounds of appeal are that he pleaded not guilty to the charge, the age of the complainant was not assessed and that he had no reason to believe that the complainant was a child. The appellant filed grounds of appeal and expounded on the above grounds, no P3 form was produced and the investigating officer did not testify. Mr. Oroni, State Counsel opposed the appeal and submitted that the appellant was positively identified. The evidence of PW3 corroborates that of the complainant. The record of the trial court shows that three witnesses testified. PW1 W A was the complainant. She testified that she was 14 years old and in standard Five at [particulars withheld] Primary School. On the 26.6.2011 at about 5.00 p.m. she was at their gate with her sister (PW3) when the appellant who was her boyfriend went there and she escorted him. They went together and she started living with him in his house as husband and wife. They had sexual intercourse during that period every night. On one Saturday her father went there and took her away. She was later taken to the police. She is related to the appellant. PW2 V O O is the father of PW1. He testified that he found PW1 missing on 23.6.2011 at about 6.00 p.m. He reported the matter to the police and to the area assistant chief. After eight days PW1 was traced at the appellant’s home on the 1.7.2011. The appellant was arrested and later charged with the offence. I A testified as PW3. She is the sister to PW1. Her evidence is that the appellant went with PW1 on the 23.6.2011 at about 6.00 p.m. PW1 did not return home. The following day she told her father that PW1 had left with the appellant and her father started to search for PW1. The prosecution closed its case and the appellant was put on his defence. The appellant gave unsworn statement and stated that he is a farmer from [particulars withheld]. He was arrested on the 1.7.2011 and taken to the police station. He denied committing the offence. The trial court acquitted the appellant on the main charge of defilement but convicted him on the alternative charge of indecent act contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The evidence shows that no medical evidence was given and no police officer testified. That is why the trial magistrate acquitted the appellant on the main count. It is the evidence of PW1 that the appellant was her boyfriend and they started living together as if they were married. PW2 was informed the following day by PW3. It is not clear why it took eight days to know where PW1 was. Given the

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