REPUBLIC OF KENYA IN THE HIGH COURT AT MALINDI CRA NO.12 OF 2014 (Appeal originating from conviction and sentence of Hon. W. Were in Kaloleni PM Cr. No.34 of 2013) KARISA KATANA GONA ......................................................... APPELLANT VRS REPUBLIC ............................................................................. RESPONDENT JUDGMENT The appellant was charged with the offence of defilement of a child c/s 8(1) as read with section 8 (3) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that the appellant on the night of 2/2/2013 in Kaloleni District within Kilifi County, unlawfully and intentionally committed an act which caused penetration of a male genital organ namely penis into a female genital organ namely vagina of R K K a child aged 15 years. The appellant was convicted and sentenced to serve 20 years imprisonment. The grounds of appeal are that the evidence adduced was insufficient and the conviction is against the weight of the evidence. That the burden of proof was shifted and that the appellant's defence was not considered. Mr. Obaga, counsel for the appellant argued all the grounds together. Counsel submitted that there was no evidence of penetration. The P3 form did not show that the hymen was freshly broken. There was no evidence of discharge or blood noticed from the complainant. The evidence that the hymen was torn in itself does not prove penetration. The medical officer did not testify that there was penetration. It is clear that the complainant slept outside her father's home and there was no proof that she had engaged in sex. Ms Mathangani, prosecution counsel, opposed the appeal. Counsel submitted that PW2 who was the complainant informed the court that the appellant forcefully had sex with her. She was taken to hospital immediately and treatment notes confirmed that the hymen was absent. The P3 form corroborates the evidence of PW2. PW2's mother informed the court that the complainant reported the matter to her immediately after the incident. Before the trial court, PW1 Patrick Bashish, a clinical officer, testified that he was based at St. Luke's Hospital. He attended to the complainant on 3/2/2013. The complainant informed him that she was 15 years old and had had her periods on the 15/1/2013. Her hymen was torn. There was no other injury on her private parts. Her age was assessed to be 15 years. PW2 was the complainant. She testified that she was a class 7 pupil. On 1st of February, 2013, at about 5.00 p.m the appellant called her. She went to his home which is nearby and he forced her into having sex. She could not scream as the appellant held her mouth. She stayed there until morning. She went home and when her parents inquired from her, she told them that she was with the appellant. The matter was reported to the village elder and then to the police. She was not given any money by the appellant. PW3, S K K is the mother to PW2. On night of 1st February, 2013, PW2 prepared supper at about 7.00 p.m and they all ate and went to sleep. At about midnight, she heard thing falling and she thought it was thieves. She went to check and found PW2 not in her room. She checked in the toilet but PW2 was not there. She informed her husband. They followed footsteps which led them to the appellant's house. The appellant is their neighbour and he sells water. At about 5.30 a.m PW2 went back home. Her father
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threatned to beat her and he informed that she had slept with the appellant. The matter was reported to the police and the appellant was charged. PW4, D R K, is a brother to PW2. He was asleep in his room on the material night when his mother woke him up and informed him that PW2 was missing. They looked for her and followed footsteps up to the gate of the appellant. They had had supper with her. According to him, PW2 left the house at about 1.00 a.m. She went back home at 5.45 a.m. PW5, P. C. William Rotich was based at the Kaloleni Police Station. He investigated the case. The incident was reported on the 2/2/2013 under he referred PW2 to St. Luke's Hospital. He later charged the appellant with the offence. The appellant was put on his defence but he elected to remain silent. The main issue for determination is whether the offence of defilement was proved beyond reasonable doubt. Counsel for the appellant maintains that there was no proof of penetration or that the appellant had sex with the complainant. The complainant's evidence is that she went to the appellant's home at 5.00 p.m. That evidence is not in line with the evidence of her mother and brother. According to the two witnesses, PW2 prepared supper at about 7.00 p.m and everyone went to sleep. PW3 left PW2 sleeping in her room. According to PW3, she heard commotion in the house at about midnight. It is the evidence of PW4 that PW2 could have left the house at about 1.00 a.m. She returned home at about 5.30 a.m. This raises doubt on the credibility of the complainant. She only revealed that she was with the appellant after she was threatened by her father. According to the PW3 form, there were no lacerations or tears observed on the complainant. Their was also no discharge from her genitalia. The hymen was absent. It is not conclusively clear from the medical evidence that indeed the appellant defiled PW2. It could be possible that the two had a running affair and that the hymen could have been lost sometimes back. There are no signs that the two could have had sex that night. Although PW2 alleged that her mouth was held by the appellant, the evidence of her mother and brother show that she willingly sneaked out of their home and went to the appellant's house at about midnight. Her evidence is not credible. She behaved like an adult and there was no force used on her. Given the evidence on record, I do find that there was no evidence to prove the offence of defilement beyond reasonable doubt. The behaviour of PW2 cannot amount to that of someone who was lured into sex. She returned home at 5.30 a.m and knew very well what she was doing. She had prepared supper at 7.00 p.m and pretended to be sleeping only to sneak out at night. The purpose of the law is to assist those who fall victims of defilement by people who take advantage of their victims. It is not the intention of the law to punish accused persons who engage in sex with young people who behave like adults. That is why the Sexual Offences Act under section 8(5) anticipated such behaviour. I do find that PW2 presented herself as an adult and it appears that was not the 1st time to meet the appellant. In the end, I do find that the case was not proved beyond reasonable doubt. The evidence of PW2 is doubtful. Even the evidence of PW3 and PW4 that they traced footsteps up to the appellant's gate is doubtful. It is not clear why they did not knock or call the appellant who is their neighbour at that time. It appears that PW3 was aware of the relationship. The appeal is merited and is hereby allowed. The appellant shall be set at liberty unless otherwise lawfully held. Dated, signed and delivered at Malindi this 22nd day of October, 2015. SAID J. CHITEMBWE JUDGE
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