REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAPENGURIA CRIMINAL APPEAL NUMBER 7 OF 2016 (From original conviction and sentence in criminal case number 1195 of 2014 of the Principal Magistrate’s Court at Kapenguria) EDWIN PKWEMOI……..………..….………………………..…….APPELLANT VERSUS REPUBLIC ………………………………….…………………..RESPONDENT JUDGEMENT EDWIN PKWEMOI, the Appellant herein was tried and convicted in the Lower Court for an 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 this offence are that on the 3rd day of July, 2015 at Kitalakapel, Kongelai Location within West Pokot County the appellant did cause his penis to penetrate the vagina of J J C a girl aged then, 10 years. The prosecution called 4 witnesses and their case is briefly that on 5/7/2015 the complainant in this case who was aged then 10 years, left home heading to school at 8 p.m. Along the way she met with the appellant who was on a motor bike. She knew the appellant as she used to see him around her home place. The appellant told her that he needed talk to her and could do so if she could get on the motor bike for him to drop her at the school. She took the offer. However the appellant took her past the school gate. The complainant screamed and he threatened to kill her if she continued screaming. He proceeded to a nearby thicket and upto his house. By then it was 7 p.m. There was nobody in the house at that time. He took her on bed, removed her clothes and then his. He then forced her into having sex. He did not use a condom. They were together throughout the night and had sex four times. He released her at 3 a.m. She started walking towards home. She contemplated committing suicide but remembered she could go to her grandmother’s house. PW-2, the complainant’s father discovered that she was not in school on 9th. He reported to the Administration police and commenced a search for her. He traced her in her grandmother’s house. He questioned her and she disclosed that she feared going home as she had been defiled by a person called Edwin Pkwemoi. PW-2 gave the suspect’s name to the AP’s. PW-1 showed them where he lived. He was arrested. The complainant was examined at Kapenguria Hospital on 15/7/2015 by PW-3. He noted that her hymen
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was broken. She however had no venereal disease. He concluded that she had been penetrated. He as well assessed her age and placed it at 10 years old. The accused was then charged with the offence. The appellant in his defence stated that he’s a boda boda operator. He had slept at home and was arrested the following day at Mtempur by AP officers. It was alleged he had eloped with a school girl. He was taken to Kapenguria police station and charged with an offence he did not commit. His first witness stated on the material night he was not with the appellant as the appellant was in his parent’s house and the witness in his. The second witness however claimed on 5/7/2015 at 8 p.m. he was with the appellant in his house till 10 p.m. The trial magistrate found the appellant guilty of the offence in the main count, convicted him and sentenced him to serve life imprisonment. The appellant dissatisfied with the said conviction and sentence appealed to this court on 26 th of April, 2016. His grounds of appeal are that:1. He was convicted in absence of key witnesses. 2. The prosecution case was contradictory. 3. His defence was rejected without any cogent reason. 4. That the relied on medical report did not support the rest of evidence. The prosecution opposed the appeal. They answered that the prosecution called the witnesses they deemed necessary to establish their case. The evidence have no gaps and the defence did not state which witness or witnesses should have been called and was not. They relied on the case of Hasan Andirahiman -Vs- Republic, Criminal Appeal No. 41 of 2014. In this case the court stated that:“The appellant has claimed that some important witnesses were not called by the prosecution to testify. Again, he has not given particulars about these crucial witnesses. The prosecution has an obligation to bring to court the witnesses they consider necessary to prove their case and they did so. The appellant has not indicated what type of evidence was crucial which was not produced by the alleged crucial witnesses. I find that no crucial witness was not called by the prosecution to testify in the present matter. I dismiss that complaint.” Mr. Mark, for the respondent also argued that the defence was well weighed by the trial court as it was contradictory and unreliable. I have re-evaluated the entire evidence. The complainant was firm, cogent and forthright in her evidence of which was depended upon largely by the trial court in arriving at a conviction. The way she gave evidence made the court feel she was older than 10 years but the available evidence ascertained she was 10 years old. Her evidence was safe to rely on. She knew the appellant before then and were together between 8 p.m and 3 p.m which’s adequate number of hours to have enabled her recognize him. She even knew his house to which she led her father to. The evidence of PW-3 corroborates her evidence to the extent that she was penetrated. The prosecution case has no gaps. It’s complete. The appellant’s defence was well weighed by the lower court and rejected given the weight of the prosecution case and that it was contradictory. I do agree with the finding. The girl was 10 years of age and the appellant was given a fitting sentence in law of life imprisonment.
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I do accordingly dismiss the appeal, uphold the conviction and the sentence. Judgment read and delivered in the open court this 3rd day of November, 2016 in the presence of:Mr. Mark Nabuyumbu for the state The Appellant – Present S. M. GITHINJI JUDGE
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