Muhumed Hussein Muhumed v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT GARISSA CRIMINAL APPEAL NO. 91 OF 2014 MUHUMED HUSSEIN MUHUMED………....…………...APPELLANT VERSUS REPUBLIC.…..…..……..................................................RESPONDENT (From the conviction and sentence in Wajir PM Criminal Case No. 93 of 2014 L. Kassan PM) JUDGMENT The appellant was charged in the magistrate's court at Wajir with defilement contrary to section 8 (1) and (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 7th March 2014 in Wajir South District within Wajir County intentionally caused his penis to penetrate the vagina of DHN a child aged 13 years. In the alternative he was charged with committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The particulars of the offence were that on the same day and place intentionally touched the vagina of the same girl aged 13 years with his penis. He denied both charges. After a full trial, he was convicted on the main count of defilement. He was sentenced to serve 20 years imprisonment. Aggrieved by the decision of the trial court, the appellant has come to this court on appeal against both conviction and sentence. He complains on appeal that the medical officer who adduced evidence in court was a cousin of the complainant. He also complains that he was implicated because the father of the complainant owned him Kshs. 52,000/= and the family wanted to conceal that matter. He also stated that no investigating officer attended court to give evidence. Lastly that the sentence of 20 years imprisonment was harsh and excessive. During the hearing of the appeal, the appellant denied committing the offence and said that he had not been paid for herding goats by the father of the complainant for 13 months. That when he demanded payment he was told that it would be less Kshs. 8,000/= for two lost goats, which he declined to accept and they fought with the father of the complainant. He maintained that the charge was a frame up and the girl or complainant initially refused to testify in court. Learned Prosecuting Counsel Mr. Okemwa submitted that the clinical officer Pw1 confirmed forceful penetration. However age did not appear to have been proved. The identity of the appellant though said to be positive, an eye witness to the incident was not called to testify. It was not known why. Counsel left the matter for the decision of this court. I have perused the evidence. Indeed, the medical report shows that there were lacerations in the genital organs of the complainant. This would show or indicate penetration. However, in sexual offences of defilement the age of the complainant is very crucial. The identity of the culprit is also very crucial. The burden is always on the prosecution to prove all the ingredients of a criminal case against an accused person beyond any reasonable doubt. The accused does not have a burden to prove his innocence. He merely has a right to raise doubts in the prosecution case. The appellant at the trial raised the issue of a grudge on failure to pay him his dues of Kshs. 52,000/=. He has raised the same issue on appeal. It was imperative for the prosecution to establish the age of the complainant. The only evidence on the age is that of the complainant who initially was reluctant to testify and was stood down. Her verbal

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