REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT GARSEN HCRA No. 41 OF 2015 P O W.................................APPELLANT =VERSUS= REPUBLIC....................RESPONDENT (An Appeal from the original conviction and sentence of Hon. JM MACHARIA (SRM) in CR. CASE No. 215 of 2013 at Garsen Law Courts on 25/06/2015) JUDGMENT 1. The Appellant was convicted with the offence of defilement contrary to section 8 (1) as read with section 8(4) of the sexual offences Act No. 3 of 2006 and he was sentenced to 15 years imprisonment on 25/06/2015. 2. The particulars of the charge were that on 4/09/2012 within Tana River County, the Appellant intentionally caused his penis to penetrate the vagina of XXX, a girl aged 16 years. 3. The prosecution evidence in summary was that the complainant who is a neighbour to the Appellant said that sometimes in August 2012, her mother left her with her elder sister and went to Marereni. The complainant said when she went to the water point one day she met the Appellant and he told her that he was in love with her. He wanted to make love with her but she refused. The Appellant held her and pushed off the water jerican and pulled her into a nearby bush and removed her clothes and he had sex with her. The complainant said after the incident, the Appellant went away. She went and refilled the water and went home. She said it was around 10 a.m. and that she did not scream as there was no one at the scene. She went home but did not tell anyone since she was afraid. After 2 days, the complainant said the Appellant repeated the act at 11 a.m. Again there were no people at the scene and the complainant said she did not scream or tell anyone. On 4/09/2012 when the mother of the complainant inquired, the complainant told her what the Appellant had done. The mother reported to the area Chief and the Appellant was summoned. The matter was reported to the police and the complainant was issued with a P3 form and the Appellant was subsequently arrested. After one month the complainant realized she was pregnant. 4. PW2, the complainant's mother said she travelled to Marereni and she left the complainant with her sister V. When PW2 returned after one month, she found the complainant fetching water alone and she did not like the idea. PW2 also noticed that the complainant's body had grown bigger and she was not receiving her monthly period. The complainant confirmed she was pregnant. PW2 reported to the village headman who summoned the Appellant. The matter was also reported to the police. PW2 also said in cross examination that the Appellant told her that the sexual intercourse was consensual and not by force. 5. PW5 produced a P3 form on behalf of a clinical officer called Zuma. According to the P3 form, the complainant was 7 months pregnant and had a white discharge which suggested an infection. The victim tested HIV positive and the expected date of delivery was 19/05/2013. 6. The Appellant said in his defence that he comes from Balandiyo and that on 27/08/2013, two police officers arrested him at his house and took him to court where he was charged with this offence. He denied committing the offence and said there is no evidence that was produced.
page 1 of 3
7. The trial court found the Appellant guilty as charged and convicted him and sentenced him to 15 years imprisonment. The Appellant has now appealed against the conviction and sentence on the following grounds:(i) That the pundit trial magistrate erred both in law and fact by admitting into evidence the report from PW5, other the maker of the report in breach to section 72 of the Evidence Act. (ii) That the learned trial magistrate grossly erred in law and facts by failing to consider that there was no cogent reasons, especially from the medical finding to link the appellant to the commission of the alleged offence. (iii) That the learned trial magistrate erred in law and fact by failing to consider non-compliance of section 200 of the CPC (75) laws of Kenya during the trial. (iv) That the learned trial magistrate erred both in law and facts by failing to consider the language used to explain to the appellant when section 211 of the CPC cap (75) Laws of Kenya was complied with. (v) That the pundit trial magistrate erred in law and fact by failing to adequately consider the Appellant's defence. (vi) That the learned trial magistrate erred in law and fact by imposing a sentence without remission to appellant. 8. The Appellant submitted as follows in writing:(i) That the trial court admitted the medical report without calling the maker and that was a contravention of section 25 (c) and 50 (2) of the Constitution which guarantees the Appellant a fair trial. (ii) That the trial court contravened section 36 of the sexual offences Act in that no DNA test was ordered to establish the paternity of the complainant's child. (iii) That section 200 of the C.P.C was not complied with when there was a change of trial Magistrates and this occasioned failure of justice. (iv) That the trial court failed to indicate the language used by the Appellant and especially when complying with section 211 of the C.P.C and therefore there was a mistrial. (v) That the trial court did not consider the defence evidence and yet it was strong enough to create a doubt in the prosecution case. 9. The Respondent opposed the Appeal on the following grounds:(i) That the prosecution established the 3 elements of defilement which are penetration, the age of the complainant and the identity of the perpetrator. (ii) That the law allows production of the P3 form by a person other than the maker where the maker is not available and in the current case, a basis was laid down for the production of the P3 form by a person other than the maker. (iii) On the ground that no DNA report was produced to prove that the Appellant is the father of the complainant's child, the Respondent relied on the case of:AMCA V R [2012] eKLR where the court held that the fact of rape or defilement is not proved by DNA but by evidence. 10. I have re-evaluated the evidence before the trial Court. My duty was stated in the case of Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga vs. Republic Criminal Appeal No. 272 of 2005 as follows:`In the same way, a court hearing a first appeal (i.e. a first appellate court) also has a duty imposed on it by law to carefully examine and analyze afresh the evidence on record and come to its own conclusion on the same but always observing that the trial court had the advantage of seeing the witnesses and observing their demeanor and so the first appellate court would give allowance of the same. There are now a myriad of case law on this but the well-known case of Okeno vs . Republic [1972] EA 32 will suffice. In this case, the predecessor of this court stated:"The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala vs. R. [1975] EA 57). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses." 11. My findings are as follows:(i) To establish a case of defilement, the prosecution was required to prove three element in order to secure the conviction of the appellant. The first element is penetration. Penetration is defined under section 2 (1) (d) of the sexual Act as
page 2 of 3
“ the partial or complete insertion of the genital organs of one person into the genital organs of another person “. The Complainant gave evidence that the Appellant had sexual intercourse with her on two occasions and she became pregnant. The clinical officer who examined her confirmed the Complainant was seven months pregnant. Under Section 124 of the evidence Act, the trial court can rely on the testimony of the Complainant alone to convict the Appellant. (ii) The second element that the prosecution was required to establish is identity of the perpetrator. The complainant testified that she knew the appellant prior to the incident as a neighbour. The complainant said that the Appellant approached her at the water point and told her that he was in love with her. He asked her to have sex with him and when she refused he defiled her. There is evidence that the Appellant had sex with the Complainant on two occasions and as a result, she became pregnant. (iii) The third element that the prosecution is required to prove is the age of the complainant . Under section 2 (1) of sexual offence Act, the definition of a child is the one assigned therefo in the children Act. This means any human being of less than eighteen 18 years . In the present appeal, the age of the complainant was proved by the production of the child health card show that the complainant was born 4th May 1996 and was 16 years old at the time of the offence. ( iv) From the foregoing, the prosecution proved its case against the Appellant on both account of defilement contrary to section 8(1) as read with section 8(3) of the sexual offences Act to the required standard (beyond any reasonable doubt). The Appellant’s appeal against the conviction lack merit and hereby dismissed. (v) That it is not necessary to have a DNA test in a case of defilement. The conviction is safe and I accordingly up hold it an confirm the sentence. Dated, Delivered and Signed at Garsen this 12th October, 2017 in the presence of the parties. ASENATH ONGERI JUDGE.
page 3 of 3