REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL APPEAL NO: 159 OF 2016 (From Original Conviction and Sentence in Criminal Case No: 5806 of 2011 of the Chief Magistrate’s Court at Thika.) D K M..........................................APPELLANT -V E R S U SREPUBLIC..............................RESPONDENT JUDGMENT 1. This is a judgment of Criminal Appeal No: 159 of 2016. The appellant, D K M, was charged with the offence of Defilement contrary to Section 8 (1) (3) of Sexual Offences Act No: 3 of 2006. The particulars thereof were that on the 21st day of November, 2011 at [particulars withheld] village in Gatanga District within Muranga County, committed an act that caused penetration with one G W a child aged 11 years. 2. The appellant was also charged with indecent act with a child contrary to Section 11 (1) of Sexual Offence Act No: 3 of 2006. The particulars thereof were that on the 21st day of November, 2011 at [particulars withheld] village in Gatanga committed an indecent act with G W a child aged 11 years touching the genital organ of the said G W. 3. The appellant denied the offence and a trial ensued in which he was found guilty, convicted and sentence to life imprisonment for offence of defilement under Section 8 (1) (2) of Sexual Offence Act. 4. Being aggrieved and dissatisfied the appellant has now appealed on both conviction and sentence. He is prosecuting his appeal in person. His grounds of appeal can be summarized as here below: 1. THAT the evidence, the basis of the conviction was insufficient to be acted upon. 2. THAT, the prosecution did not prove the case beyond reasonable doubt. 3. THAT, the charge was ab initio for being at variance with evidence adduced. 4. THAT, the age of the minor was not proved. 5. THAT, the defence was not considered by the trial magistrate.
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5. The respondent opposed the appeal. The respondent was represented by Madam Mutheu, for the Director of Public Prosecution (DPP.) 1. The appellant was charged with defilement under Section 8 (1) (3) of the Sexual Offence Act. However, during sentencing the trial magistrate rectified this due to the age of the minor who was 11 years old. Subsequently the charge substituted was Section 8 (1) as read with Section 8 (2) of Sexual Offence Act. 2. We submit that the charge sheet was not fatally defective because the particulars of the offence were clearly spelt out in the charge sheet and the accused was therefore able to adequately to defend himself. 3. The elements of the offence were proved. 4. The identity of the perpetuator was not in doubt, he was the step father of the minor. 5. The trial magistrate argued that although the proper offence should have been incest due to relationship, the resulting sentence would still have been the same. Thus no prejudice was against the appellant. 6. The penetration was proved. PW2 – The doctor proved this in his medical report. He further confirmed the presence of blood cells confirming that this was due to sexual activities. 7. PW3 - The auntie to the minor, was a neighbour to the appellant and she heard the screams emanating from the appellant’s house. She went to check and found the minor crying and shivering. She was able to explain to PW3 what the appellant had done to her. 8. The age of the minor was not a dispute, although no medical document was given. She was 11 years. 9. The accused person, in his defence, gave unsworn testimony. It was a mere denial. 10. I prays that the conviction and sentence be upheld. 6. FIRST APPEAL. This being the first appeal this court is enjoined to read the proceedings of the lower court evaluate the evidence and come to its own conclusion bearing in mind that it neither saw nor heard the witnesses when they testified before the lower court which fact is the only allowance this court must make in this consideration. See generally Okeno Vs Republic [1972] E.A. page 32. 7. TESTIMONIES IN THE PROCEEDINGS: ANALYSIS On 21/11/2011, PW1 – G W – child aged 11 years, was defiled by his step father – the appellant – D K M. PW3 – D – the auntie heard the screams and came to the child’s rescue. PW2 – The Doctor – MICHAEL KAMAU GACHAGA corroborated PW1’s testimony and confirmed the penetration of the appellant’s penis into the vagina of the PW1. The hymen was not intact, blood cells were present. Identification of the appellant was not an issue, as he was his step-father. 8. I am satisfied that the prosecution proved its case beyond reasonable doubt. The three elements of the offence occurred and were proved. The trial magistrate rights sentenced the appellant under Section 8 (1) (2) and the elements and particulars are the same as Section 8 (1) (3) except the age factor i.e. 11 years. 9. FINDINGS For these reasons, this appeal is dismissed. The court confirms both the conviction and the sentence meted out by the trial magistrate. Right of Appeal – 14 days. JUDGMENT WRITTEN AND SIGNED BY: C. B. NAGILLAH JUDGE JUDGMENT DELIVERED, DATED AND COUNTERSIGNED IN KIAMBU BY: THIS 3RD DAY OF OCTOBER 2017 JOEL NGUGI JUDGE In the Presence of:
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...............................................the Appellant ............................................for Respondent ......................................for Court Assistant
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