REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU CRIMINAL APPEAL NO.52 OF 2017 GILBERT GITONGA........................................APPELLANT VERSUS REPUBLIC.......................................................RESPONDENT (From original conviction and sentence in Criminal Case No.880 of 2014 of the Principal Magistrate’s Court at Nkubu) JUDGEMENT The appellant was charged with the offence of defilement Contrary to Section 8(1)&8(4) of the Sexual Offences Act No.3 of 2006. The particulars of the offence are that the appellant on the 11 th June 2014 within Meru County intentionally caused his penis to penetrate the vagina of P G a child aged 12 years. The trial Court convicted the appellant and sentenced him to serve 20 years imprisonment. The grounds of appeal are that:(i) No DNA test was done to ascertain the truth (ii) The prosecution case was not proved beyond reasonable doubt (iii) The investigations were shoddy. (iv) The trial Court failed to observe that the inner wear that was produced before the court was not well classified as there was no presence of blood on it yet the expert witness testified that there was forceful penetration. (v) Most of the evidence was hearsay as the witnesses did not witness the incident. The evidence is inconsistent and not corroborated. (vi) The appellant’s defence was rejected yet it was comprehensive. (vii) The P3 form show that no spermatozoa was seen in the victim’s vagina, no physical injuries were seen on the appellant’s penis yet the doctor concluded that the victim’s hymen was broken. In his submissions the appellant submitted that there was bad blood between the victim’s family and his family. PW1 testified that the appellant was not in good terms with her parents. The evidence shows that the appellant was arrested by members of public but none of them was called as a witness. The investigating officer did not visit the scene and photograph it so that the distance between the bathroom and the house of the appellant could be established. The landlord and the chief did not witness the incident. The appellant further submitted that if there was forceful penetration and the hymen was broken then there could have been presence of blood in the victim’s pantie. The evidence shows that once the ordeal was over the victim put on her pantie and went to tell her grandmother. The appellant also contends that hymen can be broken due to sports activity. The complainant was attending school. When the case started on 5th November 2014, there were no exhibits produced before the court. The prosecution took too long and brought some exhibits on 14 th January 2016. It is not clear where the exhibits were being kept. According to the appellant the sentence is excessive and harsh. The case was not proved beyond reasonable doubt. Mr. Namiti opposed the appeal. Counsels submit that the evidence against the appellant is overwhelming. PW1 testified that it was the appellant who attacked her in the bathroom and defiled her. PW1 screamed but the appellant held her nose and mouth. The victim identified her clothes she was wearing that day which is a green uniform. The appellant is the victim’s neighbour. The medical evidence proved that the victim was defiled. PW1 knew the appellant and positively identified him. The appellant’s lengthy defence does not rebutt the evidence of defilement.
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This is a first appeal and the court has to examine the evidence adduced before the trial court and makes its own conclusion. PW1 who was the complainant gave sworn evidence. She testified that she was 14 years old and in class four. The appellant was her neighbour. On 11th June 2014, at about 6.00pm she was fetching water when the appellant went there and held her mouth and nose and dragged her to the bathroom. There was no one else. The appellant closed the bathroom door and then defiled her. She screamed as the appellant had released his hands from her mouth. The appellant picked his clothes and ran away. She put on her clothes and went to inform her grandmother C K (PW2). Her grandmother went with her to the appellant’s house. The appellant was in his house. The chief was called and many people gathered there. The appellant was arrested and taken to the Police station. She was taken to hospital where she was treated and was issued with a P3 form. It is her further evidence that the appellant’s house is very close to theirs. The appellant was not in good terms with her parents. The appellant was living with his wife and children. She was wearing her green school uniform and a grey pantie. The clothes were handed over to the Police. PW2 C K testified that the appellant was her tenant. On the 11th June 2014 at 6.00pm PW1 went to her while crying. She asked her why she was crying. PW1 informed her that the appellant had held her and took her to the bathroom and had done bad manners to her. PW2 went to the appellant’s house and asked him what he had done. While there people gathered and the chief was called. The appellant was arrested and taken to the Police station. PW1 was still wearing a school uniform and she was taken to hospital. The appellant had lived in the premises for three months. She checked PW1’s private parts and observed that she had injuries. PW3 F M is the complainant’s father. He testified that he used to live in the same plot with the appellant. On 11.6.14 he received a phone call from PW2’s daughter asking him to go home. He went home and found the appellant had been handcuffed. The area chief asked him to talk to PW1. He talked to his daughter who narrated to him what had happened. He also informed the court that at one time he was arrested over possession of bhang but that case had nothing to do with the defilement. The complainant was 14 years at the time of the incident. PW4 Saverina Kaimatheri is a clinical officer. She was based at the Kanyakine District Hospital. She examined PW1 and filled a P3 form. The hymen was broken. Her vagina was bleeding and had been bruised on the vulva. The injuries on her vagina and bleeding and the broken hymen suggested that there was penetration as a result of sexual intercourse. PW5 Joel Muriungi Kirima is the chief of the area. On 11.6.14 at about 7.30pm he was at home when he received a phone call from one of his community members asking him to go to a place called market junction. He went there and found PW1 crying while in pain. He also saw the appellant who had been arrested by members of the public. PW1 told him that the appellant had accosted her in the bathroom and defiled her. PW1 was taken to hospital and he informed the Nkubu Police station about the incident. The appellant was taken to the Police Station. PW6 PC Cylene Mueni was attached at Nkubu Police station. The case was investigated by Ag. Inspector Muthama who was on transfer. It was taken over by Judith Atieno who was also transferred. It was then taken over by prosecutor Carol Khatieri who was also transferred and Jane Michira took over. Jane was transferred and she took over the case. She testified that she went through the witnesses statements from the file and prosecuted the case. The appellant was taken to the Police station by members of the public. The appellant was charged with the offence of defilement. PW1’s pantie had a whitish discharge. In his sworn defence the appellant testified that there was a lady by the name C M was a classmate to PW5. She was his girlfriend and PW5 was fighting with him over a woman. When the issue became so bad he stopped seeing her. PW5 is his neighbour. PW3 used to deal with bhang and used to give PW1 the bhang to sell to his customers in his absence. The chief was collecting money monthly from PW3. He also testified that the complainant’s age was not proved. The pantie that was produced in Court had no blood stains. On 11.6.14 he was at Imenti Tea factory from 8.00am upto 6.30pm. He was arrested at his home at 7.30pm. He never saw PW1. He was at home with his wife. The appeal raises the following issues: (1) When PW1 was defiled (2) Whether the prosecution proved its case beyond reasonable doubt. It is the evidence of PW1 that she was from school on the material day and she was alone at their home. The appellant is her neighbour. She was held by mouth by the appellant and dragged to the bathroom . The appellant then defiled. She knew the appellant. The incident occurred at about 6pm. She immediately informed PW2. According to PW2 she examined PW1’s private parts and noticed some injuries. PW4 filled in the P3 form and also observed PW1. The P3 form was filled on the 12 th June 2014 just a day after the incident. It is the evidence of PW4 that the complainant was still bleeding from her vagina and her hymen was broken. The appellant denied committing the offence. He admits that he knew the complainant’s family. On the material day he was at his place of work at Imenti Tea Factory from 8.00am to 6.00pm. He contends on his grounds of Appeal that no DNA test was done to ascertain the truth. Section 36 of the Sexual offences Act gives the option of DNA test. The provision is not mandatory. The court can order for DNA test if it is relevant to the case. I do find that there was no need for DNA test. The appellant also maintain that the complainant’s inner wear that was produced in court did not show any signs of blood stains. If indeed PW1 was defiled forcefully then the inner wear ought to have had some blood. According to PW1 she put on her clothes after the incident. PW4 noticed that PW1 was bleeding. It is not a medical position that a victim of defilement at the age of the complainant must bleed immediately after the incident. The presence of blood is not the only measure to prove a case of defilement. Similarly, the absence of spermatozoa does not disprove a claim of defilement by the victim. I am satisfied that indeed PW1 was defiled. The evidence shows that at the time PW1 complained that she was defiled she went with PW2 to the appellant’s home and the appellant was in his house. The appellant’s defence that he was at his place of work is displaced by the prosecution evidence. Members of public went to the plot and arrested the appellant. The evidence of PW3 and PW5 indicates that when they went to the plot they found that the appellant have been arrested and handcuffed. PW5 saw PW1 crying and informed him that it was the appellant who had defiled her. She knew the
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appellant by his name and his appearance. She immediately informed PW2 that it was the appellant who had defiled her. There is no issue on the identification of the appellant. I do find that he was positively identified by PW1. The charge sheet indicates that PW1 was 12 years old. The incident occurred on 11.6.2014 PW1 testified on 5.11.2014 and informed the court that she was 14 years old. Her father PW3 testified that PW1 was 14 years old at the time of incident. The complainant was taken for age assessment on 29.7.2015. That was one year after the incident. Dr. Kamere Elaine of Meru District Hospital assessed PW1’s age to approximately between 14 and 15 years. I do find that the complainant’s age was 14 years age at the time of the incident. The appellant was charged under Section 8(1) and 8(4) of the Sexual Offences Act. Under Section 8(4) the sentence provided is a minimum of 15 years as its provides for a victim who falls within the age brackets of 16 and 18 years. The victim was 14 years and the minimum sentence Under Section 8(1)(3) is twenty years. It can also be enhanced as the twenty years imprisonment is the minimum. The trial court sentenced the appellant to twenty years imprisonment. The prosecution proved its case that indeed the appellant defiled the complainant. The evidence of PW1 is believable and is corroborated by the evidence of PW2 and PW4. The defence evidence does not raise any doubt on the prosecution case. I do find that the conviction is proper and the sentence is lawful. There was no defect on the charge sheet even if a reference was read to section 8(4). I do find that it is the appellant who defiled PW1. In the end I find the appeal lacks merit and is hereby disallowed. DATED AND SIGNED AT MARSABIT THIS…. DAY OF.........2017 SAID CHITEMBWE JUDGE DATED, SIGNED AND DELIVERED AT MERU THIS 5TH DAY OF OCTOBER, 2017 A MABEYA JUDGE
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