REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT LODWAR HIGH COURT CRIMINAL CASE NO. 34 OF 2016 JOHN MARAKA………………………………….….APPELLANT -VERSUSREPBULIC ……………………………………...... RESPONDENT [An appeal from conviction and sentence from original Kakuma Resident Magistrates CR. 358 of 2014 delivered by E N Wasike, Resident Magistrate] JUDGMENT The appellant John Maraka Eporon was charged with defilement contrary to section 8 (1) and 8 (4) of the Sexual offences act No. 3 of 2006 The particulars of the offence are that on the 30 th day of July, 2016 in Turkana West District within Turkana County, intentionally caused his penis to penetrate the vagina of E L A a child aged 17 years. The evidence before the trial court was that on 30/7/2014 at around 9 am the appellant who was known to the complainant E L A told her to go and work at a place called Araibe. She went there. On arrival the appellant held her, knocked her down undressed her and penetrated his penis to her vagina. The incident occurred from 9am to 10 am. She felt pain after the defilement she reported to one fadhil and Munyes and some village elders and police. She was taken to hospital where she was examined PW2 Roy Situma a clinical officer at Kakuma mission hospital examined the complainant on 30/7/2014. On examination he found the hymen intact, inner lining normal but did not take any specimen for examination because the complainant went to hospital 7 days after the incident. He also estimated the age of the complainant to be between 16-17 years old. The appellant in his unsworn evidence directed on how he was arrested by 2 Kenya police reservist and later charged with the present offence. He attacked the evidence of the age of the complainant and the date she was examined by the clinical officer. The appellant upon this evidence was found guilty, convicted and sentenced to serve 15 years imprisonment. He filed this petition of appeal premised on the following grounds. 1. During the judgment, John Munyes and Fadhil were mentioned and yet were not witnesses in this case, therefore item this allegation as politically motivated matter. 2. The crucial witnesses mentioned (elders) never testified. 3. The supportive documents e.g birth certificate and clinic card were not brought to prove the age of PW1. 4. The time of incident (30/7/2014) and the time report booked (31/7/2014) and time of Pw3 (6/8/2014) bring doubt to this matter. 5. The said victim PW1 was examined after seven days i.e from 30/7/2014 – 6/8/2014. This proves there were no findings evidence adduced by the doctor. 6. PW1 states she is 20 years old and yet the doctor estimated the age to be 17 years old. The appellant in his written submission faulted the judgment of the trial court on the following grounds. He faulted the trial magistrate on relying on the evidence of a single witness as a basis of the conviction. He submitted secondly that the prosecution failed to call key
page 1 of 2
witnesses and in particular one Fadhili and Munyes whom the complainant allegedly reported to the incident of defilement. The other people who were not called were the others working with the complainant on the same site and even the parent of the complainant, or the person who reported to police. The appellant thirdly submitted that his defence was not considered and that there were contradiction in the prosecution evidence and in particular the date when the complainant was examined at the hospital. He attributed his arrest and this case to politics in which the senator was involved. Mr. Kimanthi for state opposed the appeal. He submitted that the evidence adduced proved the charge and the sentence of 15 years is the minimum sentence under section 8 (4) of the act and cannot therefore be said to be excessive. This being a first appeal trial court has a duty to re-evaluate the evidence before the trial court, re-asses the same and reach at its own conclusion but always bear in mind that it did not see or hear the witnesses give evidence. The offence of defilement is proved by the prosecution when evidence is tendered on the age of the complainant being a child; penetration established and the person who committed the offence is positively identified. Pw1 the complainant testifies that he knows the appellant well and that on the material he asked her to work on a site together with 3 other people who went ahead of them. She confirmed the incident happened at 9 am up to 10 am. This was during the day and it is correct to say that she made no mistake in the identification of the appellant as the one who defiled her. The incident having happened during the day; and the appellant was positively identified. The appellant in his submission submitted that penetration was not proved and that the medical report produced showed she was defiled on 30/7/2014 and was examined on 31/7/2014 and that the report did not confirm penetration. Penetration in charge of defilement can be established by evidence of the complainant or her witnesses and/ or confirmed by a medical examination report. Penetration as defined would mean a partial or complete insertion of the genital organ of a person into the genital organ of another. Legally therefore, a partial penetration even on the surface is sufficient. Penetration does not have to be deep into the genital organ to amount penetration under the sexual offences act. The appellant submitted that the age of the complainant was not shown to be 17 years old. PW3 produced an age assessment report in which he stated that after examining the complainant and conducting an analysis he estimated the age of the complainant to be between 16-17 years. The appellant assertion that the age of the complainant was not proved is not therefore true. The appellant submitted that his defence was not considered by the trial court. From the judgment the trial magistrate stated. “ On his part the accused evidence was full of mere denials and the defence lacked any sense of validity as he sought to rely on the defence of alibi which he could not substantiate with any degree of certainty.” There is evidence in the judgment that the appellant evidence was considered but was disregarded as it was not true. In the result, I am satisfied that the appellant’s conviction was proper. I therefore dismiss this appeal and affirm the sentence of fifteen (15) years imprisonment imposed. Dated and signed at Lodwar this 5th day of December, 2017 S N RIECHI JUDGE
page 2 of 2