REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL APPEAL NO: 46 OF 2017 (From Conviction and Sentence in Criminal Case No: 1006 of 2012 of the Senior Principal Magistrate’s Court at Limuru) WILLIE MUTUA KARANJA…………….....…………….………..…….APPELLANT -V E R S U SREPUBLIC……..………………………………….……………………RESPONDENT JUDGMENT 1. The appellant WILLIE MUTUA KARANJA, was charged on Count I with the offence of Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006. The particulars thereof were that on diverse dates between 1st December, 2011 and 4th December, 2012 in Kiambu County, intentionally and unlawfully defiled E G N by penetrating his male organ namely penis into her vagina, a girl under the age of eleven (11) years. (b) He was also charged with an alternative charge of indecent act with the child contrary to Section 11 (1) of Sexual Offence Act No. 3 of 2006 whose particulars are in the charge sheet. 2. Count II; he was charged with Defilement, contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006. The particulars thereof were that on diverse dates between 1st December, 2011 and 4th December, 2012 in Kiambu County, intentionally and unlawfully defiled A N M by penetrating his male organ namely penis into her vagina, a girl under the age of eleven (11) years. (b) He was also charged with an alternative charge of indecent act with a child, contrary to Section 11 (1) of Sexual Offences Act No. 3 of 2006 whose particulars are in the charge sheet. 3. Count III he was charged with Defilement, contrary to Section 8 (2) of Sexual Offence Act No. 3 of 2006. Particulars thereof were that on diverse dates between September 2012 and 4th December 2012 in Kiambu County, intentionally and unlawfully defiled M W N by penetrating his male organ namely penis into her vagina a girl under the age of eleven (11) years. (b) He was further charged with an alternative charge of indecent act with a child, the child being M W, contrary to Section 8 (1) as read with Section 8 (2) of Sexual Offence Act No. 3 of 2006, the particulars thereof are as per the charge sheet. 4. The appellant was duly convicted and sentenced to a minimum sentence as provided by law of 10 years imprisonment. 5. Being aggrieved and dissatisfied the appellant has appealed upon grounds delineated in his memorandum of appeal together with a supplementary grounds handed to the court on the day of hearing this appeal. He is conducting his own appeal. 6. The appellant in his submissions he says that: a) The case was not proved beyond reasonable doubt as by law required. b) The prosecution did not prove all the elements of the offence of defilement i) Penetration
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ii) The complainant’s age iii) Positive identification c) Inordinate delay in reporting the matter d) The trial magistrate failed to view the grudge was the motivating factor for this charge. 7. Madam Ngalyukia for the respondent opposed this appeal. She submitted that the appellant was convicted on two counts of indecent assault and sentenced to 10 years, the minimum sentence permitted. She further submitted that the testimony by PW1 & PW3 was so articulate, intelligent, confident and truthful that the court believed them. PW1 described in great detail what happened between her and the appellant. Further, PW3, the appellant’s child, stated that the appellant touched her vagina, and this was enough evidence. The court considered in detail the appellant’s defence of being framed up, but dismissed that defence and relied on evidence of PW1 and PW3. Therefore the evidence was consistent, sufficient to sustain the offence of indecent assault. We therefore ask this court to dismiss the appeal. 8. 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. 9. TESTIMONIES BY THE WITNESSES: ANALYSIS PW1, PW2 and PW3 were the main witnesses. PW3 - A N is a daughter of the appellant. Each of the above three witnesses corroborated each other on the narrative regarding how the appellant lured the children with indecent behaviour. The three children were aged between 9, 8 & 8 years respectively, or indeed below eleven (11) years old. PW6 and PW7 – clinical officers examined the complainants and confirmed that the children had been sexually assaulted one, PW3, had contracted HIV. PW1’s narration is the most vivid. Her demeanor showed, she is intelligent, confident, consistent and truthful. I am satisfied that the case was proved beyond reasonable doubt. I agree with the respondent counsel that there is sufficient evidence to support the conviction and sentence. 10. FINDINGS For those reasons, this appeal is hereby dismissed. The conviction and the sentence is hereby upheld. 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: ……………………………the Appellant
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……………………………for Respondent ……………………………for Court Assistant
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