REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL APPEAL NO: 170 OF 2016 (From Conviction and Sentence in Criminal Case No: 1404 of 2010 of the Chief Magistrate’s Court at Thika.) J W G……………………..…………….………..…..APPELLANT -V E R S U SREPUBLIC………………….…………….………RESPONDENT JUDGMENT 1. This is a judgment in Criminal Appeal No: 170 of 2016. The appellant, J W G, was charged with the offence of incest Contrary to Section 20 (1) of the Sexual Offences Act No: 3 of 2006. The particulars thereof were on the 3rd day of April, 2010 at about 8.00a.m in Thika District of Central Province, being a male person caused his penis to penetrate the genital organ (vagina) of L W a juvenile female aged 8 years who was to his knowledge his daughter. 2. The appellant was charged with an alternative offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No: 3 of 2006. The particulars thereof were that on 3rd day of April, 2010 at about 8.00a.m in Thika District of Central Province, intentionally touched the vagina of L W a child aged 8 years with his penis. 3. The appellant pleaded guilty and after a due trial, he was convicted and sentenced to a mandatory life imprisonment. 4. Being aggrieved and dissatisfied the appellant has appealed against both conviction and sentence. 5. He has set out six (6) grounds of appeal as per his petition filed on 7th day of December, 2016. 6. The appellant is represented by counsel, Madam Waithera Mwangi, Advocate in her written submissions. Filed on 23rd February, 2017, she consolidated the appellant’s grounds of appeal in three major heads: i) Uncorroborated incoherent, inconsistent and contradicting evidence, covering grounds 1, 2, 3, & 4 of the grounds in the petition. ii) Nature of medical evidence, covering grounds 4 of the petition. iii) Burden of proof which covers grounds 5 & 6 of the petition. She therefore submitted as follows: On i) above the trial magistrate convicted on sole evidence of the minor – PW1. Further, she contradicted herself in several ways in her testimony. The contradictions are so numerous that the same should be resolved in the appellant’s favour. She gave her father a different name, she forgot she had an elder sister. At one point she said her father did nothing to her. Later he did bad manners to me. On ii) above PW6 – JIMMY SONGA – he filled the P3 form. He does say anything about blood stains and bruises, laceration on the victim. In the absence of examining them. It is a wonder that PW6 confirmed the defilement of PW1. On iii), burden of proof, the magistrate blames the defence for the prosecution failure to produce treatment notes as exhibits.
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Further, the magistrates, the accused that the witnesses did have a grudge against him. Further, when the trial magistrate, points out, in line 14 & 15 was shifting the burden of proof, contrary to law. She submitted that, on line 16, the trial magistrate moved from facts to conjecture. 7. The respondent, through Madam Maundu opposed the appeal. She made the following submissions: 1) On uncorroborated evidence of PW1, she cited Section 124 of Evidence Act that is the evidence, though uncorroborated is deemed believable. 2) On issue of incoherent raised by the prosecution, she submitted that there is nothing on record to show that the trial court found the complainant incoherent in this case. 3) In fact the trial court found that the complainant was consistent on the issue of defilement – the charge the appellant faced and for which he was on trial. 4) On issue relating to the nature of medical evidence, she submitted, the same was sufficient to prove the offence of defilement. The defence at some point subjected to the production of treatment notes, saying that they be produced by its maker. However, P3 form was conclusive evidence on defilement as it was a complete reproduction of the treatment notes. 5) PW6 – testified that he found no reason to examine the complainant again as his colleague had carried out the complete examination of the complainant. Therefore, it is my submissions that the failure to produce treatment notes is not fatal to this case. 6) On issue of no blood on the complainant’s clothes: PW2 testified that when they found PW1, she was in clean clothes. What was noted on treatment notes, was the complainant had convulsions before examination, urinating and defecating on herself. PW1 was epileptic. Thus, the failure to have blood on her clothes, does not mean that she wasn’t defiled. 7) PW6 – The Doctor, stated that the hymen was torn and that there was an infection of labia major which led him to conclude that there was defilement. Even, in cross-examination PW6 was asked of epileptic fits would cause the tearing of the hymen. His response was no. 8) On issue of estimated age of injuries, the complainant was taken to hospital on 03/04/2010, she was however, examined by PW6’s colleague on the same day. P3 form was however, in my view, filled (3) days later. 9) The issue of a grudge was raised by the defence, a common pattern in sexual offence cases. There was no substitute in it. 10) The burden was not shifted as alleged by the appellant. 11) I therefore, submits that the court analyzed the evidence that was laid before it and found that there was over wholly evidence tendered against the appellant. 12) On issue of the prosecution’s failure to call some witnesses. This was not necessary in the light of Section 143 of Evidence Act. 13) Therefore, I submit that the conviction against the appellant is safe, I urge this court to uphold the same. 8. FIRST APPEAL The legal principles governing the first appeal are as enunciated in the case of Okeno Vs Republic 1972 E.A. Page 32. Where the appellate court is enjoined to read the proceedings of the trial court evaluate the evidence and reach its own conclusion, having in mind that the court did not have the advantage of hearing and seeing the witnesses who testified. 9. ISSUES FOR DETERMINATION 1. Did the appellant the person who committed the offence with which he is charged? 2. Was there penetration by the appellant’s genitalia i.e. penis into the genitalia of the complainant i.e. Vagina? 10. TESTIMONIES IN THE PROCEEDINGS: ANALYSIS L W then aged 8 years were with the father and her siblings. Her mother had moved out of the home. She testified as PW1 that her father, the appellant was charged with the offence of incest contrary to Section 20 (1) of Sexual Offence Act.
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PW1 testified that her father did bad things (sexual act) on the floor. The appellant’s thing for urinating touched my thing for urinating. She screamed for help. She had epileptic fits that day. PW2 testified that the child had a dress with blood and stools on herself. PW6 – a clinical officer at Ruiru Hospital testified that the child was unable to walk as a result of the act of the appellant on her. The hymen was torn and there was an infected labia majora. 11. I am satisfied that the appellant had sexual intercourse with his own daughter. That there was penetration. I agree with the respondent’s submission that the evidence on record confirms that the appellant had an incestual sexual activity with his own daughter, then aged 8 years. The complainant is the epileptic child. 12. FINDINGS For these reasons, the appeal is dismissed. Therefore the conviction and 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 ……………………………for Respondent ……………………………for Court Assistant
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