REPUBLIC OF KENYA IM THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL APPEAL NO: 160 OF 2016 (From Original Conviction and Sentence in Criminal Case No: 320 of 2012 of the Chief Magistrate’s Court at Thika.) STEPHEN NJOROGE KAMANDE...........................APPELLANT -V E R S U SREPUBLIC..................................................................RESPONDENT JUDGMENT 1. This is judgment in a Criminal Appeal No: 160 of 2016. The appellant, STEPHEN NJOROGE KAMANDE, was charged with the offence of Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual offence Act No. 3 of 2006. The particulars thereof were that on 13th day of November, 2010, at [particulars withheld] in Thika West District within Kiambu County, by use of his genital organ namely a penis caused penetration into the genital organ namely vagina of T K K a child aged 9 years. He was also charged with an alternative charge of indecent act contrary to Section 11 (1) of the Sexual Offence Act (S.O.A) No. 3 of 2006. Particulars were stated as they appear in the charge sheet. Count II, charged with Rape contrary to Section 3 (1) c (3) of Sexual Offence Act (S.O.A) No. 3 of 2006. Particulars as they appear on the said charge sheet. Also, charged with an alternative charge of indecent act with an adult contrary to Section 11 (1) of Sexual Offence Act (S.O.A) No: 3 of 2006. Particulars thereof as they appear in the said charge sheet. 2. He was tired, as he denied the charge and was duly convicted and sentenced to serve life imprisonment on Count I. On Count II, he was sentenced to serve 10 years imprisonment. 3. Being aggrieved and dissatisfied the appellant has appealed against both the conviction and sentence. He is unrepresented in this appeal. 4. The appellant set out his grounds of appeal as filed on 15/04/2016, namely: 1. THAT, the magistrate erred in law to conclude that the prosecution case was proved beyond reasonable doubt. 2. THAT, the magistrate misdirected himself in meeting out a mandatory death sentence 3. THAT, the magistrate failed to take defence into account. 4. THAT, the appellant was not positively identified as the perpetrator of the offence. 5. THAT, the trial was conducted in violation of Section 200 of the Criminal Penal Code. 6. THAT, the medical evidence was admitted in violation to Section 50 and 72 of Evidence Act.
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7. THAT, magistrate failed to consider my defence. 5. The respondent, being represented by Madam Ngalyukia, opposed the appeal. The appellant was convicted both count I – defilement and count II – Rape. On Count I, the victim PW1 was able to give details on how she met the appellant in company with another child. It was during the day. She was able to see the appellant’s face. She was able to say in detailed what the appellant told her during the commission of the offence. She also testified that she knew the appellant physically. The appellant was arrested in the same area of the forest. The witness saw the appellant and confirmed that he was the one who defiled her. Therefore, the identification parade was not necessary, considering the circumstances. On Count II, the victim was PW5 – she is an adult. The offence was committed in the same forest on a different date. The victim testified that it was at noon and she saw the perpetrator well. She confirmed that it was he who had raped her. The circumstances for positive identification were ideal since it was during the day. Therefore, we submit that the appellant was positively identified even though no identification parade was not conducted. We submit although the two offences were distinct, they were of the same character and occurred in the same area. The appellant was arrested in the same forest where the offences had occurred. The appellant raises the issues of non-compliance with Section 200 of the Criminal Penal Code. This technically, I submit, has no bearing on this case, since the appellant chose to proceed with the case from where it had stopped. We submit that all vital witnesses testified and the evidence is sufficient to convict the appellant. We urge this court to uphold the appellant’s conviction and sentence. 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. ISSUES FOR DETERMINATION 1. Was there penetration by the appellant’s penis into the complainant’s vagina on both counts? 2. Was the appellant positively identified? 3. In Count I was the age of the complainant in dispute? 8. TESTIMONIES: ANALYSIS T K K, PW1 aged 9 years was defiled on 13/11/2010 by the appellant. On 30th day of December 2010, M W - PW5 was raped by the appellant, both offences were committed in [particulars withheld] by the same person, the appellant. Both offences were committed during the day. Both victims identified the appellant positively. PW8 – The Doctor corroborate the testimonies of PW1, PW2 and PW3. The appellant was later on found in self-same forest and arrested where the two incidents occurred. The appellant targeted women fetching firewood. He would place a heap of firewood at strategic point to lure women and hide himself nearly immediately ready to pounce. On any trying to collect the same. 9. I am satisfied that this case was proved beyond reasonable doubt and all elements of the offence, on both counts were proved beyond reasonable doubt. The appellant, equally, was positively identified by both victims, PW1 and PW5 respectively. 10. For these reasons, this appeal is dismissed. The court upholds the conviction and the sentence, on both counts. Right of Appeal – 14 days. JUDGMENT WRITTEN AND SIGNED BY: C. B. NAGILLAH
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JUDGE JUDGMENT DELIVERED, DATED AND COUNTERSIGNED IN KIAMBU THIS 3RD DAY OF OCTOBER 2017 BY: JOEL NGUGI JUDGE In the Presence of: ……………………………the Appellant ……………………………for Respondent ……………………………for Court Assistant
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