REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL APPEAL NO: 54 OF 2017 (From Original Conviction and Sentence in Criminal Case No: 274 of 2013 of the Chief Magistrate’s Court at Gatundu) J K W..................................APPELLANT -V E R S U SREPUBLIC.....................RESPONDENT JUDGMENT 1. The appellant, J K W, was charged with the offence of incest contrary to Section 20 (1) of the Sexual Offences Act, No: 3 of 2006. Particulars thereof were that on the diverse dates between 2009 and March 2013 in Gatundu South District within Kiambu County, intentionally and unlawfully did an act which caused penetration with his genital organ namely penis into genital organ namely vagina of M W aged 11 years who was to his knowledge his step daughter. 2. An alternative charge, he was charged with committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offence Act No: 3 of 2006. Particulars thereof are as they appear in the work sheet. He was charged on count II and III as per charge sheet in respect of J W and A W respectively. 3. The appellant was duly convicted on all three (3) counts and sentenced to life imprisonment. 4. Being aggrieved and dissatisfied the appellant has appealed against both the conviction and sentence on the following grounds: 1) THAT, the learned trial magistrate erred in law in failing to re-consider and re-evaluate the whole evidence afresh as provided by the law. 2) THAT, the learned trial magistrate erred in law in failing to appreciate that crucial witness were not called by prosecution thus the prosecution case remains unproved. 3) THAT, the learned trial magistrate erred in law in failing to observe that the prosecution had failed to prove its case to the standard required in law that is prove beyond reasonable doubt. 4) THAT, the learned trial magistrate erred in law in failing to observe that no restoration made as required by the law. 5) THAT, learned trial magistrate erred in law in failing to consider inconsistencies and contradictions in the evidence. 6) THAT, the learned trail magistrate erred in law in failing to observe that the provision of Section 169 of Criminal Procedure Code was contravened. 5. The appellant submitted that: i) The penetration was not proved. ii) The case was not proved beyond reasonable doubt. iii) The charge was framed up.
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6. The counsel for the respondent, Madam Ngalyukia opposed the appeal. She submitted that: The three complainants PW1, PW2 and PW3 testified and gave detailed account how the appellant defiled them. The subsequent medical evidence was tendered in evidence. The lengthy delay in reporting was because the appellant threatened to kill them if they reported the matter to anyone. The trial court saw the testimony was consistent. The appellant’s defence was of no effect in the light of the detailed accounts. The court found the testimony as honest and consistent. Therefore on this basis the respondent opposes this appeal and urge this court to reject the appeal and uphold both the conviction and the sentence of life imprisonment. 7. 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. 8. TESTIMONIES: ANALYSIS The complainants PW1 – J W – 13 years, PW2 - A W – 14 years and PW3 – M W – 11 years, were the step children of the appellant whose mother PW4 – R N had married as a second husband. He adopted three children and provided for them. However, with time he started diabolical behaviour of defiling them systematically, in a farm, in the house, on bed and anywhere. After which he gave each defiled girl money for mandazi with a warning, a stern warning not to tell their mother or anybody else at the risk of death to all including their mother. The pattern is notorious when nobody is at home and defiles the girl that is with him at the time. Mandazi or money was the reward for this defilement. He would show pornographic materials on his phone to both the daughters and also to the mother. The girls were in great fear of their lives and that of their mother, that they remained mute despite several defilements meted out to them by the person they called their father. PW5 – medical doctor corroborated the complainants’ testimonies. 9. I am therefore satisfied that the case was proved beyond reasonable doubt. I agree with the respondent counsel’s submission that the testimonies by PW1, PW2, & PW3 of what their father did to them was not only consistent but honest and believable. 10. FINDINGS For these 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 ………………………..…for Respondent ………………………for Court Assistant
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