REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL APPEAL NO: 169 OF 2016 (From Original Conviction and Sentence in Criminal Case No: 665 of 2013 of the Senior Principal Magistrate’s Court at Limuru.) JOSEPH MWANGI KAHUKO…..APPELLANT -V E R S U SREPUBLIC………………………RESPONDENT JUDGMENT 1. This is a judgment in Criminal Appeal No: 169 of 2016. The appellant, JOSEPH MWANGI KAHUKO, was charged with attempted defilement contrary to Section 9 (1) of the Sexual Offences Act No: 3 of 2006. The particulars thereof were that on the 5th day of September, 2013 in Kiambu County intentionally attempted to cause, his penis to penetrate to the vagina of V W N a child aged 13 years. 2. He was also charged with an alternative offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offence Act No: 3 of 2006. Particulars thereof were that on the 5th day of September, 2013 in Kiambu County intentionally touched the vagina of V W N a child aged 13 years with his penis. 3. He denied the offence. He was therefore tried and was duly convicted and sentenced to the minimum sentence of 10 years imprisonment. 4. Being aggrieved and dissatisfied the appellant has now appealed against both the conviction and the sentence. He is prosecuting his own appeal. 5. His grounds of appeal filed on 7th December, 2016 summarized as two grounds: 1. THAT the case was not proved beyond reasonable doubt. 2. THAT the sentence imposed was too harsh and excessive. The appellant filed a supplementary grounds of appeal filed on 16th March, 2017. The same can be summarized into the following grounds: 1. The appellant was charged with defilement, but tried for attempted defilement and convicted for indecent act. 2. The trial magistrate referred to take into account that the medical report confirmed nothing unusual occurred. 3. The trial magistrate misdirected himself by stating that the minor’s hymen was perforated while the Doctor had said the hymen was intact. Further, the magistrate said the penetration had not been fully achieved yet the doctor said the external genital was normal – that no bruises and no lacerations were detected by the doctor. Thus the magistrate ignored the evidence of the medical office. 4. The magistrate totally misrepresented herself and arrived at wrong conclusion. 5. THAT the sentence imposed was harsh and excessive.
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6. The respondent, through Madam Mutheu, opposed the appeal. She submitted as follows: 1. The prosecution was able to prove the case beyond reasonable doubt, all the elements of the offence were proved. 2. The minor was able to identity the appellant. 3. Her age was also proved and was not in dispute. 4. No injuries were noted by the Doctor. He however, concluded that there was no sexual assault. 5. We submit that no corroboration was needed as per Section 124 of Evidence Act. 6. The appellant was convicted for attempted defilement, although the magistrate found that sexual assault occurred. The magistrate opted not to amend the charge sheet to defilement, as this could have been prejudicial to the appellant. The appellant was therefore convicted and sentenced to attempted defilement. 7. The appellant brought up land issues between him and family of the minor. I submit that this was an afterthought as it was not brought up in cross-examination. 8. I pray that the court upholds the conviction and sentence. 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. ISSUES FOR DETERMINATION 1. Was there attempted sexual activity (attempted penetration) by the appellant? 2. Was the appellant identified? 9. TESTIMONIES: ANALYSIS On 5/09/2013 at 9.30 a.m. V W, was at home alone, washing dishes in the kitchen when one JOSEPH MWANGI KAHUKO entered the house asked for a Jembe but suddenly closed the door behind him and forceful commandeered V W to a seat, removed her pants and his trousers and forcefully had sex with him. She was in great pain but did not scream as she feared with the Panga and Jembe in her sight, the attacker would kill her. The sex went on for 30 minutes. She recognized the attacker. He was their neighbour, on the way to her grandmother’s house. PW2 – JAMES KABUE is a registered clinical officer. In examining the minor, found normal external genitalia, no bruises and no lacerations, Hymen was intact. He made a conclusion that there was sexual assault. He produced P3 as Exhibit I. 10. I am satisfied that the case is proved beyond reasonable doubt on an offence of attempted defilement. I also agree with the submissions of the state counsel that the prosecution was able to prove the case beyond reasonable doubt, and the elements of this offence were equally proved. The sentence imposed is the statutory minimum allowed. 11. FINDINGS For these reasons, this appeal is dismissed. The court upholds both the conviction and the sentence of the trial. Right of appeal -14 days. JUDGMENT WRITTEN AND SIGNED BY: C. B. NAGILLAH JUDGE JUDGMENT DELIVERED, DATED AND COUNTERSIGNED IN KIAMBU BY: THIS 9TH DAY OF OCTOBER 2017
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JOEL NGUGI JUDGE In the Presence of: ……………….……………the Appellant ……………..……………for Respondent ………………………for Court Assistant
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