High Court 1103 of 2017

f. That the trial magistrate framed issues that were not relevant in the circumstances of the case. 5. Before the hearing, the Appellant lodged 8 amended grounds of appeal namely:a. That the charge sheet did not support the evidence and was therefore defective, b. That the medical evidence in its entirety constituted a hearsay, inadmissible in law, without probative value and that incapable of supporting the penile penetration of PW1’s genitalia. c. That the complainant’s (PW1’s) evidence was not freely given but procured by trickery and therefore cannot sustain his conviction. d. That essential witnesses, necessary to prove basic facts were not produced. e. That vital exhibits, namely the purportedly semen stained complainant’s clothes were not produced. f. That he suffered prejudice for being forced to proceed with part of the trail against his will for being sick, rendering part of the trail a nullity. g. That the matter was not properly investigated for failure of the investigators to visit the scene. h. That the trial magistrate shifted the burden of prove to the defence, failed to consider the defence of grudge and thereby demonstrated open bias. 6. The parties agreed to canvass the appeal via written submissions which they filed and exchanged. 7. This being the first Appellate court, it is enjoined to look at the evidence before the trial court afresh, re-evaluate and examine the same and reach its own conclusion whether or not to uphold the conviction of the Appellant. 8. In reaching its decision, the reaching its decision this court has to bear in mind the reaching its decision, the court has bear in mind the fact that it did not have an opportunity of seeing the witnesses as they testified and therefore is not expected to make any findings as to the demeanor of the said witnesses. 9. Finally, this court is expected and mandated to consider the grounds of appeal put forward by the Appellant in reaching its judgment. See KINYANJUI –VS- R (2004) 2KLR P.364. See also OKENO – VS- REPUBLIC. 10. The prosecution called 4 witnesses: 11. PW1 was the complainant who gave a sworn statement and testified that on 26/01/2012, she was at home when the accused person herein called her and gave her a ride on his bicycle and took her to the forest. 12. He then removed her under garment and laid on her and when he finished he took her to a nearby market and bought her three “chapatis.” He asked her to eat one and take the rest to her siblings back home. He also told her to inform anybody. 13. It was her testimony that when she reached home she found her mother. She stated that she knew the accused person. He is called M and she calls him uncle. She identified him as the one before the court. Upon cross examination the complainant indicated that nobody found them. 14. PW2 was N M who testified that on 26/02/2012, at about 3.00 p.m., she was in church and arrived home at 3.00 p.m. and found B missing. She thus enquired and was informed by her sister that she had been called by M who took her on a bicycle.

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15. B later came thirty minutes later with “chapatis” on her hand. She asked where she got them from and she kept quiet. She finally said that she had been given by m. She also had sand remains on her back and looked like she had shed tears. 16. It was her testimony that she then followed the prints to the forest and found where they had slept. She then came back and examined B and noted semen on her vagina walls. It was her testimony that even her inner wear was soiled by semen. She informed the court that since it was getting dark, she slept and on the next day called the area chief. 17. He came and they took the child to hospital. They were later asked for a police note and she thus reported at Mtito Andei Police Station and the child was thereafter treated and discharged. It was her testimony that she was also issued with a P3 form that was duly filled at Makindu District Hospital which she identified as before the court. 18. She indicated that thereafter M escaped from home for about 1½ (one and a half) years and when he resurfaced she made a report to the police and he was arrested. She indicated that B was her daughter whereas M was her cousin. 19. Upon cross examination, the witness stated that she followed the bicycle prints and saw where he had slept with the young girl. She stated that the clothes the complainant had worn on the said date were not before the court and that she gave the same to the doctor. 20. She indicated that they were not blood stained but soiled with semen. She denied that the accused person had impregnated one of her daughters. She denied that one of her other daughters had slept with the accused person. 21. PW3 was Doctor Hannington Mibei attached at Makindu District Hospital. It was his testimony that on 28/02/2012, he filled the P3 form for one V M who was aged 7 years then. She had been treated at Mtito Andei and was in good health. He assessed the approximate age of injuries as 2 days. 22. She had bruises on the vaginal wall and had a broken hymen and had vaginal discharge. HIV and STD tests were negative; however the high vaginal swab had few pus cells and many epithelial cells which was a sign of infection. He produced the P3 form as Exhibit No. 1. 23. Upon cross examination, the doctor stated that the child had been treated elsewhere and therefore he relied on the treatment notes from Mtito Andei to fill the P3 form. He indicated that he established that the treatment notes were genuine and thus did not examine the child again. He indicated that no DNA analysis was done as they do not have the facility at Makindu District Hospital. 24. PW4 was the investigating officer Eve Omar at Mtitu Andei Police station. She testified that on 06/09/2013, at around 12.00 noon the complainant V aged 7 years old accompanied by her mother came in and stated that P M had defiled the complainant on 26/02/2012 but ran away into hiding and came back on 06/09/2013 when he was arrested by Administration Police Officers and brought to the station. It was her testimony that since the P3 form had already been filled she charged the accused person with the offence before the court. 25. Upon cross examination, the investigating officer stated that she did not visit the scene because when the matter was initially reported she was not based at the said station. 26. She indicated that she relied on the P3 form had already been filled she charged the accused person with the offence before the court. 27. Upon cross examination, the investigating officer stated that she did not visit the scene because when the matter was initially reported she was not based at the said station. She indicated that she relied on the P3 form to charge the accused person.

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28. The prosecution closed its case and the accused person was put his defence whereby he opted to give a sworn testimony. He testified that in 1998 they employed N M’s husband and he worked. The accused person stated that at the time he had one parent. In 1999, they gave them a male cow that they ploughed with for almost a year and a half. 29. He was then hit by another cow and it broke its leg. They therefore agreed with his mother that they would compensate them with another cow. They bought another cow but before they could bring it to them it died hence they still owed them. In March 2006, it was his testimony that his mother died and N’s husband also died the same year in June. 30. The accused person informed the court that he went for his burial and the family said that anybody who owed should indicate what they were owed. He therefore went to the committee and recorded that he was owed a cow. 31. M’s mother promised to pay him with a calf once it was born. When it was born he was not repaid and instead N changed the terms. The cow later gave birth again and N wanted to refuse him to get it but her mother intervened and he was given. It was his testimony that since N was not happy she told him that he would put him in a place that he would never get himself out of. He thus came to learn that it is where he is now. APPELLANT’S SUBMISSIONS 32. The appellant submitted that, the elements of defilement (for present purposes, incest), were set out in PAPPYTON MUTUKU NGUI –VS- R CR. APPEAL 296 OF 2010, where the H.C at Machakos held that the ingredients of to look out for in a defilement case are:• Whether there was penetration of the complainant’s genitalia, • Whether the complainant is was child, • Whether the penetration was by the Appellant. 33. Again in CHARLES WAMUKOYA –VS- REPUBLIC, CR APPEAL NO. 72 OF 2013 held:“The ingredients forming the offence of defilement are: the age of the complainant, proof of penetration and positive identification of the assailant” 34. This was restated by the H.C NBI PHILIP MAINGI MUEKE –VS- REPUBLIC (2015) eKLR thus – “It is now trite that for the prosecution to establish the charge of defilement, it must establish, firstly, the age of the complainant, secondly, penetration and thirdly, the identity of the perpetrator.” 35. This appeal faults the trial court’s decision for not finding that the prosecution failed to prove their case beyond reasonable doubt as required by law. The respondent argues that the evidence adduced was inefficient to secure his conviction. 36. He urges the court to find that his conviction was unfounded hence, an acquittal is legitimately deserved. GROUND 1 DEFECTIVENESS OF CHARGE 37. It is submitted that appellant was charged with offence of incest by male contrary to Section 20(1) of

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the S.O.A no.3 of 2006. The relevant provision state that:-Incest by male persons; “Any male person who commits and indecent act or an act which caused penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years. Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years. The accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” 38. It is therefore means that the relations that are prohibited are those of male persons with their daughters, granddaughters’ sisters, mothers, nieces, aunts or grandmothers. The first question of law is therefore whether the relationship between the Appellant and the complainant fell within any of those incestuous categories? It is submitted not. 39. Although PW1 testified that she called the Appellant ‘uncle’, many children erroneously call male adults who are not even related to them ‘uncles’. The true test for relationship is provided by her mother, PW2 who testified; see p.g 6 lines 7 that “B is my daughter. Patrick is well known to me he is my cousin.” 40. The evidence adduced therefore did not support a charge of incest since the relationship between me and PW1 fell far away from the ones prescribed by law. The charge was effectively, defective. The charge sheet does not accord with the evidence on the relationship with the complainant. 41. The court of appeal has held that where the evidence does not accord to the particulars of the charge, the charge is defective. Section 214 of the CPC allows the court to amend a charge giving the accused a chance to respond to the new charge. The court did not take benefit of Section 214 of the CPC and instead the court proceeded to convict him, the Appellant thereby causing a miscarriage of justice. 42. In those regards, he relies on JASON AKUMU YONGO –VS- REPUBLIC (1983) EKLR, held:“In our opinion a charge is defective under Section 214(1) of the Criminal Procedure Code where:• “It does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges offences in the charge not disclosed in such evidence or frails to charge an offence which the evidence in the committal proceedings discloses; or • It does not, for such reasons, accord with the evidence given at the trial; or • It gives a mis-description of the alleged offence in its particulars”. 43. The charge as tabled before the court therefore failed in all the above tests and conviction ought not to stand against such a fundamental irregularity. Otherwise how could the accused person defend himself against such a misinformation? GROUND 2 MEDICAL EVIDENCE CONSTITUTED HEARSAY 44. The appellant submitted that, proof of penile penetration of the complainant’s genitalia is vital to the success of defilement (for present purposes, incest) charge. In EE –VS-Republic (2015) Eklr, it was held that penetration must be proved by evidence thus:“The penetration or act of sexual intercourse has therefore to be proved to sustain a charge of

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defilement. In BASSITA HUSSEIN –VS- UGANDA, SUPREME COURT CRIMINAL APPEAL NO. 35 OF 1995, the court stated, “The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.” 45. It becomes pertinent therefore to consider whether the medical evidence, corroborated the other evidence on sexual assault. However same did not since the said testimony constituted hearsay. 46. Hearsay evidence is defined by the BLACK’S LAW DICTIONARY, NINETH EDITION; thus “Traditionally, testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and is therefore dependent on credibility of someone other than the witness. Such testimony is generally inadmissible under the rules of evidence.” 47. Additionally, the Evidence Act Section 62 and 63 provides for safeguards against the admission of hearsay evidence, which would otherwise be prejudicial to the accused. That provision states:PART II – ORAL EVIDENCE 48. All facts, except the contents of documents, may be proved by oral evidence. -Oral evidence must be direct. -Oral evidence must in all cases be direct evidence. -For the purposes of subsection (1) of this section, “direct evidence” means – -With reference to a fact which could be seen, the evidence of a witness who says he saw it; -With reference to a fact which could be heard, the evidence of a witness who says he heard it; -With reference to a fact which could be perceived by any other sense or in any other manner, the evidence of a witness who says he perceived it by that sense or in that manner; -With reference to an opinion or to the grounds on which that opinion is held, the evidence of the person who holds that opinion or, as the case maybe, who holds it on those grounds. 49. Therefore, the next question of law is whether the doctor’s evidence was direct as stipulated by law. The said witness testified in cross-examination:“I did not examine the child, she had been treated elsewhere. I have been a doctor for over 5 years. I relied on treatment notes from Mtito Andei to fill the P3 form does not have to be examining doctor as long as the treatment note were genuine therefore I did not examine again ………………….” 50. On Re-examination by prosecution; “I saw the victim but did not examine her again.” 51. The appellant thus submits that to form an expert opinion that there had been penile penetration of the complainant’s genitalia, the direct evidence of the person who conducted the medical examination was necessary. Usually, when the police doctor fills the P3 form, they carry out an examination to ascertain

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the authenticity of any opinions held. 52. PW3 did not even give the criteria used to ascertain genuineness of the treatment notes from Mtito Andei. How were the treatment notes forwarded to her and by who? Who had signed that report and how can it be ascertained that the examination was done by a qualified medical practitioner? 53. Where is the assurance that the initial report was not procured, doctored or fake? Surely if that much weight is to be attributed to the initial examination, direct evidence over the document was necessary. Otherwise, the entire medical evidence remains hearsay and penetration was not proved beyond reasonable doubt. GROUND 3 COMPLAINANT’S TESTIMONY NOT FREELY GIVEN 54. The appellant contend, that since the complainant did not of her own volition tell on me, it is apparent that her testimony procured by trickery and therefore her implication on me cannot be held safe. GROUND 4 NONE-PRODUCTION OF ESSENTIAL WITNESSES 55. The appellant argue that essential witnesses necessary to prove basic facts were not called. That leaves a lacuna and the evidence and it is open to the court to draw adverse inferences against the prosecution. He relies on JUMA NGODIA –VS-REPUBLIC – (1982 -88) KAR 454) where the C.A. held;“The prosecutor has in general, discretion whether to call or not to call someone as a witness. If he does not call a vital reliable witness without a satisfactory explanation, he runs the risk of the court presuming that his evidence which could be and is not produced would, if produced have been unfavorable to the prosecution.” 56. See further in PAUL KANJA GITARI –vs- REPUBLIC (2016) eKLR held:“The state of the evidence tendered with all of its inconsistencies means that the Appellant’s complaint that some vital witnesses required for the proof of a fact. See Section 143 of the Evidence Act.” 57. However, it has long been the law that when the prosecution calls evidence that is barely adequate, then the failure to call vital witnesses may entitle the court to draw an inference that had such witnesses been called, their evidence would have been adverse to the prosecution case. 58. See BUKENYA & OTHERS-VS-UGANDA (1972) EA 549. Given the totality of the evidence and the specific circumstances of this case, the evidence tendered was not sufficient to prove the case against the Appellant. Thus conviction ought to be quashed. 59. As highlighted above on the failure to call the doctor from Mtito Andei hospital who had examined the complainant and filled the treatment notes relied on the base of the conviction. 60. He urges court to draw an adverse inference that the said doctor’s testimony may have been adverse to the prosecution case or that the treatment notes were not genuine therefore the non-procurement. Additionally, the complainant’s siblings who are claimed to have supplied information to the mother ought to have been vital witnesses for the prosecution. GROUND 5

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NONE-REPRODUCTION OF ESSENTIAL EXHIBITS 61. The appellant submit that, essential exhibits were also not produced. For example, the purportedly semen stained under pants and clothes belonging to the complainant which were purportedly forwarded to the doctor for forensic analysis. PW2 further claimed that the complainant had sand marks on her back, impliedly on her clothes. See PW2’s testimony at p.g 5 lines 20-21; “I was saddened. I came back and examined her inner pants. She had semen on her vagina walls. Her innerwear as well was soiled with semen.” 62. During cross-examination, the same witness testified; “She has other children (sic) the clothes sworn then are not present in court today. The clothes were not blood stained but soiled with semen. ….. I gave the doctor clothes.” 63. PW2 was not an expert on such matters and her inference that the clothes were semen stained is questionable unless backed by forensic reports. Sadly, PW3 was silent over the matter. He did not examine the complainant or the exhibits anyway and the only person who could have shed light on those questions, being the doctor from Mtito Andei never testified as contested above. 64. If the clothes were forwarded to the doctor, why weren’t an examination carried out and a report produced if PW2’s story is to be trusted? There remains no doubt that PW2’s claims against appellant were uncorroborated by material evidence. GROUND 6 BEING FORCED TO CASE AGAINST MY WILL FOR REASON OF BEING ILL 65. The appellant argue that that he suffered prejudice for being forced to proceed while ill. While the case had perpetually been adjourned on behalf of the prosecution, it portrays bias for the trial magistrate to have forced him to proceed. See the trial record at page 11. The reason given that the prosecution witnesses may not be available further portrays the magistrate’s partiality. Such partiality suffice to prove bias on the mind of the trial magistrate, sufficient to obscure an impartial decision, culminating into his unsafe conviction. GROUND 7 IMPROPER INVESTIGATIONS 66. He contends that the prosecution case was not properly investigated, since other than the evidence of sand on the complainant’s clothes which was uncorroborated by other evidence as contented above, it was PW2’s testimony that she visited the scene and found bicycle tracks and a disturbed scene. 67. There is no justification in evidence why the investigating officer did not visit the scene to confirm those allegations. This means that the entire prosecution case was based on a story by PW2 which was uncorroborated by other evidence. In those regards see the findings in LAZARUS OCHARO KIEYA – VS-REPUBLIC (eKLR, where the High Court at Kisii, while analyzing the inapplicability of Section 124 of the Evidence Act, found, inter alia. “The investigating officer did not visit the scene and could not therefore confirm the complainant’s testimony that she was laid on the earthen floor during the defilement and show consistency of the soiling of her dress to the color of the earth on the floor of the house where the defilement allegedly took place. GROUND 8

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NONE-CONSIDERATION OF DEFENCE 68. On issue of his defence, the trial magistrate in dismissing same made the following remarks:“There could have been no one else at the scene to corroborate the minor’s evidence as is the case in most sexual offences. Notably the accused person disappeared after the said incident and resurfaced 1½ years later and the court opines that the said action portrays guilt on his part. The accused person during trial did not even attempt to counter the said evidence and/or explain where he had been and/or what had caused his disappearance. He based his defence mainly on a family grudge however from the record it is evidence that he did not raise the said issue with the prosecution witnesses especially PW2 hence the court opines that it was an afterthought on his part.” 69. It is submitted that it is never the duty of the accused to prove his innocence. The accused is even entitled to remain silent. The duty to prove all facts rests with the prosecution. Trial magistrate thus occasioned an imbalance in the rules of natural justice and unlawfully shifted the burden of proof to the defendant. 70. In those regards, see in VICTOR MWENDWA MULINGE –VS- REPUBLIC (2014) eKLR where the court of appeal against the findings of an Appellant’s afterthought found:“But even assuming that the Appellant raised the defence of alibi for the first time while in court, as rightly submitted by Mr. Oguk, pursuant to the provisions of Section 309 of the Criminal Procedure Code the prosecution could have sought leave to adduce further evidence in reply to rebut the Appellant’s defence.” 71. The section states as follows: “309. If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.” The prosecution failed to do so. All in all, we find and indeed hold that for the reasons stated herein, the Appellant’s conviction was unsafe and accordingly allow this appeal. The appellant’s conviction is quashed and the death sentence is hereby set aside. The appellant is set at liberty unless otherwise lawfully held.” 72. The facts relied on in his defence are not an exception and the prosecution were free to adduce additional evidence in rebuttal. The terming of the defence as an afterthought thus is prejudicial. RESPONDENT’S SUBMISSIONS 73. The Respondent submitted that, the appellant has raised 8 grounds of appeal dated 15 th March, 2017. The said grounds are opposed as follows; • Whether the charge sheet was supported by the evidence and whether or not it was defective. 74. The Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act. The element to prove in such an offence are as follows; • The age of the victim/complainant. • Penetration of the Appellant’s genitals into victim’s genitals. • Identity of the perpetrator.

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• The relationship between victim and perpetrator. 75. Section 186 of the Criminal procedure Code states thus; “Where a person is charged with the defilement of a girl under the age of fourteen years and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under the Sexual Offences Act, he may be convicted of that offence although he was not charged with it.” 76. Section 179 of the same act also provides as follows; “When a person is charged with the offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it”. “When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.” 77. Thus the offence of incest consists of the above stated ingredients. On the other hand the ingredients for defilement are three namely, prove of age of the complainant, and prove of penetration and identity of the penetrator. 79. Section 20(1) of the Sexual Offences Act provides for a mandatory life sentence where the victim is below 18 years of age, on the other hand, Section 8(1) and (2) of the same Act provides for an offence of defilement a mandatory sentence of life imprisonment where the victim is (11) eleven years of age or below. 79. The respondent thus urges court to find that no prejudice was occasioned to the Appellant by charging with incest instead of defilement. The age of the victim was proved to be 8 years at the time of the offence and the doctor produced a P3 form in prove of both the age and that the victim was indeed defiled. 80. The identity of the Appellant was never disputed since the Appellant was well known to the victim who referred to him as ‘uncle’ as he (Appellant) is a cousin to the mother of the victim. 81. The respondent urge court to find that even though the relationship between Appellant and the victim does not fall within the prohibited degree of consanguinity, all the necessary ingredients of the defilement were proved and hence the evidence adduced supported 82. The offence of defilement. This did not in any way prejudice the Appellant. The trial court therefore correctly convicted and sentenced the Appellant. II) WHETHER MEDICAL EVIDENCE WAS ADMISSIBLE 83. PW3, the doctor produced P3 form which indeed proved that the complainant had been defiled. The doctor relied on initial treatment notes after confirming the same to be genuine. The production of the P3 form was never objected to by the Appellant. The same was properly filled and is admissible. It is thus submitted that doctor’s evidence was properly tendered and confirmed the penetration of Appellant’s genital organs into the victim’s genital organs. III) WHETHER PW1’S EVIDENCE WAS FREELY GIVEN. 84. PW2 stated that PW1 told her what had transpired. On cross examination PW2 stated that she did not beat PW1 in order for PW1 to tell her what had happened. Accused person did not give any testimony in his defense on beating the victim in order for her to implicate him.

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85. The respondent submit that the evidence was free and therefore admissible. In Sexual offences involving minors, the evidence of a parent or a guardian or any person to whom the minor narrated the story is admissible and cannot be treated as hearsay. IV) WHETHER ESSENTIAL WITNESSES WERE CALLED 86) It is submitted that, the offence happened in the forest and no one else was present to witness it. There were no other witnesses to be called other than the ones who testified. V) WHETHER ALL VIAL EXHIBITS WERE PRODUCED 87. The P3 medical form was produced by PW3. This was enough proof of penetration and corroborated the oral evidence of PW1 and PW2. The doctor stated that they do not have the facilities to do DNA profiling and as such could not analyze the clothes that were given to them. VI) WHETHER THE APPELLANT WAS PREJUDICED WHEN HE PROCEEDED WITH THE HEARING WHILE ALLEGEDLY ILL. 88. The appellant was given an opportunity to cross examine the witnesses. The two witnesses were the doctor and the investigating officer. Furthermore the Appellant had an opportunity to apply for recalling of the witnesses for further cross examination but did not do so. The same was not also raised in the defense. This is an afterthought. The appellant was not prejudiced and the trial was proper. 89. In the upshot, we humbly submit the prosecution case was proved beyond any reasonable doubt and the trial magistrate safely and correctly convicted the Appellant. 90. After going through the evidence on record and the parties submissions, I find the issues are:i. Whether the charge was defective? ii. Whether the ingredients of the offences were proved beyond reasonable doubt? ANALYSIS Whether the charge sheet was supported by the evidence and whether or not it was defective. 91. The Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act. The element to prove in such an offence are as follows; -The age of the victim/complainant. -Penetration of the Appellant’s genitals into victim’s genitals. -Identity of the perpetrator -The relationship between victim and perpetrator. 92. Section 186 of the Criminal procedure Code states thus; “Where a person is charged with the defilement of a girl under the age of fourteen years and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under the Sexual Offences Act, he may be convicted of that offence although he was not charged with it.” 93. Section 179 of the same act also provides as follows;

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“When a person is charged with the offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.” “When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.” 94. Thus the offence of incest consists of the above stated ingredients. On the other hand the ingredients for defilement are three namely, prove of age of the complainant, and prove of penetration and identity of the penetrator. 95. Section 20(1) of the Sexual Offences Act provides for a mandatory life sentence where the victim is below 18 years of age, on the other hand, Section 8(1) and (2) of the same Act provides for an offence of defilement a mandatory sentence of life imprisonment where the victim is (11) eleven years of age or below. 96. The age of the victim was proved to be 8 years at the time of the offence and the doctor produced a P3 form in prove of both the age and that the victim was indeed defiled. 97. The identity of the Appellant was never disputed since the Appellant was well known to the victim who referred to him as ‘uncle’ as he (Appellant) is a cousin to the mother of the victim. 98. The court finds that even though the relationship between Appellant and the victim does not fall within the prohibited degree of consanguinity, and state concedes as much, all the necessary ingredients of the defilement were proved and hence the evidence adduced supported the offence of defilement. 99. This did not in any way prejudice the Appellant. The trial court therefore correctly convicted and sentenced the Appellant. 100. On whether the ingredients of the offences were proved beyond reasonable doubt? The court has analyzed the evidence adduced by both the prosecution and the defence. 101. The complainant testified that her uncle who is the accused person herein whom she referred to as m had taken her in to the forest on his bicycle and defiled her. She explained to the court that he removed her undergarment and he proceeded to lie on top of her after he also removed his pants and then defiled her. 102. After he finished he took her to the market and bought her “chapati” and told her not to tell anybody. The complainant’s mother PW2 testified that she arrived home and found her daughter missing and she asked her siblings where she was and they told her that she had been called by Mutua and they had left on his bicycle. 103. It was her testimony that about thirty minutes later her daughter arrived holding “chapati” on her hand. She indicated that on observing her she looked like she had cried and also had sand remains on her back. She indicated that she then asked her where she had gotten the “chapati” from and she replied her that she got them from Mutua. 104. She explained to the court that Mutua was her cousin. It was PW2 testimony that she later established that her daughter had been defiled and informed the area chief. Subsequently, the matter was reported to the police and the complainant taken to hospital where she was treated and discharged. She informed the court that thereafter Mutua disappeared and resurfaced almost 1½ years later whereby he was arrested and charged. 105. PW3 produced the P3 form and informed the court that his findings were that the minor had been defiled as the hymen was broken, she had vaginal bruises and the results of a high vaginal swab showed that she had an infection.

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106. PW4 was the investigating officer who indicated that when the accused person was brought to the station she proceeded to charge him as the P3 form had already been filled. 107. The accused person denied the charges and informed the court that his family and that of the complainant had had a grudge since they owed him a cow which he was eventually repaid. 108. However he indicated that the complainant’s mother was against the repayment and when it was done she vowed to put him in a place he would not get himself out of. He thus indicated that this was it. 109. The minor gave sworn evidence and was duly cross examined by the accused person. She identified the accused person by name and indicated that he was his uncle and further narrated to the court what had happened. 110. Her evidence appeared consistent. There could have been no one else at the scene to corroborate the minor’s evidence as is the case in most sexual offences. 111. Notably the accused person disappeared after the said incident and resurfaced 1½ years later and the court finds that the said action portrays guilt on his part. 112. The accused person during trial did not even attempt to counter the said evidence and/or explain where he had been and/or what had caused his disappearance. 113. He based his defence mainly on a family grudge however from the record it is evident that he did not raise the said issue with the prosecution witnesses especially PW2 hence the court finds that it was an afterthought on his part. 114. Looking at the medical evidence adduced the same demonstrated to the court that indeed the minor had been defiled and the court was further informed that she was a girl aged 7 years at the time of commission of the offence. 115. In light of the foregoing the court findings that the prosecution proved its case beyond reasonable doubt and that there was sufficient evidence to sustain conviction cannot faulted. 116. However as incest was not proved but defilement under Section 8(1) as read with 8(2) SOA, the appellant conviction is thus substituted to be under the same provisions. 117. Consequently, the appellant appeal has no merit, same is dismissed, conviction affirmed as substituted and sentence confirmed. SIGNED, DATED AND DELIVERED THIS 2ND DAY OF OCTOBER, 2017. C. KARIUKI JUDGE ……….…………

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