REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAPENGURIA CRIMINAL APPEAL NUMBER 10 OF 2017 (From original conviction and sentence in criminal case number 9 of 2016 of the Principal Magistrate’s Court at Kapenguria) CHRISTOPHER LOMAISIA:::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS STATE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT JUDGMENT CHRISTOPHER LOMAISIA, the appellant herein, was charged, tried, convicted and sentenced for an offence of defilement, contrary to Section 8(1)(3) of the Sexual Offences Act No. 3 of 2006. The particulars of this offence are that on the 11th day of October, 2016 at [particulars withheld] Village in Mwino Location of Pokot Central Sub-County, within West Pokot County, the appellant intentionally caused his penis to penetrate the vagina of N.K, a child aged 15 years. The prosecution case is that the complainant in this case who offered evidence as PW-1, was born on 12.2.2002. On 11.10.2016 when the offence allegedly took place she was therefore aged 14 years. That day at 2.00am she was asleep in the kitchen. Her brother called L was also sleeping in the same place. The father, the PW-2 in this case was asleep in a different house nearby. The appellant herein went and opened the kitchen door. He entered therein. He went to where the complainant was and lay next to her. He woke her up, held her and undressed her. He bit her on the face ordering her to keep quiet lest her father hears her. He then abused her sexually. When he was through with the first round, he asked her for a second round. The appellant was strange to her but she saw him well using his mobile phone torch of which he had put on. She had screamed and fortunately the father had heard it. He had heard her shouting, “toka!” meaning, “get outside!” The father went outside and asked her what was wrong. She said someone had entered the house. The father locked the house from outside. He called neighbours and some KPR officers. He told them what was happening. They opened the door. The appellant was therein. He was arrested. PW-1 was taken to Sigor Sub-County Hospital. She was examined by PW-3 in this case. Upon examination of the genitalia stains of spermatozoa on the labias were noted. Vaginal swab was examined and numerous spermatozoa were noted. She filled the PRC and P-3 form. She concluded that there was evidence of defilement. The case was reported at Sigor Police Post on the very same date. The appellant who was held by KPR officers was also presented there. PW-4 received the report and the suspect. He investigated the case and charged the appellant.
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The appellant’s defense is that he lives at Chepkobegh and he is a businessman. On 11.10.2016 he was at the Shopping Centre where he had gone to buy maize. He was there till evening when he went to a shop where the two KPR officers arrested him. He was taken to the area chief. He was booked in cells. He alleged that he has a land dispute with the complainant’s father. He denied the offence charged with. The trial court evaluated the evidence, found the offence proved beyond reasonable doubt and convicted the appellant. He was sentenced to serve 20 years imprisonment. The appellant dissatisfied with the said conviction and sentence, appealed to this court on the grounds that:1. His defence which was strong enough was not properly weighed. 2. Crucial witnesses did not offer evidence. 3. The adduced evidence by prosecution witnesses was in want of merit and contradictory. 4. His defense was rejected without offering cogent reason. 5. The case was poorly investigated. 6. The issue of land grudge was not considered. Appellant presented written submissions of which I have gone through while the state prosecutor made oral submissions. She urged the court to dismiss the appeal on the grounds that all the ingredients for the offence of defilement were well proved beyond reasonable doubt. I have evaluated the entire evidence in the file, considered the grounds of appeal and submissions by both sides. To establish the age of the victim, PW-2 who is her father presented to the court an authentic Birth Certificate, showing that she was born on 12.2.2002. A birth certificate is the best available evidence to establish the age of a person. No other evidence was produced to challenge the alleged date of her birth which shows that at the time of the alleged offence, on 1.10.2016 she was 14 years old. The court was therefore right in holding that she was a child. Though complainant’s evidence does not indicate explicitly that her genital organ was penetrated by the appellant’s genital organ, the words she used when considered together with the evidence of the Clinical Officer, which shows that the vaginal swab had numerous spermatozoa, leaves no doubt that her genital organ was penetrated by a male genital organ. That is the only way, given the circumstances; the spermatozoa would have found their way in her vaginal swab. When the complainant then said that the appellant undressed her and then abused her sexually, meant her genital organ was penetrated by the appellant’s genital organ. She equally when she said he was done the first time, meant he had ejaculated. It might not be entirely irrelevant to point out here that it is the duty of the prosecutor and the court to ensure that the witnesses explains themselves clearly, where they use words or phrases open to several meanings, to a point of establishing firmly what they mean. In this case were it not for the evidence of PW-3, irrespective of the evidence of the complainant, finding that there was penetration would have been a problem due to the vagueness of the words used. The appellant was arrested “red handed”. He was got in the kitchen where the complainant was sleeping at 2.00am. It’s clear from the evidence of PW-1 and PW-3 what he was there for and what he did. He committed the offence convicted of. He could not have been mistaken for another person. His defence that he had a land dispute with the complainant’s father and that he was fixed cannot be true. He gave no details of the said dispute and the defence was just a poorly crafted story. Given the weight of the prosecution case it was rightly dismissed. I therefore agree with the state prosecutor’s position that
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all the ingredients for the offence of defilement were established beyond reasonable doubt. The appeal lacks merit and is dismissed. Judgment read and signed in the open court in presence of the state prosecutor, Madam Kiptoo and the appellant, this 6th day of December 2017. S. M. GITHINJI JUDGE 6.12.2017
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