REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAPENGURIA CRIMINAL APPEAL NUMBER 5 OF 2016 (From original conviction and sentence in criminal case number 1680 of 2015 of the Principal Magistrate’s Court at Kapenguria) S L.......................................APPELLANT VERSUS REPUBLIC......................RESPONDENT JUDGEMENT S L was charged in the lower court with the offence of Defilement, contrary to section 8(1)(3) of the Sexual Offences Act number 3 of 2006. The particulars of this offence are that on the 23 rd day of September, 2015 within west Pokot County, the appellant intentionally caused his penis to penetrate the vagina of R M a child aged 8 years. The appellant also faced an alternative count of committing an Indecent Act with a child, contrary to section 11(1) of the Sexual Offences Act number 3 of 2006. Particulars of this offence are that on the 23 rd of September 2015 within west Pokot County, the appellant intentionally touched the vagina of R M a child aged 8 years with his penis. The prosecution case is that at the time the offence allegedly took place, the complainant herein was schooling at [particulars withheld] Primary School, in class two. She was aged about 8 years, according to her father, the PW-3 in this case. On 23.9.2015 she was at home with her younger siblings. The appellant found her in the house. She had seen him before by the riverside. Her mother was in the shamba. The appellant asked her for drinking water. She gave him. The appellant who was standing at the door step got hold of her. He fell her down. He removed her clothes and as well as his trouser. He then inserted his penis in her vagina. She felt pain. Luckily, her uncle, the PW-2 in this case got to the scene. He was feeling unwell and wanted to take a rest in the house, away from the scorching sun. He caught the appellant red-handed. The appellant had his trousers lowered. The complainant had her clothes raised up to the chest. He was lying on the complainant. He rose up very fast on seeing PW-2. He raised his trouser and zipped up. PW-2 went and informed the complainant’s mother. He knew the appellant well as S L. He is their neighbour. He had, after the incident gone towards the water point. They arrested him and locked him inside the house. The complainant’s mother called her husband, the PW-3 in this case. PW-3 went home and found the appellant therein. He assaulted the appellant before calling the area chief. The area chief arrived and rearrested him. He was taken to Amakeriat Police. PW-3 was advised to take the complainant to the
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hospital. He took her to Alale Health Centre. She was examined there on 23.9.2015 by PW-4. The Clinical Officer noted that she had an inflamed, bruised and reddened labia. She concluded that the complainant had been penetrated. She was later examined at Kapenguria District Hospital on 25.9.2015. Her age was confirmed as 8 years. Her private parts had swelling labia region. Lab test revealed no spermatozoa. HIV test done was negative. The medical officer concluded that she was defiled. He thus filled the P-3 form. PW-5 investigated the matter and had the appellant charged. The appellant’s brief defence is that he stays at Alale. He is a farmer. He knows the complainant. He is their relative. He did not commit the offence. He was fixed after he demanded payment from them. They were drunk. They took his phone and kshs.10,000/-. The trial magistrate weighed the evidence, found the appellant guilty, convicted him, and sentenced him to serve life imprisonment. The appellant dissatisfied with said conviction and sentence, appealed to this court on the grounds that:1. The charge sheet was defective. 2. He was not given a chance to raise defence and mitigate. 3. The defence was not evaluated and reasons for its rejection given. 4. The trial magistrate is not the one who wrote the judgment. 5. He urged the court to order for retrial. In his submissions, the appellant dwelt more on evidence adduced and not at all on the raised grounds of appeal. In my view the raised grounds of appeal must have been picked in a different file as they do not agree to the proceedings hereof. I have weighed the evidence in the file afresh. The complainant gave credible evidence of which is buttressed by the evidence of PW-2 who found the appellant in the real act. He caught him red-handed. The evidence that the complainant was penetrated is well corroborated by the finding of PW-4 and PW6. The culprit was well known to PW-2. It was during the day and he could not have been mistaken for anyone else. The victims’ age was indicated by her father, the PW-3 in this case, to have been then around 8 years. PW-6 said he examined her and confirmed she was 8 years old. I have no cause to doubt the evidence. The appellant defence was an afterthought. On cross-examination he never suggested that PW-3 owed him money. The prosecution evidence is clear that the witnesses had no cause to fix him. The defence was rightly rejected by the trial court. My finding is that the appeal is unmerited. The appellant was rightly convicted and sentenced to serve life imprisonment. His appeal is dismissed. Judgment is read and signed in the open court in presence of the appellant and the state prosecutor, Madam Kiptoo, this 6th day of December 2017. S. M. GITHINJI JUDGE 6.12.2017
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