Ben Mutua Ndambuki v Republic

4. Parties herein agreed to canvass the Appeal by way of written submissions. It was submitted for the Appellant that the charge was defective since the elements of the offence were not properly explained. It was further submitted that there was no proof of penetration of the complainant’s genitalia and finally that the Appellants constitutional rights were infringed in that he was ordered to proceed without being supplied with witness statements and being unwell. It was submitted for the Respondent that the charges against the appellant had been proved beyond reasonable doubt. Since the complainant’s genitalia was lacerated and tender on touch and which was established by the Clinical Officer who corroborated the evidence of the Complainant the Respondent urged this court uphold the conviction and sentence. 5. As this is the first Appellate Court, its duty is to re-evaluate and analyze the evidence afresh and to reach its own independent conclusion bearing in mind that it did not have the benefit of seeing or hearing the witnesses testify.(see OKENO =VS= REPUBLIC [1972] EA 32). 6. PW.1 was the Complainant and who testified that the Appellant called her to his house where he removed her trouser and biker and then inserted his male organ into her vagina and she felt pain and requested him to stop upon which the Appellant advised her not to tell anyone about what had taken place, However she reported to her grandmother. 7. K M N (PW.2) was the Complainant’s grandmother. She testified that on returning from the market she decided to bathe the complainant who felt pain in her private parts and on confronting her she informed her that the Appellant had defiled her. She then reported the incident at Ikombe A.P. Camp and escorted the minor to Ikombe Health Centre for medical checkup. 8. Sergeant Joram Gathuku (PW.4) of Ikombe A.P. Camp received report from the complainant’s grandmother and organized for the Appellant’s arrest and handed him over to PC. Pamela Adhiambo (PW.5) who investigated the matter and had the Appellant charged with the offence. 9. Peter Kyalo Mwaniki (PW.6) was the Clinical Officer and testified that he examined the complainant and confirmed that she had injuries on her private parts and formed the opinion that there was evidence of defilement. He produced P.3 forms, treatment notes, and age assessment report. 10. The trial Court after hearing the Prosecution’s six witnesses found Appellant had a case to answer. The Appellant tendered an unsworn statement and confirmed that he had been a domestic servant at the home of the complainant and that he knew nothing about the charges levelled against him. 11. I have considered the evidence adduced before the trial court and the submissions presented herein. I find the following issues necessary for determination namely:(1) Whether the Appellant’s Constitutional rights under Article 50 of the Constitution were violated. (2) Whether the Prosecution had proved its case beyond the required standard proof. 12. As regards the first issue it is noted that the appellant has faulted the trial court for compelling him to proceed with the case when he had not been supplied with witness statements and while sick. A perusal of the trial court’s record does not reveal whether or not statements of witnesses were supplied by the Prosecution to the Appellant. The Appellant duly proceeded with the case until it was finalized and there is nowhere in the proceedings that he ever sought to be supplied with statements. He vigorously crossexamined the witnesses and even conducted his defence. He did not raise any issue of lack of witness statements to court. The only reasonable assumption is that he had been supplied with the statements by the prosecution. Under Article 50 of the Constitution the Appellant was entitled to be accorded a fair hearing and it is believed that the prosecution had indeed supplied him with the statement before the trial commenced. The failure by the trial court to enquire of its own volition as to whether statements had been supplied before or during the trial did not prejudice the appellant since he vigorously cross –

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examined the witnesses leaving no doubt that indeed the witness statements had been supplied to him by Prosecution. The appellant has raised an issue that he had been compelled to proceed with the case while he was unwell. Indeed the trial court received his request and those of the Prosecution and directed that in the absence of any evidence of illness and further due to the fact that the first witness was a minor the adjournment was declined. The record of the lower court further reveals that the Appellant participated in the trial throughout and even after the matter was rescheduled to another date the appellant did not thereafter raise the issue of illness. The Appellant proceeded with the remaining witness on a different date and he ably cross-examined him. The Appellant was given about one month to prepare for his defence which he duly conducted and he did not raise any issues of being unable to proceed due to illness. I am satisfied that the trial court did consider the appellant’s request and circumstances and made a decision that the trial was to commence. The trial court had the advantage of observing the Appellant and came to the conclusion that the request for adjournment sought by the Appellant had no merit and therefore ordered the trial to proceed. The matter was not concluded that day but that it was deferred to another date whereby the Appellant had the liberty to recall witnesses for further cross – examination if needed but he did not do so implying that he had been satisfied by the way the case had proceeded. I am therefore unable to find that the Appellant’s rights under Article 50 of the Constitution were violated by the trial court. 13. As regards the second issue I find that the prosecution was under duty to establish three key elements of the charge namely penetration of the complainant’s genitalia, the complaint’s age and positive identification of the Appellant as the perpetrator. As regards the aspect of penetration, the sexual offences Act defines the same as the complete or partial insertion of a male genital organ into the female genital organ of the victim. The complainant testified that she arrived from school and had lunch prepared by her grandmother who later for the market. It was the evidence of the complainant that the Appellant who had been employed by her grandmother as a herdsboy and who lived within the compound, called her to his house where he removed her trouser and biker and defiled her and upon feeling pain she requested him to stop and that the appellant warned her not to tell anyone about the incident. The complainant’s grandmother (PW.2) later noticed that the minor complained of pain in her private part during the bathing session and a report was lodged at the nearby AP Camp while the Complainant was escorted to Ikombe health Centre where she was examined by Peter Kyalo Mwaniki (PW.6) who established injuries on her private parts. The said clinical officer noticed lacerations around the urethra and tenderness on vaginal area. He filled a P.3 form in which he confirmed that there had been defilement. He also conducted a vaginal swab and established some pus cells. His evidence therefore corroborated that of the minor on the issue of penetration of the complainant’s vagina. The appellant in his submissions seems to suggest that the injuries had been inflicted by the complainant’s grandmother during the bathing exercise but I do not agree with the Appellant’s line of argument since the complainant clearly stated in her evidence in chief and cross – examination that it was the Appellant who had inserted his penis into her vagina and she had felt pain. In the premises I find the prosecution established that indeed penetration had taken place. As regards the issue of the age of the complainant, she was assessed at seven (7) years old as per the age assessment report and P.3 from produced as exhibits. The issue of the age was therefore established by the Prosecution. As regards the identity of the perpetrator the complainant herself stated that the Appellant called her to go to his house around 5 p.m. where he defiled her. The complainant had known the Appellant as he was a herdsboy employed by her grandmother and who lived within the same compound. There was therefore no question of mistaken identity. The complainant was quite categorical in her evidence that it was the Appellant who had defiled her. She had no reason to frame him. The complainant’s grandmother stated that upon bathing the complainant and touching her private parts she felt pain and it was then that she learnt from the minor that the Appellant had earlier defiled her. She reported to the police and escorted the minor to hospital for treatment. The Appellant was arrested early the following morning from his sleeping quarters. The evidence of the complainant and her grandmother as well as the clinical officer was corroborated. The Appellant was the only one who had been left in the compound with the minor. I find the Complainant’s grandmother had no reasons to have appellant charged for the offence as he was her employee and further she could not use the complainant to act as a victim so as to fix the appellant when she had no grudges against him. I have no doubt that the Appellant was indeed the perpetrator. The Appellant’s defence did not shake the evidence of the Prosecution which was quite overwhelming against him. I find the prosecution had proved its case against the Appellant beyond any reasonable doubt.

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14. 14. In the result it is the finding of this court that the Appellant’s Appeal lacks merit. The same is dismissed. The conviction and sentence of the trial court is upheld. It is so ordered. Dated, Signed and delivered at Machakos this 9th day of November, 2017. D. K. KEMEI JUDGE In the presence of:Ben Mutua Ndambuki – Appellant Machogu for Respondent Kituva – Court Assistant

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