M K M v Republic

that the evidence shows that three people were sleeping on the same bed namely PW1, appellant and one G. It cannot be held that it is the appellant who defiled PW1. G. did not testify and both G. and the appellant were not taken for medical examination. The appellant further contend that the identification was not free from doubt. The source of light was a tin lamp that was on the floor near the bed. Further, PW1 did not scream but allegedly tried to free himself. PW1 did not inform the neighbours. The case was not proved beyond reasonable doubt as the prosecution failed to call G. to testify. PW1 claimed that the appellant was armed with a sword. No such weapon was produced. Mr. Namiti opposed the appeal.Counsel submitted that PW1 narrated how the appellant defiled him. PW1 immediately went to inform his father. The medical evidence established that there was anal penetration. The victim was 14 years old. The charge did not indicate the correct section but the sentence was proper. This is a first appeal and the court has to analyze the evidence afresh and make its own conclusion. Four witnesses testified for the prosecution. PW1 was the complainant. He testified that he was 15 years old on 02/09/2014 when he gave his evidence. On 21/10/2014 at about 9.00 p.m he went to sleep in the appellant’s house. His father had leased land from the appellant and constructed a one roomed house on the land. PW1 used to sleep with the appellant. On that day they slept with the appellant and one G. on the same bed. G. was drunk. PW1 slept in the middle of the bed. He slept with his clothes on. He woke up and found someone had penetrated his anus. His trouser was torn and he was not wearing an underwear. He identified the person as the appellant. There was a lamp on the floor. G. was fast asleep. He struggled and freed himself. He did not talk to the appellant as he had placed a sword on the bed. It is PW1’s further evidence that he went out and woke up his parents. He informed them what had happed. He went with his parents to check on the appellant but found that he had already left. In the morning the matter was reported at Kina-Meru Police Post. PW1 was referred to Nyambene District Hospital where he was examined. A P3 form was issued to him. The appellant was arrested at a neighbour’s home after two days. PW1 informed the court that his anus was painful. He denied that the appellant had evicted his family from the land. PW2 J M is PW1’s father. On 21/10/2012 at 9.00 p.m he went to sleep with his wife. PW1 used to sleep in the appellant’s house. At about midnight PW1 went to their house crying. They told him that the appellant had made love to him. They went to check on the appellant but did not find him in his house. They found G. sleeping on sacks on the floor. G. was very drunk. He tried to wake him up but did not manage. The following morning the case was reported at Kina-Meru Police Post. PW1 was referred to hospital. The appellant was arrested after about one week. He had leased land from the appellant. He denied that the appellant had asked him to move out of the land. PW3, NTONGAI M’MATHIO is a Clinical Officer. He was stationed at Nyambene District Hospital. On 22/10/2012 he filled the P3 form for PW1. There were no injuries around the anus. Anal swabs revealed presence of spermatozoa. He concluded that there was anal penetration. PW4 PC SAMSON YATOR was stationed at Kina Police Post which was under Laare Police Station. The case was reported at the Police Post. On 22/10/2012 at about 8.00 a.m. He escorted PW1 to Nyambene District Hospital. He was informed that the appellant was hiding. After four days the complainant informed him that the suspect had resurfaced. He went with a colleague and arrested the appellant at the house of one PASTOR MUKORINO. PW4 visited the scene and saw the bed where PW1 was sleeping. It is a makeshift bed. In his unsworn defence, the appellant testified that on the material date he went to sleep at 9.00pm. He was sleeping when PW1 and G. went there. He opened the door for them and they joined him on the bed. They slept until morning. At around 1.00 p.m he heard from neighbours that he was being sought for having sodomis`ed PW1. He was arrested after three days by PW4. He had given PW2 land to cultivate. When he told him to vacate the land he framed him.

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The issues for determination are:1.Whether PW1 was defiled. 2. Whether it is the appellant who defiled PW1 or whether the prosecution proved its case beyond reasonable doubt. PW1’s evidence is that he went to sleep on 21/10/2012 at 9.00 p.m. He had his clothes on when he slept. He woke up at night and found someone had penetrated his anus. He struggled and managed to release himself. PW3 examined PW1 the following day on 22/10/2012. Anal swab was done and spermatozoa was found inside PW1’s anus. PW3 opined that PW1 was defiled. Given the evidence of PW1 and PW3, I do find and hold that PW1 was defiled. According to PW1, he realized that it was the appellant who had penetrated his anus. They were sleeping in the same bed. The other person who was with them was G. who was asleep. He did not talk to the appellant. There was lamp on the floor near the bed. He released himself and went out. On his part, the appellant testified that it was true the three people slept on the same bed. According to him nothing happened at night. He heard the issue of defilement the following day from neighbours. The appellant’s evidence has to be weighed against that of the prosecution. It is the evidence of PW2 that the complainant went to their house at about midnight while crying. He informed them that the appellant had made love to him. In other words the complainant told his parents that he had been defiled by the appellant. According to PW2 they went to check on the appellant but he had already left the house. The charge sheet indicate that the appellant was arrested on 26/10/2012 and arraigned before the court on 29/10/2017. This was a period of about five days. According to PW4, the complainant went to inform him that the appellant had resurfaced. This was after three days. It is contended by the appellant in his grounds of appeal that G. did not testify and was also not examined. According to PW1, G. is a drunkard and was deeply asleep. PW2 tried to wake him up but did not manage. It is therefore clear that G. was asleep and did not know what happened that night. His only evidence could have been the fact that the three people slept on the same bed. That fact is not denied by the appellant. Further, according to PW1, he saw the appellant as the person who was sodomizing him. He did not see G. committing the offence. PW1 knew the appellant as they used to sleep together. There was also a lamp in the room. It is the appellant’s contention that he had ordered PW1 to vacate the land. There is no proof to that allegation. PW1 and PW2 denied that allegation. It is also clear from the evidence of PW3 that PW1 was defiled. That is an independent incident which has nothing to do with the land. The prosecution evidence is not entirely based on that of PW1. There is the evidence of PW2 who was woken up at midnight. According to PW4, the incident was reported the following morning at 8.00 a.m at the Kina-Meru Police Post. PW3 confirmed that PW1’s anus had been penetrated. From the prosecution evidence, I do find that indeed it is the appellant who defiled PW1. There is no evidence that it was G. who committed the offence. There is also no evidence that it was someone else who entered the house and defiled PW1. The evidence proves that PW1 was defiled. According to PW1, he did not scream as the appellant had placed a knife on the bed.PW1 knew that his parents were not far away and opted to go and wake them up. PW1’s age was not assessed. He told the court that he was 15 years old. The offence took place on 21/10/2012. PW1 testified on 02/09/2014, over one and half years later. The P3 form gives the age of PW1 as 14 years. PW1 was a class six pupil. I do find that PW1’s apparent age was below 16 years. He falls within the age bracket of 12 to 15 years as provided under Section 8(1),(3) of the Sexual Offences Act. The charge sheet made reference to Section 8(1), (2) which provides for life sentence. Since the victim was above 11 years old, I do find that there was no prejudice on the part of the appellant. The proper sentence is provided under Section 8(3) which is a minimum of 20 years

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imprisonment. In the end, I do find that the prosecution proved its case beyond reasonable doubt against the appellant. The appeal lacks merit and is hereby disallowed. DATED AT EMBU THIS ………..………DAY OF …………………. 2017. S. J. CHITE``MBWE JUDGE DATED, SIGNED AND DELIVERED AT MERU THIS 5TH DAY OF OCTOBER 2017. A. MABEYA JUDGE IN PRESENCE OF: …………………….....… for Appellant …………………….... for Respondent. ……………………….Court Assistant

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