REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU CRIMINAL APPEAL NO. 88 OF 2014 P K………………...……..APPELLANT VERSUS REPUBLIC ………….... RESPONDENT (Being an appeal against conviction and sentence in Sexual Offences No. 3 of 2006 of Hon. O. Wanyanga (RM) at Maua Law Courts) JUDGMENT The appellant was charged with the offence of attempted defilement Contrary to Section 9(1), (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that the appellant on the 4 th day of November, 2013 in Igembe North District within Meru County intentionally attempted to cause his penis to penetrate the vagina of E.M, a child aged 14 years. The trial court convicted the appellant and sentenced him to serve ten (10) years imprisonment. The grounds of the appeal are:1. The charge sheet was defective. 2. The prosecution did not prove the case beyond reasonable doubt. 3. The prosecution evidence is full of inconsistencies and the witnesses were not credible. The appellant submitted that he is disabled and the sentence did not take into account his disability. The prosecution did not prove its case. PW1’s evidence relates to defilement but the case was for attempted defilement. The trial court found the evidence consistent and reliable. The appellant contends that no member of public testified yet PW2 alleged that the appellant was about to be lynched by members of public. Mr. Namiti, Prosecution Counsel, partially conceded the appeal. Counsel submitted that this is a borderline case. PW1 testified that she was woken up by pain as her father was defiling her. She immediately called her mother. Appellant had been released from prison a few weeks before the incident. The medical evidence did not establish sexual assault. There were two other children in the house but were not called to testify. At one time the prosecution wanted to withdraw the case. This is a first appeal and this court has to evaluate the evidence afresh and make its own conclusion. PW1 E.M was the complainant; the appellant is her biological father. On 04/11/2013 she went to the
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room where her father usually repairs shoes. She was with her two sisters. Her father was with two other people. They went to sleep in their bedroom. She was awoken by her father who was defiling her. He had removed her clothes and had inserted his penis into her vagina. She was awoken by the pain. She started crying. Her father left. She called her mother who had given her a phone and informed her. In the morning she was taken to Laare Health Centre and the case was reported to the Police. A P3 form was issued to her. She did not scream during the incident. She was afraid her father would beat her if she screamed. PW2 C.N is the mother of PW1. It’s her evidence that the appellant is her husband and the biological father of PW1. On 04/11/2013, she was at home at 9.00 p.m. The children went to the room where they normally sleep. By 10.30 pm the appellant had not returned home. He called him on phone and he said he was on the way. PW1 went to her place and told her that her father had defiled her. Shortly, the appellant arrived home. She asked him what he had done to PW1 but he did not respond. PW2 checked PW1’s private parts and it was wet and watery. The appellant left the homestead. The matter was reported to the police. The appellant was arrested by members of public. The appellant had been released from jail in March, 2013. PW3 Sergeant ABEL OKADAPAM was stationed at Laare Police Station. The case was reported on 5/11/2013 at 10.00 a.m. PW1 was referred to hospital. The appellant was charged with the offence of attempted defilement as the P3 form indicated that there was no evidence of sexual assault. In his sworn evidence, the appellant denied committing the offence. On 04/11/2013 he was at his place of work as a Cobbler for the whole day. At about 8.00 p.m he closed his work and entered a nearby hotel where he took tea and listened to the 9.00 p.m news. He is disabled. He went home and sat in the sitting room. His wife took about 30 minutes to come after he had called her as she was not at home. He called her on phone and she told him that he knew what he had done and disconnected. PW2 went home and started quarreling him. He left the homestead and went to PW2’s uncle’s home. The uncle was sick and he stayed there for 4 days. He then went to Laare Equity Bank. He met PW2’s brother who took him to Laare Police Station. He was later charged with the offence. The issue for consideration is whether the prosecution proved its case beyond reasonable doubt. The evidence of PW1 is that she was defiled by her father. She was awoken by the pain as her father had inserted his penis into her vagina. The appellant had removed her clothes including a biker. According to PW1, she checked PW1’s private parts and found them to be wet and watery. That evidence has to be weighed against the appellant’s evidence. He denied committing the offence. The P3 form was filled the following day on 05/11/2013. The Medical Officer did not observe anything on the complainant’s private parts. There is no classification of the injuries sustained by PW1. The effect of the P3 form is like the appellant did not touch PW1. It is PW1’s evidence that there was no blood from her vagina. There was enough light in the room. Section 124 of the Evidence Act states that in sexual offences the court can convict on the evidence of the complainant if that evidence is found to be believable. Such evidence does not need to be collaborated. The opposite of this provision is that if the evidence of the complainant is doubtful, then the accused should benefit from the doubt. The evidence of PW1 is to the effect that she was defiled. She was 14 years old. Her father penetrated her. It was at night and she was woken up by the pain. That evidence is not supported by the medical evidence. The medical officer did not testify. However, the P3 form produced in court is quite clear. No watery substance was noted on PW1’s private parts. It is not stated that PW1’s hymen was torn. The charge is that of attempted defilement. This means that PW1 was not defiled. Her evidence is to the effect that she was defiled. We can excuse PW1 as she is a minor but her evidence is quite clear that the appellant had inserted his penis into her vagina. If that had happened then the medical evidence would have been different. That is why the prosecution preferred the charge of attempted defilement.
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The charge sheet shows that the appellant was arrested on the 13/11/2013. The P3 form was filed immediately after the incident. I saw the appellant who walks with the aid of crutches. It is not possible that the appellant interfered with the filling of the P3 form. I do find that the evidences of PW1 is quite doubtful. She was not defiled. There was no attempt to defile her. She was with her two young sisters who never testified. At her age, it would have been highly evident from the medical examination that the appellant sexually assaulted her; some form of injuries would have been noted in her private parts. There were no injuries on any part of PW1’s body noted on the P3 form. I do find that the prosecution evidence is doubtful. This case was not proved beyond reasonable doubt. The medical evidence exonerates the appellant from any blame. The appellant is entitled to the benefit of doubt. The appeal is merited and is hereby allowed. The conviction and sentence is set aside. The appellant shall be set at liberty unless otherwise lawfully held. DATED AND SIGNED AT EMBU THIS ….DAY OF SEPTEMBER, 2017. S. CHITEMBWE JUDGE. DATED, SIGNED AND DELIVERED AT MERU THIS 5TH DAY OF OCTOBER 2017. A. MABEYA JUDGE IN PRESENCE OF: 1. ……………………… for Appellant 2. ………………………. for Respondent 3. ……………………….C/Assistant
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