REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAPENGURIA CRIMINAL APPEAL NUMBER 23 OF 2016 (From original conviction and sentence in criminal case number1060 of 2013 of the Principal Magistrate’s Court at Kapenguria) PETER SHISIA KAVULI……..…….…………APPELLANT VERSUS REPUBLIC …………………………….…RESPONDENT JUDGEMENT PETER SHISIA KAVULI, the appellant herein was charged, tried, convicted and sentenced for an offence of Defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of this offence are that on the 6th day of October, 2013 at Sook Location, within West Pokot County, the appellant did cause his penis to penetrate the vagina of J J, a child aged 11 years. The prosecution case is that at the time of the alleged offence, that is on 6.10.2013, the complainant in this case was aged 11 years and was schooling at [Particulars withheld] Primary School, in class 3. The appellant was her teacher. On the said date in the morning she went to the local centre to buy soap. On her way back home at about 9.00am, the appellant followed her. She knew him well as her teacher, called Barasa. When she got near a certain homestead he grabbed her by the hand and dragged her into a nearby forest. She tried to scream but he held on her mouth. While in the forest he pinned her to the ground. He removed his trouser and pant. He then removed her skirt, dress and pant. In her own words he inserted his urinating organ into hers. After he was through he gave her his phone of which he had switched off. The complainant dressed up and went home. Her mother was not at home as well as her father. She went to the stream with her other siblings to clean her school uniform. While there the appellant went for his phone. He took it. When she returned home she found her mother. She reported to her what the appellant had done to her. The mother informed a KPR (Kenya Police Reservist) called Lokwanyang. The KPR called PW-2 and told him about the incident. He as well arrested the appellant. The following morning the complainant was taken to Kapenguria District Hospital for age assessment and examination. PW-3 examined her and filled her P-3 form. He found that the hymen was perforated and the injury was one day old. There was also a discharge on the labia. Other tests carried were negative. He concluded that she had been penetrated. He as well did an age assessment and found her to have been 11 years old. The appellant was taken to Kapenguria Police station upon his arrest. The case was investigated by PW-4 who preferred the charges. The accused’s defence is that he used to be a PTA teacher in West Pokot County. A parent then alleged that he had defiled her daughter. He was arrested by KPR. The mother had no evidence and the girl
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denied the allegation. The mother forced the girl to implicate him. He was then arrested and charged. He alleged innocence. The trial magistrate evaluated the evidence, found him guilty, convicted him and sentenced him to life imprisonment. Dissatisfied with the said conviction and sentence he appealed to this court on the following grounds:1. That he pleaded not guilty at the trial. 2. That key witnesses did not give evidence. 3. That the evidence relied on was hearsay evidence. 4. That the prosecution evidence was contradictory. 5. That medical evidence was not weighed in the judgment. 6. That his defence was rejected without cogent reason. 7. That there was no document to confirm the actual age of the complainant. I have weighed the evidence adduced in the lower court, grounds of appeal and submissions by both sides. For this offence, of defilement, the prosecution needed to establish beyond reasonable doubt the following ingredients:1. The age of the victim who must be a minor 2. Penetration of her sexual organ by a sexual organ 3. Identification of the appellant or his recognition as the perpetrator. On the issue of age the girl herself said she was aged 11 yeas old. She said so during voire dire and also during her evidence-in-chief. PW-3 did an age assessment and stated she was 11 years old, of which was compatible with 2002 year of birth. The age was not challenged by the defence during the hearing of the case. The trial magistrate who had the advantage of seeing the girl was comfortable and satisfied with the given age. Though as claimed by the defence no Birth Certificate, clinic card or school document was produced to ascertain the age, the evidence on record would suffice for the age of the girl. It establishes her age beyond reasonable doubt. The girl in her evidence said she was penetrated by the appellant though not fully. Her explanation that the appellant used his urinating organ to penetrate hers, shows he used his penis to penetrate her vagina. Partial penetration would suffice for the offence given the definition of “penetration” in the Sexual offences Act no. 3 of 2006, Section 2(1)(d) of which defines it to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. PW-3’s evidence corroborates the evidence of the complainant to the effect that she was penetrated. Her hymen was ruptured and the injury was just a day old, of which fits the time of the alleged offence. Penetration is therefore also established by the prosecution beyond reasonable doubt. The appellant herein was the complainant’s teacher. He was well known to the complainant as Barasa. PW-2 her mother confirmed the fact. The girl could not therefore have made a mistake of him. He was well recognized as the culprit. The appellant’s defence cannot be correct. The complainant’s mother and the complainant had no cause to fix him. If they had, the appellant would have disclosed it in his defence of which he did not. The defence is flimsy and was rightly dismissed.
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Section 8(1)(2) indicates anyone who commits the offence of defilement with a child of 11 years or less upon conviction be sentenced to imprisonment for life. The appellant was given that sentence which is the legally fitting sentence for the offence. I accordingly find no cause to interfere with either the conviction or the sentence. The appeal lacks merit and is hereby dismissed. Read in open court in presence of the state prosecutor M/S Kiptoo and the appellant this 1st day of November, 2017. S. M. GITHINJI JUDGE 1.11.2017
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