Peter Ndugo Muraguri v Republic

requested to examine her private parts and noted that there was a discharge on the child’s vagina. The child told her that she had reported the defilement to her grandmother but the old lady had done nothing. She decided to accompany the child to her home, and in her presence, the child narrated the same to her grandmother. The grandmother allowed M to take her to hospital. In taking her testimony the trial court took a brief voire dire. The record reads; PW1- a minor examined by court I am JA. I do not know my age. I go to M Primary School in special unit. I know it is wrong to lie to court. COURT- The minor to give unsworn evidence. The complainant testified that she knew the accused in the dock by his name Ndugo. That they both lived in K. That on the material date she was on the roadside near her home about 3. 00p.m when the accused held her and took her to his house where removed her clothes, her cardigan, blouse, shorts, pants. Then he put his urinating thing into her urinating thing and also her buttocks where she passes stool. She said she felt a lot of pain. He told her if she told anyone he would cut her with a knife and kill her. She said she bled a lot from her urinating organ. When she went home and reported to her grandmother one LL that Ndugo had slept with her, her grandmother beat her up. An uncle of hers was rang. He came went to the house of the accused but found he had run away. Her mother one E, also came. Apparently none of her family members did anything to secure her welfare following the report. She later informed P.W.2 who took her to hospital and the police station. The accused was later arrested. She identified him in court. P.W.3 Jane Njoki Ndirangu was a community health worker in Mweiga and also a member of the community policing, P.W.4 Ruth Wanjiku was the village elder. The child told them that she had been defiled by Ndugo. They left it for M to take her to hospital. P.W.5 Mary Wamuyu Ndoya a businesswoman in Mweiga. Her testimony was that the appellant went to her seeking advice after he heard ‘rumours’ that he had defiled a child. He wanted her to convene a meeting with the other elders in the community so that they could forgive him. She told him that no such meeting would take place as the matter was already with the police. It was then that two officers went and arrested him. P.W.6 Dr. Njoki Karanja, a medical officer from Nyeri PGH produced the P3 and the Post Rape Care Form. The PRC indicated that the child reported the defilement on 20 th October 2013 and was first attended to on 22/10/1013 in the health facility. The date of the assault was indicated as 19/10/13. The number of perpetrators as ‘2’. The history however clearly states that the child alleged that the perpetrator was known to her. Her outer genitalia was normal, her hymen was broken and she had vaginal discharge. It was indicated that she had been sexually assaulted by one person known to her in his home. The child was referred to hospital for P3 examination on 24th October 2013. The P3 indicated that the child was 12 years old and had been defiled by a person well known to her at his home in K where he undressed her and penetrated her. The child was found to be in fair general condition, alert but restless. The injuries were assessed to be 8 days old. The doctor had written the assault happened on 18th /10/2013 but changed to 12/10/13 and signed. He formed the opinion that the probable type of weapon causing the injury was sexual assault (penetrative injury). In section C of the P3 he indicated that the labia majora was normal, vagina had vaginal discharge and the hymen was broken. The P3 was signed on 30/10/2013. P.W.7.no xxxx PC Bethwell Kibet was the investigating officer. He received the report, where the child said she was defiled by Ndugo. He booked it, issued a treatment note to the child. Later she issued a P3,

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and arrested the appellant outside the village elders house. She testified that the child was taken to the police station by the M but they could not go to hospital the same day because they had no money for fare to take the child to hospital from Mweiga to Nyeri. He produced the birth certificate which indicated that the child was born on 29/4/2001. In his defence the appellant gave a sworn statement of defence and called two witnesses. He testified that on the material date he left his home at 7:00am, went to his sister’s place in Karatina where he stayed till 6:00pm. He said the child’s home was seven houses from his and he did not know her. He said he saw her for the first time in court. He said he knew M by appearance but knew that she and the other prosecution witnesses had a grudge against him. He said he had gone to Njoki’s house on the 29 th October 2013 and she had told him that it was being alleged that he and one by the name Gichuhi had defiled the child, two weeks before. He introduced a person by the name Kariuki whom he said was the creator of this issue. That between him and that Kariuki there was a dispute over a plot. That Kariuki is the person who had taken the child to M and accused him (appellant) of defiling the child. That there were a few meetings held with the Assistant chief over the same issue and he was arrested on the 2nd Nov 2013. When cross examined he changed his story and said he knew the child by appearance and she went to the same school with his children, that the prosecution witnesses lived about 400m away from him. That the assistant chief had caused them to settle the plot difference but he had no documentary evidence. He said the prosecution witnesses were part of a committee that wanted to sell his plot. DW2 Mary Gathoni the appellant’s wife testified that she was home with her children on 12 th October 2013. She confirmed that the appellant was away on that date. She said they lived on her husband’s plot. His sister was DW3 Jane Murugi who testified that the appellant was in her house in Karatina from 11:00am and left at 4:00pm. The defence sought time to call the head teacher M primary school to produce the attendance register. They however abandoned this and closed their case. In arguing the appeal Mr. Gori for the applicant submitted that the minor’s testimony had not been corroborated. He pointed out that the child gave contradictory evidence regarding the time of the offence, the room where it took place. Further that the act of the grandmother beating her upon her reporting the ought to have been questioned, and the fact that despite the child bleeding from her urinating part, the grandmother took no action. That if truly anything had happened to this child the grandmother and the uncle would not have been silent. He also argued that the actions of PW2 were suspect, wondering what was so special about this child that she had to take up the case? That the doctor’s evidence was at variance with that of the complainant. The reasons for variance? That having testified that this was her first sexual encounter she ought to have had injuries that would attest to that; that the P3 was silent on anal injuries; that there is no way she would have a normal labia major; that there ought to have been visible healing injuries; that if she bled as she alleged, there ought to have been a tear; hat the broken hymen could not be proof of defilement, and in any event, what was a penetrative injury? He also argued that there existed a grudge between the appellant and PW2, 3, 4 and 5. That the only reason why these prosecution witnesses picked up this case was so as to remove the appellant from the village and take away his plot. That the complainant was coached to fix the appellant who is innocent. He urged the court to find that the appellant’s statement of defence was not challenged by the prosecution. He referred me to John Muigai Nganga v. R. [2006] eKLR Felix Kiarie Margaret & anor. V. R [1976] eKLR

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Charles Murage Muindi v. R Cr. Appeal 82/2014 The appeal was opposed. In her submissions Ms. Jebet urged the court to find that the complainant’s testimony was cogent, consistent and corroborated by the other witnesses, PW2 and PW6. That the trial court disbelieved the defence witnesses after observing their demeanor. That the trial magistrate did not believe it because it was far-fetched. How did the defence expect the court to believe that the reputation of a minor could be used to settle scores? She attempted to school the counsel for the appellant on the difference between the breaking of virginity and the inflicting of a penetrative injury. She explained that the hymen is a thin membrane and upon breakage there is blood. The fact that the child testified that she bled, and the hymen was broken, meant that there was trauma on the vagina and that explained the penetrative injury. She argued further that after days one could not expect to see visible injuries on the child’s genitalia She also argued that the trial magistrate had considered all the evidence, and was persuaded by the same. Referring me to s. 143 of the Evidence Act she argued that the witnesses who had been called were sufficient to prove the case and the ingredients of the offence were proved beyond a reasonable doubt. She and urged the court not to disturb the conviction and sentence. In his rejoinder Mr. Gori asked the court to find that the minor’s evidence was not flowing. That there was no relationship established between the with discharge and the alleged defilement. That the witnesses who alleged to have seen blood in the minor’s genitalia could not be truthful because the doctor never saw any blood. That there were cases where children had been brought to court to fix their fathers. The offence of defilement is provided for under section 8 of the sexual Offences Act no 3 of 2006. Section 8(1) provides (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. Section 2 defines penetration “penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person; The evidence on record shows that the child reported that Ndugo had defiled her. She described that defilement in the manner of children. That Ndugo had done ‘tabia mbaya’ to her, by putting his urinating thing into her urinating thing and the place where she passes stool- her anus. She bled from her urinating thing. That to me and to the trial magistrate was a child’s description of penetrative sex. There are two urinating things to a child, the vagina and the penis. The anus is where stool passes. The Doctor through examination confirmed that the child had sustained a penetrative injury to her vagina. The Missing Hymen and vaginal discharge was proof that the child had been sexually assaulted. Counsel for the appellant questioned the evidence of blood seen in the child’s vagina by some of the prosecution witnesses and not seen by the Doctor. These witnesses described what they saw when they allegedly examined the child’s vagina. They are not medical practitioners and they could have been mistaken. Secondly the child was examined for the P3 report of 24 th October 2013, more than a week after the alleged defilement. On the issue of anal injuries, it is true that the medical evidence was silent. This question was not put to the doctor. However, there are cases where a child may be defiled vaginally and still sustain pain and or injuries to the anus because of that unusual activity.

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Further on this issue of injuries, the doctor could only record what he had observed. Counsel submitted at length on injuries that ought to have been found on the subject. That was speculative. Obviously the injuries would depend on many factors including the force used, and the manner in which the defilement was committed. The magistrate observed the demeanor of the child. She testified she was defiled by the appellant. She told the court she felt a lot of pain and bled. The trial court believed her, and recorded that in the judgment. Even if there was no corroborative evidence and the magistrate was persuaded, s. 124 of the Evidence Act would have been applicable. It states Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. In this case the child’s evidence of defilement was corroborated by the medical evidence, and PW2 This evidence was corroborated by that of P.W.2 the person who noticed that the child was walking with an abnormal gait, P.W.2 asked the child what had happened. It is the child who told her what had happened, and the child who named the perpetrator. Issue has been raised about the grandmother’s reaction to the child’s report. She beat her and took no action until PW2 intervened and offered to help. The grandmother is described as elderly and senile. She did not testify. This case would not be the first one where a significant other of a child victim does not wish to pursue the matter for various reasons. We as a society are guilty many a time of blaming the victim of sexual assault for the assault. It is common that a lot of sexual assault on children goes undetected, unreported and unpunished because to begin with sex is generally a taboo subject, and we are raised to treat it with secrecy and to know that it is ‘tabia mbaya’. Children are more often than not, victims of close relatives, neighbours and family friends. Sexual assault carries stigma and ‘aibu’ for the child and the family. In many incidents it takes the outsider, who notices something is wrong or to whom the child confides, to take action. In this case we are told that this child attended the special unit in her school, which meant that she was a child with special needs. The grandmother’s attitude could also have been influenced by that state of the child. One can also read the trial court’s mind in the manner in which it conducted the voire dire examination only to be surprised by a clear, consistent, cogent testimony, which was unshaken on cross examination. The allegations of coaching are unfounded and not supported by the record. The prosecution was aware that the child was a special child but did not seek the requisite protections. The court too appears not to have been alive to the need to inquire into the vulnerability of the child and whether she would require psycho-social support as a child in need of care and protection. Be that as it may the child’s special needs appear to be the more reason that PW2 and the others in the community took up the issue. The question posed by counsel in his submissions- what was so special about this child that PW2 would pick her and take her to hospital after 8 days is difficult to answer. The point is every allegation of violation of rights by any person and more so a child must of necessity be taken seriously and investigated. PW2 did what any responsible member of any community would do. Take Action.

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The child, from the word go identified the appellant by name as the person who had defiled her. He attempted to say that he saw her for the first time in court, but along the way told the court that she attended school with his own children. He was not a stranger to her. Why would she pick on him and not other people in the community? His defence that she was being used by the PW2,3, 4 and 5 was rejected by the court because it was not credible. I found it incredible. His defence that he was not home on the material day was an afterthought and trial the court observed the demeanor of each of the defence witnesses and found the untruthful, and rejected their evidence. I have no reason to find otherwise. The authorities cited speak to the necessity of corroboration- that a person charged with a sexual offence cannot be convicted on the uncorroborated evidence of the complainant. And where trial court is persuaded by that evidence alone, it must warn itself of the danger of so doing. Those cases are distinguishable. In this case, there was corroboration. I have examined the evidence and I find that the child’s evidence that she was defiled was corroborated by the medical evidence and the evidence of PW2. The identity of the defiler could only be established by the child. She knew the person. She mentioned his name at the first instance and in the subsequent reports. The court that saw and heard her did not doubt her evidence. I have found no reason to doubt it as well. On the sentence, s. 8(3) of the Sexual Offences Act provides the minimum sentence of 20 years’ imprisonment where the victim is between 12 and 15 years’ old. The trial magistrate meted a lawful sentence. As a first appellate I am guided by the statement of the court of Appeal in Kiilu and Another V. R (2005) 1 KLR 174 that; “an Appellant in a 1st appeal is entitled to expect the whole evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court's own decision in the evidence. The 1st appellate Court must itself weigh conflicting evidence and draw its own conclusions.” It is not the function of a 1st appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower courts findings and conclusions; only then can it decide whether the magistrates finding should be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” I have done my duty. I find no reason to disturb the findings of the trial court. The appeal fails. The conviction and sentence of the trial court are sustained. Dated, delivered and signed in open court at Nyeri this 9th Day of November 2017 Teresia Matheka Judge In the presence of Court Assistant Hariet The Appellant

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Ms. Gicheha holding brief for Ms. Jebet for state Mr. Wagiita Theuri holding brief for Gori for Appellant.

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