REPUBLIC OFK ENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA CRIMINAL DIVISION CRIMINAL APPEAL NO. 34 OF 2016 BETWEEN LUCAS MUSUNGU..........................................................APPELLANT AND REPUBLIC......................................................................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. D. Ogal RM dated on 15th December, 2015 in Criminal Case No. 508 of 2013 Principal Magistrate’s Court at Hamisi) JUDGMENT 1. LUCAS MUSUNGU, the appellant herein was charged with the offence of defilement contrary to Section 8(1) and (2) of the Sexual Offences Act. The particulars of the charge were that on diverse dates between 9th and 15th August, 2013 at [particulars withheld] , Shamakhokho Location, Hamisi District of Vihiga County, he caused his penis to penetrate the anus of IV a child aged 8 years. He was convicted and sentenced to life imprisonment. 2. In his petition of appeal he contends that he was framed due to an existing grudge between him and the complainant’s family. He also contends the evidence was insufficient to support his conviction. He also submits hat the medical evidence was doubtful and inconclusive. Mr. Ngetich, learned counsel for the respondent, supports the conviction and sentence and urge that all the element of the offence were proved. 3. The element (PW1) gave a detailed account on how accused befriended him, lured him to his home where he slept and was sexually assaulted. The sexual act did not happen once but several time. Once the month of August, while the child stayed at his house until he was found. 4. PW1 used to sleep with PW2. PW2 recalled that on 8 th September, 2013, she sent PW1 to buy Mandazis but he did not return. She called his mother and searched for her but did not find her until she heard he had been seen at a hotel. She sent the accused to fetch her.
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5. When she reported the incident to the police, the police told her that they had seen the child at the appellant’s place. She went there and found the child to the house with his books and clothes. 6. PW4, confirmed that he knew the child and was aware that he had been missing. he also told the court that he saw the child enter a hotel and when he interrogated her, the child told her that she was staying with the appellant who defiled her at night and gave her 20/=. 7. After the child was found, he was taken to Serem Health Centre where he was examined. PW3 a Clinical Officer, Prepared the P3 form. He stated that the child told him that he had been defiled. He observed that the anus had dry bruises. He concluded that there was penetration. 8. The investigation Officer, PW5 testified that on 11th August, 2013 at 6.30pm, he received a report that PW1 was missing. The child was found on 15th August, 2014 and brought to the police station. The child directed them to the home of the appellant where his books and long trousers were recovered. He confirmed that the child mentioned that he had been defiled by the appellant. 9. In his unsworn statement, the appellant stated that he was arrested on 16 th August, 2013 by people who asked for a child. He denied that he knew the child. 10. I have considered the entire evidence and I am satisfied that the prosecution proved its case. PW1 had been missing for a few days and her guardian reported that he was missing to the police. a search revealed that the child was staying with the appellant. The testimony of Pw2, PW1 and PW5 corroborates the testimony of the child that he was staying at the appellant’s house. That the child’s books and trouser were found at his make seals his fate. He did not furnish any explanation why the child’s things were at his place. His unsworn statement merely confirmed that he resided where he was found and arrested as described by PW5. 11. The child’s testimony of what he underwent and the fact that he was sodomised was corroborated by the medical evidence. In cross examination, the child was resolute that he had been defiled five times. I am satisfied that penetration was proved. 12. The child birth certificate produced in evidence confirmed that he was born on 5 th January, 2005 and was thus 8 years old at the time the offence was committed. 13. All in all the offence was proved. The conviction as affirmed who is the sentence. The appeal is dismissed. DATED and DELIVERED at KAKAMEGA this 1st day of September 2017. D.S. MAJANJA JUDGE Appellant in person. Mr Ng’etich, Senior Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the respondent.
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