REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CRIMINAL APPEAL 49 OF 2015 SOSPETER MUCHANGI NDIGWA……APPELLANT VERSUS REPUBLIC……………..……….........RESPONDENT JUDGMENT The Appellant was on the 23rd April, 2014 convicted for the offence of defilement Contrary to Section 8(1) as read with Section 8 (4) of the Sexual Offence Act No 3 of 2006. The particulars of the offence were that, on diverse dates between 15 th and 18th March, 2015 within Embu County intentionally and unlawfully caused his penis to penetrate the vagina of J W M a child aged 16 years. He also faced an alternative charge of indecent Act with a child contrary to Section ll of the Sexual Offences Act No 3 of 2006, the particulars being that on the diverse dated between 15 th and 18th of March, 2015, within Embu County, unlawfully and intentionally did an indecent act to J W M by touching her genital organ namely vagina. He was convicted and sentenced to serve 15 years imprisonment and being dissatisfied with the conviction and the sentence, has appealed to this court and has listed 8 grounds of Appeal in his petition of Appeal. The appeal proceeded by way of written submissions. In his submissions, the Appellant contended that the prosecution did not prove the case beyond reasonable doubt as required by the law in that the learned Magistrate relied on evidence of a single witness PW2 (the complainant) which was not corroborated. He submitted that the doctor (pw1) did not show that the complainant had been defiled as alleged, as there was no presence of spermatozoa noted yet the complainant did not testify that she used protective measure like a condom. That, there were no tears or Lacerations noted on the complainant to prove that there was defilement. He submitted that the complainant was not found in his house when she was arrested and no exhibit was found in his house to support the fact that the complainant was with the Appellant. The Appellant also contended that there were material contradictions in the evidence of PW4 and PW5 which clearly shows that the complainant was not found in the Appellant’s home when he was arrested. He submitted that important witnesses were not called in evidence by the prosecution to confirm if the complainant was in the Appellant’s house between 15/3/2014 and 18/3/2014 when the alleged offence was committed. These witnesses were the mother and the sister to the Appellant and for failure to call
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those witnesses, the prosecution failed to prove the case beyond reasonable doubt. He further submitted that though he was medically examined the doctor did not notice anything. The Appellant did not have any discharge or bruise on the coutalie which he submitted, proved that he did not participate in the crime. That the doctor’s findings failed to connect him to the offence. On the part of the Respondent, it was submitted that the ingredients of the offence have been proved in that the birth certificate of the complainant was produced showing that she was 16 years, that the evidence of PW1 showed that the hymen was absent which was a clear indication that somebody had had sexual intercourse with PW2 and she was emphatic that it was the Appellant. On the submission by the Appellant that no spermatozoa was found on PW2, the Respondent contended that the penetration of the minor does not necessarily end in release of sperms into the victim and to support this counsel for the Respondent cited the case of Mark Oiruri Mose Vs Republic Criminal Appeal No. 295/2012. With regard to the evidence of a single witness, the Respondent submitted that though the prosecution had called only one eye witness, her evidence was clear, consistent and well corroborated and that under Section 124 of the evidence Act, the court can convict if it believes the victim is truthful and records the reasons for that belief. That the trial court convicted the Appellant on the strength of the evidence of PW2 whom it had the opportunity to see and hear testify. On the Appellant’s submission that the prosecution failed to call vital witnesses, the Respondent cited the provisions of section 143 of the Evidence Act to the effect that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. Counsel for the Respondent relied on the case of JWA Versus Republic (2014) eKLR in support of that contention. On identification, it was submitted that the Appellant and the complainant were well known to each other and they were in constant communication during the entire period. On whether the complainant was arrested in the Appellant’s house or not, it was submitted that, the evidence of PW3 is clear that he led the police officers to the Appellant’s house where he had earlier dropped the complainant and they found her there. The Respondent further submitted that it is not a mandatory requirement to subject an accused person to a medical examination to prove that he had committed the offence and therefore, the contention by the Appellant that medical examination on him did not reveal anything, was neither here nor there. The Respondent cited the case of Martin Nyongesa Wanyonyi Versus Republic (2015) eKLR. On whether the lower court considered the defence by the Appellant it was submitted that it was considered and found not to be credible. This being a first Appeal, the court is reminded of the duty to re-evaluate the evidence on record and come up with its own conclusion allowance being made to the fact that it did not have the benefit of seeing the witnesses’ demeanor as they testified. PW1, a clinical officer, saw the complainant on the 16/3/2015. On general examination, there was nothing unusual, on vagina there was no tears or lacerations noted. No spermatozoa noted but there was purse cells which was an indication that there could be a bacterial infection but she could not specify the infection or the source of the same. PW2 the complainant testified that on 18/3/2015 she was from Sunday school and on the way home she communicated with the Appellant using a mobile phone. She went to his house and while there, the Appellant removed her clothes and they had sexual intercourse. That she left the Appellant’s house the same day and spent the night at K.I.C.C and on 17/3/2015 the Appellant sent her a text asking her where she was. He went for her from K.I.C.C and they both went back to the Appellant’s house and on that night they had sexual intercourse again.
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On 18/3/2015, the Appellant left her in the house and at about 1 pm, the Appellant’s sister brought her some food to eat. At about 5.oo pm, she boarded a motor cycle to her home where she had gone to collect her clothes to go to her aunt’s place but on reaching home, she found two ladies who wanted to detain her but to avoid the same, she boarded the same motor cycle back to the Appellant’s house. PW3 was the motor cycle operator who ferried Pw2 to and from the Appellant’s home. He volunteered to take police officers to the Appellant’s home in Kimiri where they found the complainant in one of the houses. The officers arrested both the complainant and the Appellant and were taken to the police station. PW4 is the mother to the complainant. It was her testimony that the complainant left home on 15/3/2013 when she said she was going to church. When she arrived in the church she did not see the complainant. She returned home in the evening but did not find the complainant at home. On 18/3/2015 she tried to call her and at 5 pm she reported her disappearance to the police. At 6 pm the complainant was spotted on a motor cycle but she disappeared. Somebody was able to trace the motor cycle rider who led them to where he had dropped the complainant where they found her and she was arrested together with the Appellant. PW5 is the father to the complainant. He told the court how the complainant disappeared from home on 15/3/2015. They looked for her until the 18/3/2015 when they reported the matter to the police. He accompanied the motor cycle rider to the Appellant’s house where they found the complainant and the Appellant and were both arrested and taken to the police station. PW6 was the investigating officer who received the report when it was made by PW4. He arrested the suspect and the complainant and took them to Runyenjes police station. During the investigations, she obtained a certificate of birth for the complainant and while at the station the complainant gave him a note alleging that she had been given by the Appellant. He produced the certificate of birth and the said not as exhibits in court. The court has considered the evidence on record, the submissions and the grounds of Appeal. The grounds of appeal can be collapsed into four as hereunder; 1. The learned trial Magistrate erred in law and infact when he relied on contradictory, uncorroborated and inconsistent evidence in convicting the Appellant. 2. The learned Magistrate erred in law and in fact when he rejected the Appellant’s defence as weak without giving reasons. 3. The learned Magistrate erred in law and in fact when he failed to consider that the Appellant’s fundamental rights were violated when he was held in custody for more than 24 hours before he was taken to court. 4. The learned Magistrate erred in law and in fact when he failed to consider that the medical examination results for the Appellant did not connect him with the offence. It is now trite law that the critical ingredients of the offence of defilement are: a. Age of the complainant b. Penetration c. Identification of the assailant. On the age of the complainant, the investigating officer produced a copy of the birth certificate as an exhibit. The same shows that she was born on 3/11/1998. At the time the offence was committed, she was aged 16 years and therefore a minor.
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On penetration, the evidence of PW2 was that it was the Appellant who defiled her on the 15 th day of March, 2015 and on 18th March, 2015 while she was in the Appellant’s house. Indeed, both were arrested in the Appellant’s house after PW3 led the police to the said house, where he had dropped the complainant earlier in the day on the 18/3/2015. Though when PW1 examined the complainant she did not find anything unusual and that there were no tears or lacerations noted, the doctor who filled the PW3 form noted that the hymen was absent which was a clear indication that somebody must have had sexual intercourse with her. The complainant was emphatic that it was the Appellant. The medical evidence corroborated that of PW2 and it is not therefore true as submitted by the Appellant that, the evidence of PW2 was not corroborated. I also do not find any inconsistences in the evidence of PW2. Further, PW1 in her evidence stated that after examining the complainant she noted that the approximate age of the injury was six hours. PW2 herself told the court that she spent the night in the Appellant’s house and they were both arrested in his house. The inference to be made by a reasonable person is that the Appellant was the last person to be seen with the complainant and this court is persuaded by her evidence when she said that it was the Appellant who defiled her on the night of 17/3/2015. On the Appellant’s contention that there was no spermatozoa noted on the complainant’s vagina, yes its true that PW1 did not notice any. I agree with the submissions by the counsel for the Respondent that penetration does not necessarily end in release of sperms into the victim. Many times the attacker does not fully complete sexual act during commission of the offence. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s vagina. See the holding in the court of Appeal case no 295/2012 Mark Oiriri Mose Versus Republic. The appellant also averred that the evidence of PW2 was not corroborated. Section 124 of the evidence Act allows a trial court to convict a person charged with a sexual offence on the evidence of the victim alone if it believes the victim is truthful and record the reasons for the belief. In the case before the court it is on record that the learned Magistrate noted; “I had the opportunity of observing her demeanor I did not note anything which would have suggested that she was not telling the truth.” In any event, as I have noted elsewhere in this Judgement, the complainant’s evidence was corroborated by that of PW1. On the contention that the Appellant’s medical examination result did not connect him with the offence, the Sexual Offence Act is clear that a DNA test is not mandatory. Whether the Appellant was medically examined or not is neither here nor there. The evidence adduced by prosecution witnesses was sufficient to form the basis of conviction of the Appellant. The Appellant also contended that his defence was rejected as weak without giving reasons. I have perused the record and it is noted that the learned Magistrate did consider the Appellant’s defence and gave reasons why he did not belief it. The Appellant herein raised a defence of alibi but in this case it was too general. He did not tell the court what time he went to Runyenjes if at all, and where he spent the night on the 15/3/2015. His defence did not add up because he did not explain how he got to know where the complainant was when he found her at the “ waterfall” at K.I.C.C and why he did not take her to the police station or call her sister Lobin who had allegedly informed the Appellant that her sister, the complainant, was missing. He also did not tell the court how he knew the said girl by name Lobin, the sister to the complainant, and why she had to call him and ask him to assist in the search of the complainant who had gone missing. In my view, this was not a defence that could withstand the test of a good defence and the Magistrate was right in dismissing the same.
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On the Appellant’s ground of Appeal to the effect that he was held in police custody for more than 24 hours, it is noted that the same was not raised before the trial court and even if it were, the remedy available to the Appellant is to file a constitutional petition for the court to determine if indeed his constitutional rights were violated and seek whatever remedy is available to him in law. Having made the above observations, I find and hold that the Appeal herein has no merits and it is hereby dismissed. It is so ordered. Dated, Signed and Delivered at Embu this 2nd Day of October, 2017. …………….... L. NJUGUNA JUDGE In the Presence of …………………………. for the Appellant ………………………..... for the Respondent
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