David Muriithi Gichovi v Republic

raised 6 grounds of Appeal in his amended petition of Appeal amended on the 30 th day of November, 2016 as follows: (1) That the learned magistrate erred in law by failing to indicate the fate of the defence tendered by the Appellant or by dismissing the defence without justifying. (2) The learned magistrate erred in law and in fact by failing to state issues for determination, the findings thereof and the reasons for such findings. (3) The learned magistrate erred in law by convicting and sentencing the appellant against the weight of evidence. (4) That the learned magistrate misdirected himself in law and fact by meting out excessive sentence under the circumstances. (5) The learned magistrate erred in law and fact by convicting and sentencing on an offence which had not been proved. (6) That the learned magistrate erred in law by failing to indicate under which section of the law the appellant had been convicted. The appeal proceeded by way of written submissions. APPELLANT’S SUBMISSIONS It was submitted that the learned Magistrate erred in failing to consider the appellant’s defence. That the learned Magistrate erred by failing to give reasons for his decision as required under Section 169 of the Criminal Procedure Code. It was also averred that the learned Magistrate failed to set out the points for determination as required under section 169 (l) of the Criminal Procedure Code. The case of James Nyanamba & Another Vs Republic was relied on to support that contention. That the trial Magistrate found the Appellant guilty of attempted defilement which he was not charged with but went ahead to convict and sentence him with an offence that the prosecutor failed to prove. That the sentence was excessive considering the provisions of Section (ll)(l) of the Sexual Offences Act that provides for a term of not less than 10 years. The Appellant also contended that the Magistrate erred by failing to indicate under which Section of the Law the Appellant had been convicted. THE RESPONDENT’S SUBMISSIONS. It was submitted that the defence of alibi was not raised during cross- examination and it follows that the same was an afterthought and the appellant did not call a witness to corroborate the same. That the learned Magistrate analyzed the evidence of all the witnesses and it matters not how the points for determination are laid out. That the evidence of all the prosecution witnesses was clear, consistent and well corroborated and that the appellant has not pointed out any inconsistencies in the testimonies of the prosecution witnesses. On the sentence meted out against the appellant, it was submitted that the same is not excessive as the court has discretion to enhance the sentence based on the evidence adduced. That the sentence of 15 years was proper and in accordance with the law. The cases of Shadrack Kipkoech Kogo Vs Republic

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Criminal Appeal No 253/2003 (Eldoret) and that of Kiwalabye Bernard Versus Uganda, Supreme Court Criminal Appeal No 143 of 2001 were cited. This being the first Appeal, the Law requires the court to re-evaluate the evidence on record come up with its own conclusion. See the case of OTIENO VERSUS REPUBLIC. PWI, the complainant, told the court that she went to school and her teacher asked her what the Appellant did to her. She narrated to her how he took him to a farm, lay her down and did “tabia mbaya” to her. When she went home she did not tell her mother because she feared. The following Sunday when she went to church she told her teacher what Muriithi (the Appellant) did to her. The teacher called her mother who took her to hospital and reported the matter to the police. PW2 a teacher at [particulars withheld] Primary school told the court that on 6/2/2014 she saw the complainant very sad and asked her why she was in that state. Her walking had a problem. She said someone removed her pants and lay on her and did “tabia mbaya” on her. That man is called Muriiithi and she knew him. PW2 called the sister to the Complainant and briefed her about Muriithi (the Appellant) and asked that her mum goes to school which she did on the 4 th day from 6/2/2014. They took the girl to the headmaster who advised that the complainant be taken to the police station. PW3, the mother to the complainant stated that on 6/2/2014, she got a call from a teacher in [particulars withheld] where the complainant was schooling. She went there the following day when she was briefed what the Appellant did to her daughter (the complainant). She reported the matter to Embu Police station. PW4 is the doctor who examined the complainant and filled a P3 form for her. On examination, she had no physical injuries, the vaginal opening had bruises, the hymen was intact, there was no penetration but there was an attempt to penetrate. The vaginal area was tender. He filled the P3 form for the complainant. PW5 conducted an Identification Parade on the 19/2/2014. The suspect was informed of the parade and he accepted. The Appellant was positively identified by the complainant by touching. He signed the parade forms. PW6 was the investigating officer. He arrested the suspect who was identified to him by a person near Embu Post Office. He produced the birth certificate of the complainant as an exhibit. The court has carefully considered the evidence on record, the grounds of Appeal and the submissions by the learned counsels. The Appellant contended that his defence was dismissed without justification. The defence put forth is that of alibi. He stated that on the 2nd and 9th day of February, 2014 he was at the stage where he had reported at 8.00 a.m. and worked until evening. That he did not meet the complainant. He averred that the mother of the complainant framed the case because, they were not in good terms as she had wanted to lease his land but he refused. He stated that he was at the stage with a Mr. Gitonga on the material day. The court has read through the Judgment and it’s true that the learned Magistrate did not evaluate the evidential value of the defence raised by the Appellant and he erred in failing to do so. It is trite that an alibi is a specific defence which must be clearly and specifically stated by the Appellant. See the case of Ali Mlako Mwero Versus Republic Mombasa Court of Appeal Criminal Case No. 50/2007. In this case, it is noted that the defence of alibi was not raised during cross examination but only at the defence stage when the Appellant was put on his defence. The said Gitonga whom he said he was with, at the stage, on that day was not called in evidence to corroborate his evidence. With regard to the other limb of the defence that there was a grudge between him and the mother to the complainant, the same was raised during the defence and he did not cross-examine the PW2 on the allegations. In my opinion, the same must have been an afterthought and the fact that the complainant’s mother wanted to lease his land and he refused could not have been a source of a grudge to warrant the

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framing of the charges by her. I find that the defence was an afterthought and I dismiss the same. On ground 2 of the Appeal, he has raised the issue that the Magistrate failed to state the issues for determination, findings and reasons for such findings. This ground is related with ground No. 6 wherein he avers that the Magistrate failed to indicate under which Section of the Law the Appellant had been convicted. In this Judgment, the Magistrate analyzed the evidence on record and made a finding that the Appellant was guilty of the 2nd alternative charge and he acquitted him on the rest of the charges. A quick perusal of the Judgment will show that he considered all the relevant issues that needed to be considered in the offences facing the Appellant. He may not have specifically listed down the issues for determination but as rightly submitted by the Counsel for the Respondent, it matters not how the points for determination are laid down. With regard to ground 6, my take on it is that the Appellant was charged under Section ll (l) of the Sexual Offences Act in the alternative charge to count 1. The Section provides the sentence to be meted out upon conviction, which is, imprisonment for a term not less than ten years. In my view, the fact that the learned Magistrate failed to indicate the Section of the law under which the Appellant was convicted, is not fatal to the proceedings and/or conviction and the sentence. On ground no 3, the evidence of PW1 was very clear on how the Appellant defiled her. It was on a Sunday and she was from church. She revealed to her teacher what had happened to her and the teacher informed her mother. The details that she gave were graphic. Her evidence was corroborated by that of PW4 who examined her and confirmed that there was an attempt to penetrate her. PW1 was able to identify the Appellant in an identification parade. She was defiled during the day and the issue of identification of the Appellant does not arise. The Appellant did not dispute his identification and he even signed the identification parade forms. PW3 produced the birth certificate which clearly shows that the complainant was a minor when the offence was committed. The Appellant also contends that the sentence meted out on him is excessive. I have perused the relevant section of the law which is Section ll (l) of the Sexual Offences Act. It provides for a sentence of not less than 10 years upon conviction. I am alive to the fact that sentencing is essentially an exercise of discretion by the trial court unless it is shown that in passing the sentence, the court took into account an irrelevant factor or factors or that a wrong principle was applied or short of that, the sentence itself is excessive. See the case of Shadrack Kipkoech Kogo Versus Republic, Eldoret Criminal Appeal No. 253/2003. The Sentence of 10 years provided under the law is the minimum sentence. The learned Magistrate was not under a duty to pass the minimum sentence. I find that there was no error of principle on his part. On ground 5 of Appeal, the evidence on record is sufficient to prove the alternative charge in count 11. It clearly discloses the offence of committing an indecent Act on a child. Under the Sexual Offences Act, “Indecent Act” means an unlawful intentional act which causes; a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration. While under the same Act, penetration is defined as; partial or complete insertion of the genital organs of a person into the genital organs of another person. PW4 in his evidence stated that there was no penetration but there was an attempt to penetrate. The virginal area was tender which means that there was contact between the Appellants penis and the

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complainant’s vagina and therefore the alternative charge was proved. I concur with the finding by the learned magistrate that the offence of defilement was not proved. Having re-evaluated the evidence as above, I find that the appeal has no merits and this court cannot fault the decision of the learned Magistrate. I hereby dismiss the Appeal and affirm the Judgment of the trial court. 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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