REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU CRIMINAL APPEAL NO. 107 OF 2015 BETWEEN M O K ..….……………..……..……APPELLANT AND REPUBLIC………………….…....RESPONDENT (Being an appeal from the original conviction and sentence of Hon. B. M. Kimtai, SRM dated 14th May 2015 at Senior Principal Magistrate’s Court at Nyando in Criminal Case No. 1335 of 2014) JUDGMENT 1. The appellant was charged with attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act but was convicted on the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars were that on 19th November 2014 at [particulars withheld] Sub-location in Muhoroni District within Kisumu County, he intentionally touched the breasts and vagina of BO, a child aged 12 years. He was sentence to 10 years’ imprisonment. 2. The appellant now appeals against the conviction and sentence based on his Petition of Appeal and written submissions. The thrust of his petition is that the prosecution failed to prove the offence beyond reasonable doubt and that the trial court overlooked material facts which would have undermined the conviction. He contended that the court disregarded his defence of an alibi. The appellant further contended that the prosecution case had several contradictions in the evidence and that essential witnesses were not called. 3. The respondent's counsel supported the conviction and sentence and submitted that the prosecution had proved all the elements of the offence of defilement. Ms Osoro pointed out that the complainant described her ordeal clearly which was sufficient to support the conviction. Further, the case was corroborated by the other witnesses including medical evidence. 4. As this is a first appeal, the duty of the appellate court is to review all the evidence and reach an independent conclusion as to whether to uphold the conviction and sentence. In doing so, the court must make an allowance for the fact that it did not hear or see the witnesses testify to assess their demeanour (see Okeno v Republic [1972) EA 32). 5. The key evidence against the appellant was the testimony of three children. Each of the children gave sworn testimony after a voire dire. The complainant, BA, stated that she was 12 years old and that on 19 th November 2012 at about 5.00pm, she was playing with her friend, PW 2, whom she had gone to visit
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which was near the appellant’s house. The appellant whom she knew as Uncle came and called the children to his house. They went in and the appellant showed them some pictures in a book. PW 1 testified that the appellant held her hand and pulled her into the house, led her to sit and started holding her breasts as he kissed her on the mouth. The appellant took her to the bedroom, tried to remove her skirt but he was unsuccessful. PW 2 and PW 3 came into the house, saw what he was doing and screamed whereupon the appellant left her. 6. PW 2 confirmed that PW 1 came to her home to play until the appellant, whom she referred to as Uncle, arrived and invited them to look as some pictures. In the course of showing them the pictures, PW 2 stated that the appellant kissed PW 1 and touched her breasts. She tried to hold PW 1’s feet but was overpowered. PW 1 screamed whereupon the appellant released her. PW 3 was also at the appellant’s door step and she recalled that the appellant kissed PW 1 and touched her breasts. She also stated that he tried to remove PW 1’sclothes. 7. After the appellant left, the children went to report to PW 1’s father, PW 4, who was employed at Masogo Sub-District Hospital. PW 4 recalled that on the material day at about 5.00pm, PW 1 and other children came and informed him that that Uncle had kissed PW 1 and laid on top of her. He was taken where the appellant was and when he confronted the appellant, the appellant punched him. He reported the matter to the police. PW 4 took the child to the hospital where she was examined by PW 5, a clinician at Masogo Sub-District Hospital. PW 5 testified that the child came to hospital on 19 th November 2014 and was examined after claiming that she had been assaulted by a person known to her. When examined, her hymen and labia were intact and no discharge was seen. 8. The arresting officer, PW 6, recalled that the appellant was arrested by members of the public and brought to Masogo AP Camp at about 6.30pm on the material day. PW 7, the investigating officer, recalled that on 20th November 2011, the appellant was brought to the police station and subsequently charged after investigations. 9. In his sworn defence, the appellant testified that on 19th November 2014, after working, he went home and found children playing on his verandah. He had left his ear phones on the bicycle and proceeded to his house. He saw one of the children take the ear phones and ran away. He tried to call out the child but the child ran away and he went about his business. Later on, PW 4 came and asked for him and demanded his phone. He was beaten and a crowd gathered. He tried to run away but was caught and taken to the AP camp and charged with the offence he did not commit. 10. An indecent act is defined under section 2(a) of the Sexual Offences Act as, “any contact between any part of the body of a person with genital organs, breasts or buttocks of another, but does not include an act that causes penetration.” 11. I find that the prosecution proved the essential elements of the offence. PW 1 gave clear evidence on how the appellant kissed her and touched her breasts. This act was witnessed by PW 1 and PW 2 who were present. The testimony of PW 1 was therefore, corroborated. Moreover, she immediately went to report the incident to her father, PW 4 after the incident. The appellant was not a stranger to the children as they all knew him as Uncle. He lived in the area and in his defence, he confirmed that when he returned home, he found the children playing outside his home meaning that he was at the locus in quo. His defence that he was framed was rightly dismissed as there was no reason for the children to frame him. 12. The appellant submitted that the prosecution evidence was inconsistent as the children referred to different times of the incident. What is clear is that the incident took place late in the afternoon and it would have been impossible for the children to know the precise time. From the testimony of PW 4, the children reported the incident at about 6.00pm meaning that the incident took place in the late afternoon or early evening. In any case, the sequence of events narrated by the witnesses is seamless leaving no doubt that the appellant indecently assaulted PW 1. 13. I would also add the testimony of PW 5 was not necessary to prove the offence of indecent assault in
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this case. Since the offence involved external touching, a medical examination of the kind performed by PW 5 would yield any positive results. If anything, it only excluded the possibility of penetration. 14. Since there is no doubt that PW 1 was a child, the conviction is affirmed. The minimum sentence under section 11(1) of the Sexual Offences Act is 10 years’ imprisonment hence the sentence imposed is within the law and it is affirmed. 15. The appeal is dismissed. DATED and DELIVERED at KISUMU this 3rd day of October 2017. D.S. MAJANJA JUDGE Appellant in person. Ms Osoro, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.
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