REPUBLIC OF KENYA IN THE HIGH COURT AT KAKAMEGA CRIMINAL APPEAL NO. 10 OF 2017 BETWEEN LAMBERT MAJIMBO SIAFU.......................................APPELLANT AND REPUBLIC..................................................................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. T.A. Odera, PM dated on 10th June 2016 at Senior Principal Magistrate’s Court at Mumias in Criminal Case No. 655 of 2015) JUDGMENT 1. The appellant, LAMBERT MAJIMBO SHIAFU, was charged with the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act. He was convicted and sentenced to serve life imprisonment. The particulars of the charge were that on diverse dates between 11 th and 20th August, 2015 [particulars withheld] of Mumias Sub- County within Kakamega County, he caused his penis to penetrate the vagina of LM, a child aged 6 years. 2. The child, PW 4, gave unsworn testimony that at the material time she was staying alone with her father as her mother had run away. She told the court that her father used to take care of them. She narrated how she fell from a tree and was hurt hence she could not walk properly. She was treated at a hospital. She testified that one day the police came to pick her from home. She denied that she was sexually assaulted by the appellant and that he never touched her where never they went to sleep on the one bed that was in their house. 3. PW 1, the appellant’s father, testified that the child used to stay with her. He told the court that he visited the appellant on 11th August, 2015 at his house where he was living with his own children alone. As PW 1 was walking with a gait, he suspected that she had been defiled. 4. PW 2, a local community policing officer, testified that she was on 20 th August, 2015, she was called to take PW 1 to hospital from school as she was walking with a gait. She took the child to hospital when the child was treated and examined. The Clinical Officer, PW 3, who treated the child at Mumias Model Health Centre, testified that the child was brought to the Health Centre on 21 st August, 2015 after having been taken to Nyakoro Health Centre the previous day. He examined her to found that her genitalia were
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reddish and the label majora swollen. The hymen was broken and the vagina was emitting a foul smell. The urinalysis and high vaginal swab enclose did not disclose any sexually transmitted disease or any spermatozoa or pus cells. PW 5, the investigating officer, took the statements and arrested the appellant while PW 6 arrested the appellant. 5. In his sworn defence, the appellant stated that there were family differences between him and his in laws and that he was framed by his relatives and arrested on suspicion of defiling PW 4. 6. I have considered the entire evidence and although there is suspicion that the appellant could have defiled the child, it is insufficient to support a conviction. In the absence of clear medical testimony that there was penetration and that the injury could be explained otherwise that by penetration, I am constrained to agree with the respondent’s counsel that the was unsafe. 7. The appeal is allowed. The conviction and sentence are quashed. The appellant is set free unless otherwise lawfully held. 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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