REPUBLIC OF KENYA IN THE HIGH COURT AT KAKAMEGA 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, 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 in Hamisi District of Vihiga County, he caused his penis to penetrate the anus of IV, a male child aged 8 years. He was convicted and sentenced to life imprisonment. 2. In his petition of appeal, the appellant contended that he was framed due to an existing grudge between him and the complainant’s family. He further contended the evidence was insufficient to support his conviction. He also submitted that the medical evidence was doubtful and inconclusive. The appellant also stated that the proceedings were irregular as the trial magistrate who finally heard the matter did not comply with the law when he took over the matter and ought to have heard the case afresh. Mr Ngetich, learned counsel for the respondent, supported the conviction and sentence and urged that all the elements of the offence of defilement were proved beyond reasonable doubt. 3. At the trial, Hon. Ng’arng’ar heard the prosecution case before he was transferred. Hon. Ogal took over the matter and heard the defence case. The record of proceedings is clear that before Hon. Ogal proceeded with the matter, he complied with the provisions of section 200 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) by asking the appellant whether he wanted to proceed with the matter and the appellant informed the court that he wished to continue with it. I therefore dismiss this ground of appeal. I now turn to the substance of the appeal. 4. As this is a first appeal, I am obliged to review the evidence afresh and come to an independent decision as to whether to uphold the judgment always bearing in mind that I did not hear or see the
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witness in order to assess their demeanor. 5. The child (PW 1) testified on oath that on 9 th August 2013, he was sent by his grandmother (PW 2) to buy mandazi at the market centre where they were residing. He explained that after breakfast he went to the appellant’s place where he met another child. After fetching water for the appellant, he prepared food for them. The children slept as his place. On the next day, the appellant once again made lunch for them. In the evening, the appellant called PW 1 to his room, removed his clothes, and proceeded to have sexual intercourse with him through the anus. PW 1 testified that thereafter, every night he was with him, the appellant defiled him. On one morning of 15 th August 2013, PW 1 testified that the appellant gave him Kshs. 20/- after sexually assaulting him. He went to a hotel and while taking tea, his uncles found him and took his to Serem Police Station. At the police station, he directed the police, his uncles and grandmother (PW 2) to the appellant’s house where they found him and arrested him. He recalled that they found his books and trouser. 6. PW 1’s guardian, PW 2, recalled that on 8 th September 2013, she sent PW 1 to buy mandazi at the market but he did not return. After he went missing, she started looking for him. She was told that he had not been seen at the school for 3 days. She called his mother and searched for her but did not find her until she heard he had been seen at a local hotel. When she reported the to the police, the police told her that PW 1 had been found. She recalled that PW 1 directed her and the police officers to the appellant’s place where they found his books and trousers. 7. PW 4 testified that he knew PW 1 and was aware that he had been missing. He told the court that on 15th August 2015 at about 10.00am, he saw PW 1 enter a hotel. He went there and interrogated him. PW 1 told that him that he was staying with the appellant who had defiled him on that night and had given him Kshs. 20/=. He took the child to Serem Police Station. 8. After the child was found, he was taken to Serem Health Centre where he was examined and treated. PW 3, a Clinical Officer, prepared the P3 form which was produced in evidence. He stated that the child told him that he had been defiled. He observed that PW 1’s anus had dry bruises. He also examined the appellant and found that he had syphilis. He also found that the child had syphilis. He concluded that there was penetration of the child through the anus. 9. The Investigating Officer, PW 5, testified that on 11 th August 2014 at 6.30pm, he received a report from PW 2 that PW 1 was missing. He further testified that PW 4 and another person found PW 1 at a hotel on 15th August 2014 and brought him to the police station. PW 1 told him he had been defiled and took them to the appellant’s house where they recovered his books and trousers. 10. In his unsworn statement, the appellant stated that he was a pastor and businessman and that he was arrested on 16th August 2013 by people who asked for a child. He denied that he knew the child or that the child was staying at his home. He also stated that he could not have committed the offence since he was very ill. 11. I have considered the entire evidence and I am satisfied that the prosecution proved its case. PW 1 had been missing for a few days and his guardian, PW 2, reported to the police that he was missing. PW 4 found PW 1 and took him to the police station where he directed PW 2, PW 4 and PW 5 to the appellant’s home. The testimony of PW 2, PW 4 and PW 5 corroborates the testimony of the child that he was staying at the appellant’s house. The final nail in the appellant’s coffin is that PW 1’s books and trousers were found in his house. The appellant did not furnish any explanation why PW 1’s property was at his house. His unsworn statement merely confirmed that he resided where he was found and arrested. 12. The evidence I have outlined and PW 1’s testimony of the ordeal he underwent while he stayed at the appellant’s house leaves no doubt that there was penetration of his anus by the appellant. That testimony of penetration was corroborated by the medical evidence produced by PW 3 which showed that PW 1’s anus had dry bruises. In cross-examination, the child was resolute that he had been defiled at least five times. The appellant’s defence was threadbare. The evidence is clear that he knew PW 1. In cross-
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examination, PW 5 testified that when PW 1 took the appellant’s house, the appellant asked who was knocking and when PW 1 identified himself, the appellant opened the door. Given that PW 1 had stayed in his house for a few days, the opportunity of mistaken identity is foreclosed. Further, the appellant did not disclose the nature of his illness that could render him incapable of committing the offence. I am therefore satisfied that the prosecution proved that the appellant committed an act of penetration against PW 1. 13. PW 2 produced PW 1’s birth certificate which confirmed that he was born on 5 th January, 2005 and was thus 8 years old at the time the offence was committed. He was therefore a child and since his age fell within the age bracket, section 8(2) of the Sexual Offences Act, that attracts a mandatory sentence of life imprisonment. The sentence was therefore lawful. 14. The conviction is affirmed and so is the sentence. 15. 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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