REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI CRIMINAL APPEAL NO. 2 OF 2017 J M M....…………………………………….…..APPELLANT VERSUS REPUBLIC……………….……..…....……....RESPONDENT (Appeal against Conviction and Sentence imposed in Othaya Criminal Case No. 668 of 2015 in by Hon. R. K. Langat, SRM on 19.1.17) JUDGMENT The Trial The Appellant herein J M M has filed this appeal against conviction and sentence on a charge of incest by male contrary to section 20(1) of the Sexual Offences Act. The particulars of the offence were that:On diverse dates between May 2013 and 18.9.15 at [Particulars withheld] Shopping Centre in Nyeri South Sub- County within Nyeri County caused penetration with J N a female person aged 11 years who to his knowledge was his daughter The prosecution called a total of five (5) witnesses in support of their case. The complainant J N told court that the appellant who was her father started to abuse her by caressing her body and putting his fingers in her vagina from 2013 when she was 9 years old and continued for 3 years up to when she reached class 5 when he started to defile her. She said she did not report the abuse to her mother since the appellant had threatened to kill her. That the abuse continued until the time she reported the matter to her pastor who in turn reported the matter to the chief and appellant was arrested. That she was escorted her to the police where she reported the matter and later to hospital where she was examined by a doctor. PW2 J M W a pastor at [Particulars withheld] Church where the complainant used to fellowship told court that recalled that on 20.9.15, complainant reported that her father had defiled her severally as a result of which he reported the matter to the area chief and to police. PW3 Ian Ngumo, a clinical officer testified examined complainant on 29.9.15 and found her with fresh wounds around the inner and outer genitalia and hymen had an old tear. He said that the injuries were consistent with a history of continuous sexual abuse. He produced treatment notes, Post Rape Care Form and P3 dated as PEXH. 1, 2 and 3 respectively. PW4 P M M, the complainant’s mother told court that complainant was born on 5.3.04 as shown by her certificate of birth PEXH. 4 and that appellant who was her husband was complainant’s step-father. She told court that on 20.9.15, complainant reported that appellant had defiled her for the last 3 years and that she did not report because appellant had threatened to kill her. She said complainant was examined and
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issued with a P3 form. She said appellant was a very violent man. PW5 C K, complainant’s sisters aged 14 years and in class 8, recalled that from the time she was in class 4, their mother would work long hours and return home late. That while their mother was away; appellant used to send her to go outside or to the kitchen at about 8.00 pm and he would remain with the complainant in bed. That complainant would later go to her crying and report that appellant had defiled her. That they did not report the matter to their mother because they feared appellant who was violent. . At the close of the prosecution case, the appellant was ruled to have a case to answer and was placed on his defence. He gave sworn defence in which he denied the charges. He told court that on 22.9.15, complainant had returned home at about 9.00 pm and reported that her pastor had defiled her and stolen her jacket. That he went to report the matter to Witima Police Station and while he was waiting, PW2 arrived with police from Othaya Police Station and he was arrested and later charged. In a judgment delivered on 19.1.17, Appellant was found guilty, convicted and sentenced to serve life imprisonment. The appeal Aggrieved by this decision, the appellant lodged the instant appeal. On 3.5.17, appellant filed amended grounds of appeal and set out 3 grounds of appeal to wit:1. The trial magistrate erred in law and fact by placing reliance on the evidence of PW1, PW2 and PW4 without considering that it was tainted with doubts and contradictions 2. The trial magistrate erred in law and fact in convicting the appellant on charges that were not proved and that the second count is unknown to law and further that the evidence of the clinical officer did not comply with section 33 and 77 of the Evidence Act. 3. The trial magistrate lost direction in rejecting the defence that was not challenged by the prosecution During the hearing of the appeal, appellant wholly relied on his amended grounds of appeal and written submission both filed on 3.5.17. He added that the DNA results were not availed to connect him to the offence. Mr. Nyamache, Counsel for the state submitted that the prosecution case was corroborated. He further submitted that the prosecution had proved complainant was 11 years old; that there was penetration and identity of the appellant who is complainant’s step-father was not in doubt. It was further submitted for the defence was considered and rejected. Analysis and Determination This being a court of first appeal, I am guided by the ruling of the Court of Appeal in the case of OKENO VS. REPUBLIC [1972] E.A.32, where it held that:“It is the duty of a first appellant court to consider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld” The trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and this court is in dealing with this appeal obligated to give allowance for that. In dealing with this appeal, I will separately consider the grounds of appeal as follows:1. Was the evidence of PW1, PW2 and PW4 tainted with doubts and contradictions?
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Complainant told court that appellant had continuously defiled her for 3 years. PW2 J M W, told court that the complainant 20.9.15 reported to him that her father had defiled her severally and on that basis he reported the matter to the area chief and to the police. PW4 also informed the court that on 20.9.15, complainant informed her that appellant had defiled her for 3 years and that she did not report because appellant had threatened to kill her. Both PW2 and PW4 were categorical that they simply reported what they were informed by the complainant. Evidence that appellant had continuously sexually abused the complainant was corroborated by her sister PW5 who stated that when their mother was away, appellant used to send her to go outside or to the kitchen at about 8.00 pm and he would remain with the complainant in bed. That complainant would later go to her crying and report that appellant had defiled her. That they did not report the matter to their mother because they feared appellant who was violent. The evidence of the PW1, PW2 and PW4 is in my considered view not contradictory. On the contrary; the evidence corroborates the complainant’s case that appellant had continually defiled her over a long period of time before she opened up and sought help. 2. Were the charges proved? The clinical officer who examined complainant on 29.9.15 found her with fresh wounds around the inner and outer genitalia. He also noted that the hymen had an old tear. Although complainant could not recall the last time she was defiled, the old tear on the hymen was consistent with a history of continuous sexual abuse. The initial charge of defilement was substituted with an offence of incest which is grounded on Section 20(1) of the Sexual Offences Act. From the foregoing; I find that the charge sheet was properly drawn and the charge of incest was proved beyond any reasonable doubt. 3. Was the defence considered? In his defence, appellant told court that on 22.9.15, complainant returned home at about 9.00 pm and reported to him and her mother, PW4 that her pastor had defiled her. That he was arrested on the same day, he went to Witima Police Station to report a case of defilement against the pastor but was instead arrested and charged with the same offence. I have perused the cross-examination of the complainant and her mother by the appellant and I notice that he did not raise the issue that complainant had reported to have been defiled by the pastor. The trial magistrate considered the defence and noting that there was no evidence that appellant had complained that PW2 had defiled complainant rejected it as implausible. Decision Having considered each ground of appeal vis-a-vis the evidence and submission by the appellant and the state, I am satisfied that the appellant was convicted on sound evidence. Accordingly and for the reasons set out hereinabove, this appeal is dismissed and the conviction and sentence imposed on the appellant is upheld. DATED THIS.......13th.......DAY OF........July.......2017 T. W. CHERERE JUDGE DELIVERED ON THIS 19th DAY OF JULY 2017 BY: Mshila
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JUDGE In the presence ofCourt Assistant - Appellant - For the State -
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