John Nyakano Murage v Republic & 1 other

2016 while pw3 and pw4 stated that the complainant tried to abort but she was not successful. He added that pw3 a medical officer testified that the complainant was examined by his colleague and that section 77 and 34B (2) (a) were not complied with. On the 3rd ground the appellant submitted that by omitting the words as read with in between section 8(1) and section 8(4) the charge was defective and cannot be cured by section 382 of the criminal procedure code. He submitted that the charge should have been drafted in a clear and unambiguous manner to enable the appellant to understand the charge and prepare his defence. On the 4th ground the appellant the appellant submitted that the trial court failed to consider appellants defence that there was misunderstanding between him and his wife and his defence of alibi. The respondent submitted that the complainant who was aged 17 years entered into a sexual relationship with the appellant resulting in a pregnancy which she attempted to abort; that given that there was pregnancy the trial court concluded that there was penetration. Ms. Mwaniki for the state submitted that there was no issue of identification as the appellant is the complainants brother inlaw.she further submitted that the complainant and the appellant were arrested from one house where they moved to after the appellant quarreled with his wife. On the issue of age she submitted that the complainant was confirmed to be 17 years from the birth certificate produced in court. She submitted that section 143 of Evidence Act permit court to rely on evidence of a single witness if it is satisfied that the minor is telling the truth. She submitted that the appellant raised defence of the minor presenting herself as an adult in the trial. She added that the appellant admitted the minor had just completed her KCPE and was about to join form one and that he was the one paying school fees for her. She submitted that the defective charge can be cured by section 382 of the criminal procedure code in that the appellant did not suffer any injustice as a result of the defect. She submitted that the sentence was legal and urged court to uphold both the conviction and sentence. This being the first appellate court I have a duty to reevaluating the evidence on record and come up with my own decision. I however note that the trial court had the advantage of taking evidence first hand and also observing the demeanor of witnesses which I don’t.i am guided by the principles set out in the case of OKENO VS REPUBLIC [1972] EA 32 as set out hereunder:- where it was stated as follows:“The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. Republic [1957] EA 570.) It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, (See Peters v. Sunday Post, [1958] EA 424.)” Pw1 the complainant herein testified that she was 17 years old and the appellant is husband to her sister; that she had lived with the two of them for 3 years. She said that she had a relationship with the appellant from March 2016 and engaged in sexual which resulted in pregnancy. She said the appellant used to go to her room until her sister realized that they were having sex.Complainant said she sought forgiveness from her sister .she said the appellant knew that she was under 18 years. She admitted that she aborted the pregnancy on 24/7/2016 and was admitted in hospital for one week. Complainant said that she was born in January 1999. Pw2 a police officer testified that on receiving report of defilement of a girl from members of public they went to accused’s house and found him together with the complaint. He said the house was one roomed and had one bed. Pw3 a doctor examined the complainant and found no tear, the heymen was old broken and no spermatozoa. Pregnancy test showed negative result. He said the complainant was admitted with incomplete abortion. He produced p3 report in court as exhibit.

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Pw4 a police officer received the accused and complainant from Administration police officer. He said that he took the two to hospital. He learnt that the minor eloped with the appellant when the sister to complainant learnt of their sexual relationship. He said the complainant attempted to abort but on developing complications she was rushed to hospital where she was admitted he said the complainant was 17 years and produced birth certificate. The appellant denied having committed the offence and said that he had disagreed with his wife over children. He said he had been framed up because of jealous. He said he educated the complainant; that she had done Kenya certificate of Education (KCPE) examination and was to join Gichinga secondary school. He said his wife threatened to teach him a lesson. He admitted being arrested with the complainant from the same house. There is no dispute that the appellant and the complainant were known to each other as they were brother and sister in-law respectively; the complainant being a sister to appellant’s wife. It is not also disputed that they were initially living together with appellant’s wife. This was admitted by the appellant who said he educated the complainant and had even shopped for her to join form 1.Medical report confirmed that the complainant had engaged in sexual activity as her heymen was old broken. Appellant said the court did not establish if she consented and whether she lied on age. Birth certificate was produced which showed she was born on14th January 1999.The appellant admitted having been educating the complainant and that she had done Kenya certificate of education(K.C.P.E).I take note of the fact that in Kenya, Birth certificate is normally required in school for children joining primary school, sitting for Kenya certificate of Education(K.C.P.E) or joining form 1.If the appellant was educating the complainant as he admitted in his defence then he must have had access to the complainants birth certificate and known her age. On the second ground, the complainant talked of sexual intercourse with appellant since March 2016.She talked of aborting a pregnancy she conceived in April. This was confirmed by the doctor’s evidence that at the time of medical examination on 24th April 2016 the heymen was old broken. Her admission after incomplete abortion was consistent with pw4s evidence on investigation he carried out. He further stated that the appellant and complainant were found together in a room they lived in after eloping. The appellant himself admitted being arrested from the same room with the complainant. I do not see any contradiction in prosecution evidence .That ground of appeal fails. On the ground that the charge is defective for failing to separate the section creating the offence from the penalty section, the question that should be answered is whether the defect occasioned injustice to the appellant. Section 382 of the penal code provide as follows: “…no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any injury or other proceedings under this code, unless the error, omission or irregularity has occasioned a failure of justice.” Ideally the prosecution should have amended the charge but on perusal of the record it clearly show that the appellant actively participated in the proceedings. The defect did not therefore create ambiguity. Failure to separate the section creating the offence and penalty section has not occasioned any injustice to the appellant. Lastly appellant submitted that his defence was not considered. I have considered appellant defence and note it did not raise any evidence which could raise doubt on prosecution evidence; instead it confirmed that the appellant knew complainant well and there is no way he could have mistaken her for an adult the issue of consent cannot therefore arise. He confirmed that they were arrested from one room. His statement did not shake cogent evidence adduced by prosecution. From the foregoing I see no merit in the appeal and do dismiss accordingly.

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Dated and signed at Nairobi this………..day of…… …………2017. …………………… RACHEL NGETICH HIGH COURT JUDGE Delivered at Nyeri this JUDGE 19TH day of JULY 2017.

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