Geoffrey Masinde Omwenga v Republic & 1 other

7. PW4 PC. Rose Sabul took over the investigation from P.C. Fidelis Wanjiku. She simply reiterated what already her colleague had done. 8. PW5 Corporal Aron Lumatete attached to Toll AP Post at Kiminini told the court that he received a police call from PW2 while on her way in Bungoma. He was instructed to check her daughter who was in a house belonging to a teacher. He went and found the house which was locked from inside. He Knocked and the appellant opened the door. On getting inside he insisted on checking the bedroom where he found the complainant hiding under the bed. She confirmed that she was a pupil at [particulars withheld] primary school in class 6. He arrested both of them and took them to AP camp and he called the girls mother. He then organised for one Charles Ewoi to escort her to Kitale Police Station. The appellant told him that he was teaching the child. 9. PW6 APC Charles Ewoi escorted the complainant to Kitale police station. 10. When put on his defence the appellant denied the charge and in his unsworn testimony he said that he was coming from Toll at around 5 pm when he met some people running away as they were being chased by police officers. In the processes he was also arrested and accused of drinking changaa. The police demanded Kshs 1000 as a bribe which he did not have. He was then taken to Kitale Police station and later charged with the offence which he still denied. On cross-examination he said that he was a mason and he was arrested as he came from his work but he could not tell the owner of the house he was constructing. Analysis and Determination 11. I have perused the proceedings herein as well as the written submissions by the appellant. The court is enjoined to re evaluate the evidence afresh and come up with a fresh independent findings. 12. The appellant has raised several grounds of appeal which includes fundamentally the fact that there were contradictory evidence which overally, if considered the trial court ought to have acquitted him. 13. The ingredients of defilement offence is now clear, namely that the age of the victim must be determined, actual penetration ought to occur and the perpetrator ought to be identified. 14. In this respect the age of the minor was proved by the production of the clinic card Exhibit No. 1. Although the appellant has argued that a certificate of birth ought to have been produced, I do hold that a clinic card, such as the one produced is sufficient prove to establish age. In any event the appellant did not object to its production during trial. 15. Did the prosecution proof identity of the perpetrator? The answer is on the affirmative. The incident took place at 11 am. This was during the day. Secondly and more importantly PW5 found both the appellant and the minor in the house. He said that the minor was found under the bed inside the bedroom and the door was locked. I do not think there was any reason for the said witness and in particular being a law enforcement officer to maliciously connect the appellant with the offence. He simply got notification from PW2 the complainant's mother and just as any other police officer is expected , he proceeded to the scene where he found the victim as well as the appellant. 16. When juxtaposed against the appellants line of defence that he was on his way from work and was mistakenly arrested for being in possession of changaa, the same cannot hold water. As stated earlier the appellant was even unable to tell the court during cross-examination whose house he was working on as a mason that day. 17. The next issue is whether there was actual defilement. The complainant explained how she proceeded to have sex with the appellant after being promised to be taken to boarding as well as being bought shoes and socks. She said that they undressed and proceeded to have sex in his bedroom. 18. PW3 stated that during examination he found that the hymen was broken and old looking and that

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she was in her periods. A closer look at his defence does not categorically state that she was penetrated. To simply state that the hymen was old looking does not clearly meant that there was penetration. I am at pains to understand whether the “old hymen” was caused by the sexual intercourse between the two. Of course PW5 did not find them at the act so to speak. He found the complainant under the bed. The complainant did not state so. 19. The P3 form filled does not in my view conclude that there was actual penetration as envisaged under the Provision of Section 2 of the Sexual Offences Act 20. In the circumstances and considering the evidence of PW1 and PW5 I find that the charge of defilement was not clearly proved. There were no lacerations or such other injuries considering that this was a minor who had not engaged herself perhaps in sexual activity. 21. But for the fact that the child was found in his house by PW5 and she attempted to demonstrate that she was defiled, I shall allow the appeal only to the extend that the main charge was not proved but the alternative count was established. The charge is hereby reduced to that of Indecent Act with a child contrary to section 11(1) of the Sexual Offence Act. The appellant is hereby sentenced to 10 years imprisonment. The same to run from 30/4/2014 when he was first arraigned in court. This court takes cognizance of the fact that the appellant has been in custody since then. Delivered this 27th day of July, 2017. _________________ H.K. CHEMITEI JUDGE In the presence of; Kakoi for the Respondent Appellant – present Kirong/Silvia – Court Assistants ____________ H.K. CHEMITEI JUDGE 27/7/2017

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