REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA CRIMINAL APPEAL NUMBER 135 OF 2013 CORAM: JUSTICE S.M GITHINJI (From original conviction and sentence in criminal case number 922 of 2012 of the Senior Resident Magistrate’s Court at Kimilili) PETER WANJALA SHIKUKU:::::::::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT JUDGMENT Peter Wanjala Shikuku, the appellant herein was convicted and sentenced to serve 20 years imprisonment for an offence of Defilement, Contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act number 3 of 2006. Particulars of this offence are that on the 5 th day of June, 2012 at [particulars withheld] Location, Bungoma North Division within Bungoma County, the appellant caused his penis to penetrate the vagina of M M a girl aged 14 years. The prosecution case is that on 5.6.2012 the PW-2 in this case, who is an aunt to the complainant (PW-1) and operates a hotel at Mukuyuni Market, requested the complainant pass by the hotel from school to collect unga. At 5.00pm the complainant left school and went to the hotel. PW-2 was not there then as she had visited her sister. The appellant who was an employee at the place was present. The complainant asked him where her aunt was. The appellant told her that the aunt said she should go and collect unga at the posho mill. He then told her to sit and wait. While she was waiting another man called John arrived and sent the complainant and another girl called Nelly to go and buy meat. They bought the meat, cut it to pieces and started cooking it. Complainant indicated to appellant that she wanted to go home but the appellant insisted she should not leave but wait for her aunt. The appellant indicated to John that he will escort her. She then left in company of the appellant and John. However John turned back before they arrived home, leaving the complainant with the appellant. The appellant told her that he loved her. She questioned him why he was saying so while she had parents and uncles who loved her more. The appellant asked her why she was responding like that. He suddenly started caressing her breasts saying she was sweet. He snatched the unga she was carrying. He warned her against screaming saying if she did she’ll kill her. He pulled her pant and biker. He drew out his sexual organ and placed it on hers. He penetrated her. She felt pain. He told her not to cry. He had sex with her till 9pm. He then told her not to report it and gave her 20/-. He then led her close to home and before parting reminded her not to report. Before she got home she met with her uncle who asked her why she was crying. She reported to him what the appellant had done to her. The uncle told her to go
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and sleep as they could address the issue the following morning. PW-2 got home at about 9.00pm. She found the complainant dirty. The complainant reported to her that the appellant (Peter) had raped her. The following morning complainant’s uncle namely G M took her to Mbakalu Police Station. She reported the case. She was issued with a P-3 form and referred to hospital. PW-3 escorted her to Naitiri Hospital. PW-4 examined her and filled the P-3 form. He found that her left minor limbs were tender. Her external genitalia was in good condition. The hymen was missing and had a white greasy discharge in the vagina. She was HIV negative, but her urine had pus. She was treated. The Clinical Officer was of the opinion that she had been defiled. Her age was also assessed and it was confirmed to be 14 years then. Her P-3 form, treatment notes and age assessment report were produced in court as exhibits. The appellant in his unsworn testimony in defense stated that on 28.6.2012 he was at home splitting firewood. John called him and tricked him to get to the Patrol Base where he was arrested and placed in custody. He was not told the reason for arrest. When he was charged in court he denied the offence. He, the appellant appealed to this court against conviction and sentence on the grounds:1. That the court’s sentence was based on hearsay. 2. That the prosecution evidence had serious contradictions. 3. That no evidence linked him to the offence. 4. That the trial magistrate was biased in relying only on the prosecution case. 5. That the entire evidence fell short of establishing the offence beyond reasonable doubt. 6. That the sentence imposed was illegal given that the evidence does not support a conviction. I have weighed the entire evidence in the file, grounds of appeal and submissions by both sides. The ingredients of the offence which the court needed consider were:1. The age of the complainant to establish whether she was a child; 2. whether the appellant was well identified or recognized as the culprit; and 3. whether he penetrated the complainant’s vagina with his penis. Complainant (PW-1) in her evidence in chief stated firmly that she was 14 years old. PW-4 who assessed her age confirmed she was aged 14 years and produced a report to that effect. The evidence was not challenged and the court had no reason to find her age to be otherwise. It was therefore established beyond reasonable doubt that by the time of the alleged offence, the complainant was aged 14 years. On recognition of the appellant as the culprit, the complainant gave an impressive, firm and well detailed account of how the appellant, who was working in her aunt’s hotel tactfully delayed her till it was dark. He then escorted her home in company of another called John. When John Left them, the appellant commended the move where he ended up defiling her. She knew the appellant before and the chain of events is so well connected, leaving no gap where anyone else would have come in and defiled her. The evidence is convincing beyond any reasonable doubt that it’s the appellant who committed the offence. On the 3rd issue the complainant narrated what the appellant did to her. He pulled her pant and biker. He removed his private part and placed it on hers. He then started doing her. She felt pain. He did it till 9pm. These words considered together, when weighed in line with the finding of PW-4 that her inner limbs were tender, the hymen was missing and had a greasy discharge in the vagina, of which led PW-4 to conclude that she was defiled, leaves no doubt that she was penetrated.
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The three ingredients of this offence were therefore well established by the prosecution beyond reasonable doubt. The appellant was correctly convicted of it and sentenced legally to serve 20 years imprisonment. The appeal therefore lacks merit and is dismissed. Judgment read in the presence of the state counsel, court assistant and the appellant this 17 th day of July 2017. S. M. GITHINJI JUDGE
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