REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA CRIMINAL APPEAL NUMBER 139 OF 2014 CORAM: JUSTICE S.M GITHINJI (From original conviction and sentence in criminal case number 194 of 2013 of the Principal Magistrate’s Court at Kimilili) JOHN WAFULA NYONGESA::::::: APPELLANT VERSUS REPUBLIC:::::::::::::::::::::::::::::::::::::RESPONDENT JUDGMENT The Appellant herein, one John Wafula Nyongesa, was charged, tried and convicted for an offence of Attempted Defilement, contrary to section 9(1) (2) of the Sexual Offences Act number 3 of 2006. The particulars of the offence are that on the 25th day of January, 2013 at [paticulars withheld] in Bungoma North District within Bungoma County, the appellant attempted to commit an act which would cause penetration with a child namely A O (A.O) aged 8 years. The prosecution case is that at the time of the alleged offence the complainant was aged 8 years having been born in the year 2004. PW-3 was her guardian. On 25.1.2013 the complainant who was in nursery school had not gone to school. At about 10.00am PW-3 left her with another called E and went to graze cows. That very same morning at about 10.30am PW-2 was heading to a funeral at [paticulars withheld]. Along the way, in a cassava farm he saw a boy who was lying on a small girl on the ground. He observed keenly and when the boy saw him he woke. He went and held them. The boy was wearing his short which was unzipped during the arrest. PW-2 took the boy to his parents and the girl to PW-3. PW-3 questioned the girl. The girl said the accused had undressed her and slept on her. PW-3 examined her and noted she had sperms on the thighs. She screamed. People turned up. The girl (complainant) was taken to Kiminini Police Station. PW-4 issued her with a P-3 form. She was examined by Dr. Job Wafula. She was HIV Negative. Had no vaginal discharge. There was no bruise or injury, though she was looking traumatized. Her age was estimated to be 8 years, 5 months. The appellant was arrested by members of the public and taken to the police station where he was rearrested and charged. The appellant gave unsworn testimony in his defense. He said that he was working in somebody’s boma. On 28.1.2013 at noon he demanded to be paid. He quit job and headed home. The employer later caught up with him at home and requested they deliberate on payment. He took the appellant to police station. On 28.1.2013 he was charged in court with a strange offence. The trial court found him guilty and sentenced him to serve 10 years imprisonment. The appellant dissatisfied with the said conviction and sentence raised an appeal on the following grounds:1. Prosecution did not proof the charge beyond reasonable doubt
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2. The sentence was harsh as the offence was of attempt. I have considered the evidence afresh. Though the complainant was found by the trial court not intelligent enough to offer evidence, PW-2 who is an independent witness found the appellant “rehanded” in the real act. He had laid on the complainant in a cassava farm, on the ground, and his short zip was open. The said scenario led to firm conclusion that the appellant intention was to defile the complainant who was lucky as PW-2 appeared before he had penetrated her. The trial court took time trying to consider whether there was penetration given the evidence of PW-3 that the girl had sperms on her thighs. In my view the court needed not do so. The doctor’s evidence is clear that the complainant was not penetrated. Ejaculation is not an ingredient for the offence of defilement or even attempted defilement. Its relevance would only be to connect the suspect to the offence by establishing that he was the source of such seen sperms. Since PW-2’s evidence connected him firmly, there was no need of such further confirmation. The appellant defense was of mere denial, lacking in facts of truth. It is unbelievable to say the least. It was rightly dismissed. I do therefore find that the appellant was rightly convicted for the offence of attempted defilement and sentenced to the legally required sentence of 10 years imprisonment. The appeal is therefore 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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