REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL APPEAL NO. 24 OF 2016 V O B........................................................ APPELLANT VERSUS REPUBLIC.................................................. REPUBLIC (From the original conviction and sentence in Criminal case No. 617 of 2014 of the Chief Magistrate’s Court at Busia by Hon. J.N Maragia– Resident Magistrate) JUDGMENT V O B, the appellant herein, was convicted for the offence of incest contrary to section 20 (1) of the Sexual Offences Act No.3 of 2006. He was also convicted for the offence of sexual assault contrary to section 5(1) (a) as read with section 5(2) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on 18 th March 2014 at [particulars withheld] sub- location, BUTULA District in BUSIA County, he intentionally and unlawfully caused his penis to penetrate the vagina of A.P.A, a child aged 8 years. On the same day and at the same place, he caused his fingers to penetrate the vagina of C.A, a child aged 3 years. He was sentenced to serve life imprisonment in count one and ten years imprisonment in count two. He has appealed against both conviction and sentence. The appellant was in person. He raised five grounds of appeal that I have summarized as follows: 1. That the learned trial magistrate erred in law and in fact by disregarding the violation of the appellant's rights. 2. That the learned trial magistrate erred in law and in fact by relying on circumstantial evidence. 3. That the learned trial magistrate erred in law and in fact by relying on hearsay and contradictory evidence. 4. That the learned trial magistrate erred in law and in fact by ignoring the appellant's defence. The state opposed the appeal through Mr. Obiri, the learned counsel. The facts of the prosecution case were briefly as follows: The appellant went to the home of the two complainants. He gave A.P.A some money and asked her to go
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and buy some mandazi. When she returned, she found C.A crying. She later implicated the appellant whom she said had inserted his fingers into her genitalia. After the two girls had eaten the mandazi, the appellant asked C.A to go and play from outside. This is when he defiled A.P.A. The appellant denied any involvement in the offences. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32. The appellant complained that his case was adjourned severally. This is indeed so. It is desirable to ensure that a matter is not unnecessarily adjourned. I have however noted that the adjournments cannot be said to be unmerited. No prejudice was occasioned to the appellant. The appellant was charged with and convicted for the offence of incest contrary to section 20(1) of the Sexual Offences Act. The section provides: Any male person who commits an indecent act or an act which caused penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years. Provided that if it is alleged in the information or charge and proved that the female person is under the age of eighteen years the accused person should be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. For an offence of incest by male to be established, there must be prove of the following: (a) Penetration into the genitalia of the victim, (b) With or without consent; and (c) The perpetrator and the victim must be related in the manner provided for under section 22 of the Act which provides as follows: (1) In cases of the offence of incest, brother and sister includes half brother, half sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not. (2) In this Act— (a) “uncle” means the brother of a person’s parent and “aunt” has a corresponding meaning; (b) “nephew” means the child of a person’s brother or sister and “niece” has a corresponding meaning. (c) “half-brother” means a brother who shares only one parent with another; (d) “half-sister” means a sister who shares only one parent with another; and (e) “adoptive brother” means a brother who is related to another through adoption and
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“adoptive sister” has a corresponding meaning. The appellant contended that the learned trial magistrate erred in relying on circumstantial evidence. In the case of MOHAMED & 3 OTHERS vs. REPUBLIC [2005]1KLR 722 Osiemo Judge explained what circumstantial evidence is as follows: Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for reasonable inference of the occurrence of the fact at issue. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Having said what circumstantial evidence is, the next issue is whether such evidence is as good as direct evidence or is in another category altogether. In the case of REPUBLIC Vs. TAYLOR WEAVER & DANOVAN [1928]21 CRIMINAL REVISION 20 it was said: Circumstantial evidence is very often the best evidence of surrounding circumstances which by intensified exam is capable of proving proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. From the above decision, it is abundantly clear that circumstantial evidence is as good as direct evidence if not better. The court relying on circumstantial evidence is enjoined to analyze such evidence before making a finding in the following manner as was state in the case of REPUBLIC vs. VERONICA WANJUE NJUE [2014] eKLR as follows: A Court relying on circumstantial evidence must be satisfied that: (a) the incriminating acts are incompatible with the innocence of the accused or the guilt of any other person. (b)The incriminating facts are incapable of explanation upon any other reasonable hypothesis than that of his guilt. Before drawing the inference of the accused’s guilt – from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. In the instant case I will endeavour to establish the court relied on circumstantial evidence and if it was safe to do so. I will revert to this issue later. What was the evidence against the appellant in respect of the offence in count one? In her testimony, A.P.A said that after C.A had gone out to play upon being told to do so by the appellant, the latter undressed her and defiled her on her uncle's bed. She said he inserted his penis into her genitalia. She felt pain in her genitalia. She then went out to play. The evidence of E A (PW3) was that A.P.A reported to her that the appellant had defiled her. She checked her vagina and found it swollen. A.P.A informed her that the appellant had threatened them not to disclose the incident to anybody. The medical evidence in respect of A.P.A was adduced by Lazarus Makokha (PW4), a clinical officer. These were the findings: • • • • The girl had a torn hymen Bruises at the vaginal wall Foul discharge from the vagina No spermatozoa were detected The conclusion was that there was penetration. The learned trial magistrate had sufficient evidence on record to make a finding that there was
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penetration. Other than the complainant's evidence as to the identity of the perpetrator, E A (PW3) the girl's grandmother testified that on the material day he went to her shamba with the appellant. The appellant used a bicycle which she had given to him. The appellant left her at the shamba. When she returned home, she found the bicycle there. There was ample evidence that the appellant had been in the home during the day. I am therefore satisfied that he was identified as the perpetrator by the complainant who referred to him by name. The relationship of the appellant and that of A.P.A was established by E A (PW3) who testified that he was her nephew and the complainant was her granddaughter. This therefore means that the appellant is an uncle to the complainant. The evidence of C M (PW2) was to the same effect. Let us now turn to the offence in count two. The evidence of A.P.A was that when she returned from buying mandazi where the appellant had send her, she found C.A crying. She asked her in the presence of the appellant what the matter was but she declined to say anything. However, the child divulged to her mother that the person who defiled her had sent A.P.A to buy mandazi when he defiled her. She went and enquired from A.P.A. The latter told her that it was the appellant who had sent her to buy mandazi. The medical evidence by Maurine Apalat (PW 5) was that when C.A was examined, the following were the findings: • Tenderness on labia minora • Signs of attempted defilement. The conclusion was that penetration was by a human finger. The offence in count two was proved to the required standards. Though the appellant contended that the learned trial magistrate solely relied on circumstantial evidence, this was not so. The court had direct evidence at its disposal and as observed herein above, there is nothing wrong in relying on circumstantial evidence if appropriately applied. I have perused the entire record and I have not come across any material contradictions. The learned trial magistrate considered the defence of the appellant before dismissing it and rightly so. The appeal on conviction on both counts cannot stand. The appellant was sentenced to the prescribed sentences in both counts. Though the life sentence in count one is not mandatory, the spirit of the Act especially section 8(2) where a child is less than eleven years the prescribed sentence upon conviction is life imprisonment. In count two the appellant was given the minimum sentence. I will not interfere with the sentences. The upshot of the foregoing is that the appeal is dismissed. DELIVERED and SIGNED at BUSIA this 18th day of July, 2017 KIARIE WAWERU KIARIE JUDGE
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