E W M v Republic

chief's place. The complainant's grandfather was called and took her to the police station and later to the hospital for treatment. The appellant was arrested and charged. The examination of the complainant showed that the complainant had been defiled and had physical bodily injuries. On cross examination the complainant was categorical that it was the appellant who had locked her in the house for those several days and defiled her. She was also categorical that it was the appellant who had physically assaulted her causing her injuries. PW2 Bramwel Kituyi Makokha is the assistant chief Kipsongo sub location. He testified that on 5/8/13 the complainant came and reported the assault by the appellant. She also reported that she had been defiled by the appellant. He reported the same to the police station at Kitale and had the appellant arrested. PW3 S M W is the brother to the complainant . He testified that on 4/8/13 at around 9 pm the appellant and others came and forcefully broke their door and assaulted the complainant before taking her away using a motor bike. He reported the matter to his grandfather . She knew that the complainant had disappeared from march but she didn't know her whereabouts. PW4 J M S is the grandfather to the complainant. He said that he was called by PW3 and told of the incident. He came the following day and he found the broken door. He reported the matter at Kitale police station. PW5 Linus Ligare produced the P3 form which had conclusion that the complainant had been defiled and that her virginity had been broken. He also confirmed the injuries on the complainant's ribs side the upper back and thighs. The said witness also produced the age assessment report by Dr Jonathan Kiprop which showed the complainant's age to be 16 years. PW6 Sergent Josline Wabwire testified on behalf of P.C. William Ambayi whom she jointly carried out the investigation. They found that the complainant had been staying with the appellant after running away from her parents. The appellant was arrested having assaulted the complainant and damaging the door of the complainant's grandfather. She produced the photographs taken at the scene by the scenes of crime officer. When put on his defence the appellant gave unsworn evidence. He stated that on 5/8/2013 he received a report from his estranged wife J N requiring him to go to the Assistant Chief's office to discuss the issue of their child. She was arrested and accused of raping and beating the complainant. He was charged with the offence and still denied the same. Analysis and Determination I have perused the entire proceedings together with the submissions by the parties herein as well as the grounds of appeal laid down by the appellant. For the offence of defilement to succeed one ought to establish that there was actual penetration of a minor and that the assailant was properly identified. The age of the complainant was settled in my view by the dental formular analysis by one Dr Kiprop whose report was produced by Mr Ligare. Although there was no birth certificate or any other pieces of evidence, the said medical report clearly showed the complainants apparent age. This finding was not ousted by any other evidence or even on cross-examination. On the question of identity of the assailant, I am satisfied by the evidence of all the prosecution witnesses that the appellant was well known to them. PW1 in particular knew the appellant to be a boyfriend to one J N her aunty. This was not controverted by the appellant. The mere fact that they spent close to over 3 months in my view was indeed sufficient.

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The complainant brother PW3 equally saw the appellant with the aid of electric light when he came to pick the complainant from her grandfather's house. There mere exercise of breaking the door as well as assaulting the complainant must have given him sufficient time to recognize the appellant whom he knew as a motor bike rider earlier own. Its therefore my findings that on this question of identity there was no mistaken identity. The other issue is that of penetration. The complainant graphically testified of how the appellant defiled her that first night. Subsequently he proceeded to do so for the next several days. According to the P3 form produced and the history, the complainant had gotten married to the appellant. There was evidence of broken virginity as the same was old looking. Perhaps it would have been appropriate if the appellant had shed light even by cross-examination or in his defence to explain his whereabouts in the period between March and August. Infact his defence simply explained what transpired at the time of his arrest. In the premises and despite his assertion in his submissions that he was set up by the complainant's grandfather, the sane holds no water. The courts findings on the first count was factual and based on sound law and this court cannot interfered with it. As regards the 2nd count, the appellant brother testified that he saw the complainant being assaulted by the appellant as well as his friends. That finding was confirmed by the treatment documents as well as the P3 form. I do not find any other basis for the injuries suffered by the complainant. Infact I can easily conclude that the appellant seemed to have taken the complainant as his wife. The sum total of my findings is that the appeal is not meritorious. I do not find any contradicting evidence as claimed by the appellant in his grounds of appeal. The evidence so far presented was consistent. Although there was no eye witness to the period of March and August when the appellant was staying with the appellant, the evidence on record does not oust the fact that the complainant was defiled. I do not find any merit in the appeal and the same is dismissed. Delivered this 25th day of January 2017. _______________ H.K. CHEMITEI JUDGE In the presence of: Kakoi for state Appellant - present Kirong – Court Assistant

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