REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO.84 OF 2017 (An Appeal arising out of the conviction and sentence of A.R. Kithinji – SPM delivered on 13th April 2017 in Makadara CMC. CR. Case No.4543 of 2012) KENNETH JOMO.......................................APPELLANT VERSUS REPUBLIC..............................................RESPONDENT JUDGMENT The Appellant, Kenneth Jomo was charged with the offence of defilement of a girl contrary to Section 8(1)(3) of the Sexual Offences Act. The particulars of the offence were that on 17 th August 2012 at [particulars withheld] in Embakasi Division of Nairobi County, the Appellant intentionally caused his penis to penetrate the vagina of L K S, a child aged 14 years. He was alternatively charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in the same place, the Appellant intentionally touched with his penis the breast/vagina of L K S, a child aged 14 years. When the Appellant was arraigned before the trial magistrate’s court, he pleaded not guilty to the charge. After full trial, he was convicted as charged and sentenced to serve 15 years imprisonment. The Appellant was aggrieved by his conviction and sentence. He has filed an appeal to this court. In his petition of appeal, the Appellant raised several grounds of appeal challenging his conviction and sentence. He faulted the trial magistrate for convicting him on the basis of proceedings that were conducted by an incompetent police prosecutor who was not qualified to prosecute the case. He was aggrieved that he had been convicted on the basis of insufficient and contradictory evidence of prosecution witnesses. He took issue with the fact that the trial court had failed to take into consideration his alibi defence before reaching the conviction verdict. He was aggrieved that he had been sentenced to serve a custodial sentence that was manifestly harsh and excessive. In the premises therefore, he urged the court to allow his appeal, quash his conviction, set aside the custodial sentence that was imposed on him and make an order that he be retried. During the hearing of the appeal, this court heard oral submission made by Mr. Nyachoti on behalf of the Appellant. He submitted that part of the proceedings was prosecuted by one PC Muriuki, a police constable. He submitted that Section 85(2) of the Criminal Procedure Code prohibits a police officer below the rank of assistant inspector of police from prosecuting a case. He urged the court to ignore the letter dated 18th February 2013 which was irregularly presented to the court to support the contention by
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the prosecution to the effect that one Simon Muriuki had been appointed as a special prosecutor. He submitted that the prosecution had not established its case against the Appellant to the required standard of proof. In particular, he explained that the complainant did not identify the Appellant as the person who sexually assaulted her. In essence, learned counsel was saying that the Appellant was a victim of mistaken identity. He further submitted that the trial was vitiated by the fact that the Appellant was detained by police for a period of more than 14 days thereby violating the Appellant’s constitutional right to fair trial. He urged the court to allow the appeal and make an order for a retrial. Ms. Akunja for the State opposed the appeal. She submitted that the prosecutor in question was an advocate of the High Court and not a police constable. The abbreviation “PC” that appears in the proceedings meant prosecution counsel and not a police constable. As regard to the merit of the appeal, she submitted that the prosecution was able to establish that the Appellant, who was known to the complainant prior to the sexual assault, accosted her as she was about to enter her sister’s house, forced her into the house, removed her clothes, before forcefully having sexual intercourse with the complainant. The prosecution produced medical evidence which corroborated the complainant’s testimony that she had indeed been sexually assaulted by the Appellant. Penetration was established. As regards sentence, taking into account the age of the complainant, the State submitted that the Appellant ought to have been sentenced to serve 20 years imprisonment and not the 15 years imprisonment that the trial court meted. The prosecution having given notice of enhancement of sentence, she urged the court to exercise its discretion accordingly and sentence the Appellant to serve the legal sentence. She urged the court to dismiss the appeal. This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced by the witnesses so as to arrive at its own independent determination whether or not to uphold the conviction of the Appellant. In doing so, the court must always bear in mind that it neither saw nor heard the witnesses as they testified and therefore cannot be expected to make any comment regarding the demeanour of the witnesses (See Erick Onyango Ondeng’ v Republic [2014] eKLR). In the present appeal, the issue for determination by this court is whether the prosecution adduced sufficient evidence to sustain the conviction of the Appellant on the charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The first ground of appeal put forward by the Appellant is that the proceedings ought to be declared a mistrial because at page 9 of the proceedings, one PC Muriuki, a police constable prosecuted the case instead of a police officer of at least the rank of assistant inspector of police as provided under Section 85(2) of the Criminal Procedure Code. That section provides that: “The Attorney General, by writing under his hand, may appoint any advocate of the High Court or person employed in the public service, to be a public prosecutor for the purpose of any case.” In Elirema & another v Republic [2003] KLR 537, the Court of Appeal held that where a police officer is allowed to prosecute a case before a court, such officer should not be of a rank less than that of an assistant inspector of police. Mr. Nyachoti submitted that the fact that PC Muriuki prosecuted the case on that particular day, vitiated the trial and nullified the proceedings. Learned counsel submitted the abbreviation “PC” meant police constable. This has been disputed by the prosecution. Ms. Akunja learned State Counsel submitted that the abbreviation “PC” meant prosecuting counsel. She produced the letter of appointment of Simon Maina Muriuki issued by the Director of Public Prosecutions appointing him as a prosecuting counsel. Simon Maina Muriuki is an advocate of the High Court of Kenya. He was the one who appeared in court on the particular day that the Appellant alleges that a police constable by the name Muriuki appeared in court. This court has re-evaluated the facts of this case. It was clear to this court that the person who appeared in court on 1st of July 2015 to prosecute the case was an advocate of the High Court of Kenya who had been properly appointed as a prosecutor to take over the prosecution of the case from police officers who previously used to prosecute cases. This court finds no merit with the submission made on behalf of the Appellant to the effect that an unauthorized prosecutor prosecuted the case on the particular
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day. That ground of appeal fails. On the merits of the appeal, the complainant testified that she knew the Appellant prior to the material date of 17th August 2012. The Appellant used to collect payment for the electricity usage from person the complainant used to live with. The complainant told the court that on that evening at about 9.00 p.m. she was alone in the house. She had just returned to the house after taking bath in an outside bathroom. The Appellant pushed her into the house. Removed her trouser, t-shirt and pants and then raped her. She tried to scream but the Appellant threatened her with a knife. He also held her neck. When he had finished with her, the Appellant left the house after attempting to give the complainant Kshs.300/- and a packet of biscuits. The complainant did not accept these gifts. She went and informed her brother by the name Robert who lived nearby, what had transpired. The caretaker was informed. The complainant gave the description of her assailant to the caretaker. The caretaker called the Appellant. He came back to the scene. The complainant confirmed that he was the one that had sexually assaulted her. A report was made to the police. The complainant was referred to hospital for treatment. The complainant was seen by one P K who testified as PW2. At the material time she was a clinical officer, employed at the Mathare Clinic of MSF France. On examining her, she noted that there was a whitish discharge emanating from the vaginal canal, she had multiple bruises in her vaginal area and she had freshly broken her virginity. The complainant was on 29th August 2012 also examined by Dr. Joseph Maundu who confirmed that the complainant’s hymen had recently been broken. The medical reports prepared by PW2 and PW3 were produced into evidence. PW4 Corporal Christine Inyere attached to Embakasi Police Station investigated the case. She produced the birth certificate of the complainant. The birth certificate indicated that the complainant was born on 10 th November 1998. At the time of the sexual assault, she was 14 years of age. PW4 testified that her investigation revealed that indeed the complainant had been sexually assaulted by the Appellant. For the prosecution to establish the charge of defilement, it was required to establish the following elements of the charge as observed by the Court of Appeal in John Irungu v Republic [2016] eKLR: “Defilement is constituted by committing an act which causes penetration with a “child”, defined to mean a person who is less than 18 years old. The Act defines “penetration” to mean partial or complete insertion of the genital organs of a person into the genital organs of another person. Defilement therefore entails penetration of the genitals of a child, genitals qua genitals. The prescribed punishment for defilement is dependent on the age of the child defiled, classified into three clusters, so that the younger the child the stiffer the sentence.” The prosecution was required to establish three essential elements, that is, that there was penetration, that the act of penetration was perpetrated on the genitals of a child and that the identity of the person who committed the act was established. In the present appeal, the prosecution established to the required standard of proof beyond any reasonable doubt that indeed the complainant had been sexually assaulted. The complainant’s testimony and the medical evidence adduced by the two medics established that indeed the complainant was penetrated on the night she claimed that she was sexually assaulted. She had not had previous sexual experience as became apparent from medical examination. Her hymen was broken on the particular night. As regard age, the birth certificate produced established to the required standard of proof that she was indeed 14 years of age at the time of the sexual assault. The birth certificate was produced without any objection by the Appellant. As regards the identity of the perpetrator, although the complainant did not know the name of the Appellant at the time of the sexual assault, she had previously become acquainted with the Appellant. She testified that the Appellant used to collect electricity payment from the woman she used to live together with. Although the Appellant denied that he committed the offence, upon re-evaluation of the evidence of identification as adduced by the complainant, this court finds that evidence to be credible and truthful. Indeed, the complainant’s identification of the Appellant was that of recognition and not mere identification. The Court of Appeal in Anjononi –Vs- Republic [1980] KLR 54 at P.60 held thus:
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“Being night time the conditions for identification of robbers in this case were not favourable. This was however a case of recognition not identification of assailants; recognition of an assailant is more satisfactory, more reassuring, and more reliable than identification of a stranger because he depends upon personal knowledge of the assailant in some form or other.” In the present appeal, it was clear that the sexual assault took place inside a house where there was light. The Appellant did not disguise his appearance. Indeed when he was called back to the scene by the caretaker, he attempted to negotiate with the complainant’s brother. This court finds no merit with the appeal against conviction. The same is dismissed. On sentence, this court formed the view that the sentence that was meted to the Appellant by the trial court was merited. His appeal against sentence is hereby dismissed. The upshot of the above reasons is that the appeal herein lacks merit in its entirety and is hereby dismissed. It is so ordered. DATED AT NAIROBI THIS 7TH DAY OF DECEMBER 2017 L. KIMARU JUDGE
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