REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO.162 OF 2011 (An Appeal arising out of the conviction and sentence of Mrs. Nyakundi – PM delivered on 16th June 2011 in Kibera CMC. CR. Case No.2505 of 2010) E M M….......................................................APPELLANT VERSUS REPUBLIC...............................................RESPONDENT JUDGMENT The Appellant, E M M was charged with the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act. The particulars of the offence were that on the 3rd day of May 2010 at [particulars withheld] village, Kauku within Nairobi area province, the Appellant intentionally and unlawfully attempted to have carnal knowledge by trying to insert male genital organ (penis) into the female genital organ (vagina) of M W, a girl aged five (5) years which could have caused penetration. He was alternatively charged with committing an indecent act with a child contrary to Section 11 (1) of the same Act. The particulars of the offence were that on the same day and in the same place, the Appellant committed an indecent act on M W by touching her private parts namely vagina without her consent and thereby contravening the said Act. 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 on the main count of attempted defilement. He was sentenced to serve twenty (20) years imprisonment. The Appellant was aggrieved by his conviction and sentence and 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 was aggrieved that the trial magistrate failed to apply caution to the uncorroborated evidence of the complainant. He was also aggrieved that he had been convicted on the basis of contradictory evidence. He complained that the medical evidence relied upon by the trial magistrate was insufficient to sustain a conviction against him. The Appellant also complained that the trial magistrate erred in failing to find that the prosecution carried out shoddy investigations before charging him with the offence. In his amended grounds of appeal filed without leave of court (the court will however consider them), the Appellant took issue with the fact that he was convicted on the basis of evidence that was at variance with the charge brought against him. He faulted the trial magistrate for convicting him yet the prosecution had not established the case against him to the required standard of proof beyond any reasonable doubt. Finally, he faulted the trial court for shifting the burden of proof and thereby finding him guilty. In the premises therefore, the Appellant urged the court to allow the Appeal, quash the conviction and set aside the sentence that was imposed on him.
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During the hearing of the appeal, the Appellant presented to the court written submission in support of his appeal. He further made oral submission in support of his case. A response to the Appellant’s submission was made by the Learned State Counsel Ms. Sigei. In his submission, the Appellant argued that he was arraigned on a defective and confusing charge sheet. He argued that whereas the evidence adduced disclosed the offence of defilement, he did not understand why he was arraigned on the charge of attempted defilement. He submitted that this confusion prejudiced his ability to answer to the charge. The Appellant also submitted that the complainant’s evidence was not sufficient for a conviction to be made against him in terms of Section 124 of the Evidence Act. He argued that the fact that there were discrepancies in the evidence as to the place where the offence was said to have been committed warrants the drawing of an inference adverse to the credibility of the complainant. He further argued that the fact that the prosecution adduced contradictory medical evidence meant that there was no medical corroboration to the complainant’s testimony. According to the Appellant, the logical conclusion to be drawn from the shortcomings in the prosecution’s case is that he was framed with the offence he was charged with. Ultimately, it was the Appellant’s submission was that the prosecution’s case was not proved to the required standard of proof beyond any reasonable doubt. He relied on the cases of Lucas Odhiambo Muguanah –versus- Republic [2017] eKLR and Vincent Kasyula Kingoo –versusRepublic [2014]eKLR to support his submissions. On the question of his sentencing, the Appellant submitted that the trial magistrate overlooked the fact that he was a minor at the time he committed the offence when she handed him the custodial sentence. Counsel for the State, Ms. Sigei opposed the Appellant’s appeal. She made submission to the effect that the prosecution proved its case against the Appellant to the required standard of proof beyond any reasonable doubt. According to learned State Counsel, the Appellant’s defence was an afterthought. She urged the court to rely on the provisions of Section 124 of the Evidence Act despite the shortcomings in the evidence of the prosecution as to the place where the offence was said to have occurred. The case against the Appellant as established by the evidence adduced during trial was as follows. The complainant, PW1, M W was aged five (5) years old at the material time. On 3 rd May 2010, the complainant’s mother, PW2 N G G, left the complainant and her sister, M N in the hands of PW3 M G as she left to take their sister to school. The Appellant who is PW2’s nephew was also within the compound. He lived with his mother and ran small errands for PW2 who paid for his services. PW3 testified that the children went outside to play at around 4.00 p.m. According to the complainant, the Appellant took him to his house where he undressed her and made her to lie on his bed. He then applied cooking fat on her vagina and put his penis inside it. She testified that she returned home and went to sleep on the seat. The Appellant testified that she felt pain when she wanted to pee because the Appellant had squeezed his penis into her vagina. PW3 did not notice anything peculiar with the complainant when she returned home. However, she testified that the complainant complained of having stomach pains before they went to sleep and that when she took her outside to pee she told her that felt pain when passing urine. It was not until the following day when the complainant’s sister told her to inquire something from her that the complainant disclosed to her that the Appellant had sexually assaulted her inside PW1’s bedroom. She later reported the incident to PW2. The evidence of PW1 was that the complainant told her that the Appellant had taken her to his house where he inserted his penis into her vagina. PW2 stated that the complainant told her that when she complained of the pain he took her to his mother’s house and placed her on a seat. He then applied cooking fat on her private parts and warned her not to disclose the incident to anyone. PW2 took the complainant to Nairobi Women’s Hospital for medical attention. At the hospital, the complainant was seen by Dr. Muhombe on 7 th May 2010. A medical report in respect of the complainant prepared by Dr. Muhombe was produced into evidence by PW6 Dr. Charles Gacheria Woiyee as Prosecution’s Exhibits Nos. 1. PW3 testified that the complainant presented herself with a history of sexual assault by a person known to her. Dr. Muhombe carried out a genital examination of the complainant and noted that the entrance to her vaginal wall was hyperemic. Her hymen was intact. A urinalysis carried out on the complainant detected a urinary tract infection Dr. Muhombe concluded that from his observations, the injuries were consistent with the history of sexual assault. The complainant was
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also examined by PW5 Dr. Zephania Kamau based at the Police Surgery on 11 th May 2010. In his report, PW 5 noted that he found nothing remarkable on the complainant. He filled his observations on a P3 form which he produced into evidence as Prosecution Exhibits No 2. PW4 Corporal Gabriel Matata was assigned to investigate the case. After concluding his investigations, he concluded that a case had been established against the Appellant and charged him with the offence he was convicted. When he was put on his defence, the Appellant denied committing the offence. He attributed his woes to a grudge that PW2 might have held against him after he declined sexual advances from her. He also claimed that PW2 could have framed with the offence because he owed her some money. This court has carefully evaluated the evidence adduced by the prosecution witnesses before the trial court. It has also considered the defence that was put forward by the Appellant. The court has also considered the grounds of appeal that the Appellant relied on in support of his appeal and the submission made by both the Appellant and the State. This being a first appeal, it is the duty of this court to reevaluate and to reconsider the evidence adduced before the trial court before reaching its own independent determination whether or not to uphold the decision of the said court. In doing so, this court is required to always keep in mind that it neither saw nor heard the witnesses as they testified and therefore give due regard in that respect. (see Njoroge –vs- Repubic [1987] KLR 19). The issue for determination by this court is whether the prosecution proved its case on the charge of attempted defilement contrary to Section 9 (1) as read with Section 9(2) of the Sexual Offences Act to the required standard of proof beyond any reasonable doubt. It was the complainant’s evidence that the Appellant took her to his house where he undressed her, applied cooking fact on her vagina, then inserted his penis. When she went back home, she felt pain in her vagina when she needed to urinate. PW3 who was in the house when the complainant returned home testified that the complainant complained of stomach pains before they went to sleep. She testified that she took her outside to urinate. She complained of pain in her vagina. The following day, the complainant’s sister asked PW3 to inquire something from the complainant and when she did the complainant disclosed that the Appellant had sexually assaulted her. According to PW3, the complainant had told her that the incident had occurred in PW2’s bedroom. PW3 reported the incident to PW2. PW2 testified that the complainant confirmed the incident. Her evidence was that the complainant told her that he sexually assaulted her inside his house. The child was examined by PW6 at Nairobi Women’s Hospital on 7th May 2010. PW6 carried out genital examination of the complainant and noted that the entrance to her vaginal wall was hyperemic. Her hymen was intact. A urinalysis was also carried out on the complainant that detected a urinary tract infection. PW6 concluded that observations were consistent with the history of sexual assault. The complainant was examined by PW5 on 11 th May 2010 but he found nothing remarkable. In his defence, the Appellant denied committing the offence. His defence was that PW2 framed him with the offence either because he declined sexual advances from her or because she owed him money. During the hearing of the appeal, the Appellant was of the view that because there was a contradiction in the evidence of the complainant and PW3 as regards where the incident was said to have occurred, the veracity of the complainant’s case should thus be put into question. The complainant testified that the Appellant sexually assaulted her inside his house. On her part, PW3 testified that the complainant had told her that he had defiled her in PW2’s bedroom. The claim by the complainant that the Appellant sexually assaulted her was corroborated by both the evidence of PW3 and that of PW6. PW3 testified that the complainant complained of stomach pains before she slept and that she was in pain as she urinated outside their house on the night the incident was said to have occurred. She was medically examined by PW6 on 7th May 2010 and she was found to have injuries on her vaginal entrance which was hyperemic. She was also found to have contracted a urinary tract infection. The said injuries were consistent with the claims of sexual assault by the complainant. Having established that the complainant was sexually assaulted, the question of discrepancy in the evidence of the complainant and PW3 regarding whether she was defiled inside the Appellant’s house or PW2’s bedroom is immaterial as to warrant this court to dismiss her as an incredible witness and therefore disregard her evidence. The complainant knew the Appellant very well. They lived within the same compound. He was a nephew to PW2. She identified him as the person who sexually assaulted her. In his defence, the Appellant claims
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that he might have been framed with the offence by PW2 either because he declined sexual advances from her or because she owed him money. This court has considered the Appellant’s defence and finds that it does not displace the otherwise strong case presented by the prosecution witnesses. The complainant was consistent in her evidence. In the premises therefore, upon re-evaluation of the evidence adduced, this court reaches the same finding as the trial court that the prosecution established its case on the charge of committing of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act to the required standard of proof beyond any reasonable doubt. The appeal against conviction lacks merit and is hereby dismissed. As regards sentence, the Appellant claims that the trial magistrate overlooked the fact that he was aged seventeen (17) years old during trial. However, in mitigation before sentence, the Appellant told the court that he was nineteen (19) years old and had just completed secondary education. From his statement at the time the offence was committed, the Appellant was eighteen (18) years old. He was therefore properly charged before the trial court. The Appellant was a first offender. He was young and most probably misguided. There were no reasons put forward by the trial court to justify the decision to sentence the Appellant to serve a harsher custodial sentence other than the minimum that is provided by the law. In the premises therefore, this court finds merit in the Appellant’s appeal on sentence as a result of which the sentence of twenty (20) years imprisonment is set aside and substituted by a sentence of ten (10) years imprisonment. That sentence shall take effect from 16 th June 2011 when the Appellant was sentence. It is so ordered. DATED AT NAIROBI THIS 6TH DECEMBER 2017 L. KIMARU JUDGE
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