Edwin Nyantika v The Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYAMIRA CRIMINAL APPEAL NO. 14 OF 2016 EDWIN NYANTIKA..........................................................APPELLANT VERSUS THE REPUBLIC.............................................................RESPONDENT [Being an appeal against the Judgement of Hon. J. Mwaniki – Principal Magistrate delivered on the 2 nd day of November 2015 in the Original Keroka Principal Magistrate’s Court Criminal Case No. 1345 of 2012] JUDGEMENT The appellant was on 2nd November 2015 sentenced to life imprisonment for defilement of a child contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. The particulars of the charge were that on 5 th November 2012 at Bochana Location in Masaba North District within Nyanza Province, he unlawfully and intentionally committed an act which caused penetration of his penis to the anus of L A a boy aged 3 ½ years. He pleaded not guilty to the charge. His appeal, filed through the firm of Nyariki & Co. Advocates is premised on grounds that: - “1. The learned trial magistrate misdirected himself in law and fact by not sufficiently addressing his legal mind to the serious contradictions as to where the alleged incident took place and the time. 2. That the learned trial magistrate erred in law and fact by not making a finding that there was no conclusive medical evidence that offence took place as the faeces was not subjected to lab test to proof the presence of spermatozoa. 3. That failure to avail the clothes to be subjected to laboratory or DNA tests was fatal to the prosecution case. 4. The learned trial magistrate erred in law and fact by not warning himself that a mere bruise at the did not amount to sexual molestation in the absence of ultra sound tests to show the inside of the rectum or evidence of inflammation. 5. The learned trial magistrate misdirected himself in law and fact by not reaching a conclusion that the evidence as a whole and give the seriousness of the offence and the punitive sentence provided by law did not reach the threshold of beyond reasonable doubt.” The appellant urges this court to quash the conviction and set aside the sentence. The appeal was canvassed by way of written submissions which this court has considered very carefully together with the evidence in the lower court so as to arrive at its own conclusion as is required of the first appellate court. I have in evaluating the evidence appreciated that I did not hear or see the witnesses giving evidence and hence did not observe their demeanour. Section 124 of the Evidence Act allows a court to convict on the evidence of the victim of a sexual offence even where no other evidence is tendered if it believes him. In this case there were other witnesses in addition to the complainant. They all attested to the truthfulness of the complainant who, young as he was, gave a vivid description of what the appellant did to him on that day. If I understood the evidence of his aunty (PPw4) and I am convinced I did, it was that she used to mind the child whenever his grandmother (Pw2) was away. On the material day, she was away at the market selling bananas and had as usual requested Pw4 to take care of the complainant when he came from school. According to Pw4, she too was in the shamba until 5.30pm when it started raining. She clearly stated that when the child (complainant) got to her house she observed that he was walking with difficulty which confirms the child’s evidence that she did not witness the offence being committed. Pw4 also corroborated Pw2’s evidence that the complainant had a bruise on his face and faecal matter and blood around his anus. She also confirmed that the child told them that the appellant had done bad things to him. This was also corroborated by clinical

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