REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CORAM: MAJANJA J. CRIMINAL APPEAL NO. 55 OF 2015 T M O....................................................APPELLANT VERSUS REPUBLIC.........................................RESPONDENT (Appeal from the original conviction and sentence of Hon. M.N Munyendo – RM dated 26th September 2014 at the Principal Magistrate’s Court at Kilgoris in Criminal Case No. 396 of 2014) JUDGMENT 1. The appellant, T M O, was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the sexual Offences Act (‘the Act’). The particulars of the offence were that on 31 st March 2014 within Kisii County, he caused his penis to penetrate the vagina of EKM, a child aged two years old. He was sentenced to life imprisonment. 2. The appellant now appeals against conviction and sentence on the grounds set out in the petition of appeal supplementary and amended grounds of appeal and written submissions. He contends that the prosecution failed to prove its case beyond reasonable doubt. 3. As this is a first appeal, I am required to re-evaluate the evidence on record and reach my independent conclusion as to whether to uphold the conviction making an allowance for the fact that I neither heard nor saw the witnesses testify. 4. The child’s mother, PW 1, testified that the accused was her husband and that on the morning of 30 th March 2014, she woke up to go to the tailor and left the appellant sleeping with the child. When she returned a short while later she described what she found as follows; I came and found the accused sleeping while facing each other side. He had spread the child’s legs. I found the accused was naked at the time, my daughter was also naked. When I went to the tailor, the accused and my daughter were naked. I found the accused was having sexual intercourse with my girl. I checked my daughter at her genitals. I saw some discharge, it was milky like. I checked the girl after he had left the girl. 5. PW 1 was distraught by what she had seen and she immediately ran to the road screaming. PW 2, a local businessman and a member of community policing, recalled that on the material morning, he was told by a clan elder of the incident involving the appellant. He went to his home and found the appellant present with PW 1 and the child. PW 1 narrated to him what happened and he saw the child’s vagina had some discharge that looked like semen. 6. When PW 1 took the child to hospital, she was examined by the clinical officer, PW 3 on 31 st March 2014. He testified that the child was accompanied by PW 1. He also recalled that the child was in good general condition but when he examined the vagina, the labia majora were bilaterally swollen with a perineal tears measuring approximately 1 cm. The hymen was broken. Although the child had been examined and treated at Magina Centre on the previous day, he estimated that the examination took place about 27 hours after the incident. In his view, penetration had taken place. He also conducted an age assessment of the child and confirmed that the child was aged about two years ten months. 7. The investigating officer, PW 4, confirmed that PW 1 reported the incident of defilement on 30 th March 2014 at 9.30 am at the Police
page 1 of 2
Patrol Base. The accused was arrested later that day. He took statements and caused the appellant to be charged. 8. In his sworn defence, the appellant denied the charge against him. He stated that the incident was a result of a grudge between him and PW 1 after she promised to fix him. 9. I have considered the evidence and I observe that the child did not testify even though the trial magistrate had declared the child vulnerable under section 3(2) of the Act and directed that PW 1 be the intermediary. I do not think that this was necessarily fatal to the prosecution case as it could still be proved by circumstantial evidence. In this instance the prosecution must establish that it is only the appellant who could have committed the felonious act and that no other person could have done so or that no other reasonable explanation could be given for the appellant’s innocence (Sawe v. R [2003] eKLR). 10. In this case, PW 1 gave evidence of how she left the child with the appellant and came back to find the child had been injured in her vagina. The fact that PW 1 and the appellant resided together with the child was confirmed by the appellant in his defence. He was found with the child and the train or sequence of evidence from the time she raised alarm and was assisted by PW 2 to the time the incident was reported support PW 1’s version of events and the fact that he was the only one with the child. 11. The proof of penetration was proved by the testimony of PW 1 and PW 2 who saw the child’s private parts and the medical evidence that confirmed that in fact there was penetration. Likewise, the fact that the victim was a child was not disputed. 12. The appellant was placed at the scene of the incident and his defence of a grudge did not hold any water and was indeed an afterthought is evident as he did not put this issue to PW 1 who was firm and consistent when cross examined. 13. The totality of the evidence is that the appellant was left with the child by PW 1, he proceeded to penetrate that child and when PW 1 returned, he was still at the home where he was arrested by PW 2 and taken to the police station. There was no other plausible explanation of how a two year old child could have swollen labia and perineal tear other than by an act of penetration by the appellant. The conviction is accordingly affirmed. 14. The evidence was that the victim was a child and the age assessment by PW 3 confirmed as much. Since she was below the age of eleven years, the mandatory life sentence imposed under section 8(2) of the Act was legal and proper. 15. The appeal is dismissed. Dated and delivered at Kisii this 5th day of October, 2018. D.S MAJANJA JUDGE Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions for the respondent. Appellant in person.
page 2 of 2