REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI CRIMINAL APPEAL NO. 93 OF 2015 BENSON MUTUA KIMARAI.......................................APPELLANT VERSUS REPUBLIC..................................................................RESPONDENT (Being an Appeal from the Sentence in Kyuso Principal Magistrate’s Court Criminal Case No. 390 of 2014 by E. M. Mutunga R M on 25/08/15) JUDGMENT 1. Benson Mutua Kimarai was charged with the offence of Defilement contrary to Section 8(1) as read with Sub-Section 8(2) of the Sexual Offences Act No. 3 of 2016. The particulars of the offence were that on the 23rd day of August, 2014 within Kitui County intentionally and unlawfully committed an act which caused penetration of his penis into the vagina of J K M a child aged 10 years. 2. In the alternative he was charged with the offence of Committing an Indecent Act contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the 23rd day of August, 2014 within Kitui County intentionally and unlawfully committed an indecent act by causing his penis to touch the vagina of J K M a child aged 10 years. 3. He was tried, convicted and sentenced to life imprisonment. 4. Aggrieved by the conviction and sentence he appealed on grounds that: · Defilement was not proved as no spermatozoa was found in the Complainant’s genitalia. · Nothing from him (Appellant) was found inside the body of the Complainant. · Evidence adduced by witnesses was contradictory. 5. Facts of the case as presented by the Prosecution were that on the 23rd day of August, 2014, J K M the Complainant was alone at home when the Appellant went and bought her chapati. He dragged her into a house that was unoccupied and violated her sexually. Out of fear the Complainant did not go back home. The Appellant took her to his house and took advantage of her by having a second episode of the act with her. PW2 M M M who returned home and found her missing searched for her with the help of other people. She was found by the river side and taken to Kyuso Police Station where the matter was reported. Subsequently she was taken to Kyuso District Hospital. PW5, Muema Mutunga a Clinical Officer examined the Complainant five (5) days later and found her hymen broken. The girl gave him a history of having been defiled previously in April, 2014. At the time of examination, however, he noted some infection. 6. When put on his defence the Appellant denied having defiled the Complainant. He stated that he learnt of the allegation from the Assistant Chief. His argument was that the problem emanated from a land dispute and there was an attempt to eliminate him as a result. 7. This being the first Appellate Court, I am duty bound to re-evaluate and re-consider all evidence adduced at trial afresh bearing in mind that I had no opportunity of seeing or hearing witnesses who testified. I must therefore come to my own conclusion with that in mind. (See Okeno vs. Republic (1973) EA 32). 8. The Prosecution was duty bound to prove the case of Defilement against the Appellant. In the case of Charles Wamukoya Karani vs. Republic Criminal Appeal No. 72 of 2013 the Court stated that: “The critical ingredients forming the offence of defilement are: Age of the complainant; proof of penetration and positive identification of the assailant.”
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9. Because of the Complainant’s tender age she was subjected to voire dire examination. She told the Court that she was ten (10) years old and in class 2. PW2 the mother of the Complainant was silent on her age but the Clinical Officer who examined her estimated her age as ten (10) years. The age of the Complainant was not in dispute. 10. The Complainant was subjected to medical examination. It was proved beyond any reasonable doubt that she had a broken hymen. She also contracted an infection. Her vaginal tract had bruises. At the point of examination the Clinical Officer found that there had been penetration of the Complainant’s genitalia. 11. This brings in the question whether the Appellant was the perpetrator of the act of penetration? 12. There was no eye witness to the act that left the Complainant’s hymen broken and the vaginal tract bruised. The only evidence on record in that respect was of the Complainant. The Complainant was a child of tender years. The proviso to Section 124 of the Evidence Act provides thus: “Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 13. The Complainant narrated how the Appellant bought her chapati then took her to Munyoki’s house and molested her sexually on the 23rd August, 2014. Thereafter he allegedly took her to his house and locked her up whereafter he defiled her on the 24th August, 2014. When PW2 found the Complainant missing she informed people to search around. According to the Complainant when she left the Appellant’s house she went to the river and was found by an individual known as Mumbe. PW2 on the other hand stated that the Complainant was seen at the river with Mutua. Although the trial Magistrate convicted the Accused having believed the Complainant, in his Judgment the learned trial Magistrate opined that the witnesses had no reason to frame up the Appellant. What is however intriguing that the trial Magistrate did not interrogate was the fact that on cross examination the Complainant stated thus: “I lied with Osame and Mutunga (sic) Kimanzi was also arrested and charged over defiling me.” This statement would be a confirmation that other than the Appellant there were other suspects who allegedly defiled the Complainant. The question that remains unanswered is what came of the case of Kimanzi and if indeed the person who violated the Complainant sexually was the Appellant. 14. These questions that remained unanswered created a doubt that should have gone to the benefit of the Appellant. In the premises there was no proof beyond doubt that the Appellant is the one who committed the act that caused penetration in the genitalia of the Complainant. 15. Consequently, the Appeal is meritorious and is allowed. Therefore the conviction is quashed and sentence imposed set aside. The Appellant shall be set at liberty unless otherwise lawfully held. 16. It is so ordered. Dated, Signed and Delivered at Kitui this 25th day of July, 2018. L. N. MUTENDE JUDGE
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