REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE CRIMINAL APPEAL NO. 66 OF 2017 (Being an Appeal arising from original conviction and sentence in Kitale Chief Magistrate's Court Sexual offence Case No. 147 of 2016 delivered on 1/9/2017 by Hon. P. Biwott Senior Principal Magistrate) JOSEPH JUMA WANGILA................................APPELLANT VERSUS REPUBLIC.......................................................PROSECUTOR JUDGMENT 1. The appellant was charged with the offence of Defilement of a child contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 30th day of September 2016 within Trans Nzoia County, intentionally caused his penis to penetrate into the vagina of A.N.W., a child aged 6 years. 2. The alternative charge was Committing an Indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 30th day of September 2016 within Trans Nzoia County, intentionally caused the contact between his genital organ namely penis and the genital organ namely vagina of A.N.W. a child aged 6 years. 3. He was convicted and sentenced to life Imprisonment hence this appeal. Before looking at the merits and demerits of the appeal its appropriate to sumarise the proceedings at the trial court. 4. PW1 the complainant testified that she was a nursery school child. That on 30/9/2016 while at home playing with one D, the appellant called her to his house. He then took her to his bed and proceeded to defile her. She said that he slept on her and she felt pain on her chest. After defiling her she let her go and she went home and informed her mother. Later she was taken to Matunda Hospital for treatment. 5. PW2 E N the complainant's mother testified that she knew the appellant as he was a neighbour. She said that the complainant was aged 6 years old. She testified that she lives near the road and she told one Pilah to bring PW2 home. She heard the appellant calling the child. When the child came she saw that she looked unwell and on inquiry she told her that Juma had done “tabia mbaya”. She told her that he had put her on his bed and defiled her. She checked the child and decided to inform one Godfery of Nyumba Kumi. They went to the appellant's house but he denied. They then took the child to the hospital and reported the matter to Kiminini police station. Later she took her to Kitale District hospital where the P3 form was filled. 5. PW3 Linus Ligare produced the P3 form which he filled as he examined the complainant. He found that the hymen was torn and recent and thus penetration had occurred. 6. PW4 Pharis Silali the dental officer from Kitale district hospital produced the dental age assessment report prepared by Dr. Mukira which concluded that PW1 was aged 6 years old. 7. PW5 P.C. Mary Mmoi from Kitale police station Gender Unit carried out the investigation and issued the P3 form to the complainant. She recorded statements from the witness and preferred charges against the appellant. 8. When put on his defence the appellant gave unsworn testimony denying the charges. He said that he was working in his farm on 30/9/2016 when 3 people came at around 11.00 am and picked him to assist in cutting maize into steaks. They carried him on a motorbike upto Kiminini Police Station. Later he was taken to Kitale police station where the charges were preferred against him. Analysis and Determination 9. Having read the proceedings herein together with the submissions on record both by the appellant and the learned State Counsel, what is contained in the appellant's grounds of appeal are general attack on the entire evidence as presented during trial.
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10. This being the first appeal, the court is enjoined to re-evaluate the evidence afresh with a view of reaching a fresh finding with a rider however that it did not have the chance of seeing the witnesses during trial (See Okeno Vs Republic (1973) E.A. 32.) 11. There are 3 ingredients now generally acceptable in the offence of defilement. These are that the age of the victim must be ascertained, the identity of the perpetrator and that penetration ought to be proved. 12. In the case at hand the dental age assessment report produced corroborated the evidence of PW2 the minor's mother. The doctor found that she was 6 years old, a fact not controverted by the appellant. 13. As to the question of identity, I do not find any reason not to conclude that the appellant was a neighbour to the complainant and that they knew each other very well. The incident took place during the day and thus the question of identification was not doubtful. 14. Was the complainant defiled? There was no eye witness except the complainant. The other child, D, was not called to verify what the complainant said. The P3 form however corroborates what the complainant stated. The child was able to explain how the appellant defiled her. The missing of the hymen which appeared recent goes to prove that there was defilement. The examination was done on 3/10/2016 about 4 days after the incident. PW3 said that he had relied on the card filled at Matunda hospital which was the first medical centre the Complainant had visited. 15. Did the appellant defile the minor? The chain of events was not broken. It appears that once the child was released and called by her mother, and she realised that she was not walking well, she called Godfrey and informed him of what had happened. The appellant who appeared apparently still around denied the same. The minor was then taken to Matunda hospital for treatment. 16. In my view therefore everything happened or flowed naturally. I have tried to examine if the complainant despite her age lied but I do not find any of such untruthfulness. She infact explained that the appellant's house was two roomed and that the rug she had used to wipe her was under the bed. 17. Under the proviso to Section 124 of the Evidence Act, I do not fault the minor. She was convincing in her evidence. In any case she was dealing with the appellant whom she knew as a neighbour and who had called her to his house. 18. I do agree that the absence of D who was allegedly with PW1 was crucial. However the evidence as presented by PW1 did not indicate that she doubted what had taken place or that she had mistaken the perpetrator. 19. The appellant defence did not assist much. He did not afford the prosecution the opportunity to cross examine him. 20. In short this appeal fails. The same is hereby dismissed. Delivered, signed and dated at Kitale this 10th day of May 2018. _________________ H.K. CHEMITEI JUDGE 10/5/18 In the presence of: M/S Kakoi for the Respondent Appellant – Present Court Assistant – Kirong Judgment read in open court.
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