Zacharia Ndichu Karanja v Republic

This being the first appeal, it is the duty of this court to examine all the evidence tendered before the trial court, analyze it and come to its own conclusions and determination. The prosecution called a total of four witnesses. The complainant PW1, MWM was affirmed and she recalled that on 8/11/2012, in company of her friend M W C, went to Ndichu’s (appellant’s) home; that they were at W’s gate when the appellant came, held her hand and led her to his house; that he had separated from his wife but was with the children; that she removed her clothes, he removed his, and they had sex; that he put his penis in her vagina; that when she went back home, she told her grandmother, PW2 and the matter was reported to the police and she was taken to hospital. PW2 M W N, PW1’s grandmother told the court that she learnt from PW1’s school that PW1 had slept at the appellant’s house; the teacher called her and they took the girl to the police station. PW2 knew appellant as a neighbour. PW3 CPL Josphat Mwashamba of White Rock Patrol Base was on 22/11/2012, called by the chief of Kaguru and informed that there was a case of defilement and about PW1 having slept in the appellant’s house 8/11/2012. He arrested the appellant, referred the complainant to Nyama Mbichi Health Centre for examination and later preferred charges against the appellant. PW4 Isaac Gitonga is a Clinical Officer based at Subukia Health Centre County who examined the complainant on 28/11/2012 and found that she did not have any injuries to her genitalia and the hymen was intact. When called upon to defend himself, the appellant gave an unsworn statement where he stated that he used to bake and sell cakes; that he could cook from 7.00 p.m. till 9.00 a.m. and sleep at 3.00 p.m.; that on the said day, he had prepared his dough when a person knocked at the door, it turned out to be the complainant who said she had been sent away by the grandmother and decided to go to his house because her relative was married to appellant’s uncle. He allowed her to eat with his children and go to sleep and they did; that next morning, the complainant left with his children as they went to school. He continued with his daily chores and after 2 weeks, he got information that there was an issue with the grandfather’s land; that he was the only child of the mother and his uncles did not want him on the land and he did not know they had sent PW1 to frame him. He was warned to disappear but when he did not, he was arrested by police when he went to collect a debt. The age of the complainant is not in dispute. The birth certificate was produced in evidence. PW1 was born on 9/3/2000. The incident took place on 8/11/2012. She had just turned 12 years old. The appellant does not deny that PW1 spent the night in his house. The only point of contention is whether PW1 went the appellant’s house herself or the appellant took her there. Unfortunately, the girl whom PW1 said was with her at the time she went to the appellant’s house was not called as a witness. It was PW1’s version that the appellant found her at the gate of W’s home, held her by the hand and took her into his house. Though the appellant said in his defence that PW1 said she was sent away by the grandmother (PW2), PW2 denied having sent PW1 away that night but that PW1 went to school and never returned home; that PW2 only learnt about PW1 having slept at the appellant’s house from PW1’s school. The appellant cross examined PW1 at length and she maintained that it is the appellant who took her to his house, and refused to let her go. I have no doubt that it is the appellant who lured PW1 into his house on the fateful night. The only witness to what happened when PW1 went to the appellant’s house is the appellant, PW1 and possibly the appellant’s children but they are not called as witnesses. PW1 explained that she removed her clothes and so did the appellant and he put his penis in her vagina. From the medical evidence which was obtained about 2 weeks later, there was no evidence of penetration

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because PW1’s hymen was still intact. If there had been partial penetration, it could not be ascertained because of the time lapse between the incident and the date of examination. The trial court believed that the appellant caused his genital organ to come into contact with the complainant’s as she vividly narrated to the court. That must be the reason the appellant took her to his house. The appellant’s defence was to the effect that he was framed because of a land dispute. The appellant never put any such question to PW1, as to whether she was used by his relatives to frame him. PW2 admitted that indeed she is aware of a land dispute at the appellant’s home but there is no evidence that the complainant a child of 12 years, was involved. In fact the appellant never mentioned who these people who allegedly framed him are. PW2 denied that the appellant had ever disagreed with anybody in her home. In his submissions in court, the appellant alleged that he was framed by business rivals who were also selling cakes, the business that he was doing. The court can only consider the defence that the appellant advanced before the trial court. The allegation of business rivalry is a totally new defence. Even if the appellant had a dispute over land with his relatives, PW1 was not involved nor was she used to frame him. The trial court believed the testimony of PW1. The appellant had been charged with the offence of defilement but there was no evidence of penetration which is a key ingredient to prove the offence of defilement. Instead, the trial court found the appellant guilty of committing an indecent act. Section 11(1) of the Sexual Offences Act defines indecent act as follows: “indecent act” means an unlawful, intentional act which causes: (a) Any contact between any part of the body of a person with the genital organs, breasts, or buttocks of another, but does not include an act that causes penetration; (b) Exposure or display of any pornographic material to any person against his or her will.” Though PW1 said that the appellant actually inserted his genital organ into hers, it seems there was no penetration or if there was, it may have been partial but due to the lapse of time, the evidence disappeared. The court therefore arrived at the proper finding that the offence committed was an indecent act. The court’s decision is sound and this court will not disturb it. As regards the sentence, the court handed the appellant the minimum sentence under section 11 (1) of the Sexual Offences Act. In the end, I find the appeal to be without merit. It is dismissed in its entirety. Dated, Signed and Delivered at NYAHURURU this 31st day of January, 2018. ……………………………….. R.P.V. Wendoh JUDGE Present:

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Ms. Rugut – for prosecution Mr. Soi - court assistant Present – appellant

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