REPUBLIC OF KENYA IN THE HIGH COURT AT SIAYA CRIMINAL APPEAL NO. 126 OF 2016 (CORAM: D. S. MAJANJA J.) BETWEEN CHARLES OPONDO MAGERO......................APPELLANT AND REPUBLIC.................................................... RESPONDENT (Being an appeal against the original conviction and sentence dated 4th July 2016 in Criminal Case No. 604 of 2015 at Ukwala Law Courts before Hon. C. N.Wanyama, RM) JUDGMENT 1. The appellant, CHARLES OPONDO MAGERO, was charged with the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act. The particulars of the offence were that on 21st June 2014 at an unknown time in [particulars withheld] Sub-county of Siaya County, he intentionally caused his penis to penetrate the vagina of SA, a child aged 3 years. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act on the same facts. 2. The appellant was convicted and sentenced life imprisonment respectively on the principal count. He now appeals against the conviction and sentence on several grounds. He attacked the judgment on the basis that he was convicted despite lack of evidence, that the evidence was contradictory and the child’s testimony was not corroborated. He also complained that the medical evidence was insufficient to support the conviction. 3. The respondent supported the conviction and sentence. Counsel for the respondent submitted that the prosecution proved all elements of the offence of defilement. She noted that PW 1 gave clear evidence and that she knew the appellant. 4. As this is a first appeal, the duty of the court is to subject the evidence on record to a fresh review and scrutiny and come to its own conclusion while bearing in mind that it did not see the witnesses testify as to form its own opinion on their demeanour (see Okeno v Republic [1972) EA 32). 5. The prosecution case was as follows. The complainant, PW 1, gave unsworn testimony. She told the
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court that the appellant, whom she knew as Boyi, used to take her to school and back on a motorbike. She recalled that on the material day the appellant removed her panty and proceed to insert her penis in her vagina, an act she referred to as piercing her with a stick on the thigh. She felt pain. He took her back home and she told her grandmother, PW 2, what happened. In cross-examination, she referred to the appellant as “Bibi Mdogo” and insisted that he was the one who used to take her to school and back home. 6. PW 2 recalled that on 20th June 2014, the appellant, who was a boda boda rider, commonly known as Bibi Mdogo, failed to bring PW 1 on time. He arrived later than usual with PW 1 who looked sick and tired. PW 1 did not take supper. She only realized that PW 1 had been sexually assaulted when she complained of pain in her private parts. She took the child to hospital where she was examined and treated. When she went to report to the police, PW 1 revealed how Bibi Mdogo sexually assaulted her. 7. PW 3, who was the Chairman of community policing in the area, was informed by the police that they were looking for a boda boda rider called Bibi Mdogo. Through his networks, he managed to locate the appellant at a Busaa den and he proceeded there with the police who arrested him. 8. PW 4, a clinical officer at Sigomere Health Centre, produced the P3 form prepared by another clinical officer who examined PW 1 on 24thJune 2014. The officer noted that the child had been examined on 21 st June 2014 and he observed the both labia were not intact and there was a white smelly discharge. He concluded that there was penetration. 9. The investigating officer, PW 5, confirmed that defilement incident was reported at the Police Station on 21st June 2014. After recording the statements, she accompanied PW 1 and PW 2 to the Health Centre where the child was examined and treated. She also produced a baptism card showing that the PW 1 was born on 3rd December 2010. After the appellant was arrested with the assistance of PW 3, he was charged. 10. In his sworn testimony, the appellant denied committing the offence. He admitted that he was a boda boda rider and he was engaged to pick children and take them to school at 7.30am and return them between 3.30pm and 4.00pm. On the material day, he took children to school and returned them without incident. He stated that when he went to collect the child on Monday, he was told the child did not want to go to school. Likewise, on Tuesday, he did not collect her and on Wesdnesday, he was arrested on allegations which he denied. 11. The main issue for determination in this case is whether the prosecution established a case of defilement against the appellant beyond reasonable doubt. In order to prove defilement, the prosecution must show that the accused did an act that amounted to penetration of a child. “Penetration” under section 2 of the Act means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 12. PW 5 produced the birth certificate which showed that the child was born on 3 rd December 2010 hence at the time of the offence she was aged 3 years. In her own words she gave graphic testimony of how the appellant inserted his penis into her vagina. Her testimony was clear and consistent and was unshaken in cross-examination and it left no doubt as to what took place. The incident took place at daytime and the appellant was person known to her. He identified her to the police and he was arrested based on the identification that was given by both PW 1 and PW 2 who knew him. Further, in his defence, the appellant admitted that he used to take PW 1 to school and had in fact taken her to school on the material day. 13. PW 1’s testimony is corroborated by that of PW 2, who saw her in a state of distress on the day she had been assaulted. The fact that she did not tell PW 2 what took place immediately, does not undermine her testimony as she was understandably a child dealing with a very peculiar situation. PW 2 explained why she did not take the child immediately to the hospital and only did so once the child was in pain. Nevertheless, PW 2 observed that her private parts were in pain and the fact of penetration was confirmed
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by the medical evidence although the child was examined after three days. 14. I am satisfied that the prosecution proved that the appellant is the one who committed the act of penetration against PW 1. The conviction is therefore affirmed. There is no question that the child was aged 3 years as confirmed by the birth certificate. Since the child was below 11 years of age, the sentence of life imprisonment imposed was the minimum under section 8(2) of the Sexual Offences Act and as such it was proper and legal. 15. I affirm the conviction and sentence. The appeal is dismissed. SIGNED IN NAIROBI D. S. MAJANJA JUDGE DATED, SIGNED and DELIVERED at SIAYA this 19th day of February 2018 T. W. CHERERE JUDGE Appellant in Person Ms Odumba, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the State Court Assistants: Laban O. Odhiambo, Ishmael Orwa
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