Joseph Githagi Waruguru v Republic

inflammation of vulva. He concluded there was penetration. 10. The appellant in his first ground of appeal stated that the prosecution had failed to prove the girl’s age. 11. The appellant was charged with the offence of defilement Contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The Section Provides: (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 12. From consideration of that Section it becomes very clear that the age of the victim, in a defilement case, is very pertinent. 13. The girl is giving evidence stated that she was 9 years old when the appellant defiled her. To prove her age she produced her birth certificate which showed she was born on 25th March 2007. 14. The offence of defilement was committed on 7th February, 2016. According to my calculation the girl was 8 years and 11 months on 7th February 2016. She had remaining one month to reach the age of 9 years. 15. The fact she was 8 years and 11 months brings the offence of defilement within Section 8(2). 16. In addition the girl’s mother MM testified and said that she was 9 years old when she was defiled. 17. In my view the prosecution proved the age of the girl and further proved that the offence of defilement waswithin the provisions of Section 8(2) of the Act. It follows that the first ground of appeal fails. 18. The appellant on his second ground of appeal stated that the prosecution failed to prove penetration. 19. Penetration has to be proved to satisfy the requirements of Section 8(1) of the Act. Penetration is defined under Section 2 of the Act as “Means partial or complete insertion of the genital organ of a person into the genital organ of another person.” 20. The girl in her evidence stated that when the appellant removed her under wear he “… removed his organ for urinating …. He then inserted his organ into my organ for urinating. I was lying down.” 21. The clinical officer stated in that regard: “There was penetration as the hymen was missing and the inflamed vulva indicates a recent act of penetration.” 22. The clinical officer on being cross examined by the appellant stated: “The inflammation is normally caused by defilement or an injury but the most common is penetration by sex.” 23. That evidence looked at wholly shows that the prosecution proved penetration.

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24. The fact spermatozoa was absent, when the clinical officer examined the girl is not an indication that there was no penetration. This was the holding of the court of appeal in the case ANDREW APIYO DUNGA & ANOTHER - V- R [2010] eKLR viz: “That F was raped was confirmed by the medical report and there was no need to match the spermatozoa found inside her with that of each appellant as the offence of rape is complete once there is penetration of the female’s genital organ with the male’s penis. It is not necessary that spermatozoa be released. In this case medical evidence confirmed F’s evidence that there was penetration of her vagina by a male organ. According to her evidence which both courts below accepted, the persons responsible were both appellants.” 25. According the prosecution having proved penetration the appellant’s second ground of appeal is rejected. 26. In the third ground of appeal the appellant faulted his identification. The defilement occurred between 7.00 and 7.30p.m. 27. The appellant had lived in the neighbourhood of the family of MM for 9 years. The girl, D M and MM well knew the appellant. They all referred to him by the name Jose, which name he did not reject in his cross examination of those witnesses. 28. The girl narrated how she and her brother, D M realised someone was close to them. She stated: “Then this person came and we saw it was Jose.” 29. The girl also stated that she knew the appellant’s voice. She stated: “I knew his (the appellant) voice well….” 30. The girl also said that the appellant had a torch which assisted her to recognise him. The girl stated: “It was at 7.30p.m. It was dark but I could see him (the appellant) properly from the bright light of his torch.” 31. In addition the act of defilement involved the appellant being close to the girl which would have aided his identification. 32. The girl in evidence said that the appellant had defiled her before but because he had threatened her with a knife she did not reveal the same. MM also confirm that the girl confided in her that the appellant had defiled her once before but had threatened her not tell. 33. D M also said that it was Jose who was following them and who gave him Ksh 5/= tobuy sweets. 34. When MM went looking for her daughter and she was calling her daughter’s name, the appellant appeared closely followed by the girl. MM said that there was no one else on the scene. 35. It is clear from the above evidencethat the appellant was recognised rather than identified. The court of appeal in the case: FRANCIS MUCHIRI JOSEPH – V- REPUBLIC [2014] eKLR had this to say on recognition: “In LESARAU – v-R, 1988 KLR 783, this court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name. In R-V-Turnbull,(1976) 3 All ER 551, Lord Widgrey CJ observed that the quality of identification evidence is critical: if the quality is good and remains good at the close of the defence case, the danger of mistaken identification is lessened, but the poorer the quality, the greater the danger. He went on to state:

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“Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” 36. But it need also to be considered that the girl stated she recognised the appellant by his voice which she well knew. The court of appeal in the Case VURA MWACHI RUMBI – V- REPUBLIC [2016] eKLR held that evidence of voice recognition is admissible. The court stated: “In the case of Choge v R [1985] KLR 1, this Court held that evidence of voice identification is receivable and admissible and it can, depending on the circumstances, carry as much weight as visual identification. In receiving such evidence, however, care and caution should be exercised to ensure that the witness was familiar with the appellant’s voice and recognized it and that the conditions obtaining at the time the recognition made were such that there was no mistake in testifying to that which was said and who had said it see also KARANI V REPUBLIC [1985] KLR 290.” 37. In KARANI -VS- R[1985] KLR 290 the court of appeal held at page 293: “Identification by voice nearly always amounts to identification by recognition. Yet here as in any other cases care has to be taken to ensure that the voice was that of the appellant, that the complainant was familiar with the voice and that the recognised it and that there were conditions in existence favouring safe identification.” 38. This court, just as trial court, is aware that where the prosecution relies on identification the court needs to satisfy itself on the circumstances of that identification. This was what was stated the case FRANCIS MUCHIRI JOSEPH - v – REPUBLIC [2014] eKLR viz: Wamunga – vs- R. [1989] KLR 424 this Court while dealing with the complexities of an identification of an assailant stated as follows: “…It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis ofconviction.” 39. The learned trial Magistrate in his considered judgment wassensitive to the need to warn himself about the recognition evidence. He stated therein. “…the accused (the appellant) identification. The court firstly wishes to observe and warn itself that the incident occurred at around 7.00 pm and there was some darkness at this hour. P W 1 says that she was able to see it was the accused from the light emanating from the torch the accused had. But a more important issue is that both P W 1 (the girl) and P W 2 (D M) confirm that they knew the accused well as he used to reside in an adjacent plot … The fact which the accused did not deny in his defence… P W 1 and P W 2 admit that they were able to recognize theaccused [‘s] voice …..” 40. I am in agreement with the trial court’s assessment of the evidence on recognition of the appellant. Appellant’s recognition cannot be faulted. 41. On the fourth ground the appellant submitted that the trial court erred to reject his defence. 42. The appellant by his defence stated that on the day in question at 6.30p.m. he met MM. He suggested that he and MM had a love affair and when they met on the subject day MM accused him of being too close to his work mates and thereby failing to visit her. He said that he slapped her when she referred to him as a prostitute, and MM screamed, which screams attracted public and it was when members of the public arrived that MM accused the appellant of defiling the girl. 43. The learned trial Magistrate as he considered that defence stated:

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“I have also considered the issue raised by the accused in his defence. The accused alleges he was framed by the complainant’s mother after their relationship fell apart …. The court finds the complainant’s evidence as well as that of P W 2 (D M) to have been truthful and reliable as regard the person who defiled the complainant. The accused defence is thus rejected on this account. 44. The trial court had the opportunity, which I did not have, to see and hear the witnesses testify. That court therefore was more suited to judge which of the people who testified before it were truthful. 45. Moreover the defence of being framed in the light of the evidence of the evidence of the girl and her brother D M which was clear and corroborative is rejected. 46. Having reconsidered and re-evaluated that trial court’s evidence I find the appellant’s appeal has no merit and is dismissed. The trial courts conviction is upheld and the sentence is confirmed. Dated and Delivered at Nanyuki this 14th February 2018 MARY KASANGO JUDGE Coram Before Justice Mary Kasango Court Assistant: Njue/Mariastella Appellant: Joseph Githagi Waruguru For state: ….............................................. Language ................................................ COURT Judgment delivered in open court MARY KASANGO JUDGE

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