REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT LODWAR CRIMINAL APPEAL NO. 7 OF 2019 PETER LEMUYA EKADELI...........APPELLANT VERSUS REPUBLIC ................................... RESPONDENT (An appeal from conviction and sentence in original Lodwar PM CR 83/2017 delivered on 12/2/2018 by C.M Wekesa Senior Resident Magistrate) JUDGMENT 1. The Appellant was charged with the offence of kidnapping contrary to section 255 of the penal code as read with section 257 the particulars of which were that on 25/6/2017 at around 11.00hrs in Turkana County jointly with another not before the court kidnapped MA a child aged 13 years old. 2. He faced a second count of defilement contrary to section 8(1) as read with section 8(3) of sexual offences act No.3 of 2006 the particulars of which were that on 25/6/2017 at around 11.00hrs in Turkana Central sub-county within Turkana County intentionally caused his penis to penetrate the vagina of MA a child aged 13 years. 3. He was charged with an alternative charge of indecent act with a child contrary to section 11(1) of the sexual offences act No.3 of 2006 the particulars of which were that on 25/6/2017 at around 11.00hrs in Turkana Central sub-county within Turkana county intentionally touched the vagina of MA a child aged 13 years old with his penis. 4. He pleaded not guilty, was tried and convicted on count I and II and sentenced to serve imprisonment for 5 and 15 years respectively to run concurrently. Being aggrieved by the said conviction and sentence he filed this appeal and raised the following summarized grounds of appeal. a. The prosecution case was flowed, fabricated and unreliable witnesses were never called to testify. b. The age of the complainant was not proved and therefore the prosecution case was not proved beyond reasonable doubt. 5. When the appeal came up for hearing before me, the appellant who was unrepresented filed amended grounds of appeal and written submission which he relied upon, while Mr. Mongare learned Prosecutor made oral submission in opposing the appeal. SUBMISSION 6. It was submitted by the Appellant that the prosecution case was full of contradictions and in particular the evidence of PW2 and PW4. It was further submitted that the age of the complainant was not proved beyond reasonable doubt, since she testified that she was 13 years while PW4 stated that she was 12 years old. It was further contended that there was contradiction as regards the evidence of PW3 whether he is the one who defiled the complainant or not. It was stated further that an alleged eye witness who saw the complainant with money was never called to testify and therefore adverse inference should be made on the prosecution case. 7. It was admitted by Mr. Mongare that the appellant raised an alibi defence which was displaced through the prosecution witnesses which put him together with the complainant at the scene. He was well known by the complainant and therefore his identification was that of recognition. It was submitted that the evidence of the medical officer confirmed that the injury sustained by the complainant was consistent with defilement.
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8.This being a first appeal the court is under legal duty to re-examine and re-appraise the evidence adduced before the trial court to come to its own conclusion thereon as was stated in the case of KIILU & ANOTHER v REPUBLIC [2005] KLR 174 as follows:- “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; It must make its own conclusion only then can it be decided whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” (Emphasis added) 9. The prosecution case against the appellant was that on 25/6/2017, the Complainant had gone to church with PW1 and other children when PW1 noticed that she was missing and searched for her upto 7pm when she decided to go inform their mother, when she met the complainant. She interrogated her with the assistance of another lady and she told them that a certain man who usually brings “plumby” had picked her and taken her to another home where he defiled her. It was her evidence that she knew the appellant who used to bring “plumby” to her children. In cross-examination she testified that she found the complainant at her mother’s house. 10. PW2 stated that she had known the appellant before the 25/6/2017 when she saw him outside the church. It was her evidence that he called her and she went with him to his house where he blind folded her and made her board a motor cycle threatening to kill her upto Kanamkemer in a deserted house where he defiled her and gave her Kshs.50 to buy chips. 11. PW3 Kennedy Wasilwa produced P3form on behalf of Dr. Kemboi and confirmed that the complainant had tenderness on the neck after attempt of strangulation. There was whitish discharge around the vaginal wall and labia majora and minora were bruised and hymen broken. As a result of the said examination he confirmed that defilement had occurred. On cross examination he confirmed the age of the complainant as 12 years. PW4 PC Woman Martha Ekal received the report on 26/5/2017 and confirmed that the appellant was arrested by two NPR officers and she investigated the matter and charged the Appellant. 12. When put on his defence the Appellant stated that on 25/6/2017 he came from Canaan and had an argument with his wife, he later left for duties until 12.00 when officers of NPR knocked at his door and arrested him and took him to the police station where he was locked in for two days before being charged with the offence which he denied committing. He stated that he was framed up because he used to keep company with the father of the complainant. DETERMINATION 13. From the proceedings and submission here I have identified the following issues for determination:a. Whether the Appellant was properly identified b. Whether the prosecution proved its case against the Appellant c. Whether the conviction was safe. 14. On the identification of the Appellant the record clearly shows that the same was known to the complainant and her mother PW1. On the material day the complainant and her mother had gone to church together when she disappeared. It was the complainant’s evidence that the Appellant whom she knew called her and offered her “plumby” he then took her and put her on a motor cycle to a deserted house where he defiled her. The complainant gave this information to her mother when she was eventually found at 7.00p.m. This account was consistent with her testimony before the trial court. PW1 confirmed that the appellant used to go to their home and the Appellant in his defence confirmed that he used to hang around with the father of the complainant. 15. It is therefore clear that the Appellant was identified through recognition which as was stated in WAMUNGA – V – REPUBLIC (1989) KLR 426 “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 be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction”. 16. The Appellant took the complainant during daytime. She knew him very well and after defiling her he gave her Kshs.50/= to buy her silent. The Appellant was then arrested at his house which was known to PW1, who confirmed that he used to come to their home to chat with her husband and would buy the children “plumby”. I therefore find and hold that this identification of the appellant was safe and free from error. 17. On proof of the prosecution case as stated by the trial court the prosecution case was based upon the testimony of the complainant and the prevailing circumstantial evidence, there is evidence that the complainant was found holding money thereby corroborating her evidence that the Appellant gave her Kshs.50/= after defiling her. The medical evidence confirmed that her neck was tender thereby corroborating her evidence that the Appellant had blind folded her. The complainant age was proved through the birth certificate produced and the medical report confirmed that she had been defiled within five (5) hours. 18. Having reevaluated the record of the findings herein, I am satisfied that the prosecution proved its case against the Appellant on the two counts and therefore his conviction was safe.
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19. On sentence I have noted that on count I the sentence provided for is imprisonment for seven (7) years while in count II based on the age of the complainant the sentence is for a period of not less than twenty years, the Appellant was sentenced to five (5) and fifteen (15) years respectively and sentencing being a discretion of the trial court I shall not interfere with the same as the Appellant was given a lenient sentence I find no merit on his appeal against sentence. 20. In the final analysis I find no merit on the appeal herein which I hereby dismiss and affirm the conviction and sentence. The Appellant has a right of appeal. Dated, delivered and signed at Lodwar this 4th day of December, 2019 .……………………… J. WAKIAGA JUDGE In the presence of:Mongare for the Respondent Appellant- present Lolim/Biwott - Court clerks
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