REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL APPEAL NO. 19 OF 2019 JMN..............................APPELLANT VERSUS THE REPUBLIC......RESPONDENT {Being an appeal against the Conviction and Sentence of Hon. M. Ochieng – SRM Githunguri in the original Githunguri Principal Magistrate’s Court Criminal Case No. 138 of 2015} JUDGEMENT The appellant was sentenced to twenty (20) years imprisonment for the offence of Defilement Contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act. The particulars of the charge were that on 7 th February 2015 at 11pm in Githunguri District, Kiambu County he intentionally and unlawfully caused his penis to penetrate the vagina of HN a child aged 12 years. He had also been charged with an alternative count of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act where it was alleged that on 7 th February 2015 at around 11pm in Githunguri District within Kiambu County he committed an indecent act with HN a child aged 12 years by touching her vagina with his penis. After hearing and considering the testimonies of four prosecution witnesses and the appellant, the trial Magistrate concluded the charge of defilement had been proved against the appellant beyond reasonable doubt and subsequently sentenced him to imprisonment for twenty years. This appeal is against the conviction and the sentence. The appeal is premised on the following grounds: - “1. THAT, the trial magistrate erred in law and fact by failing to find that Pw1 and Pw2 were not credible witnesses worth of belief. 2. THAT there were insurmountable inconsistencies, contradictions and uncorroborated and there was no proof that was tendered to the required threshold of proof hence the evidence as adduced was inconclusive to attain a conviction. 3. THAT, the learned trial magistrate erred in law and fact by failing to find that essential witnesses necessary to prove basic facts did not testify. 4. THAT, the learned trial magistrate erred in law and fact by failing to find that there existed a grudge between the appellant and Pw1’s family due to boundary dispute. 5. THAT, the learned trial magistrate erred in law and fact by failing to consider the appellant’s defence.” As correctly submitted by the appellant the ingredients to look out for in a charge of defilement are: - “1. Whether there was an act which caused penetration of the complainant’s genital organ by that of the accused person. 2. Whether the complainant is a child. 3. Whether there was positive identification of the accused as the perpetrator of the offence.” (S ee Philip Maingi Mueke v Republic [2015] eKLR).
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Briefly the facts of this case are that on the material day at about 11pm the complainant had gone to help her drunken aunty to carry her slippers and a telephone. She found her aunt with the appellant who was also drunk. The appellant who she described as her cousin held her by the hand and covered her mouth then dragged her to their deserted grandfather’s homestead. Although she tried to shout for help nobody heard as the people in the nearby houses were making a lot of noise. The appellant took her to the rear of the house and unzipped her trouser and when she tried to put it back it fell. She tried in vain to free herself and to push him away. He kept asking her to tell him what she wanted before removing his trouser and “entering her”. Her mother (Pw2) who had all the while been looking for her happened upon the scene. She was drawn there by the appellant’s voice and when she moved closer she saw the appellant had pinned the complainant to the wall and that her clothes were raised and she had no pant while the appellant’s trouser was lowered to his knees. The two of them were struggling. She pulled the appellant away from the complainant and turned him to face her (Pw2). He fled. She reported the matter first to her husband and then to the parents of the appellant who retorted that she could report him to the police since he was an adult. She reported the matter to Gathanji Police Post before taking the complainant to Kiambu District Hospital where she was examined. Later the matter was reported to Githunguri Police Station and the complainant was issued with a P3 Form which she took to Kiambu District Hospital. On 9th February Dr. Anne Kiana (Pw4) of Kiambu District Hospital examined the complainant again and using the results of that examination and the treatment notes made on the initial visit, she filled the P3 Form. She opined that since the complainant’s hymen was broken there was evidence of penetration. The appellant had been arrested so he was charged with these offences. In his defence, the appellant testified that he was framed by the complainant’s parents because of a land dispute concerning their grandfather’s estate. He stated that his uncles wanted to get rid of him on the ground that he was not sired by their brother as his mother went to the home while pregnant with him. He denied that the scarf and alcohol allegedly collected at the scene by the complainant’s mother belonged to him and contended they were planted on him. He also disputed Pw2’s evidence that the complainant was 12 years old and in class 6 and stated that she was in class 8. An appeal is in the nature of a retrial and I have analysed and re-evaluated the evidence by both sides so as to arrive at my own independent conclusion while bearing in mind that I did not see or hear the witnesses give evidence (see Okeno v Republic ]1972] EA 32). I am satisfied beyond reasonable doubt that a sexual offence was committed against the complainant by the appellant. Although it was at night the complainant positively recognized the appellant. He was her cousin and she had found him with her aunt. It is my finding that she had opportunity to recognize him even more positively when he dragged her to their deserted grandfather’s homestead. Her mother (Pw2) also confirmed that she saw the appellant when she turned him towards her. She also recognized his voice. The appellant confirmed that he was related to the complainants. I am satisfied therefore that he was positively identified as the perpetrator of the offence. I am however not satisfied that there was sufficient evidence to prove penetration. The Sexual Offences Act defines penetration as: “…….the partial or complete insertion of the genital organs of a person into the genital organs of another person”. In this case the complainant described what the appellant did to her as “raping” and “entering her”. The trial Magistrate ought to have asked her what she meant by those terms as taken on their own they may not necessarily mean insertion of the genital organ of the appellant into hers whether partially or completely. I am however satisfied that the evidence proved a charge of indecent act which as defined in the Sexual Offences Act means “an unlawful intentional act which causes 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”. The complainant testified that the appellant dragged her to a deserted homestead, pinned her to the wall, undressed her, lowered his trousers then started to do what she described as raping. She was clear in her evidence that there was contact of his genital organ with her genital organ. I believed her given that she was very consistent in her testimony and whereas corroboration was not necessary her mother’s testimony offered corroboration that she found them struggling. I found no material contradiction in the evidence of the witnesses that would cast doubt on the prosecution’s case. As for the defence it cannot stand in the face of such cogent evidence and I am not convinced the appellant was framed. The complainant’s age was proved through production of an original birth certificate showing she was born on 27 th August 2002. As this offence was committed on 7th February 2015 she was 12 ½ years or thirteen (13) years old. She was therefore still a child hence giving rise to the offence of indecent act with a child. Having found there was no penetration, the conviction for defilement is quashed and substituted with one for committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The trial court sentenced the appellant to twenty (20) years imprisonment which is the minimum sentence for defilement of a child between the age of twelve and fifteen years. The minimum sentence for the offence of indecent act with a child is 10 years. I am satisfied that even with the recent jurisprudence flowing from the case of Francis Muruatetu & Another v Republic [2017] eKLR regarding minimum mandatory sentences, in the circumstances of this case, the term of imprisonment for 10 years would be just. The sentence of twenty (20) years is therefore set aside and substituted with one for ten (10) years from the date the appellant was sentenced by the lower court. Signed and dated this 15th day of October 2019. E. N. MAINA JUDGE Dated and delivered in Kiambu this 17th day of October 2019. C. W. MEOLI
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JUDGE
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