REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYAMIRA CRIMINAL APPEAL NO. 1 OF 2019 JONATHAN CHISAYA BOSIRE...........................APPELLANT VRS THE STATE...........................................................RESPONDENT {Being an Appeal against the Judgement of Hon. B. M. Kimtai - SRM Keroka dated and delivered on the 21st day of December 2018 in the Original Keroka Senior Resident Magistrate’s Court Sexual Offence No. 5 of 2017} JUDGEMENT The appellant was tried, found guilty and sentenced to serve twenty (20) years imprisonment for the offence of Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. The particulars of the charge were that on diverse dates between 22 nd August 2016 to 27th January 2017 at [particulars withheld] in Masaba North Sub-county within Kisii County the appellant intentionally caused his penis to penetrate the vagina of VM a girl aged 12 years. Briefly the prosecution’s case was that on 22 nd August 2016 at around 7am JM (Pw2) awakened her daughter (the complainant in this case) and told her to light fire and prepare some tea but instead of doing that she left the house and did not return. Pw2 and her husband AM (Pw3) mounted a search for her and not finding her they reported the matter to Ibacho Police Station and thereafter went to a vernacular radio station to spread word in the hope that she would be found. It was not until January 2017 that they received information from a neighbour, who was married in the appellant’s locality, that their daughter was living with the appellant. It was then that their area Chief went and rescued her. The complainant (Pw1) stated that she was born in the year 2004 and that at the material time she was a standard eight pupil. She testified that when she left home at 7am on 22nd August 2016 she decided to go to a place called Nyansira and that it was as she was walking towards that place that she met the appellant. She stated that she did not know him as they had never met before. He greeted her and asked her what her name was and after that he walked her to his house. She testified that they got there late at night. He cooked and they ate then went to bed. She stated that when they went to bed he told her they would have sex and she removed her pantie and he his underwear and they had sex. This continued for six months until one day she went to the river and met some people from her home who went and told her parents. Her parents then went and found her in the appellant’s house and she and the appellant were apprehended. She was taken to Keroka District Hospital where upon examination it was confirmed that she had been having sex and was pregnant. The appellant was then charged with this offence. When the court put the accused on his defence he elected to remain silent. He however called a witness namely Hudson Monari, the Assistant Chief of Bogecha. The witness testified that the appellant was his subject and he therefore knew him and that when he got to know the appellant was living with the complainant he accompanied her parents to his home and apprehended them. The appellant has appealed against the conviction and his grounds of appeal are: - “(a) THAT the learned magistrate erred in law and fact by not finding that allegations levelled against the appellant was not merited. (b) THAT the applicant/petitioner was not allowed proper guidance and participation in the process as the learned magistrate kept him in darkness. (c) THAT the learned trial magistrate erred in fact and law in holding that the evidence adduced proved the offence as charged beyond reasonable doubt.
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(d) That the learned magistrate erred in law and fact in considering inadmissible evidence adduced by the respondent thereof. (e) THAT the learned trial magistrate erred in law and fact by not considering that the prosecution did not produce any DNA report if any. (f) THAT the applicant has been condemned unheard contrary to the rules of Natural Justice. (g). THAT the applicant is ailing and continues to suffer as he was convicted unlawfully without following all the laid down procedures. (h) THAT no party shall be prejudiced. (i) THAT the application is therefore being brought before this Honourable court in good faith.” As the first appellate court my duty is to analyse and evaluate the evidence in the court below so as to arrive at my own independent conclusion while keeping in mind that I did not see or hear the witnesses giving evidence and making provision for that – (see Okeno v Republic [1972] EA 32). The ingredients of the offence of defilement are age, penetration and identification of the perpetrator. In this case it was proved through a birth certificate that the complainant was born on 5 th August 2004 meaning she had just entered into her fourteenth year when this offence was committed. It was therefore proved beyond reasonable doubt that she was a child under eighteen years and was therefore incapable of consenting to a sexual act. On penetration, the complainant testified how she met the appellant on the road after running away from home. He took her to his house and lived with her for six months. That evidence was corroborated firstly by her parents and secondly by the Assistant Chief, the appellant’s own witness who told the court that he found the complainant in the appellant’s house. Contrary to the appellant’s submission that evidence he was living with the complainant amounted to hearsay because the informer was not called to testify, I find that there was cogent and credible direct evidence of those who found them together in his house including his own witness and it was not therefore hearsay. This court also believed the complainant’s evidence that during the time they lived together the appellant defiled her. This is corroborated by evidence that she was pregnant. The appellant submitted that a DNA ought to have been conducted to prove he was the father of that child. However, that was not necessary because under Section 124 of the Evidence Act there is no requirement for corroboration in sexual offences. In my view, evidence that the complainant was found in the appellant’s house, the complainant’s evidence that she had lived with the appellant for all the time she was missing and evidence that she was pregnant was enough to corroborate her evidence that they used to have sexual intercourse. The medical evidence adduced was clear that the girl had been defiled, that there was evidence of penetration. It is my finding that the prosecution’s case was watertight and that the charge against the appellant was proved beyond reasonable doubt. The appeal has no merit and as for the sentence, much as it was a mandatory minimum sentence, it was just in the circumstances of the case. The appeal is dismissed in its entirety and the conviction and sentence are upheld. It is so ordered. Dated, signed and delivered in Nyamira this 17th day of October 2019. E. N. MAINA JUDGE
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