REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI CRIMINAL APPEAL NO. 18 OF 2017 DMM..................................................APPELLANT VERSUS REPUBLIC.....................................RESPONDENT (Being an Appeal from Original Conviction and Sentence in Kyuso Principal Magistrate’s Court Criminal Case (S.O.) No. 20 of 2016 by Hon. John Aringo (RM) on 06/04/17) JUDGMENT 1. Upon arraignment in Court, the Appellant, DMM was charged with the offence of Incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence were that on unknown date of July, 2014 and 15th November, 2016 in Tseikuru Sub-County within Kitui County, intentionally penetrated the vagina of RM with his penis who was to his knowledge his daughter aged 12 years. 2. In the alternative he was charged with the offence of Committing an Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence were that on unknown date of July, 2014 and 15th November, 2016 in Tseikuru Sub-County within Kitui County, intentionally touched the vagina of RM, a child aged 12 years with his penis. 3. After being taken through full trial he was found guilty of the alternative Count, convicted and sentenced to Twenty (20) years imprisonment. 4. Aggrieved, following the amended Petition of Appeal, he appeals on grounds that: the learned trial Magistrate erred in both law and fact by convicting on the alternative Count as an acquittal on the main Count meant that he did not commit the offence; no documentary evidence was adduced to prove the age of the Complainant conclusively; crucial witnesses were not availed; and the case was as a result of the enemity between him and his wife. 5. Facts of the case were that in the month of July, 2014 the Appellant molested the Complainant and threatened to kill her if she told her mother. It happened when her mother had travelled to Meru. On the 15th November, 2016 while her mother was in Kiamalutu the Appellant violated her sexually. When her mother returned she divulged the information. The matter was reported to the elders who decided to administer the oath but the Appellant caused them to postpone it. Thereafter she started ailing and she was taken to hospital where she was examined and treated. 6. Upon being put on his defence the Appellant stated that when the Complainant became sick he gave out money for treatment expenses but she did not return home. On being asked her mother said that she had gone to her uncle’s place. Three (3) days later he was arrested and taken to Kaningo where he was informed the reason of his arrest. He added that he was framed because he declined to buy land in Meru. 7. The Appeal was canvassed through written submissions. 8. It was urged by the Appellant that failure to convict on the main charge, meant that the charge was defective therefore, the alternative Count was equally defective as there was no proof that he touched the Complainant’s private parts. That evidence of a Birth Certificate to prove the age of the Complainant was crucial; Time lapsed from the time it was alleged he defiled the Complainant and the Chief and other witnesses who were mentioned were not called to testify therefore convicting him was contrary to Section 150 of the Criminal Procedure Code and as such entitled him to an acquittal as held in Bukenya and Another vs. Uganda EA 549. 9. He concluded by the argument that the defence put up was very strong therefore disapproved evidence adduced by the Prosecution. 10. The State through learned Counsel, Mr. Mamba opposed the Appeal. It was urged that a conviction on the alternative Count was not prejudicial to the Appellant.
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11. This being a first Appellate Court, I am duty bound to re-evaluate the evidence that was adduced before the trial Court and come to my own conclusion bearing in mind that I never saw or heard the witnesses who testified. (See Okeno vs. Republic (1972) EA 32). 12. The main charge as amended was of incest. Section 20(1) of the Sexual Offences Act that creates the offence provides thus: “(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” 13. In his Judgment the trial Magistrate was satisfied that the Appellant engaged in acts that caused penetration with the Complainant on two (2) separate occasions but was of the view that the Sexual Offences Act Section 20(1) and 22(1) did not include ‘step’ relations in the offence of incest. 14. Evidence adduced was that the Complainant was the Appellant’s step daughter. This fact was admitted by the Appellant. A step daughter is defined as a daughter of one’s husband or wife by a previous marriage/relationship while a half daughter is defined as a daughter of one’s wife or husband by a former partner. 15. Section 22(1) of the Sexual Offences Act provides thus: “In cases of the offence of incest, brother and sister includes half brother, half sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.” Therefore, daughter in the circumstances included half or step daughter. 16. The Appellant filed supplementary submissions where he urged that the trial Court did not consider whether the age of the Complainant was conclusively proved. Age of the victim in the case of incest becomes important for purposes of sentencing. 17. In the case of Hillary Nyongesa vs. Republic (Eldoret) Criminal Appeal No. 123 of 2009 Mwilu, J. stated thus: “Age is such a critical aspect in Sexual Offences that it has to be proved conclusively. Anything else is not good at all. It will not suffice. And it becomes more important the age of the victim.” because punishment (sentence) under the Sexual Offences Act is determined by 18. The contention of the Appellant was that there was no conclusive proof of the age of the Complainant. In the case of Mwalongo Chichoro Mwajembe vs. Republic (2016) eKLR it was stated that: “.…the question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa-Vs- Republic, Criminal Appeal No.19 of 2014 and Omar Uche -Vs- Republic, Criminal Appeal No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni -Vs- Uganda, Criminal Appeal No. 2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable…” 19. PW1 the Complainant who was taken through voire dire examination and found to be possessed of sufficient intelligence and who appreciated the solemnity of the oath told the Court that she was 12 years old. PW2 FS her mother gave her age as 12 years having been born on 17th January, 2004. Her age was also assessed and it was estimated to be approximately 12 years. Needless to add that the Appellant did not dispute her age. Therefore, the Complainant was a child of an apparent age of twelve (12) years. 20. Regarding the issue of penetration, the Complainant testified that the Appellant molested her twice, on a date she could not remember in July, 2016 and the 15th day of November, 2016. On both occasions there was no eye witness to the act. Both incidents took place between 10.00 p.m. and 11.00 p.m. while her siblings were asleep and their mother was away in Meru. She stated that the Appellant having removed her pants removed his pair of trousers and inserted his penis into her vagina. He threatened to kill her if she told anybody. However, after the second incident she became unwell. 21. She was taken to hospital and on examination her hymen was broken. The fact of the hymen having been broken was evidence of having been penetrated. 22. It was argued by the Appellant that he was framed because he refused to buy land in Meru, an allegation that did not carry any weight because on cross examining the child the Appellant only sought to know if the Complainant was possessed with demons to come up with
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such a tale. 23. It was also contended that the Prosecution failed to call crucial witnesses in particular those who were mentioned to have known that he had defiled the Complainant, in particular his mother, MM, two elders and the Chief. In the case of Keter vs. Republic (2007) 1 EA it was stated that: “The prosecution is not obliged to call a superfluity of witnesses but only such witnesses who are sufficient to establish the charge beyond any reasonable doubt.” 24. When the act was committed, the Complainant was alone with her siblings who were asleep. The mentioned individuals were persons informed of what transpired, therefore their evidence was not crucial. 25. The Complainant herein was a child of tender years. Section 124 of the Evidence Act provides thus: “Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 26. The trial Magistrate considered evidence adduced and believed the child’s evidence as he recorded his satisfaction of the fact that the Appellant having engaged in acts which caused penetration with the victim on both occasions. He appreciated the fact of the child having been consistent and honest. 27. In the alternative, the Appellant was accused of committing an indecent act with a child. The alleged act being touching the vagina of the child with his penis. An indecent act is defined as: “An unlawful intentional act which caused (a) any contact between any person of the body of a person with the genital organs, breasts, or buttocks of another but does not include an act that causes penetration.” 28. The Complainant was emphatic that the act committed did cause penetration into her genital organs therefore by convicting the Appellant of the alternative Count was erroneous. 29. In the premises I quash the conviction and set aside the sentence imposed which I substitute with a conviction on the main Count of Incest contrary to Section 20(1) of the Sexual Offences Act. 30. I note the mitigation factors advanced by the Appellant as recorded. 31. Therefore, I substitute the sentence with one of thirteen (13) years imprisonment with effect from the date of sentence by the trial Court. 32. It is so ordered. Dated, Signed and Delivered at Kitui this 9th day of July, 2019. L. N. MUTENDE JUDGE
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