High Court 5012 of 2019

8. That it was not clear if the alleged penetration was by fingers or penis since the penetration envisaged is by a male organ. In this regard, he cited the case of Charles Kibe Mwangi vs. Republic (2015) eKLR and JMR vs. Republic (2006) eKLR and that the alibi defence put up was overlooked. 9. It was urged for the State that: medical evidence adduced established actual penetration having occurred; the issue of a grudge having existed was not mentioned throughout the proceedings; that the alibi defence was in respect of having been away from home until 4.00 p.m. Further, it was argued that he admitted having found the children playing at home and having given them groundnuts instead of maize that they had asked for and also having admitted that he saw their mother standing some 5 meters away. 10. 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). 11. Medical evidence in the instant case was adduced by PW4 Francis Saku, a Clinical Officer who examined the Complainant on 31st July, 2017. At the outset, the Complainant was taken to Neema Nursing Home and was referred to Kyuso District Hospital. On examination she had an inflamed vaginal opening and a recent tear on the right side of the hymen. There was whitish discharge on the vagina, and upon being tested in the laboratory it showed the presence of epithelial cells. The recent tear to the hymen in his opinion was evidence of some penetration. 12. The contention of the Appellant is that he was not examined to establish he had epithelial cells. The Complainant herein was a child aged 9 years. PW3, her mother stated that she was born on the 21st March, 2008 and the question of age was not in dispute. (Also see Mwalongo Chichoro Mwajembe vs. Republic (2016) eKLR). 13. Section 2 of the Children Act defined a child of tender age as: ““child of tender years” means a child under the age of ten years;” 14. In the case of Kipkering Arap Koske vs. Republic (1949) 16 EACA, 135 it was stated thus: “In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.” 15. 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.” 16. The Complainant was a child of tender years whose evidence could be acted upon without any other evidence if the trial Magistrate found her to be truthful. In his Judgment the trial Magistrate stated thus: “The victim/minor is still quite young and though her testimony was in parts and at times even hesitant, she came across as forthright in a child’s own way. She was shy but the substance of her testimony came out clearly.” 17. Having found her to be forthright can be interpreted to mean that she was candid and sincere. Which means that the trial Court believed her to be truthful. In her testimony she identified the Appellant as the perpetrator of the act that caused penetration into her genitalia. The Appellant admits that she was at his house. He even ate with her and others but according to him the children left after he gave them groundnuts. PW3 found them and ultimately left with them. 18. PW2 a younger brother to the Complainant, a child, stated that the Appellant told him to go and herd goats and by the time he was leaving the Complainant was washing utensils. In her testimony the Complainant (victim) stated that the episode took place after she finished washing utensils. The Appellant called her and told her to lie on the bed. He closed the door and inserted two (2) fingers into her vagina having told her to remove her pants, prior to inserting his penis into her vagina after applying oil to her vagina he then told her to leave his house and go home. 19. PW3 on the other hand stated that while on her way home having returned from herding livestock noticed the victim walking with difficulty as she left the Appellant’s house. She went to his house and found the Appellant holding the child’s biker, and she also noticed the child’s pair of slippers. When she confronted the Appellant by seeking to know what he had done, he did not respond. That is what prompted her to go and examine the child and on noticing some discharge, took her to hospital. Medical evidence adduced following the examination of the child at Neema Nursing Home on the same day and subsequently the following day at a public hospital confirmed the fact of recent penetration. The evidence of the child that the Appellant was the perpetrator of the act that caused penetration of her genitalia was confirmed by PW3 who saw her leaving he house of the Appellant and noticed the discharge in her genital organs soon thereafter.

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20. The Appellant faults the trial Court for not reaching a conclusion whether penetration in the circumstances was by way of the use of fingers or penis or both. Section 2 of the Sexual Offences Act defines penetration as follows: ““penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;” While “an indecent act” is defined thus: ““indecent act” means an unlawful intentional act which causes— (a) 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; (b) exposure or display of any pornographic material to any person against his or her will;” From evidence adduced by the Complainant, prior to insertion of his genital organs into the victim’s, the Appellant did an indecent act of using his fingers which is part of his body to come into contact with the Complainant’s genital organs. However, since the act resulted into penetration by insertion of the genital organs which caused a tear to the hymen, the trial Magistrate did not fall into error in reaching the finding that the Appellant committed the act as stated in the main Count. 21. Witnesses who testified were from the same nuclear family. These are witnesses who were present at the same and different times during the sequence of various acts as admitted by the Appellant and were competent to testify. (See Section 125 of the Evidence Act). 22. It is urged that the Appellant’s alibi defence was overlooked. His allegation was that he was away. An alibi defence would be an excuse that the person accused did not commit the act he is accused of because he was not at the place where the offence was committed having been elsewhere. In his defence all he states was that he arrived at the location in question, his home at 4.30 p.m. He admitted having been with the children and even seen their mother although he denies having committed the act that caused penetration into the victim’s genitalia. In that regard the Court was not expected to even consider the alleged alibi defence. 23. It is contended at the Appellate stage that there was enmity between the Appellant and PW3, the victim’s mother. He alluded to an incident that occurred on the 10th June, 2017 where he allegedly found PW3 cultivating his farm and she vowed to take his land. He brought up the allegation in cross examination that was denied by the witness. However, he did not expound on how the threat was connected to the defilement case of a child of tender years. 24. From the foregoing, I am satisfied that the trial Court did not fall into error in reaching the decision to convict the Appellant. 25. On sentence, the Appellant was sentenced to life imprisonment. In the case of Jared Koita Injiri vs. Republic (2019) eKLR the Court of Appeal states as follows: “In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis. The appellant was provided an opportunity to mitigate in the trial court where it was stated that he was a first offender. He pleaded for leniency. However, it cannot be overlooked that the appellant committed a heinous crime, and occasioned severe trauma and suffering to a young girl. His actions have demonstrated that around him, young and vulnerable children, like the complainant could be in jeopardy. Needless to say, pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic (supra), we would set aside the sentence for life imposed and substitute it therefore with a sentence of 30 years from the date of sentence by the trial court.” 26. In mitigation the Appellant stated that his old mother aged 80 years old depended on him for sustenance and he pleaded for leniency. The victim was his granddaughter, a child who trusted and obeyed him. In the circumstances I set aside the sentence meted out and substitute it with thirty (30) years imprisonment to take effect from the date of conviction and sentence by the trial Court. 27. It is so ordered. Dated, Signed and Delivered at Kitui this 23rd day of July, 2019. L. N. MUTENDE JUDGE

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