Geoffrey Wanjala Wangila v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA CRIMINAL APPEAL 59 OF 2018 GEOFFREY WANJALA WANGILA..........APPELLANT VERSUS REPUBLIC.................................................RESPONDENT [An appeal from the judgment in original criminal case No. 2113/2014 delivered on 8.9.2014 by Hon S.O. MOGUTE,SPM] JUDGMENT The appellant GEOFFREY WANJALA WANGILA was charged with the offence of defilement of a child(girl) contrary to section 8(1) as read with sub-section 2 of Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 23 rd and 24th day of August 2015 in Bumula District within Bungoma County he intentionally and unlawfully caused his penis to penetrate the vagina of MNM a child aged 16 years. He also faced an alternative charge of committing indecent act with a child contrary to section 11 of the sexual offences Act No.3 of 2006 based the same facts. The particulars of the alternative charge were that on the 23 rd and 24th day of August 2014 in Bumula District within Bungoma County the appellant intentionally and unlawfully touched the vagina of MNM a child aged 16 years. The evidence on record is that during hearing the appellant herein decided to plead guilty to the charges, in which he was convicted and sentenced to serve twenty (15) years imprisonment. That facts relied upon by the prosecution were that on the 23/08/2014 the complainant was at her home when appellant approached her and requested they have sex and complainant agreed and followed appellant to his home where they had sex and complainant did not go back home next day and they continued to have sex at the home of the accused. That on the 25/8/2014 went and looked for the complainant at home of appellant and found her. He arrested both of them and took them to Bumula police station and P3form was issued to the complainant and complainant was taken to Bumula Health Centre for treatment and thereafter the appellant was charged with the office. She produced treatment notes, P3 form and age assessment report as exhibit 3. From the record the appellant admitted these facts as presented by the prosecution counsel. In convicting the appellant the learned trial magistrate relied on these facts and admission by the appellant. She also relied on the medical evidence as indicated in the p3 form and the age assessment report. The appellant been dissatisfied filed appeal to this court against conviction and sentence on the grounds set out in the appeal that the case was not proved to the required standard of proof beyond reasonable doubt and that age assessment was not established. While this appeal was pending the complainant herein filed an affidavit sworn on the 17 th September 2018 briefly stating that she was 18 years old when they had sex and prayed that the appellant be released. She annexed a current age assessment form and baptism card in support of her affidavit. The prosecution through a letter dated 11th October 2018 wrote this court briefly stating that the complainant in this case has sworn an affidavit alleging that when she was defiled she was an adult aged 18 years old and appellant was her boyfriend and that basing on current age assessment complainant is 23 years old and was approximately 19 years old in 2014 per annexed baptism card and prayed that the accused be acquitted. The appellant filed further submissions on 8th November 2018 and submitted that the complainant showed him his latest age assessment result which indicate she was 22 years and that the complainant was never taken for medical age assessment in 2014 and if there was such then was a false document. Also the prosecution filed on the 20th December 2018 an application dated 3 rd December 2018 seeking this court to take additional evidence

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