REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A CRIMINAL APPEAL NO. 155 OF 2014 MICHAEL KIMANI MACHARIA...........................APPELLANT VERSUS REPUBLIC................................................................RESPONDENT [Appeal from the judgment in Criminal Case No. 128 of 2013 in the Principal Magistrates’ Court at Kandara by C. Kithinji, Senior Resident Magistrate, dated 30th October 2014] JUDGMENT 1. The appellant was adjudged guilty of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act. He was sentenced to life imprisonment. 2. The particulars were that on diverse dates between the 5 th January 2013 and 7th April 2013 at M. [particulars withheld] Location within Murang’a County, he intentionally caused his penis to penetrate the anus of R.M.N. [particulars withheld] a girl aged eleven years. 3. The appellant lodged a petition of appeal on 16th December 2014. 4. There are four grounds of appeal. They can be condensed into three. Firstly, that the charge was not proved beyond reasonable doubt. Secondly, that the trial court overlooked the provisions of section 124 and 163 of the Evidence Act; and, thirdly, that the age of the complainant was not established. 5. At the hearing of this appeal on 20th May 2019, the appellant submitted that he was framed up to defeat his claim for wages owed by the complainant’s school. He said that the minor was couched by the school deputy to fabricate the charge. He was at a loss why he was only arrested three weeks after the incident. Lastly, he submitted that the medical evidence was inconclusive. 6. The appeal is contested by the State. Learned State Counsel, Ms. Gichuru, submitted that all the ingredients of the offence were proved to the required standard. She said that the appellant was regurgitating the same arguments he made to the lower court. She submitted that there was clear evidence of defilement on five occasions. She opined that the defence tendered in the lower court was bogus. 7. Regarding the sentence, she submitted that the penalty given was the minimum sentence under section 8 (2) of the Act. I was beseeched to dismiss the appeal. 8. This is a first appeal to the High Court. I have re-evaluated the evidence and drawn independent conclusions. I am alive that I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] EA 32. 9. PW1 was the complainant. She told the court she was 10 years old. There is a detailed voire dire examination at page 6 of the typed record containing the questions by the court and her answers. 10. The learned trial magistrate formed the opinion that the minor understood the meaning of an oath. I am satisfied that the trial court complied with the procedure of taking the evidence. Johnson Muiruri v Republic [1983] KLR 445. 11. PW1 testified that on 5th January 2013 she met the appellant in a coffee farm. She knew him as a relative and a watchman working in her school. He led her deeper into the coffee plantation. He removed her trousers and inner wear and “put the thing he uses to urinate into her anus”. He threatened to kill her if she raised an alarm. She felt pain. He released her after about two minutes.
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PW1 did not disclose the incident to anyone. 12. PW1 said that the appellant defiled her a second time on 16 th March 2013. It was at around 5:30 p.m. She said the appellant “took [her] down the valley”, removed her biker and inserted his penis into her anus. He warned her of dire consequences if she disclosed the matter. 13. She said that on another date at 2:00 p.m., she was going to the posho mill at K. [particulars withheld]. She ran into the appellant who led her into a maize plantation “and put his thing into [her] anus”. He again threatened to kill her if she disclosed the incident. 14. On 6th April 2013 the complainant went to collect a book from the school. It was a Saturday. She found the appellant in the compound. It was around 1:00 p.m. He took her into a classroom corner, made her lie on the floor and inserted his penis into her anus. He gave her Kshs 50. The complainant shared the money with her brother. 15. The complainant testified that on 7th April 2013 she was heading to church. The appellant ambushed her, dragged Wamuchoki’s shamba and “put his thing for urinating into [her] anus”. her into 16. The complainant never made a disclosure to anyone about any of the incidents. But on 8 th April 2013, she was questioned at length by the deputy head teacher (PW4). PW4 was interested in her activities in the school on 6 th April 2013 or what she did with the appellant. That is when PW1 disclosed that the appellant had defiled her on five occasions. 17. PW4 had been requested by the chairman of the school board (PW3) to question the complainant about her presence in the school compound the previous Saturday, 6th April 2013. PW3 was doing his usual rounds at the school that Saturday with the school watchman (the appellant) 18. At about noon, PW3 saw the complainant near the classrooms. PW3 called the complaint and enquired what she was doing in the compound on a Saturday. She said she had gone to collect some books. He found it suspicious. He telephoned the deputy head teacher (PW4) to look into the matter. 19. PW4 summoned for her guardian. Her grandmother (PW5) went to school. She was living with the complainant. She was shocked to hear about the defilement because the complainant had never opened up to her about the matter. 20. PW5 said the complainant left home at 9:00 on Saturday 6 th April 22013. She told her she was going to pick a book at the school. She did not return until midday; but PW5 was not overly concerned about her lateness. 21. A report was made by PW5 to Corporal Ogunga (PW8) at Kandara Police Station on 8th April 2013. He issued a P3 form and referred the complainant to Thika Level 5 Hospital. The appellant was arrested on 29 th April 2013 by Corporal Chaargwen (PW7) of Kaburungi AP Post who escorted him to Kandara Police Station. 22. PW6 was Dr. Francis Ngugi of Thika Level 5 Hospital. His material evidence was as follows- “The anal wink was found to be normal on examination. On examination with a finger there was pain on the anal mucosa and on withdrawing the finger there was blood and faecal matter. There was no specimen collected…… vaginal exam was normal, hymen intact, no tears or bruises. That was the entire treatment note…..” 23. When the appellant was placed on his defence, he denied the allegations. He blamed his woes on a conflict with the complainant’s family. He also said the school fixed him to avoid paying him accrued wages of Kshs 24,100 or thereabout. He referred to a letter by the school dated 19th February 2013 (Defence exhibit 1) admitting the indebtedness. He also raised issues with the medical evidence and credibility of the complainant. 24. A number of issues arise from that evidence. I will deal first with the age of the complainant. Age is material in offences of this nature. See Kaingu Kasomo v Republic, Court of Appeal at Malindi, Criminal Appeal 504 of 2010 (unreported), Felix Kanda v Republic Eldoret, High Court Criminal Appeal 177 of 2011 [2013] eKLR. 25. I am satisfied from the evidence of PW5 and the Health Card (exhibit 3) that the complainant was born on 4th August 2002. She was thus aged 11 at the time of the offence. 26. Was penetration proved? Penetration is defined in section 2 of the Sexual Offences Act as “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. 27. From the P3 form, there was tender anal mucosa. The digital rectal examination by the doctor (PW6) revealed pain on the anal mucosa and on withdrawing the finger there was blood. The evidence was consistent with penetration in the anal orifice. 28. The next key question is whether the appellant penetrated the complainant. The appellant and complainant were not strangers. They are relatives. He also worked as a watchman at her school. The offences took place during the day in a coffee farm, a shamba, a ditch and a classroom. The identification of the appellant is thus not in doubt.
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29. The complainant never revealed the matter until she was thoroughly questioned by PW4. This weakens her case. But she is a minor. The appellant is her relative; her grandfather. She had been threatened by the appellant. On other occasions he treated her with money. The complainant stood her ground under a brutal cross examination by the appellant’s counsel. 30. I am satisfied that at least on 6 th April 2013, the complainant and the appellant met at the school; and, the appellant penetrated her anus in one of the classrooms. The appellant admitted he was in the school compound that Saturday. PW3 saw the two in the compound at about midday and was at a loss what the minor was doing there on a Saturday. 31. Under section 124 of the Evidence Act, the evidence of the victim is sufficient to sustain conviction. But in this case there is corroborating evidence from the doctor (PW6) and the board chairman (PW2). The appellant was in a deserted school compound with the minor on a weekend. He had a clear opportunity. It amounts to further corroboration. Opo v Republic [1976-80] 1 KLR 1669. 32. True, the school owed the appellant some wages. The appellant may have had poor relations with the family of the complainant. But all that is not a good defence to the charge of defilement. I find the entire defence hollow and a sham. 33. In the end I find that the prosecution proved all the elements of the offence beyond reasonable doubt. It must follow as a corollary that the conviction was safe. 34. As I have stated, the minor was aged 11. The minimum sentence under section 8 (2) of the Act is life imprisonment. 35. The upshot is that the conviction and sentence are upheld. The appeal is dismissed. It is so ordered. DATED, SIGNED and DELIVERED at MURANG’A this 4th day of June 2019. KANYI KIMONDO JUDGE Judgment read in open court in the presence ofThe appellant (in person). Ms. Gichuru for the Republic. Ms. Dorcas and Ms. Elizabeth, Court Clerks.
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