Godwin Barasa Wafula v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET CORAM: D.S.MAJANJA J. CRIMINAL APPEAL NO. 149 OF 2013 BETWEEN GODWIN BARASA WAFULA........APPELLANT AND REPUBLIC.....................................RESPONDENT (Being an appeal against the original conviction and sentence of Hon. M. W. Njagi, SRM dated 23 rd July 2012 at the Magistrates Court at Eldoret in Criminal Case No. 3973 of 2010) JUDGMENT 1. The appellant, GODWIN BARASA WAFULA, was charged, convicted and sentenced to life imprisonment for the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act (“the Act”). The particulars of the offence were that on 28 th June, 2010 in Eldoret West District within Rift Valley Province, he intentionally and unlawfully caused his penis to penetrate the anus of SMK, a boy aged 5 years. 2. In his appeal titled, “Mitigation Appeal” the appellant raised two issues. First that the he was convicted by the trial magistrate who failed to comply with the procedure set out in section 162 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya). Second, that the prosecution did not prove the offence beyond reasonable doubt. Third, the trial magistrate erred in convicting him on without considering his status of being psychiatric. 3. It is true that when the appellant was initially arraigned in court, he was found not fit to plead and was committed to Mathari Hospital for psychiatric treatment. Before the trial commenced, the court received a Certificate of Capability to Make Defence dated 10 th September 2012 prepared by the Medical Superintendent certifying that the appellant had been discharged from hospital and was capable of making his defence. I therefore find that at the time the trial commenced on 14 th March 2013, the appellant was in a position to understand the proceedings. 4. I now turn to consider the substantive evidence against the appellant and in doing so, I am guided the principle that it is the duty of the first appellate court to subject the evidence on record to a fresh review and scrutiny and come to its own conclusions all the time bearing in mind that it did not see the witnesses testify as to form its own opinion on their demeanour (see Okeno v Republic [1972] EA 32). 5. The child, PW 2, testified that on 28 th June 2010, he was playing near home when the appellant whom he knew as Godi called them to go to the forest where he stays. He took him and another boy and told them that if he revealed what he was about to do, he would be cut with a panga. He removed PW 2’s clothes, and put his penis in the anus. PW 2 did not tell his mother, PW 3 immediately. 6. PW 3 recalled that on 13 th July 2010, he met another woman who told him that PW 2 had been raped by Godi. She asked PW 2 about it and he confirmed what the appellant had done. She told the court that the appellant used to herd cattle for one of the neighbours. She took PW 2 to Moi Teaching and Referral Hospital where he was examined by PW 1, a doctor, who filled the P3 Medical Form on 14 th July, 2010. She observed that there was a healed tear at the anus. The Investigating officer, PW 4, testified that the appellant was brought to the police station by PW 3 on 13th July 2010. He recorded statements and took PW 2 for an age assessment which showed he was 5 years old. 7. In his defence, the appellant admitted that on that day, PW 2 followed him and he did not know why. 8. In order to prove the offence of defilement under section 8(1) of the Act, the prosecution must prove that an accused did an act of

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