Earnest Maina Mbogo v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A CRIMINAL APPEAL NO 41 OF 2017 EARNEST MAINA MBOGO.............................................APPELLANT VERSUS REPUBLIC......................................................................RESPONDENT (Appeal from original Conviction and Sentence dated 31/03/2017 in Murang’a CM Criminal Case No 11 of 2013 – B Ochieng’, CM) JUDGMENT 1. The Appellant herein, EARNEST MAINA MBOGO, was convicted after trial of defilement of a child contrary to section 8(4) of the Sexual Offences Act, No 3 of 2006. He was sentenced to 15 years imprisonment. He has appealed against both conviction and sentence. 2. It was alleged in the charge that on 7 th July, 2013 at [particulars withheld] within Murang’a County, he intentionally and unlawfully caused his penis to penetrate the vagina of one SWN, a child aged 14 years. 3. The prosecution called six (6) witnesses. The complainant testified under oath as PW1 after a voire dire examination. PW5 was the complainant’s mother. PW2 was the local chief to whom the complainant had reported the alleged defilement. PW3 was the local Assistant Chief who arrested the Appellant. PW4 was the investigating officer to whom the initial report of the alleged defilement was made by the complainant and her mother. He booked the report and accompanied both to hospital where the complainant was examined. He also issued the complainant with a medical report form (P3) which was filled at the hospital and returned to him. Subsequently he re-arrested the Appellant from the hands of PW3 and eventually charged him with the offence. 4. The main issue in this appeal is whether the charge against the Appellant was proved beyond reasonable doubt. PW1’s testimony was that her mother (PW5) found the Appellant on top of the complainant as he defiled her. She said - “It was near home and my mother came to the scene and caught him red-handed in the act on top of me. The accused dashed deep into the maize plantation and my mother told me to dress up (with) my shirt and panties which I had removed.” 5. The testimony of the mother was different. Her testimony in this regard was - “... when I saw it was taking long for complainant to return I decided to go and find out where she was. On my way I heard people talking and I listened carefully and heard the voices of the accused and the complainant. They were in the maize plantation and I could not hear exactly what they were talking about. I raised alarm and complainant came out of the plantation…. When I raised the alarm the accused escaped in another direction before the complainant emerged. She was fully clothed.” 6. From the above testimony of PW5, obviously she never found and saw the Appellant and the complainant having sexual intercourse. What she heard were voices of two people talking. She purported to identify the Appellant and the complainant by those voices, yet she did not hear them well enough to gather what they were talking about. The possibility therefore cannot be excluded that PW5 was mistaken in the identity of the Appellant. It must be borne in mind that when he cross-examined both the complainant and her mother, the Appellant suggested that the complainant had been with her boyfriend in the maize plantation, not him (Appellant). 7. Why did the complainant tell the court that her mother had found the Appellant red-handed defiling her, whereas from the mother’s own testimony she had not? 8. Another disturbing aspect of this case is that the mother stated under cross–examination that the complainant had become pregnant with the Appellant’s child, and that she had given birth on 3 rd April, 2014. This was almost exactly nine (9) months after the alleged defilement

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