REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A CRIMINAL APPEAL NO. 49 OF 2015 JMM...…………...….………..………………………………..APPELLANT VERSUS REPUBLIC…………………………………………………....RESPONDENT [An appeal from the judgment in Criminal Case No. 1331 of 2014 at Kigumo by D. Orimba, Senior Principal Magistrate, dated 11th May2015] JUDGMENT 1. The appellant was adjudged guilty of two counts of incest of his daughters contrary to section 20 (1) of the Sexual Offences Act. He also faced two alternative counts of committing an indecent act with a minor contrary to section 11 (1) of the Act. He was sentenced to life imprisonment. 2. The particulars were as follows- “On diverse days before the 6th January 2013 and on 28th May 2014 at 3:00 p.m., at [particulars withheld] in Murang’a County, being a male person caused his penis to penetrate into the organ of J.W.M [particulars withheld] a female person aged 9 years who was to his knowledge, his daughter.” 3. The 2nd count related to his other daughter (PW2) aged 12 years. The dates were before the 6 th January 2013 and on 27th May 2014. 4. The appellant has preferred an appeal. The original petition raised six grounds. On 5th March 2019, I granted leave under section 350 of the Criminal Procedure Code to amend the grounds. 5. There are now three grounds. First, that the evidence of PW1 and PW2 was unreliable because it contradicted that of PW4. Secondly, that there was insufficient medical evidence to support the charge. Thirdly, that the learned trial magistrate disregarded the alibi set up by the appellant and which was not rebutted. 6. In a synopsis, the appellant contends that the prosecution did not prove the charge beyond reasonable doubt. 7. The appeal is contested by the State. Learned State Counsel, Ms. Gichuru, conceded that there was insufficient evidence to support the two main counts. However, she submitted that all the ingredients of the charge of indecency were proved beyond reasonable doubt. 8. This is a first appeal to the High Court. I have re-evaluated the evidence and drawn independent conclusions. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] EA 32. 9. The complainants were both class 3 pupils. After a detailed voire dire examination, the learned trial magistrate formed the opinion that they were intelligent and could be affirmed. 10. I am satisfied that the trial court complied fully with the procedure of taking the evidence of the minors. Johnson Muiruri v Republic [1983] KLR 445. 11. The 1st complainant (PW1) said her age was 9. The appellant was her father. Her mother is deceased. She testified that in January 2013, he ordered her to remove her innerwear, placed her on bed and inserted his penis into her anus. She said it happened on two consecutive days. On the second day, he did the same thing to her sister PW2. 12. She said the appellant threatened to kill her if she disclosed the matter. PW1 however disclosed the matter to her cousin J. She said she
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felt pain. The matter was reported to the police. She was taken to the hospital and discharged. 13. PW2 on the other hand said that she was aged 12. She said that her father defiled her on several occasions in 2013. He in particular defiled her on 28th May 2014 by inserting his penis into her vagina. She said he called them, took them to the bedroom and defiled them. He threatened to kill her if she disclosed the matter. PW2 nevertheless opened up to her grandmother. 14. The matter was first reported to the area chief and eventually to the police. the report was recorded by APC Omariba (PW3). He said one of the children PW3 said one of the complainants was having difficulties walking. He issued the complainants with the P3 forms. The accused was arrested and handed over to Muthithi Police Station. 15. PW4 was Charles Kamotho. He was a clinical officer at Maragua Hospital. The complainants were examined on 29 th May 2014. He prepared the P3 forms (exhibit 3 and 4). He also produced the Post Rape Care Forms. 16. He testified that there was no penetration or laceration; and the hymen was intact. The urine had pus cells. HIV was negative. He however said there was contact between the penis and genitalia in both cases. 17. PW5 was the investigating officer. He produced the birth notification for PW1 showing she was born on 28 th April 2002. He did not have the birth notification for the other minor. 18. When the appellant was placed on his defence, he gave an unsworn statement. He denied the charge. He said that on the material dates, he was either at the market or attending a funeral meeting. He blamed his woes on his brother’s wife. She developed a grudge after her husband was jailed for theft. She blamed the appellant for it and warned him. He said that in 2006, she made a false allegation to the chief that the appellant had defiled her daughter. The case was dismissed by the chief. 19. A number of issues arise from that evidence. I will deal first with the age of the complainant. From the birth notification, PW1 was aged 12 at the time of the hearing. PW2 was her younger sister. I am satisfied that they both fell within the bracket of a child of below eighteen years. Martin Wanyonyi Nyongesa v Republic, Eldoret, Criminal Appeal 661 of 2010 [2015] eKLR. 20. I am also satisfied that the two complainants were daughters of the appellant. The appellant never contested the matter. 21. From the evidence of the clinical officer there was no proof of penetration or partial penetration. But there was contact between the appellant’s penis and the genitalia of both complainants. 22. Granted the medical evidence, the conviction on the two main counts of incest was unsafe. Learned Prosecution Counsel was thus right to concede that aspect. 23. I find that the two alternative counts were proved beyond reasonable doubt. The upshot is that the appeal is partially allowed. Both the conviction and sentence under counts 1 and 2 for incest are set aside. 24. I convict the appellant on the alternative counts 3 and 4 of committing an indecent act with a minor contrary to section 11 (1) of the Act. I sentence the appellant to serve ten (10) years imprisonment. For the avoidance of doubt, the term of imprisonment shall take effect from 11th May 2015, the date of his original conviction It is so ordered. DATED, SIGNED and DELIVERED at MURANG’A this 26th day of March 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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