REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO.235 & 237 OF 2018 (An Appeal arising out of the conviction and sentence of Hon. E. Kimaiyo Suter (SRM) delivered on 1st November 2018 in Makadara CM CR. Case No. 1325 of 2013) DUNCAN LUSENO LUCIANO...................................... APPELLANT VERSUS REPUBLIC..................................................................... RESPONDENT JUDGMENT The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on 25 th December 2012 within Nairobi County, the Appellant intentionally caused his penis to penetrate the vagina of BS, a child aged eight (8) years. In the alternative charge, the Appellant was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on 25 th December 2012 within Nairobi County, the Appellant intentionally touched the vagina of BS, a child aged eight (8) years, with his penis. When the Appellant was arraigned before the trial magistrate’s court, he pleaded not guilty to the charges. After full trial, he was convicted on the main charge of defilement and sentenced to life imprisonment. In his petition of Appeal, the Appellant raised several grounds of appeal challenging his conviction and sentence. He was aggrieved that the trial court failed to properly evaluate the evidence of PW5 and DW1. He faulted the trial court for relying on circumstantial evidence as opposed to direct evidence in arriving at its decision. He was of the view that the trial court misdirected itself by drawing adverse inferences based on the evidence of PW1, PW2, PW3 and PW5. He took issue with the trial court’s decision stating that the same was based on prosecution’s evidence which was inconsistent and full of contradictions. He was of the opinion that the prosecution’s evidence was insufficient to sustain a conviction. During the hearing of the appeal, this court heard oral submissions from Mr. Maruja for the Appellant and Mr. Miiri for the State. Mr. Maruja submitted that the prosecution adduced two conflicting medical reports. One medical report indicated that the complainant’s hymen was intact while the other indicated that her hymen was broken. He asserted that no medical examination was conducted to link the Appellant to the offence. He averred that the trial magistrate failed to state the reasons why she believed that the complainant was telling the truth as is envisaged in Section 124 of the Evidence Act. He was of the view that the evidence presented by the prosecution did not support the charge. He therefore urged this court to allow the Appellant’s appeal. Mr. Miiri for the State opposed the appeal. He submitted that the Appellant was placed at the scene of crime when the offence occurred. The Appellant was the complainant’s neighbour. He stated that PW1 and PW2 were at the scene of crime when the offence occurred. Their evidence was corroborative. She averred that PW4 who examined the minor testified that her hymen was missing. PW5, who also examined the complainant, told the court that the pain experienced by the complainant in her vaginal entry ‘introitus’ was caused by a blunt object. She was of the view that the medical evidence established the element of penetration. She submitted that the Appellant’s defence was properly considered by the trial court. She pointed out that the Appellant disappeared for about three months after sexually assaulting the complainant. She asserted that the complainant’s birth certificate produced in evidence established her age. In the premises, she urged this court to dismiss the Appellant’s appeal. The facts of the case according to the prosecution are as follows: PW1, BS, was the complainant. She told the court that she was nine (9) years old at the time of adducing evidence in court. She was born on 3 rd April 2005. She was in class three. On 25th December 2012, she was at the balcony of their house with her father and the Appellant. The Appellant was a neighbour. Her father then went back to the house. The Appellant asked her to go to his house. His house was one roomed. He had a bed. There was also a mattress on the floor. The Appellant removed his trouser. He removed her dress and panty. He instructed her to lie on the mattress which was on the floor. He then inserted his penis into her vagina. She stated that she felt pain. It was her first sexual experience. The complainant heard her mother calling out her name.
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Her father also called out her name. She answered. Her dad forced his way into the Appellant’s house. When they went back home, she told her mother what the Appellant did to her. Her parents took her to the hospital for medical examination. They reported the incident at Embakasi Police Station the following day. PW2, PN, is the complainant’s father. He stated that the complainant was born in April 2005. On the material day of 25 th December 2012, he was standing at the balcony outside his house with the complainant. It was about 9.30 p.m. The Appellant was also standing at the balcony. He told the court that several houses shared a balcony in that apartment. He went back to the house and left the complainant at the balcony. After about ten minutes, he went back outside but he did not find the complainant. The Appellant was also not at the balcony. He informed his wife. His wife came outside and started calling out the complainant’s name. He also called out her name. She answered from inside the Appellant’s house. PW2 knocked on the Appellant’s door. The Appellant took time before he opened the door. When he finally opened it, the complainant ran out while holding her panty. The Appellant’s zip and belt were respectively opened and unbuckled. He asked the complainant what she was doing at the Appellant’s house. She told him that the Appellant took her to his house, undressed her and inserted his penis in her vagina. He took the complainant to a dispensary that night. He reported the incident at Embakasi Police Station the following day. He was referred to Nairobi Women’s Hospital. The Appellant disappeared and could not be traced. He was finally arrested in April 2013. PW5, Dr. Ngatia, was based at Nairobi Women’s Hospital. He adduced evidence on behalf of his colleague, Dr. Dennis Wambua, who examined the complainant on 27 th December 2012, two days after the incident occurred. He stated that complainant’s genitalia was normal. Her hymen was intact. Her introitus (entry of vagina) was tender and painful. He produced the medical report in evidence. The complainant was also examined by PW4, Dr. Maundu at the Police Surgery on 26 th March 2013. This was about three months after the incident occurred. Upon examination, he found no physical injuries on the complainant’s body. He stated that her genitalia was normal but her hymen was missing. He produced a P3 form in evidence. This case was investigated by PW3, PC India Abdullahi based at Embakasi Police Station. He interrogated the complainant and her father (PW2). The complainant informed him that on 25th December 2012 at 9.30 pm, she was at the balcony with her father. The Appellant was also there. Her dad went back to the house. The Appellant asked her to go to his house. He undressed her and sexually assaulted her. While at the Appellant’s house, she heard her mother and father call out her name. She answered. When PW2 entered the house, he found the complainant holding her panty. The Appellant disappeared and could not be traced. PW3 finally arrested the Appellant on 22 nd March 2013. The Appellant was put on his defence. He gave a sworn statement. He stated that the complainant was his neighbour. On the material night of 25th December 2012, he came home and found his brother Washington (DW2) and PW2 seated at the balcony. They were drinking alcohol. He joined them. The complainant’s mother offered him a plate of food. She however wanted her plate back. She sent the complainant to get the plate from him. The Appellant went with the complainant to his house to get a plate. Suddenly, PW2 came to the house and pushed the door open. The Appellant denied sexually assaulting the complainant. He told the court that his zip was not open nor was the complainant holding her underwear when PW2 came to the house. The complainant’s mother tried to extort money from him. She asked him for Ksh.500/-. He however refused to give her. He was later arrested and charged with the present offences. DW2, Washington Kamuyu is the Appellant’s brother. The Appellant lived with him. On the material night, he was seated at the balcony with PW2, the Appellant and another man. They were drinking alcohol. PW2 offered them food. The complainant brought the food to the Appellant. The Appellant went to the house to keep the food. The complainant followed him to the house. After about two minutes, PW2 went to the house and hit the Appellant. He accused the Appellant of defiling his daughter. DW2 told the court that the Appellant and the complainant were at the house for about two minutes. He therefore could not have sexually assaulted her. PW2 asked them for Ksh.500/- to take the complainant to hospital. After three days, DW2 gave PW2 Ksh.1,500/-. PW2 gave him back Ksh.1,000/-. This being a first appeal, this Court is mandated to re-evaluate the evidence afresh. The Court of Appeal in the case of Gabriel Kamau Njoroge –vs- Republic [1982 – 88] 1 KAR 1134 stated this on the duty of the 1st Appellate court; “It is the duty of the first Appellate court to remember that parties are entitled to demand of the court of first appeal a decision on both questions of fact and of law and the court is required to weigh conflicting evidence and draw its own inferences and conclusions, bearing in mind always that it has neither seen or heard the witnesses and make due allowance for this.” In the present appeal, the issue for determination is whether the prosecution established the charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act brought against the Appellant, to the required standard of proof beyond any reasonable doubt. This court has re-evaluated the facts of this case. Section 8(1) of the Sexual Offences Act provides that:- “A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. For the prosecution to prove a charge of defilement, it must establish three ingredients; the age of the complainant, penetration and the identity of the perpetrator. In defilement cases, it is imperative that the prosecution establishes the age of the complainant to the required standard of proof beyond any reasonable doubt. In the present appeal, the complainant testified that she was in class three and was born in April 2005. Her father, PW2 told the court that the complainant was eight (8) years old at the time the alleged sexual assault incident occurred. The investigating officer, PW3 produced in evidence the complainant’s birth certificate which indicated that she was born on 3 rd April 2005. She was therefore eight (8) years old at the time of the alleged sexual assault. The same was not challenged by the Appellant on cross-examination or in his defence statement. This court therefore holds that the prosecution did establish that the complainant was a child within the meaning of Section 2(1) of the Children Act.
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This court now turns to the ingredient of penetration. Section 2(1) of the Sexual Offences Act defines penetration as: “the partial or complete insertion of the genital organ of a person into the genital organs of another person.” The complainant narrated to the court how the Appellant took her to his house and undressed her. He also removed his trouser. She told the court that the Appellant’s house was one roomed. It had a bed and another mattress on the floor. He laid her on the mattress and inserted his penis in her vagina. She stated that she felt pain. She then heard her mother and father call out her name. She answered to the call. The complainant’s father (PW2) testified that he knocked on the Appellant’s door. The Appellant took some time before he opened the door. When he finally opened the door, the complainant ran out of the house holding her underwear. She had tears in her eyes. The Appellant’s trouser was unzipped. His belt was also unbuckled. The medical evidence adduced by the prosecution established that indeed the complainant’s vagina was penetrated. The complainant was examined at Nairobi Women’s Hospital on 27th December 2012, two days after the incident occurred. The medical report produced in evidence by PW5 indicated that the complainant’s external genitalia was normal. Her hymen was intact. No lacerations on her vagina or vaginal discharge were noted. However, her introitus (entry of vagina) was tender and painful. PW4 examined the complainant about three months after the incident occurred. Upon examination, he stated that her genitalia was normal but her hymen was missing. The complainant was candid that the Appellant inserted his penis in her vagina. This court is of the view that the medical report from Nairobi Women’s Hospital where the complainant was examined two days after the incident occurred, was more reliable than that of PW4, who examined the complainant three months after the sexual assault occurred. The medical report from Nairobi Women’s Hospital noted that her vaginal entry was tender and painful upon examination. This evidence corroborated the complainant’s assertion that the Appellant inserted his penis in her vagina. The penetration could have been partial. Partial penetration still falls under the definition of penetration under the Act as stated earlier in this judgment. When PW2 entered the Appellant’s house, the complainant ran out in tears holding her underwear. The Appellant’s trouser was unzipped. This evidence further corroborated the complainant’s testimony that the Appellant sexually assaulted her. It was clear that the Appellant was interrupted when the complainant’s parents called out her name and she answered the call. The Court of Appeal in Erick Onyango Ondeng' v. Republic [2014 eKLR stated thus; “We agree with the first appellate court that to establish defilement, it is not necessary that the hymen must be broken; even partial penetration of the female genital by male genital will suffice to constitute the offence. In TWEHANGANE ALFRED VS UGANDA (supra) the Uganda Court of Appeal expressed the same view as follows; “In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.’’ In the premises, this court is of the view that the prosecution did establish the element of penetration to the required standard of proof beyond any reasonable doubt. The third issue is whether penetration was perpetrated by the Appellant. The Appellant was a neighbour to the complainant. She referred to him by name. The Appellant admitted in his defence that he knew the complainant and her father. He was therefore not a stranger to the two. The Appellant’s identification was by recognition. PW2 found the complainant in the Appellant’s house. The complainant informed him that the Appellant sexually assaulted her. When PW2 opened the Appellant’s door, the complainant ran out carrying her underwear. The Appellant’s trouser was unzipped. His trouser was unbuckled. From this evidence, the Appellant was properly identified as the perpetrator of the sexual assault. The Appellant in his defence stated that he was drinking with his brother and PW2 at the balcony. The complainant’s mother offered him a plate of food. She then sent the complainant to pick the used plate. He was with the complainant in his house looking for somewhere to transfer the food so that he could give her back her mother’s plate. He stated that she was only there for about two minutes before PW2 came into his house looking for her. He denied sexually assaulting her. His defence is however displaced by that of the complainant and PW2 who rescued the complainant from the Appellant’s house. In addition, the Appellant disappeared immediately after he committed the offence and was arrested about three months later. His conduct was not that of an innocent person. (See Eliud Ng’ang’a -vs- Republic [2017] eKLR). His defence was merely evasive and did not dent the otherwise strong culpatory evidence adduced by prosecution witnesses. It was properly dismissed as being of no evidential value. The Appellant’s guilt was established to the required standard of proof beyond any reasonable doubt. This court, having re-evaluated the evidence adduced before the trial court and the submission made on this appeal, cannot see any reason to disagree with the finding reached by the trial court. The Appellant’s appeal on conviction lacks merit. The same is hereby dismissed. As regards the sentence, Section 8(2) of the Sexual Offences Act provides a sentence of life imprisonment for any person convicted of defiling a child aged eleven (11) years or less. The sentence meted out by the trial court was therefore legal. The appeal on sentence is similarly dismissed. It is so ordered. DATED AT NAIROBI THIS 4TH DAY OF JULY 2019 L. KIMARU JUDGE
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