REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU MISC.APPL. NO.63 OF 2018 JOHN GORODI SIMION....................................................................................APPELLANT VERSUS REPUBLIC.........................................................................................................RESPONDENT JUDGMENT 1. The appellant John Gorodi Simion was charged with the offence of defilement contrary to section 8(1) (2) of the sexual offences Act No.3 of 2006. Particulars are that on the 23 rd day of November 2016 at [Particulars Withheld] in Njoro Sub County within Nakuru County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of SN a child aged 8 years. 2. The appellant was also charged with an alternative count of indecent act with a child contrary to section 11(1) of the sexual offences Act No.3 of 2006. 3. The appellant denied both the main and alternative charge and the case proceeded for hearing with prosecution calling 5 witnesses and the appellant adduced sworn evidence and never availed any witness. The trial magistrate found the appellant guilty of the main charge, convicted and sentenced him to life imprisonment. Being dissatisfied by the said determination, the appellant filed this appeal on the following grounds: i. The learned magistrate erred in law and fact in finding that the prosecution had proved its case beyond reasonable doubt when the evidence more-so the medical evidence produced was conflicting and thus did not support the charge sheet. ii. The learned trial magistrate erred in law and fact when he convicted the appellant without the evidence of the complainant who did not testify at the hearing. iii. The learned trial magistrate erred in law and fact by deviating from the evidence adduced by the prosecution witnesses backed by the prosecution witnesses backed by their statements and introducing extraneous facts and assumptions on which the complainant and /or other witnesses were not led during the examination. iv. The learned trial magistrate erred in law and fact by premising his findings on his personal views and opinions which were not supported by the evidence before him. v. The learned trial magistrate erred in law and fact by not appreciating and/or disregarding the evidence of the defence throughout the case. vi. The learned trial magistrate erred in law and fact by convicting the appellant when the prosecution did not prove their case beyond reasonable doubt as required by the law. APPELLANTS CASE 4. The appellant adopted his grounds of appeal during the hearing and indicated that he had nothing to add. RESPONDENTS CASE 5. The state counsel submitted that in respect to age PW2 who was the child’s mother and her intermediary in Court testified that the child was 9 years old and produced health card to confirm her age.
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6. In respect to penetration, she submitted that the child was examined and found to be bleeding from her vagina and she also stated “ ni baba alinifanya” meaning “father did to me.” She further submitted that the injuries noted were freshly perforated hymen, fresh blood on the vagina, lacerations on the labia majora and labia manora and the child was in pain; and was admitted in hospital as shown by discharge summary. 7. In respect to identification she submitted that the mother of the child testified that she had a relationship with the appellant; that she was her husband and stepfather to the child for 5 years; that she further stated that she had left the appellant with the appellant in the house and on coming back she found the door locked with the appellant and the child inside the house. That she overheard the appellant asking the child to open the house which she did. The relationship was confirmed by the appellant who confirmed that he husband’s to PW2 the child’s mother. ANALYSIS AND DETERMINATION 8. This being the first appellate court. I am expected to subject the entire evidence adduced before the trial court to fresh evaluation and analysis. This I do while bearing in mind that I never had the opportunity to hear the witnesses and observe their demeanor. The principles that apply in the first appellate court are set out in the case of Okeno Vs Republic [1972] EA 32 where it was stated as follows: - “The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. Republic [1957] EA 570.) It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, (See Peters v. Sunday Post, [1958] EA 424.)” 9. In view of the above, I have perused and considered evidence adduced before the trial court. I have also considered appellant’s grounds of appeal and submissions by state counsel. This being an offence of defilement, three ingredients being age, penetration have to be proved beyond reasonable doubt. 10. My perusal of the proceedings and exhibits show that age was proved by health card proved. The document was not challenged by the appellant in the lower court. 11. In respect to penetration, the doctors’ evidence clearly confirm that the child was defiled. The child sustained injuries which necessitated admission, discharge summary confirm that she was admitted. The P3 confirm that she had fresh injuries in her genitalia. There is no doubt that the child who was confirmed to be 8 years was penetrated. 12. On identification, the appellant confirmed that he lived with the child’s mother as husband and wife for 5 years. They lived with the child. PW2 testified that she found the door locked and the appellant and the child were inside the house. She stated that on opening the door, the child wanted to run away and started crying. She held the child and on being asked why she wanted to run away, she pointed on her private parts and said “baba amenifanya” meaning “father has done it on me.” 13. Evidence adduced clearly rule out any doubt on identification. All ingredients of the offence of defilement were proved. I see no merit in appeal on conviction and dismiss accordingly. 14. In respect to sentence, I note that the trial magistrate imposed the minimum sentence provided by statute. The Supreme Court in the Muruatetu case however declared the mandatory nature of sentences unconstitutional as it takes away the discretion of the judicial officer. 15. In view of the above, I have considered circumstances of this case; I note that the child was 8 years and the fact that the appellant whom the child looked up to as a parent took advantage of her and abused her. I have further considered the fact that the appellant expressed remorse in mitigation and reduce the sentence to 20 years’ imprisonment 16. FINAL ORDERS 1. Appeal on conviction is hereby dismissed. 2. Appeal on sentence is allowed. 3. Sentence reduced to 20 years’ imprisonment to run from the date of sentence by the trial court. Judgment dated, signed and delivered via zoom at Nakuru This 29th day of October 2020 RACHEL NGETICH JUDGE In the presence of:
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Jeniffer - Court Assistant Appellant present Rita Rotich for state
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