Stephen Mugo Githaka v Republic

and realized that she was defiled. She was handed over to her father EM (PW-5-) who took her to hospital. 10. The matter was reported at Sagana Police Station where the complainant was issued with a P3 form. She was examined by (PW-6-) the Clinical Officer who found that the vigina was bruised and swollen. Her hymen was torn. The vigina was bleeding and she had a discharge from her genitalia. The high virginal swab shows pus and numerous red blood cells. PW-6- concluded that the complainant was involved in penetrative sexual inter course. She filled a P3 form which she produced as exhibit 3 and treatment notes, exhibit 4 and laboratory results exhibit 4. Later the appellant was arrested and charged. The police were handed over a torn biker which the complainant was wearing on the material day and a school uniform (dress) which was soiled exhibit 1 & 2. 11. The appellant gave unsworn defence and denied that he defiled the complainant. He alleged that he had grudges with the witness over boundary disputes. 12. The appellant has stated that the trial court did not evaluate the evidence. He submits that no report was made as the OB read 0/9/1/2011 when the offence was committed on 7/1/2011 and was not reported on 7/1/2011. The submissions on the OB are without merits. The P3 form shows that the report was made on 7/1/2011 at 2.30 Hours. The OB No. 10/9/1/2011 represent date of arrest and date of apprehension report in court. The appellant allegation that the P3 form was backdated is not supported by any evidence. The appellant refers to page 41 which is none existent as the record is upto page 30. The ground is a sham and based on unsubstantiated allegations that PW-6- was given money to backdate the P3 form. This was not put to PW-6- when she testified. In any case the treatment notes, Page 26 of the record show that the complainant was treated on 7/1/2011 and samples for examination in the lab were collected on 7/1/11. The ground is without merits. 13. The appellant submits that crucial witnesses were not called. Throughout the entire submissions the appellant did not state the names of the witnesses who were not called. All he has stated is that the police Constable who testified was not of the rank of Inspector (sic) in Kenya as required by the law. The said law was not cited. The case of Collins Omuse Obure &ndashv- R cited has no relevance. In the case, the conviction was upheld based on the fact that the appellant was recognized. It has nothing to do with the rank of the Police witness. It is trite law that no particular number of witnesses is required to prove a fact. Section 143 of the Evidence Act provides:"No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact." 14. In this case the prosecution called a total of Eight witnesses who adduced evidence. This is an offence of defilement of minor where the court as provided under Section 124 of the Evidence Act can convict on the evidence of the victim if for reasons to be recorded the court is satisfied that the victim is telling the truth. It states:"Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth" 15. In this case the evidence of the complainant was corroborated by the testimony of PW-2- who heard her screaming and when she went to find out she found her with the appellant who was trying to wipe out dirt from her dress. Her torn biker was also there. The appellant was blocking the complainant from telling her what happened. Later PW-2- examined the complainant with PW-3- and realized that she was defiled. The prosecution adduced overwhelming evidence to support the charge. 16. The trial Magistrate considered the defence of the appellant. At Page 22 Line 11-16 of the record, trial Magistrate stated:"Though the accused said he was only implicated following grudges with complainant&rsquos family, there was no evidence of existence of such grudges which washed off good relationship between the two families and as would make the witness herein act in concert to make up a case against the accused person. The alibi raised by the accused person had no basis and sounded more of web of lies. The circumstances obtaining in this case point to the accused person as the one who had canal knowledge of the complainant." 17. I find that the grounds are without merits. Having analysed the evidence, and evaluated it, I find that trial Magistrate arrived at the inevitable conclusion, that of guilty of the appellant. There was no dispute that the appellant was well known to the complainant. The appellant himself admitted that the complainant was his neighbor. The testimony of the complainant as to who defiled her was based on recognition in broad daylight in circumstances which favoured a positive identification and recognition. Her testimony was corroborated by an eye witness PW-2- she met appellant at the scene, and medical evidence adduced by PW-6- who confirmed that there was penetration in the genitalia of the complainant. 18. I agree with the submissions by the State that the key ingredients of the charge namely:- Age of the complainant (victim). - Penetration. - Identification of the perpetrator, were proved beyond any reasonable doubt. The absence of spermatozoa does not rule out the offence of defilement. The court of Appeal in the case of Oirori Moses &ndashv- R(2013) eKLR stated that:-

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"Many times, the attacker does not fully complete the sexual act during the commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed so long as there is penetration whether on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl organ." In this case penetration was proved, despite the absence of spermatozoa. The Sexual Offences Act defines penetration as partial or complete insertion of the genital organs. In this case there was penetrative insertion. 19. With respect to alleged inconsistencies, contradiction and discrepancies in Willis Ochieng Odero versus Republic (2006) eKLR the Court of Appeal held &ldquoas for the contradictions in prosecution evidence it may be true that such contradictions, particularly with regard to the date indicated in the P3 form as the date of the offence is difference. But that per se is not a ground for quashing the conviction in view of Section 382 of Criminal Procedure Code.&rdquo It is submitted that the prosecution proved its case beyond reasonable doubt and the conviction on count 1 was in accordance with the law. 20. In any case as I have stated earlier, the submissions on the OB report was a sham. 21. In his submissions, the appellant has not challenged the sentence. The appellant was charged under Section 8(1)(2) of the Sexual Offences Act provides: "(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life." The trial Magistrate considered the mitigation and passed the sentence which is provided under the law. The sentence has not been challenged. However, the mandatory nature of the sentence has since been declared unconstitutional by the Supreme Court in the case of Gideon Kioko Muruatetu & Another &ndashv- R and others. I will therefore interfere with the sentence. 22. In Conclusion:1. I find that the appeal is without merits and is dismissed. 2. The sentence of life imprisonment is set aside and substituted with a sentence of imprisonment for Twenty-Five (25) years to be computed from the date he was remanded in custody by the trial court that is 10/1/2011. Dated at Kerugoya this 12th Day of March 2020. L. W. GITARI JUDGE

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