Duncan Kirimi Kimaita v Republic

“On the 5th day of December, 2018 in Laikipia East Sub-county within Laikipia County, intentionally and unlawfully, (the accused) caused his penis to penetrate the vagina of one LMM, a girl aged 7 years.” The particulars of the charge in count II are that on the same date and at the same place, the accused, intentionally and unlawfully, committed an indecent act with the same child by touching her vagina with his penis. 8. It is apparent that the offence charged in count II was committed in the process of commission of the offence in count I. In other words, the offence in count I could not have been committed without the penis of the perpetrator first touching the vagina of the complainant! Thus, the offence charged in count II was duplex to the offence charged in count I and should have been charged as an alternative charge, not as a substantive second count. 9. The Appellant was thus gravely prejudiced by this duplicity, not withstanding that he was defended. An accused person is entitled to clarity as to exactly what charge or charges he faces in order to properly mount his defence, and duplicity certainly compromises clarity, and will usually vitiate the trial. 10. Mr. Chwea also pointed out that the offence under section 8 of the Sexual Offences Act is defilement of a child, not girl or boy, and should be so stated in the statement of the offence. That may be so, but in the present case, it was made clear in the particulars of the offence in count I that the victim was a girl child aged 7 years; the Appellant thus could not have been in any doubt that he was charged with defilement of a child (a girl child) aged 7 years. But I have already held that the charge was bad in law for duplicity. 11. The complaint regarding identification also has merit. Although the complainant, who did not testify under oath, had initially stated that she had known the Appellant before, she later stated that she knew him that day. It was obvious from the testimony of her mother (PW2) that it was she (the mother) who upon questioning her, decided that the perpetrator of the crime was the Appellant. The mother then assumed the position of the complainant; it was she (and not the complainant) who actually identified the Appellant as the perpetrator. As she (the mother) was not a witness to the crime, the complainant’s identification of the Appellant ought therefore to have been tested in a properly conducted identification parade. 12. Further doubt was fomented by the fact that at least two other crucial witnesses who ought to have been called to testify were not called. These were the complainant’s father (to whom, according to the testimony of PW2, she had gone to get a cake). The complainant herself stated that she was called and pulled by the perpetrator from just outside a kitchen where her father worked. So, did the father see the Appellant about? Did he see his daughter with or near the Appellant? 13. The other witness was the lady who allegedly heard the complainant screaming as she was defiled; she allegedly asked what was going on and was answered by the perpetrator. This would have been a very important witness. No reason was given for not calling her. 14. In these circumstances, the Appellant’s alibi defence was entirely plausible and was not disproved by the prosecution. He testified to that alibi on oath and called one witness. 15. As for penetration, there was indeed proof beyond reasonable doubt that the complainant was defiled. First, there was her own testimony and that of her mother. She was also medically examined just a few hours after the defilement. Her clothing was wet and soiled with both water and what appeared to be blood. She had some injuries around her privates and her hymen was freshly broken. Although a high vaginal swab did not reveal the presence of spermatozoa, there was nevertheless a whitish discharge which the clinical officer (PW3) stated could have been semen. 16. The complainant also had a sexually transmitted infection; but then the Appellant himself appears to have been examined and he did not have such an infection, further adding to the doubt that he was the perpetrator of the crime. 17. Upon my own evaluation of the evidence, the Appellant’s convictions are entirely unsafe as he was not positively identified as the perpetrator. They could not be allowed to stand even if there was no duplicity in the charge. Learned prosecution counsel properly conceded the appeal. 18. In conclusion therefore, the Appellant’s appeal is allowed in its entirety. The convictions are hereby quashed and the sentences set aside. He shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered. DATED AND SIGNED AT NANYUKI THIS 14TH DAY OF APRIL 2021 H P G WAWERU JUDGE DELIVERED AT NANYUKI THIS 15TH DAY OF APRIL 2021

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