(criminal Division) v Republic

the P3 form tendered proved that there was penetration. In his view, the victim identified the Appellant well as her step-father and therefore, there was no question of mistaken identity. 8. He faults the Appellants for bringing up the issues of dispute with the victim’s family belatedly as an aforethought, pointing out that he never brought it up during trial. He further insists that, the Appellant’s defence was duly considered. 9. This court has considered this appeal and the written submissions mounted by the Respondent. The main issues for determination is whether the Prosecution was proved their case beyond doubt and whether the sentence was harsh. 10. On the question of standard of proof, it goes without saying that in criminal cases the standard of proof required is higher. It is beyond reasonable doubt and the prosecution normally has the burden of proof. Looking at the evidence tendered and the offence for which the Appellant was charged and convicted, it is true that the crucial elements required to be proved were established and proved by the Prosecution’s case. The law requires the following elements to be established and proved; a) Penetration. b) Age of the victim and c) Positive identification of the culprit. 11. On the element of penetration, I find that the evidence of Vicky Nzomo (PW5), the Clinical Officer from Kyuso Hospital who examined the victim and filed the P3 told the trail court that the genitalia of victim were bruised on the walls and found bleeding with the hymen ‘‘freshly broken’’. The P3 form tendered as Prosecution Exhibit 1 clearly indicates that there was penetration. That evidence was constant with what the minor/victim (Prosecution Witness 1) told the trial court. The victim’s clothes tendered as Prosecution exhibits 4,5 and 6 were blood stained and the minor positively identified the clothes as her clothes which she had worn on the material day she was defiled. This court finds that the Prosecution’s case in respect to penetration which is a key ingredient in the offence of defilement was overwhelming. I am not persuaded that the difference as per the time the incident took place whether it was 2:00PM or 3:00PM is significant. I find the Prosecution witnesses gave quite consistent evidence in regard to the question of penetration and that element was clearly proved beyond any doubt. 12. The Appellant contends that the age of the victim was not ascertained but I disagree because, I find that the prosecution proved that key element too through production of a birth certificate which was tendered as Prosecution Exhibit 7. That birth certificate serial number 9213287 issued on 11th April, 2018 indicates that the minor was born on 8 th August, 2008. That shows that when the minor was defiled on 26th December, 2018, she was aged ten years and four months to be exact. That age bracket falls within the age bracket envisaged under Section 8(2) of the Sexual Offence Act. The evidence tendered therefore, contrary to the Appellant’s submission was in tandem with the charge sheet because the Appellant was charged with defilement Contrary to Section 8(1) as read with 8(2) of Sexual Offence Act. 13. On identification, this court finds that the evidence of the minor to be sufficient. She clearly knew the Appellant by name and referred to him by name and the fact that he was her grandmother. I also find the evidence of Prosecution Witness 2 and Prosecution Witness 3 consistent on the question of identification of the Appellant as the culprit who committed the offence against the minor. 14. This court finds that with the 3 elements clearly exhibited and proved, the trial court was correct to find that the Prosecution’s case had been proved. The Appellant gave unsworn statement of defence and called 2 witnesses in his defence but I do not find anything tangible from his defence but I do not find anything tangible from his defence that could have casted any doubt on the mind of the trial court. The narrative trying to link the injury on the victim’s genitalia with a stick or falling from a tree in my view, was farfetched and held no water. His attempt to rely on alibi as a defence was feeble at best could sway the weight of the defence which I have re-evaluated and I find that the trial court was also correct to give it the due weight it gave. The weight could not tilt the overwhelming evidence tendered by the prosecution. In sum this court finds that the Prosecution’s case was proved beyond doubt and it was sufficient to found a conviction. 15. On sentence, this court finds that though the court found that there was only one sentence prescribed by Section 8(2) of the Sexual Offence Act, which is life sentence, this court finds that, in view of the supreme court’s decision in the case of Francis Karioko Muruatetu (2017) eKLR, court hands are no longer bound by mandatory sentence prescribed by law. The discretion of a mail court should not be taken and it is only on that basis that this court finds that life imprisonment may have been harsh but considering the gravity of the offence, a deterrent sentence was called for. In the premises, this court upholds the conviction of the Appellant for the reasons aforesaid but the sentence of life imprisonment is set and in its place the Appellant is hereby sentenced to serve 30 years in jail in view of the trauma and permanent nature of the effect of defilement is likely to have on the minor particularly considering the medical evidence (P3 form and treatment sheets) tendered in evidence. DATED, SIGNED AND DELIVERED AT KITUI THIS 18TH DAY OF MARCH, 2021. HON. JUSTICE R. K. LIMO JUDGE

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