Morris Muriuki Karagure v Republic

to pick Complainant from Appellant’s house and when she arrived informed her that Appellant had defiled her. Complainant’s report to the police was investigated by PW6 CPL Olivia Bundonye and Appellant was subsequently charged. She tendered Complainant’s certificate of birth PEXH. 1 which shows she was born on 05th May, 2021. 3) Appellant in his sworn defence denied the ofience and said that the charges were false. 4) The trial court after hearing the witnesses for the prosecution and defence found Appellant guilty and sentenced him to life imprisonment. Appeal 5) Aggrieved by the conviction and sentence, Appellant lodged the instant appeal and filed submissions on six grounds mainly that the prosecution case was not proved as required by law and his defence was not given due consideration. Analysis and Determination 6) The elements constituting the ofience of defilement are proof of penetration, the age of the minor and the identity of the assailant. (See C.W.K v Republic [2015] eKLR). Age of Complainant 7) 8) The appellant was found guilty of committing an ofience contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The provisions stipulate: (1) A person who commits an act which causes penetration with a child is guilty of an ofience termed defilement. (2) A person who commits an ofience of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. It is trite that the age of a minor is a critical component of a defilement charge and that it is an element which must be proved by the prosecution beyond reasonable doubt. In Kaingu Kasomo vs. Republic Criminal Appeal No. 504 of 2010 the Court of Appeal stated as follows: “ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”. 9) Complainant their child born on 05th May, 2012 as shown on her birth on certificate of birth PEXH. 1 and was therefore 9 years when she the ofience was allegedly committed. Penetration 10) Section 2 of the Act defines penetration to entail: “ partial or complete insertion of a genital organ of a person into the genital organ of another person.” 11) The P3 form PEXH. 2 reveals that complainant had bruises on the vaginal wall and a broken hymen. Whereas a broken hymen per se is not evidence of penetration, the broken hymen coupled with bruises https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/563/eng@2022-05-26 2

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on vaginal wall make vaginal penetration evident. I therefore find that the trial magistrate correctly found that penetration was proved. Appellant’s Culpability 12) Appellant was an employee of Complainant’s parents and lived with them in the same compound. He was therefore no stranger. As is normal in sexual ofience., Complainant was the sole to the commission of the ofience. 13) As a general rule of evidence embodied in Section 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section makes an exception in sexual ofiences and provides as follows: “ Provided that where in a criminal case involving a sexual ofience the only evidence is that of the alleged victim of the ofience, 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. 14) It has been alleged that the Appellant was with her brother DM in Appellant on the date the ofience was allegedly committed. SM, the Complainant’s uncle who allegedly found Complainant in Appellant’s house on the material day was similarly not called as a witness. The prosecution did not lead any evidence from the said DM and SM nor was failure to call them explained. 15) Given the seriousness of the ofience that Appellant was charged with, it would have been prudent to call DM and SM to confirm that indeed Complainant was in Appellant’s house on the date that she was defiled. This is not a case where the court would simply invoke the provisions of Section 124 of the Evidence Act Cap 80 Laws of Kenya and admit the uncorroborated evidence of the complainant as truthful whereas there is evidence out there which the prosecution failed to avail. 16) The prosecution’s failure to call DM and SM who would have placed the Complainant and the Appellant at the scene of crime allegedly leads the court to make an inference that their evidence, if adduced would have been adverse to the prosecution case. See Bukenya & Others v Uganda [1972] EALR 549 at 551. 17) In the end, I find that the prosecution case was not proved beyond any reasonable doubt and Appellant ought not to have been convicted. 18) Accordingly, and for the reasons set out hereinabove, this appeal succeeds. The conviction is quashed and the sentence set aside. Unless otherwise lawfully held, it is ordered that the Appellant shall be set at liberty. It is so ordered. DELIVERED AT MERU THIS 26th DAY OF MAY 2022 WAMAE. T. W. CHERERE JUDGE Appearances Court Assistant - Kinoti Appellant - Present in person For the State - Ms. Nandwa (PC 1) https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/563/eng@2022-05-26 3

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