REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. 59 OF 2020 JMK......................APPELLANT -VERSUSREPUBLIC ....... RESPONDENT (Being an appeal from the original judgment of Hon. A. Ndungu in Makindu Principal Magistrate’s Court PMCR Case No.4 of 2017 pronounced on 12th May, 2020). JUDGMENT 1. The appellant was charged in the magistrates’ court with incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 28 th January 2017 at [Particulars withheld] area, Kiboko Location, Makindu Sub-County within Makueni County being male person caused his penis to penetrate the vagina of SK (name withheld) a child aged 11 years who was to his knowledge his step sister. 2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act the particulars of which being that on the same day and at the same place intentionally and unlawfully committed an indecent act by touching the vagina of SK a child aged 11 years with his penis. 3. He denied both charges. After a full trial, he was convicted of the main count of incest, and sentenced to 15 years imprisonment. 4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds – 1. That an essential ingredient of the offence, penetration was not proved. 2. The magistrate misapprehended the facts of the case. 3. The trial court failed to appreciate the evidence on record about previous grudges/disagreements between Pw2 and the appellant. 4. The previous issues/grudges and or disagreements were manifested by the evidence of Dw2 and Dw3. 5. The trial magistrate failed to consider evidence tendered by the prosecution that was favourable to the appellant herein and choose to discard the same without considering its probative value. 6. The learned magistrate erred both in law and facts for failing to consider and or take into account the evidence by defence witnesses. 7. The judgment findings and decision of lower court against the weight of evidence on record. 8. The trial court erred both in fact and in law in failing to make an adverse or any finding in respect of failure by the prosecution to call crucial, competent and compellable witnesses and or avail crucial available pieces of physical evidence (exhibits). 5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by the appellant and those filed by the Director of Public Prosecutions.
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6. This being a first appeal, I am duty bound to evaluate all the evidence on record afresh and come to my own conclusions and inferences – see Okeno –vs- Republic (1972) E.A 32. 7. In proving their case, the prosecution called four (4) witnesses. Pw1 was the alleged victim whose evidence was that on 28/02/2017 the appellant, a brother held her and took her into a room at home, removed her clothes and defiled her. 8. Pw2 SKN testified that he was the father of the alleged victim, and also married to the mother of the appellant. It was his testimony that the alleged victim reported to him on return home that the appellant had defiled her and that he reported the incident to the police and the victim was medically examined and the appellant charged with the offence. 9. Pw3 was I.P Faith Chesire, the succeeding Investigating Officer, whose evidence was that on 28/2/2017 a report was made to Makindu Police Station and the victim taken to hospital for medical examination, and specimen taken to Government chemist for analysis on presence of spermatozoa, but no results received yet. 10. Pw4 was Dr. Mbugua Nicholas who produced medical examination notes and P3 form filed by Clinical Officer Stephen, who was no longer at the hospital. It was his evidence that from the medical records, the hymen on the victim was not intact, but everything else was normal except reddening of vagina which could have been caused by flow of blood or rubbing not necessarily sexual intercourse. 11. When put on his defence, the appellant tendered sworn testimony denying the offence and alleging a family rift which was the cause of him being implicated in the fabricated offence. He called Dw2 DNK his mother who supported his position, as well as Dw3 NM the appellant’s grandmother. All the defence evidence was that the victim was moving around in all places with the father Pw2. 12. Though in an offence of incest the age of the victim is not generally an important ingredient as the alleged victim was described as a child of 11 years, the alleged age had to be proved by the prosecution. 13. In the present case, the victim Pw1 and the father Pw2 testified on the age of the victim. A birth certificate was relied upon and produced in court as an exhibit. I find that the prosecution proved beyond any reasonable doubt that the victim was aged 11 years at the time of the alleged incident. 14. The second element of the offence to be proved by the prosecution was the relationship between the appellant and the alleged victim. All the evidence on record is that the two were half brother and sister. This fact is not controverted by anybody either for the prosecution or the defence. I find that the appellant and the alleged victim were proved by the prosecution to be brother and sister under the definition in the Sexual Offences Act. 15. The third element to be proved by the prosecution was the occurrence of a sexual act. The evidence about whether there was sexual intercourse was that of Pw1 the alleged victim only. It is of note that what Pw2 said was merely what he was told by Pw1. Under the provisal to section 124 of the Evidence Act, (cap.80), the evidence of Pw1, as a single witness victim in sexual offences, does not require corroboration, provided it is believable and believed on reasons to be stated by the court. 16. In the present case, in my view, the evidence of pw1 is not believable for various reasons. She said that it was the first time to have sexual intercourse. However, there was no evidence that the missing hymen was a fresh occurrence. Secondly, the doctor clearly stated that the reddening of the vaginal wall was caused by either flow of blood, or friction, not sexual intercourse. In addition though she alleged ejaculation, no evidence was tendered from the Government Analyst to confirm the presence of spermatozoa though samples were taken there for analysis. Lastly, it is very clear from the evidence both for the prosecution and the defence that the victim was unusually close to her father Pw2, and that Pw2 had a family disagreement with the mother of the appellant. 17. All the above factors put together in my view, show that the credibility of the alleged victim’s evidence is highly challenged, and the same is not believable. I thus find that the prosecution did not prove beyond any reasonable doubt that there occurred sexual intercourse on that day as described by Pw1. 18. With regard to the identity of the culprit, I find that the prosecution did not prove that the appellant was the culprit, as no sexual act was proved. 19. From my above findings, the conviction of the trial court, as well as the sentence imposed cannot be sustained. 20. Consequently and for the above reasons, I allow the appeal, quash the conviction and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held. DELIVERED, SIGNED & DATED THIS 8TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI. …………………………………. GEORGE DULU JUDGE
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