Dmw v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NANYUKI CRIMINAL APPEAL NO 80 OF 2018 DMW...……...…..…………………...APPELLANT VERSUS REPUBLIC..……………………...RESPONDENT (Appeal from original Conviction and Sentence in Nanyuki CM Sexual Offence Case No 43 of 2016 – L Mutai, CM) JUDGMENT 1. The Appellant herein, DMW, was convicted after trial of incest contrary to section 20(1) of the Sexual Offences Act, No. 3 of 2006. It was alleged in the particulars that on 1 st and 2nd October 2016 at [Particulars withheld] Village in Mia Moja area in Laikipia County, he intentionally and unlawfully caused his penis to penetrate the vagina of one SW, a child aged 12 years who to his knowledge was his daughter. 2. On 30/10/2018 the Appellant was sentenced to 20 years imprisonment. He has appealed against both conviction and sentence upon the main grounds that the charge was not proved beyond reasonable doubt, and that the trial court dismissed the Appellant’s defence without giving reasons and without considering the Appellant’s submissions. Learned counsel for the Respondent supported the conviction, submitting that all the ingredients of the offence were proved beyond reasonable doubt. Regarding sentence, learned counsel submitted that it was lawful and well deserved. 3. This being a first appeal, I have read through the record of the trial court in order to evaluate the evidence and arrive at my own conclusions regarding the same. This is the proper duty of this court. I have borne in mind however, that I neither saw nor heard the witnesses testify, and I have given due allowance for that fact. 4. The complainant (PW1) was the daughter of the Appellant, a fact that he well knew and which was not in dispute at the trial. The child’s birth certificate (Exhibit 3) also named the Appellant as the father. There cannot be any doubt at all that the Appellant knew that the complainant was his daughter with whom he was living, together with two younger children, after their mother (his wife) died. 5. The particulars of the offence charged that the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of the child. To begin with, there was the clear and candid testimony of the child how her father (the Appellant) came to her bedroom on two consecutive nights and defiled her. The medical evidence by PW6 showed that the hymen was broken, and had been broken for a period of time that he was not able to ascertain. The medical examination was conducted on 06/10/2016, though she had first been attended to at the hospital 2 days previously on 04/10/2016. The incest itself was alleged to have occurred on 1 st and 2nd October, 2016, only 5 or 6 days before the medical examination. The fact that the complainant had no injuries to her genitalia may have been indicative of previous, repeated sexual activity. Lack of any spermatozoa in her vagina may have been due to the passage of time before she was medically examined or the use of a condom or withdrawal before ejaculation. 6. All that notwithstanding, the trial court was satisfied that she told the truth about the Appellant going to her room two nights in a row and forcing himself upon her. The trial court gave the reasons in its judgment for believing that she told the truth, as required by the proviso to section 124 of the Evidence Act, Cap 80 and proceeded to convict him. 7. The complainant’s conduct after the two incidents of the incest, of running away from her home to go and look for the home of her aunt far away was indicative of a traumatized child after sexual assault, and was testified to by PW2 (her aunt) and PW5 (the teacher who was able to get the story of incest out of her). The doctor (PW6) also noted that the complainant was apprehensive when he examined her. 8. The age of the complainant (relevant for purposes of sentencing) was established by her birth certificate.

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