REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. 73 OF 2020 MM............................................................................................................................APPELLANT -VERSUSREPUBLIC...........................................................................................................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. E.M Muiru in Kilungu PrincipalMagistrate’s Court Sexual Offence Case No.36 of 2019 pronounced on 28th May, 2019). 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 17 th March 2019 at 11:00 am at [Particulars withheld] Village within Makueni County being a male person caused his penis to penetrate the vagina of JKK (name withheld) a female child aged 7 years who was to his knowledge his niece. 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 date and at the same place intentionally touched the vagina of JKK a child aged 7 years with his penis. 3. He denied both charges. After a full trial, he was convicted of the main charge of incest and sentenced to life imprisonment. 4. Dissatisfied with the conviction and sentence of the trial court, the appellant has come to this court on appeal on the following grounds – 1) The trial magistrate erred in law and fact by holding that the case for the prosecution was proved against the appellant whereas penal penetration was not adequately proved. 2) The trial court misdirected itself by concluding that the Clinical findings were sufficient corroboration when such findings were devoid of any proof. 3) The trial court failed to record the reasons for believing that the complainant was telling the truth contrary to the provisions of section 124 of the Evidence Act. 4) The learned magistrate erred in fact and law when he failed to properly evaluate the evidence on record and relied on insufficient, uncorroborated and incredible evidence and came to the wrong decision that the appellant had defiled JKK. 5) The learned trial magistrate erred in law by dismissing the evidence the appellant and his witnesses tendered in defence. 6) The conclusion of the trial court in regard to the appellant was a serious misdirection and devoid of any compatible reasoning by the trial court. 5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submission filed by the appellant and those filed by the Director of Public Prosecutions. 6. In proving their case, the prosecution called six witnesses. Pw1 was KM the father of the alleged victim whose evidence was that the
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victim, who was his daughter, was 7 years old. It was his evidence that the appellant was his younger brother, and that on 8/4/2019 the grandmother of the victim FN called him and said that she had been summoned by the teacher of the victim who asked her to find out what the matter was with the victim. It was his further evidence that the grandmother had learnt that his brother had defiled his daughter. He then reported the incident to Kola Police Station. 7. Pw2 was FM the mother of the victim, whose evidence was that on 5/4/2019 while at work, she called FN to say hallo, and the said F told her that something had happened to her daughter. When she went home and talked to the victim, she initially did not say anything. When she went to school, she was told that the victim smelled urine, and later she was told by her mother (F) that her daughter (the victim) had been defiled. The matter was then reported to the Assistant Chief. 8. Pw3 was the victim who testified but not on oath. It was her evidence that the appellant defiled her in his house in broad daylight. 9. Pw4 was No. 54462 Pc. Joseph Masinde of Kola Police Station whose evidence was that a report on the incident was made at Kola Police Station on 8/4/2019 by the father of the victim. They then took the victim to hospital, and conducted investigations and arrested the appellant and charged him in court. 10. Pw5 was FN whose evidence was that on 5/4/2019 she received a report from her son NM that she was required by the victim’s teacher. She went to the school the next day and the teacher advised her to take the victim to hospital. She took her to two dispensaries and found nothing. She then called her daughter the mother of the victim who took the victim to Matungu hospital after the witness had made a report to Kola Police Station. 11. Pw6 was Erick Kasiamani a Clinical Officer at Kilungu Hospital, who filled the P3 form relying on the earlier treatment notes by other medical personnel. According to the medical reports, the hymen of the victim was perforated. 12. When put on his defence, the appellant tendered sworn defence testimony denying committing the offence. It was his defence that the father and mother of the victim had separated and that the father Pw1 slept with the children including the victim. That if there was any sexual encounter, it was with the father of the victim. He also called MM his brother and JMM his mother as his witnesses. 13. It is a case of incest. The first element to be proved by the prosecution was the relationship of the appellant and the alleged victim. The evidence both for the prosecution and the defence is that the appellant is the brother of the father of the victim. Thus the relationship between the victim and the appellant is incestuous relationship under the Sexual Offences Act. The relationship was proved by the prosecution beyond any reasonable doubt. 14. The second element, to be proved was the age of the victim who was said to be 7 years of age. Again on this, there is no dispute regarding the age of the victim. The magistrate also saw the victim, and because of young age, allowed her to testify but not on oath. I find that the prosecution proved the age of the victim to be 7 years beyond any reasonable doubt. 15. With regard to sexual penetration, the medical evidence was that the hymen of the victim was perforated. That in my view is sufficient evidence to prove penetration of a sexual nature on the victim. 16. The fourth element of the offence to be proved by the prosecution beyond reasonable doubt was the identity of the culprit. It is on record that the victim Pw3 testified in court that it was the appellant who did “tabia mbaya” to her. Of note however, is the fact that all the prosecution witnesses are close family members. The only witness who would show the consistency of the story of the victim was the school teacher, who did not testify. Infact F (Pw5) who was the family initiator of the events did not even say that the teacher said that the victim was defiled, and by whom. The mother of the victim (Pw2 FM) also met the school teacher but there is no evidence on record that she was told by the school teacher that the victim told her that the appellant had defiled the victim. 17. Thus the evidence regarding the identity of the culprit, in this very serious case, is so shaky that in my view, it cannot be said that the prosecution proved beyond any reasonable doubt that the appellant was the culprit, as the only independent evidence, that of the teacher was not brought to court. Considering that the evidence on record herein is only that of the two family sub-units herein, both for the prosecution and the defence, I find that the prosecution did not prove beyond reasonable doubt that the appellant, who comes from one sub unit, was the culprit. On that ground the appeal will succeed, as he was not proved to be the culprit. 18. 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 10TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI. .......................... GEORGE DULU JUDGE
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