REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NANYUKI CRIMINAL APPEAL NO 56 OF 2017 DANIEL KINYUA MWAI.....................................................................APPELLANT VERSUS REPUBLIC...........................................................................................RESPONDENT (Appeal from original Conviction and Sentence in Nanyuki CM Sexual Offence Case No 38 of 2016 – L Mutai, CM) JUDGMENT 1. The Appellant herein, DANIEL KINYUA MWAI, was convicted after trial of defilement contrary to section 8(1) and (3) of the Sexual Offences Act, No 3 of 2006. It was alleged that between 7th and 13th September 2016 in Nyeri County, he intentionally caused his penis to penetrate the vagina of one MWM, a child aged 14 years. On 03/02/2017 he was sentenced to twenty-five (25) years imprisonment. He has appealed against both conviction and sentence. 2. The grounds of appeal in his petition are – i) That there could not have been defilement as the complainant gave consent for sexual intercourse. ii) That in any case penetration was not proved beyond reasonable doubt. iii) That the offence charged was not proved beyond reasonable doubt. iv) That the trial court wrongly rejected the Appellant’s sworn defence. 3. Together with his written submissions the Appellant filed “Amended Supplementary Grounds of Appeal” which disclosed the following additional grounds of appeal – v) That the trial court erred in failing to note that the mother of the complainant had a grudge towards the Appellant. vi) In effect, that there was not sufficient evidence to properly found the conviction. 4. Learned counsel for the Respondent supported the conviction. He submitted that all the ingredients of the offence were proved beyond reasonable doubt. Regarding the sentence, counsel stated that he had no objection to this court re-looking at it. 5. I have read the record of the trial court in order to evaluate the evidence placed there and arrive at my own conclusions regarding the same. This is my duty as the first appellate court. I have borne in mind however, that I did not see and hear the witnesses testify, and I have given due allowance for that fact. I have also considered the Appellant’s written submissions as well as the oral ones of the learned counsel. 6. The mother of the complainant testified as PW2. She stated that she had noted an affair between the complainant (PW1) and the Appellant, and she had reprimanded the complainant on 06/09/2016 when she saw her with the Appellant. PW2 further testified that on 07/09/2016 she had woken up the complainant early in the morning to prepare for school. Later when she went to the complainant’s room she found that she had left with all her clothes. 7. Eventually PW2 learnt that the complainant had been seen in Burguret area. She alerted the police. On 12/09/2016, accompanied by PW3, she proceeded to a house at Burguret Trading Centre where they found the complainant. It was the Appellant’s house. He was arrested in the locality soon thereafter. 8. The testimony of the complainant (PW1) was that she was chased away from home by her mother after she had spotted her with the
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Appellant. After she left home she met the Appellant (whom she knew well) who took her to his house where she remained with him until her mother showed up with a police officer and took her away to hospital after the Appellant was arrested. The complainant further testified that the first three nights the Appellant did not touch her, but that on all subsequent nights until the mother showed up, she and the Appellant had sexual intercourse. 9. The testimonies of the complainant, her mother and the police officer (PW3) were not challenged in any way at all by the Appellant. He did not dispute that the complainant had stayed in his house from 07/09/2016 until she was rescued therefrom on 12/09/2016. He never disputed the testimony of the complainant that they had sexual intercourse on the 4 th and subsequent nights that they were together in his house. 10. The testimony of the doctor (PW4) who examined her noted her broken hymen, though she did not note any injuries to her genital area, probably indicative of prior sexual experience. 11. The complainant’s birth certificate showed that she was born on 09/03/2002; at the time of the offence between 7 th and 13th September 2016 she was thus 14 years and six (6) months old. 12. The Appellant’s defence, given in an unsworn statement, was a mere denial and was properly rejected by the trial court. 13. Upon my own evaluation of the evidence the Appellant was convicted upon good and sound evidence. The offence charged was proved beyond reasonable doubt, and the conviction is safe. 14. As for sentence, the minimum provided by the law was 20 years once the trial court decided that the Appellant deserved a custodial sentence. That he indeed deserved a custodial sentence, given the circumstances of the case, cannot be in doubt. It is however not clear why the trial court gave him an additional five (5) years. 20 years imprisonment was already severe enough for a first offender who was only 21 years old when he was sentenced. 25 years imprisonment was thus manifestly harsh and excessive. 15. I will in the event dismiss the appeal against conviction. I will however set aside the sentence of 25 years imprisonment imposed and substitute therefor 20 years imprisonment. It is so ordered. DATED AND SIGNED AT NANYUKI THIS 9TH DAY OF MARCH 2022 H P G WAWERU JUDGE DELIVERED AT NANYUKI THIS 10TH DAY OF MARCH 2022
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