REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. E008 OF 2021 JUSTUS AKIDIVA IGADWA....................................................................................APPELLANT -VERSUSREPUBLIC................................................................................................................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. Sagero in Makueni Chief Magistrate’s Court Sexual Offence Case No.4 of 2020 pronounced on 27th May, 2020). JUDGMENT 1. The appellant was charged in the magistrates’ court with defilement of a child contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 13 th and 14th January 2020 at around 22:30 hours in Ikaasu Location Kathonzweni Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of IWM a child aged 15 years. 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 No. 3 of 2006, the particulars of which being that on the same dates and at the same place unlawfully and intentionally committed an indecent act by causing his penis to touch the vagina of IWM a child aged 15 years. 3. He denied both charges. After a full trial, he was convicted of the main count of defilement, and sentenced to five (5) years imprisonment. 4. Dissatisfied with the conviction and sentence of the trial court, the appellant has now come to this court on appeal on the following grounds – 1) That the trial magistrate erred in law and fact by convicting him with a fatally defective charge. 2) The trial magistrate erred in law and fact by failing to notice that the elements forming the offence of defilement were not proved beyond reasonable doubt. 3) The trial magistrate erred in law and facts by failing to find that the prosecution case was uncorroborated and controvertible. 4) The trial court did not consider the interpretation of section 107(1), 107(2), 108 and 109 of the Evidence Act (cap.80). 5) The trial magistrate erred in law and fact by not considering the applicability of sections 179(1) and 179(2) of the Criminal Procedure Code (cap. 75). 6) That the court (did not consider) whether the prosecution witness evidence had omissions. 5. The appeal proceeded 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. 6. This being a first appeal, I have to start by reminding myself that as a first appellate court I am duty bound to evaluate the evidence on record and come to my own independent conclusions and inferences – see Okeno –vs- Republic (1972) E.A 32 wherein the Court of Appeal
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for East Africa stated that – “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya –vs- Republic (1957) E.A 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala –vs- R)”. 7. In proving their case, the prosecution called four (4) witnesses. Pw1 was Dr. Lugogo Athman who produced medical report (P3) form and hospital treatment notes on the victim which had been filed by other medical personnel. It was noted that the hymen of the victim was missing but other parts of sexual organs of the victim were normal. 8. Pw2 was the victim whose evidence was that she left home and slept for a number of days elsewhere. Then her mother looked for her and brought her home. The victim however, left home again with her bag of clothes and went to live with the appellant and they engaged in sexual intercourse. It was her evidence that she was 15 years old and a form two student at [Particulars Withheld] Secondary School. 9. Pw3 was RMM the mother of the victim, whose evidence was that the victim was 15 years old and that she disappeared from home on 6/01/2020. She only managed to trace her on 11/1/2020 and took her home, only for the victim to disappear again from home with her bag of clothes. On looking for the victim, they found that she had been with the appellant, and a report was thus made to the police and the appellant was arrested and charged. 10. Pw4 was PC Ginaro Mbuvu whose evidence was that on 15 th January 2020 they received the report at Kavumbu police station. It was his further evidence that after investigations he charged the appellant in court. 11. When put on his defence the appellant tendered sworn defence testimony. He said that the charges were a frame up from the mother of the alleged victim who had threatened her with consequences that he would not forget in his entire life. In cross examination however, he said that he knew MW who spent in his house twice and that during the second time he was arrested, he denied knowing her age. 12. The prosecution had the burden of proving all the elements of the offence of defilement. The first element was the age of the victim who should be below 18 years. 13. With the evidence on record from Pw2 the alleged victim and Pw3 RM her mother, as well as the birth certificate that was produced in court, I am of the view that the prosecution proved beyond any reasonable doubt that the appellant was aged 15 years at the time of the incident. 14. The second element of the offence was penetration of a sexual nature, even if partial. On this element, the victim Pw2 said that she had sex with the appellant. Though the appellant initially denied, in cross – examination he admitted spending the nights with the victim a number of times. The medical evidence tendered by Pw1 Dr. Lugogo Athman was that the hymen of the victim was broken. In my view, with the evidence on record, sexual penetration on the victim did occur. 15. With regard to the culprit, in my view from the evidence on record, there is no other culprit other than the appellant who spent nights with the victim in his house. I find that the prosecution proved beyond any reasonable doubt that the appellant was the culprit. 16. Though the appellant has raised a technical ground of appeal on defects in the charge sheet, I find no such defects. I dismiss that ground. 17. Having found as above, I however find that due to the conduct of the victim herein, the defence under section 8(5) and 8(6) of the Sexual Offences Act is available to the appellant, who stated in cross examination that he did not know the age of the victim. In my view, the victim’s conduct of disappearing from home and going to live with a man, not once but twice, would make any reasonable man in the circumstances of this case to believe that she was an adult. On that account alone, I will allow the appeal. 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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