REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU CRIMINAL APPEAL NO. E085 OF 2021 GERISHON MWITI ...............................APPELLANT VERSUS REPUBLIC ......................................... RESPONDENT (Being an appeal from the original conviction and sentence by Hon. J. Irura PM in Nkubu Law Court in criminal S.O No. 19 of 2020 delivered on 27/4/2021) JUDGMENT 1. GERISHON MWITI (‘the appellant’) was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006 where it was alleged that on 30 th May 2020 at [Particulars Withheld] Village upper Kiongone S/Location Kiongone Location in [particulars withheld] North Sub-County within Meru County, he intentionally caused his penis to penetrate the vagina of NM a child of 9 years. 2. He faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006 and the particulars were to the effect that on the same day and place, he intentionally and unlawfully touched the vagina of NM a children aged 9 years with his penis. 3. He pleaded not guilty to the charges, went through the trial which resulted in a conviction on the main charge of defilement and was sentenced to life imprisonment. 4. Dissatisfied with the conviction and sentence, the appellant lodged the current appeal setting out 4 grounds of appeal which may be summarized to attack the conviction and sentence on the basis that there was an error in law and fact in failure to note that the prosecution witnesses gave inconsistent, contradictory and conflicting testimonies; in sentencing him to life imprisonment, despite the fact that the clinical examination did not link him to the ordeal and that the case was never proved to the required standards. 5. Even though the court directed that the appeal be canvassed by way of written submissions, only the respondent did file the submissions dated 21.10.2021 on the same day. By the submissions the respondent relied on SA v Republic (2021) eKLR, on the ingredients of the offence of defilement and submitted that it had proved all the ingredients of defilement beyond reasonable doubt and urged the court to dismiss the appeal in its entirety. 6. In advancing its case against the appellant, the prosecution called 7 witnesses. PW1 Moses Baiyenia, a clinical officer at Kanyakine Hospital produced the complainant’s P3 form, outpatient treatment card number 4315, lab request form, PRC form and the treatment note. On examining the complainant, he established that the hymen was broken, the vulva was reddish in colour, but there was no discharge, bruises or lacerations. There was no abnormality noted from the laboratory investigation and he opined that the broken hymen and the reddish vulva were highly indicative of recent sexual activity. He relied on the treatment note, the PRC form and the laboratory request form to fill the P3 form. On the laboratory test done on the appellant he found the same to reveal that he was HIV negative but he had a bacterial infection as well as syphilis. 7. During cross examination, when asked about the defiler, the witness said that his duty was to establish if there had been defilement and not to investigate the case even though the complaint was that the defiler was well known to the complainant 8. PW2, the complainant, gave sworn testimony that she was a grade 3 pupil at [particulars withheld] aged 9 years old. She lived with her parents and siblings in Mathare of Murungurune and knew the appellant as he had rented a house in the same plot as them. On the fateful day, she said, the appellant sent her to the butchery to buy meat, she brought the meat to the appellant who told her to take it to his house. Inside the house where he lived alone, he requested her to put the meat in a sufuria and locked the door using a nail fixed thereon. He then removed his clothes, covered her mouth, removed her clothes, put her in his bed and started having sexual intercourse with her. Although she felt a lot of pain, she could not scream because the appellant had put some cloth in her mouth. He told her that he wanted to urinate on her so
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that she could feel good. Her mother came and started calling her because her brother had told the mother where she was. When the appellant had put on his clothes and dressed her as well, he opened the door, put charcoal in a jiko and told her to go and light it. As she was lighting the jiko inside the house, her mother came and took her leaving her slippers behind. She informed her mother what had happened, the latter went for her slippers, informed the area manager who in turn informed the chief and then the police. The OCS came and took her to Kanyakine Hospital for examination and treatment. She said that at the time she was called by the appellant, PW3, PW4 and PW6 were present. 9. During cross examination, she reiterated that the appellant had sent her to buy meat and that he put charcoal in the jiko to conceal what he had done. Although there were other people in the plot, she could not scream as he had put a cloth in her mouth. That was the first time she came to his house and that it was her brother who would bring the keys to the appellant’s house 10. PW3 RMB, the complainant’s mother stated that PW2 was aged 8 years and 11 months. She had known the appellant for about 4 months prior to the incident because both her and him worked at Erimbene farm in Murungurune. She confirmed that they used to live on adjacent houses in the same plot with the appellant within Erimbene farm where there were other houses which were occupied by the workers. The appellant was staying alone at his house and they did not have any grudge with him for the four months they were neighbours. On the material day, she left PW2 and PW4 at home at 5.40 pm, as she went to the shop and on her return at 6.00 pm, she only found PW4 sweeping outside. On enquiring about the whereabouts of PW2, she learnt from PW3 that PW2 had been locked inside the appellant’s house. She called PW2 thrice and it was the appellant who responded that PW2 was in his house lighting a jiko for him. She requested him to open the door so that she could send PW2 to the shop only for appellant eventually open the door and she noticed that he did not have shoes on and his trouser was unzipped. She got inside the house and took her daughter who did not only have shoes, but was also shaking. At that time PW3 and PW6 who were outside the door got inside the house and he called the complainants father, PM, to inform him what had happened. When she removed the complainant’s trouser to check if anything bad had happened to her, she saw some discharge on her private parts and PW2’s father asked PW3 to take PW2 to the farm manager NK, who then informed the assistant chief. The chief informed the OCS, who came in the company of other officers to arrest the appellant, and take them to Murungurune Police station then to Kanyakine Hospital. The appellant and the complainant were both treated. The following day, they went to the station with PW2, PW4 and PW6 to record their statements. 11. During cross examination, she stated that PW6 was outside her house as she was calling her daughter. She took her daughter to the manager and she did not want to call the neigbours, as she did not want them to take the law into their hands. After the appellant opened the door, she entered and took her daughter from his house. The appellant and the complainant were both taken to the hospital the same day. She denied having any grudge with the appellant before and stated that when the officers came, they found the appellant outside. 12. During re-examination, she reiterated that she did not have any grudge with the appellant and that she had left PW2 and PW4 at home sleeping, as she went to the shop. There were no other people at the plot apart from herself, PW2, PW4 and PW6. 13. PW4, WM, a standard 5 pupil [particulars withheld] aged 11 years and the complainant’s brother testified that they stayed in Irimbene farm with his parents and two siblings one of whom was the complainant. He knew the appellant as he also lived in the same plot with them. On the material day, the appellant was sitting at the tea bushes when his sister passed near where the appellant was and the appellant asked her to take some meat for him in his house. When PW2 went to take the meat, the appellant slowly followed her to the house. The appellant asked her to put the meat in a sufuria then he closed the door. At that time, he was sweeping outside and the appellant chased him from there. When his mother came from the shop, he informed her that PW2 was locked inside the appellant’s house. The mother called the complainant who did not respond and the appellant responded to say that the complainant was lighting a jiko for him. The mother told the appellant that she wanted to send PW2 to the shop and she would light the jiko thereafter, PW2 came out of the house. The mother got into the house and took PW2, who had left her slippers inside the appellant’s house, to the house where she narrated to her what had happened. The mother then went for PW2’s slippers from the appellant’s house and thereafter took the complainant to the manager. He was then sent for milk and on return, he found police officers at the plot. He added that when the appellant called PW2, there was no one else outside the plot, but some people were inside their houses while others were at work. 14. PW5 MK, the manager at Irimbene farm testified that she knew PW3 who worked at the said farm and resided in the plots within the farm. She equally knew the appellant as he worked in the said farm and lived in the plots within the farm. She had known the appellant for 4 months and had no grudge with him for the period he worked at the farm. PW3 lived with her husband and their 4 children. She knew the complainant as well as the fact that the appellant’s house was adjacent to PW3’s and in a compound of 20 houses and that the appellant lived alone. On the material day, she was inside her house which is about 5 meters from the plot where the workers lived when PW3, who was crying was in the company of PW2, approached her and explained to her how the appellant had sent her to his house and had sexual intercourse with her. She called the sub chief who advised her to inform the OCS who then came with some officers and arrested the appellant at the plot. They then recorded their statements and went to Kanyakine Hospital where both the complainant and the appellant were examined. The appellant, who had STD, was treated and taken back to the station. 15. During cross examination, she stated that both PW2 and PW3 came to her house and that PW6 was in the plot when the appellant opened the door and PW3 came and took PW2 from his house. PW3 came to report to her after she had checked and confirmed that indeed PW2 had been defiled. She said that anything happening in the plot, it is first reported to her and that both the appellant and the complainant were taken to the hospital for examination. 16. PW6, DK, a co-worker of the PW3, recalled being at the door to her house, in the same compound the appellant and PW3 resided, on the material day when she heard PW3 looking for PW2, who she later learnt was at the appellant’s house. PW3 asked PW2 to open the door and when the appellant did, PW2 got out of the house. The appellant was living in the same plot with them and PW2 was wearing a maroon trouser, which was brought to court. 17. During cross examination, she stated that she was told that PW2 was in the appellant’s house by PW3. When PW3 called PW2, she answered from the appellant’s house and came out of the house when the appellant opened the door. They were just the 3 of them in the plot at the said time, as the other people were at the market. The complainant’s father was not at home when PW2 was in the appellant’s house and that she later recorded her statements with the police.
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18. During re-examination, she affirmed that she had seen PW2 coming out of the appellant’s house. 19. PW7, PC (W) Susan Gathigia, an officer based at Murungurune police station performing investigative duties, was at the station on the material day, when PW2 accompanied by PW3 came to report about the case. The OCS and other officers proceeded to the appellant’s house and arrested the appellant. PW7 on her part escorted both the complainant and the appellant to Kanyakine Hospital for examination and later recorded the statements of the witnesses, issued the complainant with a duly filed P3 form and charged the appellant. She produced the complainant’s birth certificate which showed that she was aged 9 years old at the time of the incident. She also produced the maroon trouser and a white under pant with pink stripes worn by the complainant as Exh.8 and Exh.9 respectively. 20. In cross examination, she stated that the people who were present when the incident took place recorded their statements and testified before court. She confirmed having not visited the scene but other officers did. 21. When put on his defense, the appellant gave unsworn evidence to the effect that he used to work in the tea plantation where he was harvesting tea leaves and that on the material day, he went to the shamba as usual, harvested tea leaves and delivered them to the tea buying center. After he was paid his dues, he went to Murungurune where he bought a few items from the market, got back home at about 6.00 pm and put charcoal in the jiko and started lighting it. While he was inside the house cutting meat, he heard a knock at the door, he opened the door, police officers got inside his house and told him to come with them. He left with the officers as well as mama G, who was present when he opened the door for the officers but who excused herself and went back home. The officers informed him that they wanted him because he had passed near a covid infested place in Murungurune. When they got to Murungurune police station, he found the complainant, PW3 and PW5 there and they were then escorted to Kanyakine Hospital for examination. He confirmed that his house was between that of PW3 and PW6 and that it was not until the following day when he was informed that he had defiled a child, and wondered how the covid case had changed to defilement. Even after denying knowledge of the said defilement, he was still charged in court yet he had no grudge with PW3 with whom they lived well in same plot. He concluded that he had been framed by PW3 because of an agreement he had failed to honour. Analysis and Determination 22. This being a first appeal, the court is duty bound to re-appraise and re-analyse the evidence afresh, draw its own conclusions and make its own independent findings, bearing in mind that it did not have the advantage of seeing the witnesses testify. See David Njuguna Wairimu v R (2010) eKLR. 23. The ingredients of the offense of defilement the prosecution was obligated to prove to justify the conviction are well settled in innumerable decisions of the superior courts of this country[1]. The prosecution must prove the age of the victim, the fact of penetration and that the accused was the defiler. 24. For age, there was conclusive evidence that the complainant was aged 9 years at the time of commission of the offence because a copy of her birth certificate indicating that she was born on 2/12/2011 was produced as exhibit 7. 25. On whether penetration was proved to the requisite standard, there was the unshaken evidence of the complainant that, the appellant led her into his house and locked the door using a nail fixed thereon before moving his clothes and those of the victim then covered her mouth with a cloth. He then put her in his bed and he started having sexual intercourse with her. He told her that he wanted to urinate on her so that she could feel good during which event she felt a lot of pain. She could not scream as the accused put some cloth in her mouth. 26. That evidence was not meaningfully challenged during cross examination because no allusion was made by the appellant that the victim was lying or mistaken. According to PW3, when the appellant opened the door so that PW2 could get out, his trouser was unzipped and both of them did not have shoes on. From the P3 form and the evidence of PW1, it becomes clear that the complainant had a reddish vulva and her hymen was broken. It is therefore my finding that penetration was proved beyond reasonable doubt. 27. On whether the defilement was perpetuated by the appellant, evidence was led by PW4 and PW6 that they saw PW2 go into the appellant’s house. PW3 testified that she went to the appellant’s house where she found her daughter inside. The appellant was well known to PW2, PW3, PW4 and PW6 as they were immediate neighbours who lived in the same plot. PW5 admitted that the appellant was employed in the farm, which she managed, and thus she also knew him well. The appellant in his defense equally admitted that his house was between that of PW3 and PW6. There is no shred of doubt in my mind that the appellant was well known to at least four witnesses who had no reason to implicate him as the perpetrator of the offence. 28. On the whole, I find that the prosecution proved its case beyond reasonable doubt as the testimonies by its witnesses were not only consistent, but also water tight. The appellant’s contention that he was framed by PW3 was evidently an afterthought, which was raised for the first time during his defense. He totally failed to put it to PW3 or even make any suggestions to her to that effect 29. The remaining question now is whether the sentence meted out to the appellant was undeserved, as being too harsh or unreasonable in the circumstances. Section 8(2) of the Sexual Offences Act provides for a mandatory minimum sentence of life imprisonment, where the victim is aged 11 years or less. Here the age of the complainant was established beyond any bit of doubt to have been below 11 years, hence the life sentence imposed was within the law and not therefore amenable to being disturbed. 30. In the end, I find the appeal to be wholly unmerited and the same is hereby dismissed. DATED SIGNED AND DELIVERED AT MERU THIS 9TH DAY OF MARCH 2022 PATRICK J.O OTIENO
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JUDGE In presence of Mr. Maina for prosecution/respondent Appellant in person PATRICK J.O OTIENO JUDGE [1] SA vs Republic (2021) eKLR
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