REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A CRIMINAL APPEAL NO. E012 OF 2021 JOSEPH MUHIA KARUMA...................................................................APPELLANT VERSUS REPUBLIC.............................................................................................RESPONDENT [Appeal from the decision of M. Kinyanjui, Principal Magistrate, in S.O. No. 17 of 2019 at Kandara dated 25th November 2020] JUDGMENT 1. The appellant was convicted for defilement contrary to section 8 (1) of the Sexual Offences Act. He was imprisoned for twenty years. 2. The particulars were that on 31st January 2019 at [particulars withheld] within Murang’a County, he intentionally caused his penis to penetrate the vagina of ENC [particulars withheld] a child aged eleven years. 3. On 27th July 2021, the High Court granted the appellant leave to lodge an appeal out of time. 4. The petition of appeal is dated 6 th August 2021 and raises eleven grounds. I will compress them into six. Firstly, that penetration was not proved; secondly, that the burden of proof was unfairly shifted to the appellant; thirdly, that the appellant’s evidence plus that of his two witnesses was disregarded; fourthly, that his alibi was not taken into account; fifthly, that the learned trial magistrate had preconceived notions of the case and relied on extraneous evidence; and, lastly, that the prosecution’s witnesses gave contradictory and unreliable evidence. 5. In a synopsis, the appellant contends that the offence was not proved beyond reasonable doubt. 6. The appellant’s counsel filed detailed submissions with a list of authorities on 7 th December 2021. 7. The appeal is opposed by the respondent. Learned counsel for the respondent filed submissions on 2 nd February 2022 and attached some precedents. 8. On the same day, I heard further arguments from learned counsel for the appellant and the respondent. 9. This is a first appeal to the High Court. I have re-evaluated the evidence and drawn independent conclusions. I am alive that I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] E. A. 32. 10. From the birth certificate (exhibit 1), I am satisfied that the complainant (PW1) was born on 8 th October 2007. She was thus aged 11 years at the time of the offence. Certainly, she had not reached her twelfth birthday. 11. The trial court conducted a brief voir dire examination. The questions posed are not recorded but there are sufficient answers which made the learned trial magistrate to conclude that she comprehended the nature of an oath. PW1 thus gave sworn evidence. The true purpose of a voire dire examination is to establish whether a child of tender years understands two things: the nature of an oath; and, the need to tell the truth. 12. I am thus satisfied that the trial court largely complied with the procedure of taking the evidence of a minor. Republic v Peter Kiriga Kiune Criminal Appeal 77 of 1982 (unreported), Johnson Muiruri v Republic [1983] KLR 445.
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13. The complainant (PW1) testified that on the material date at noon, she was sent away from school to buy a Kiswahili Mufti text book. She met the appellant at a junction who advised that they use a short cut. It was a ruse. He led her into some tall napier grass, removed her stockings and panties and defiled her. 14. She knew the appellant as they lived on the same plot, a fact confirmed by her mother (PW2). The complainant said that it was not the first time: He had defiled her earlier in his house. On this particular occasion, he made her to lie on the ground, put on a condom and inserted his penis into her privates. The stockings and panties were recovered at the scene by PW2 (exhibits 4 & 5). However, the condom was missing. 15. PW1 said that she felt pain “in her stomach” and decided to go to the clinic at Gatura Health Centre. She said that the appellant followed her there. According to PW1 and the clinical officer (PW4), the appellant claimed to be a concerned stranger. 16. The complainant was picked from the hospital by her teacher, Alice (PW3). She had been summoned by a doctor from Gatura to fetch the minor. The doctor later disclosed to her that the child had been defiled. The complainant did not disclose to PW3 who her assailant was. 17. From that evidence, I entertain no doubt that the complainant positively identified the appellant. The incident occurred around noon. The complainant knew the appellant. As I will discuss shortly, the appellant also admitted that he met with the complainant and accompanied her to the clinic. This was evidence of recognition; far more reliable than simple identification. Wamunga v Republic [1989] KLR 424, Maitanyi v Republic [1986] KLR 198 at 201. 18. On 31st January 2019 at about 1:00 p.m., the complainant’s mother (PW2) met with the appellant. He claimed that he was looking for her as PW1 had told him “her tummy was aching, so he took her to hospital”. As the daughter had already returned to school, she went there and found her in the company of the Deputy Head. When she contacted Gatura Health Centre, the doctor informed her that the complainant had been defiled; that it was not the first time; and, that she had an infection. 19. When they got back home, he asked the complainant to change before going to the police. She noticed her stockings were missing. The complainant told her they were left at the scene. They passed through there and recovered the panties and stockings (exhibits 4 & 5) and gave them to the police the following day. The report was made to PC Karani (PW5). He visited the locus in quo two days later. He said the area had a lot of grass. 20. PW4 was a clinical officer at Gatura. He said that the complainant was brought to the clinic by a man (the appellant). As the child was not co-operative, he called her teacher (PW3). On that day, he treated her for gastritis. But the following day, the complainant was examined by his colleague, Mary. Her hymen was torn with a shiny and greenish discharge. A high vaginal swab was bloody. Lab results indicated pus cells; numerous epithelial cells. No sperms were seen. The medical notes and the P3 Form were produced as exhibits 3 and 6. The witness concluded that there was vaginal penetration. 21. When the appellant was placed on his defence, he protested his innocence. In his sworn evidence, he claimed that on the material day he was in the shamba with his wife (DW3). He overheard his wife and his niece talking about a school girl (the complainant). Upon enquiry he learnt that the girl was complaining of a stomach ache. That version of events was confirmed by his witnesses, DW2 and DW3. 22. The appellant offered to take the complainant to the clinic. He did not deny that he asked her to pass through a shortcut but he said that the girl was reluctant and insisted on going to the hospital. The attending nurse was concerned that the child was not accompanied by a relative. The clinical officer (PW4) also testified that “the patient was not accompanied and it wasn’t normal”. 23. At some point, the appellant was asked by the medical staff to step outside so that they could speak to the complainant. Soon thereafter, her teacher (PW3) came and went into the consultation room. The appellant decided to pass by the posho mill ran by the complainant’s father and informed the parents of what had transpired. He said he was surprised to learn the following day that he was wanted by the police for defilement. 24. The appellant claimed that he had not met the complainant before that day. He denied that he had intercourse with her on five previous occasions or on the 31st January 2019. He also said that the girl’s father offered to settle the matter but he declined. But upon cross examination, he conceded that he, the complainant and her parents were all living on the same rented property. He could not also explain why he and not his wife took the child to the hospital. 25. A combination of the evidence of the appellant, DW2 and DW3 was that the appellant did not have an opportunity to commit the offence at the farm. The alibi was raised well after the close of the prosecution’s case. But it did not shift the burden of proof to the accused. See Republic v Johnson [1961] 3 ALL E.R. 969, Saidi Mwakawanga v Republic [1963] E.A. 6. 26. I am also alive that the legal burden of proof lay throughout with the prosecution. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332. I have thus weighed the alibi against the evidence of key prosecution witnesses. 27. Firstly, the complainant was emphatic that when the appellant offered to take her to hospital, he led her through a shortcut and into the napier grass. He defiled her there. Obviously, DW2 and DW3 were no longer at the scene. The offence took place in broad daylight. Like I have said earlier, the complainant and the appellant were not strangers. I readily find that the appellant is the man who penetrated the complainant. Secondly, the penetration was corroborated by authoritative medical evidence. 28. Section 2 of the Sexual Offences Act defines penetration as “the partial or complete insertion of the genital organs of a person into the genital organs of another person”.
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29. The evidence of the complainant was validated by clear medical evidence. According to the clinical officer (PW4) the “hymen was torn with a shiny and greenish discharge. A high vaginal swab was bloody; lab results indicated pus cells; numerous epithelial cells”. 30. I find that on the totality of the evidence of PW1, PW2 and PW4 that the appellant penetrated the vagina of PW1. Their testimonies were also consistent. When juxtaposed against that evidence, the appellant’s alibi and defence was a red herring. I am also unable to say that the burden of proof was unfairly shifted to the appellant. 31. It is not true that the evidence of the appellant and his two witnesses was disregarded by the trial court: The impugned judgment at paragraph 20 of the typed version dealt at length with the alibi and appellant’s defence. The learned trial magistrate did not believe the appellant. I concur entirely in that finding. 32. My take is that the appellant pretended to be a Good Samaritan escorting a sick and hapless child to the clinic: The truth is that he was the perpetrator of this heinous crime just moments earlier. 33. In the end, I find that the evidence overwhelmingly pointed to the appellant’s guilt. The upshot is that the appeal against conviction is accordingly dismissed. 34. I will now turn to the sentence. Section 354 (3) of Criminal Procedure Code empowers this court to review the sentence. 35. The appellant was jailed for twenty years. The complainant was eleven years. The Republic in its submissions proposed that the sentence be enhanced to life. Since no formal notice was served upon the appellant, it would be highly prejudicial. I am also well guided by the Court of Appeal on minimum sentences under the Sexual Offences Act. See Jared Koita Injiri v Republic [2019] Kisumu Criminal Appeal 93 of 2014 [2019] eKLR. 36. The learned trial magistrate considered that the appellant was a first offender. The trial court also received a pre-sentencing report. The sentence of twenty years was lenient in all the circumstances of this case and I decline to disturb it. 37. The entire appeal is hereby dismissed. It is so ordered. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 3RD DAY OF MARCH 2022. KANYI KIMONDO JUDGE Judgment read in open court in the presence ofThe appellant. No appearance by counsel for the appellant. Ms. Muriu for the Republic instructed by the Office of the Director of Public Prosecutions. Ms. Susan Waiganjo, Court Assistant.
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