REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU CRIMINAL APPEAL NO. E063 OF 2021 PMM........................................................................................................................APPELLANT VERSUS REPUBLIC...........................................................................................................RESPONDENT (Being an appeal from the original conviction and sentence by Hon. S. Ndegwa SPM in Githongo SO No.2 of 2020 on 5/3/2021) JUDGMENT 1. PMM (‘the appellant’) was charged with the offence of incest contrary to Section 7 of the Sexual offences Act No. 3 of 2006 which charge alleged that on 23/6/2020 at [Particulars Withheld] location in Imenti Central Sub-County within Meru County, he intentionally caused his penis to penetrate the vagina of WN a child aged 7 years, who to his knowledge was daughter. He faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. It was alleged that on the material day and place, he intentionally touched the vagina of WN a child aged 7 years with his penis. 2. He denied the charges and in the ensuing trial the prosecution paraded 6 witnesses in support of its case. In the end he was convicted on the main count and sentenced to serve 50 years imprisonment. 3. Aggrieved by the said conviction and sentence, the appellant lodged the instant appeal raising 6 grounds. The summary of the said ground are that the trial court erred in failing to find that the charge was defective; that the evidence of PW2 and PW3 was contradictory and inconsistent and thus did not prove the offence charged to the requisite standards; that broken hymen is not proof of defilement and lastly, that there was never regard given to the period the appellant had spent in custody while undergoing trial, contrary to section 333(2) of the code. 4. In order to appreciate the merits, or otherwise, of the appellant’s appeal, it is important to set out the evidence at the trial. PW1 WN, a minor, having undergone voir dire, gave unsworn testimony that she was a class one pupil at (Particulars Withheld), who lived with her father, the appellant herein and her grandmother, PW2. She said that she always slept on the father’s bed because there was no other bed. The family lived in a two roomed house and slept on one room whereas the other room was a store. Sometimes in June 2020 at night, while in the said bed, the appellant, her father, removed her dress, put a thing that looked like a small balloon, which had oil inside, into his thing for urinating and put said his thing into her thing for urinating (pointed at her private parts to show the part of the appellant’s body that the thing he used to put into hers was) and did “tabia mbaya” to her on the bed. The appellant did it 3 times and she felt a lot of pain. He then told her not to tell anyone but she informed her grandmother and the appellant was arrested. 5. She was later taken to Kaongo police post then to the hospital by a female police officer for examination. 6. During cross examination, she denied that her grandmother had coached her on what to tell the court. She stated after the death of her mother, her grandmother reported the appellant to the chief and she was given custody of the children. The appellant, while drunk, came to her grandmother’s homestead and forcefully took her away. She denied that her grandmother was a drunkard who brewed “mugacha”. She denied ever coming home at 9.00 p.m but admitted that the appellant would go looking for her all over the village at night while drunk threatening to kill anyone he would find her with. 7. PW2 was AG, the complainant’s grandmother and mother to the appellant, who testified that in October 2019, she was given custody of the complainant and her sister by the chief, after the death of the mother to the two minors. In March 2020, the appellant visited her home situate on the same shamba as that of the appellant, and demanded his children back and she complied. On 22/6/2020, PW1 came to her house and informed her that she was tired of the appellant, as he was sleeping with her and defiling her. PW1, who was walking with a limping gait then started crying. She informed the area manager, JG who in turn called the assistant chief Gatwiri. The police came on
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24/6/2020 and arrested the appellant from his house while PW1 was taken to hospital by PW2’s daughter namely FK. She said that the complainant was aged 7 years and a biological daughter to the appellant who with the sister lived with both parents before the demise of their mother. 8. During cross examination, she said that she did not take the complainant to the hospital after learning she had been defiled, because the chief and the area manager had instructed them to keep quiet lest the appellant harmed PW1 for telling PW2. She denied brewing illicit liquor and admitted that she had gotten the appellant a job in Nairobi which he refused to take. She denied introducing a woman for the appellant to marry after the death of his wife or threatening the appellant to leave the land. 9. During cross examination, she stated that after the report, the area assistant chief said that there was no police officer was available at that time to effect the arrest and that the appellant would be arrested the following morning but she was told to take the child to the hospital. 10. PW3, FK, PW1’s aunt and the appellant’s sister, recalled being at home on 23/6/2020, some 20 meters away from the appellant’s house, when the complainant came to her and told her that she was tired of living with the appellant as he would “mount” her. She asked the complainant, who was walking well, who else she had told, and she said that she had informed PW2, who had called the chief. She told her to go back home and wait. The following day, she was informed by PW1 and PW2 that the appellant had been arrested. On 25/6/2020, she accompanied the complainant to Meru level 5 Hospital for treatment. She confirmed that the complainant was aged 7 years. 11. In cross examination, she stated that PW1 informed her that she was not taken to the hospital on 23/6/2020, because her grandmother had no money. She denied that PW2 had chased the complainant away or that she claimed the children though the chief. 12. PW4 Winfred Gatwiri, the assistant chief’s, testimony was to the effect that on 16/6/2020, he received information that the appellant was defiling PW1. On 24/6/2020 at around 6.30 am, he went to his house and found the appellant sleeping on the same bed as the complainant. He and the area manager arrested the appellant and took him to Kaongo A.P Post. He denied there being any grudge between him and the appellant. In cross examination, he confirmed that he had arrested the appellant and taken him to the police station and that it took one week before effecting the arrest because he was conducting investigations. In denying taking the children away from the appellant, he stated that it was the appellant who said he was unable to fend for all of them. He denied that PW2 had chased the complainant to come stay with the appellant and denied knowledge of the findings of the medical examination on the girl. 13. PW5 Dr. Paul Wambugu, Githongo Sub County Hospital, produced the complainant’s PRC and P3 forms dated 26/6/2020 and 6/7/2020 respectively as Pexh. 2 & 3. He gave evidence that he completed the pw3 based on the PRC which had been completed at by Dr Mungira at Meru Level 5 hospital. The P3 form revealed that the complainant’s pants was dirty and torn, alleged to have been defiled by a person known to her. The genitalia examination of the complainant revealed that her vagina was inflamed with lacerations and the hymen was broken. There were epithelial cells seen with no spermatozoa noted. He urged the court to take his evidence as corroborative evidence to assist the complainant realise justice. 14. During cross examination, he confirmed that he did not examine the complainant, but used the PRC form from the doctor who examined her. When cross examined by the court, he stated that the child was not physically presented to him but he used the PRC form filled by the other doctor. 15. PW6 PC Teresia Sidi from Gaitu Police post, was at the station on 26/6/2020 when she and PC Too were sent by the OCS to arrest the appellant. They found him with his mother (PW2) and complainant. She conducted her investigations and took the child, who was accompanied by PW3 to the hospital, for treatment. She recorded the witness statement and charged the appellant. She produced complainant’s birth certificate as Pexh.1 showing date of birth to be 20.05.2013 and her pant as P exh.11. 16. During cross examination, she denied the accusations that the appellant had been framed up and confirmed that the appellant had not been medically examined and that it was PW3 who gave her the birth certificate. When cross questioned by the court, she stated that the complainant was treated at Meru level 5 Hospital, but the said hospital said it was too busy, so she took the P3 form to Githongo sub county Hospital where it was filled. 17. In his defence, the appellant told the court that on the material day, the area manager and his assistant came to his homestead and arrested him then took him to Kaongo Patrol Base without informing him of the reason for the arrest. On 25/6/2020, they took the complainant to the hospital but they did not take him for examination. He said that his mother left him in 1990 and came back in 2013 then framed him up in 2015 for being in possession of mugacha but he was acquitted. The complainant’s mother framed him up again in 2019 that he had defiled Makena and she was given custody of his children but she brought the complainant back and after 9 days, she framed him up. 18. During cross examination, he confirmed that the complainant was his daughter and that it was his mother who had instigated the case and coached the complainant on what to tell the court because he did not give her money for the upkeep of the children. In opposing the appeal the respondent filed a notice of enhancement of the sentence on 19/10/2021. 19. Following directions that the appeal be canvassed by way of written submissions, the parties filed their respective submissions on 2/9/2021 and 16/11/2021. The appellant submitted that the evidence tendered by the prosecution witnesses was insufficient to sustain a conviction, as the prosecution failed to prove its case beyond reasonable doubt. He submitted that the charge sheet was defective as it indicated the wrong section of the law under which he was charged. He relied on the Court of Appeal decision of Yongo v R(1983)KLR, on the instances where a charge sheet is deemed as defective under section 214(1) of the Criminal Procedure Code. He pointed out various contradictions on the testimonies of PW2 and PW3 and added that the evidence of broken hymen is not proof of defilement, and the fact that PW5 urged the court to use corroborative evidence, meant that the charge was not proved beyond reasonable doubt. He relied on the Court of Appeal decision of P.K.W v R(2012)eKLR, on the various causes of a ruptured hymen and faulted the trial court for failing to find that this was an attempt case since there was no medical evidence to support the charge of defilement. He reminded the court of the prosecution’s duty to prove its case beyond reasonable doubt as was defined in Philip Muiruri Ndaruga v R(2016)eKLR. He faulted the trial court for failing to take into account his defence, which was strong and capable of shaking the prosecution’s case and for failing to order the 50 years
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sentence to start running from the date of his arrest, since he was in custody the entire trial period, contrary to section 333(2) of the Criminal Procedure Code. He supported his argument with Ahamad Abolfathi Mohammed & anor v R (2018) eKLR and Bethwel Wislon Kibor v R (2009) eKLR on the interpretation and application of section 333(2). He urged the court to allow the appeal, quash the conviction, set aside the sentence and set him at liberty. 20. On its side, the respondent maintained that it had proved its case against the appellant beyond reasonable doubt and to assert the contrary would not only be erroneous but also misleading. It cited GMM v R(2019)eKLR on the ingredients of incest and submitted that it had proved the ingredients of the offence through oral and documentary evidence. It relied on J.W.A v R(2014) eKLR for the proposition of the law that a court can convict an accused person based on the evidence of the victim only when the court is satisfied that the victim is telling the truth. It submitted that the trial court’s reasoning to convict the appellant was sound and rightly informed by the evidence tabled by the prosecution and denied any inconsistency in the evidence of the prosecution witnesses on the events that led to the arrest of the appellant. On the age of the complainant, it submitted that the appellant did not dispute that the complainant was his daughter who was aged 7 years, a fact that was corroborated by PW2, PW3 and PW6. It was then added that the charges as well as the particulars as laid out in the charge sheet were sufficiently corroborated by the witnesses and exhibits adduced, which led to prove of the case beyond reasonable doubt then reiterated that the trial court had duly considered the appellant’s defence and therefore his conviction was safe and merits no interference. 21. In support of Notice to enhance the sentence, the respondent submitted that the sentence meted out to the appellant was too lenient, illegal and prejudicial to the complainant, who was a minor, in terms of section 20 of the Act, and should thus be to life imprisonment, in accordance with the provisions of Section 354(3) of the Criminal Procedure Code. The court was urged to dismiss the appeal in its entirety, the conviction upheld and the sentence enhanced to that of life imprisonment. 22. In determining this appeal, the court is duty bound to re-appraise, review and re-evaluate the facts afresh with a view of drawing its own independent conclusions and findings, bearing in mind that it did not have the advantage of seeing the witnesses testify. See Odhiambo v R (2008) KLR 565. 23. Having reviewed the corpus of the material in the record of Appeal, I find that three issues to isolate for consideration by the court. Those issues for determination are; whether the charge presented to court was defective; whether the offence of incest was proved beyond reasonable doubt and whether the sentence meted out ought to be enhanced or maintained. Was the charge defective? 24. This fault upon the charge sheet is made on two fronts. The first ground is that the section statement of offence given did not align with the particulars of the offence. The statement of offence cited section 7 as the one creating the offence of incest. That is indeed a genuine concern. However, in the judgment by the trial court, that mistake was never ignored but was indeed taken up and appropriately addressed. I find and hold that it was appropriately addressed when the court deemed it a typographical error and relied on a binding decision of the court to find that the appellant had not been misled on that he was to confront. 25. The second ground of attack is in the submissions in which the defect is said to reveal itself on the analysis of evidence presented against the charge sheet and presupposes the ability of the court to access the evidence before hand even before the witnesses take the stand. I read the decision cited in support of the ground to have been guided by the law then in murder trials which mandated that committal bundles be availed to the court by the prosecution. In my view, that attack goes to the merits of the entire appeal and not on the technical bit of defect once the evidence is analysed in full. 26. Going to the merits, I consider, the key ingredients of the offence of incest to be; proof of the age of the complainant, relation within the prohibited degrees coupled with knowledge by the accused that the person is a relative and lastly, proof of penetration. 27. On the evidence on age, the complainant during voir dire told the court that she was aged 7 years. PW2 and PW3 testified that the complainant was aged 7 years. The complainant’s birth certificate, produced as Pexh. 1, indicated that she was born on 20/5/2013. I have also noted that the appellant did not broach any question of age during cross examination. I am therefore satisfied that the complainant at the time of commission of the alleged offence was a child aged 7 years old. 28. On whether the appellant knew that the complainant was his daughter, PW1 testified that the appellant was his father just like PW2 and PW3. That evidence was admitted by the appellant, who stated during cross examination that, “WN is my daughter.” there was thus no contestation but a consensus that there was a relation of a father and a daughter between the appellant and the complainant. With such consensus, no addition proof was required in that regard. 29. The next element is penetration which is defined under Section 2 of the Act to mean ‘the partial or complete insertion of the genital organs of a person into the genital organs of another person’. The evidence on record which the trial court relied on to convict the appellant was solely the complainant’s own testimony. Even though the trial court observed that the complainant did not understand the meaning of an oath, it still appreciated her ability to recount with clarity the events of the fateful night. Even when she was subjected to cross examination, she was consistent that she had been defiled by the appellant. Her testimony was corroborated by that of PW2, PW3, PW4 and PW6, the persons she spoke to her soon after the event. The medical evidence adduced by PW5 conclusively established that complainant’s vagina was inflamed with evident lacerations, the hymen was broken, there were epithelial cells although there was no spermatozoa noted. 30. It is appreciated by the court that, if not for the complainant, nobody else witnessed the act. The complainant was however succinct that, “It’s my father who did “tabia mbaya” to me. It was at night. On the day he did “tabia mbaya”, my father removed my dress. He put his thing for urinating into mine. He did not remove my pants. There is a thing he put into my thing for urinating. There is a thing looked like a small balloon that he put in his thing for urinating. It had oil inside. He told me not to tell anyone. I felt a lot of pain. He did it three times.” That evidence was not subjected to any cross examination. In coming to its conclusion the trial court was abreast of the law applicable on the uncorroborated evidence of a child when it did rely on the proviso to section 124, evidence Act as interpreted in Sahali Omar vs Republic (2017)eKRL.
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31. That is the kind of decision I find to be unassailable on the allegations of lack of sufficient evidence. I do find that the ingredients of the offence of incest, as defined under Section 20(1) of the sexual Offenses Act, were duly and sufficiently established. 32. On the propriety of the sentence imposed, the law prescribe mandatory sentence for the offence of incest with a minor is life imprisonment. The appellant got 50 years, for defiling his daughter who was only aged 7 years. Although this court is clothed with the jurisdiction under section 354(3) of the Criminal Procedure Code to alter or enhance the nature of a sentence imposed by a trial court, as requested by the respondent in this matter, I decline the prosecution’s request to enhance the appellant’s sentence, which in my view, was fair, lawful and justified in the circumstances. I find the sentence not to exceed the latitude of judicial discretion vested in the court. 33. However, the trial court was mandated by the provisions of Section 333(2) of the Criminal Procedure Code, to factor in the pre-trial period. To that obligation the trial court paid no regard. To that extent, it erred. The error is hereby rectified to the extent that even though the conviction and sentence are upheld, the sentence of 50 years shall be computed to run from 25/6/2020 being the date of arrest. 34. In the end, the appeal is hereby determined to be bereft of merits and is thus dismissed. DATED AND DELIVERED AT MERU THIS 7TH DAY OF FEBRUARY, 2022 PATRICK J.O OTIENO JUDGE In presence of Mr. Maina for the respondent Appellant present PATRICK J.O OTIENO JUDGE
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