Kdk v Republic

PW-2 returned home at around that time and did not find the children. He went round looking for them. He traced the rest and not the complainant in this case. Upon asking the rest of the children where complainant was, she was told the uncle, who’s the appellant herein held her hand and led her to his house. PW-2 went to look for her therein. The appellant is his younger brother. He found the door locked from inside. He knocked and the appellant opened it. He had just drawn back his trousers and even the zip was open. One could see his penis through the opening. The complainant was therein and hurriedly wore her pant. He asked the complainant what she had done. She kept quiet. He threatened to beat her and she said the appellant had sex with her. PW2 called the assistant chief who’s PW3 in this case. When the appellant heard him calling the Assistant chief he tried to escape. PW-2 punched him twice on the face out of anger. The appellant however managed to escape. PW2 raised alarm. Neighbors turned up to assist. They pursued him in the forest and managed to arrest him. He was beaten up by the youths who led him to PW-3’s office. PW-3 was told the appellant wanted to defile the complainant. PW3 feared that the appellant could be lynched. He re-arrested him and took him to Kaloleni Police station. P.C Wairoto initially investigated the case but later PW4 took over the investigations. The complainant was examined at Mariakani Hospital and her P 3 form was filled by Barringtone Charo. The said P-3 form shows that the complainant had no physical injuries. Vaginal examination revealed a broken hymen and a small vaginal tear of the lower part of the vagina. Her urine revealed she was infected. The clinical officer was of the opinion that the complainant had been defiled. PW4 was given the complainant’s Birth notification and child’s birth Health Card-showing she was born on 7.7.2009. The appellant was then charged. Upon closure of the prosecution case the court found that the appellant had a case to answer and accordingly placed him on his defence. The appellant gave unsworn testimony and called no other witness. His defence is that he was born in 1963 and was aged 56 years. The complainant is his niece. PW2 in his elder brother and they had a land dispute. The land belonged to their deceased’s father and PW2 had denied him his share. He had once threatened to teach him a lesson. On 2.5.2018 he was in the farm digging. He was approached by people who arrested him. He was taken to Kaloleni police station after being beaten up. The following day he was charged with strange offences of which he denied. The children of PW2 used to visit him as an uncle. PW 2 had older daughters and the appellant could not have gone for the younger one. The appellant is not married and does not have children. The wife of PW 2 does not even allow him to send her children to the shop. The wife is troublesome. The charge is fabricated. The trial court evaluated the evidence and found that the main count was proved by the prosecution beyond reasonable doubt. The appellant was convicted of it and sentenced to life imprisonment. Dissatisfied with the said conviction and sentence he appealed to this court on the grounds that: 1. Penetration was not proved. 2. The evidence was acquired through threats and inducement. 3. The evidence is contradictory. 4. His defence was unfairly dismissed. The prosecution opposed the appeal and submitted that the three ingredients for the offence of defilement, namely the age of the victim, penetration and identification of the appellant as the culprit were proved by the prosecution beyond reasonable doubt. I have looked at the charge, the evidence by the prosecution witnesses, appellant’s defence, judgment passed and the sentence meted. I have equally weighed the grounds of the appeal and the submissions. I do find this and open and shut case where the evidence adduced by the five prosecution witnesses indicates beyond reasonable doubt that the victim was at the time of the offence aged 9 years old. She said so herself and the documents produced in that respect so indicated. Age is not in dispute. Penetration was well proved by the complainant who stated in her evidence that the appellant put his penis into her vagina. The P 3 form also supports the allegation of penetration. Section 2 of the Sexual Offences Act defines penetration as partial or complete insertion of the genital organs of a person into the genital organs of another person. In this regard, even the slightest penetration would suffice for the offence. On identification, the appellant was well known to PW1 as an uncle and a neighbor. PW2 is also an older brother and a neighbor. PW1 in her evidence well identified him and PW2 got him immediately after the act, at the scene. There’s no question of mistaken identity. This issue is also not challenged. The appellant defence was rightly dismissed. It does not hold water. He said the quarrel with his brother was over the land, yet he’s settled there and is where he does farming. There was also no evidence that there was a case on the same or any reported incident relating to the same. It just cooked up a scape goat which is in want of tenets of truth.

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The sentence, life imprisonment, is mandatory as the victim was below the age of 11 years. The Lower Court did a good job leading to the right verdict and sentence. Nothing in the process and the outcome can be successfully challenged, save for the voire dire which should have been conducted before taking the evidence of PW1, but failure to do so does not prejudice the Appellant in any way, and does not compromise on the quality of justice realized. As such the appeal lacks merit and is hereby dismissed. JUDGMENT READ AND SIGNED AT GARSEN IN THE OPEN COURT TO PARTIES WHO APPEARS VIRTUALLY, WHO ARE; - THE APPELLANT AT SHIMO LA TEWA MAXIMUM PRISON AND MR MWANGI FOR THE STATE, THIS 8 TH DAY OF FEBRUARY, 2022. .................................... S.M. GITHINJI JUDGE

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