REPUBLIC OF KENYA IN THE HIGH COURT AT KERUGOYA (CORAM : R, MWONGO, J.) CRIMINAL APPEAL NO 31 OF 2018 PWM...............................................APPELLANT – VERSUS – REPUBLIC ...............................RESPONDENT (Being an appeal from the original conviction and sentence dated 17-4-2018 of Hon E.H Keago, SPM, in S.O. Case No. 24 of 2017 at Baricho PMs Court) JUDGMENT Background 1. The appellant was charged and convicted with the offence of incest contrary to Section 21 as read with section 20 (1) () of the Sexual Offences Act No.3 of 2006. The brief facts were that on diverse dates of 25 th December 2016 and 27th May 2017, [Particulars Withheld] village in Mwea West Sub-County within Kirinyaga, the accused being a male person caused his penis to penetrate the vagina of FNW, a child of 9 years who was to his knowledge was his niece. He was sentenced to life imprisonment. 2. The alternative charge facing the appellant was that of committing an indecent act with the complainant, but the trial court found that this charge was not proved. 3. Dissatisfied, the appellant appealed against the decision of the trial court on the amended grounds that: a. The trial magistrate erred in law and fact in convicting the appellant on the tendered evidence which was uncertain that incest was proved; b. Then trial magistrate improperly relied on the conflicting evidence of PW1 and PW5 which made it uncertain that the victim had been penetrated; c. That there was no proof of the offence beyond reasonable doubt 4. This court’s duty is to re-evaluate the entire evidence adduced in the trial court and come to its own conclusions, taking note that this court did not have the opportunity to hear the witnesses and observe their demeanour See Okeno v R (1972) EA 32.; and the court must submit the entire evidence to fresh and exhaustive evaluation, weighing the conflicting evidence to draw its own conclusions (See: Pandya v Rep (1957) EA 336; and Shantilal M Ruwala v Rep (1957) EA 570) 5. I have carefully evaluated the evidence on record which I have also analyzed hereunder. 6. PW1, the complainant, was taken through a voir dire examination. She said she was 9 years old and in class 3; She did not know her birth date; She did not say what she was taught about telling the truth, and was quiet when asked what happens to those who lie. She said she did not know what it means to be sworn, and also said that she did not know the consequences of telling lies. On the basis of those assertions, the trial magistrate should have taken a cautious approach to the complainant’s evidence. Instead, the trial magistrate recorded that PW1 “possessed on (sic) sufficient knowledge to understand the meaning and nature of oathing”, which was a patent misdirection. Nevertheless, she properly so required the child to give unsworn testimony. 7. Accordingly, the child’s testimony must be considered critically.
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8. In her judgment, the trial magistrate incorrectly stated that upon voir dire examination, PW1 “…. was found capable of giving evidence of (sic) oath….”. This was also an inaccurate assessment given that the child had said she did not know what it meant to be sworn. In addition, in her judgment, the trial magistrate did not at any stage state whether or not she believed the testimony of the complainant who was the sole witness of the incident. The trial magistrate should have been alert to the provision of section 124 of the Evidence Act, and stated whether or not she believed the child’s testimony. 9. The child testified that the accused was her uncle; that he used to come to the house where she lived with her grandmother; that on 25 th December 2016, he grabbed her and covered her mouth and took her to his house but she refused when he wanted to have sex with her so that he gives her 200/-. Still, she refused. That when the accused heard her grandmother coming, he left her. That the following Saturday, he burned her right hand with a hot metal. 10. PW1 further stated that on the day her uncle took her to his house, he removed both her trouser and his, and penetrated her vagina with his penis, and that was painful. She said she reported to her grandmother who told the “in-charges”. It was not explained who the in-charges were. She said the accused did that on 25/12/2016 and 27/5/2017; and that her grandmother was not present when he defiled her, but her younger brother Boniface was present. 11. When she went to school on the Monday, she said, her teacher Grace (PW2) saw her walking with her legs apart and asked her what the problem was. She eventually told the teacher the truth. PW1 was then taken to the assistant chief and later to hospital by PW2. 12. In her brief cross examination by the accused, the complainant confirmed that she told her grandmother of the incident. 13. PW2 Grace Wawira Muthike stated that she was a teacher in [Particulars Withheld] Academy and PW1 was her pupil. On 29/3/2017, she noticed PW1 walking with injuries, and on asking her, PW1 at first told her she had injuries on the leg. PW2 checked and found the injury had healed; PW1 then said she had burned her thighs with hot water. On checking PW2 found nothing. 14. When PW2 insisted, PW1 opened up. According to PW2, the complainant told her that her uncle, W, had taken her to his house, covered her mouth and placed her on the bed where he defiled her. He then heard her grandmother coming and released her. PW 2 later reported the incident to the headteacher, who alerted the school chairman, and the Area Assistant Chief. The matter was also reported to the police and the child was taken to Mutithi Health Centre. In cross examination, PW2 said she was among those who took PW1 to hospital. She identified the P3 form, PRC forms and treatment notes of PW1. 15. PW3, the Assistant Chief testified that on 5/6/2017 he received a call from the school secretary asking him to go to the school. He went there and was informed of the defilement. He called for the complainant, who told him she had been defiled at least three times by her uncle, and that he had threatened to kill her if she reported. She also showed him the burn injuries allegedly inflicted by her uncle. He had the report booked, and the complainant was taken for medical check-up. 16. PW4 Corp. Samwel Ngatia testified that on 5/6/2017 the sub chief reported a case of a girl defiled by her uncle. The girl was taken to Mutithi Health Centre and the accused was arrested and charged. 17. PW 5, Elisio Wakio Mwangi, a Clinical Officer at Mutithi Health Centre attended to the complainant on 5/6/2017, seven days after the incident. The report was that she had been sexually assaulted by her uncle on several occasions since December 2016. She examined the complainant and found: she had bruises and burn wounds on the hands; her hymen was broken but she had no discharge; no spermatozoa were seen; and that she was not able to tell the age of the injuries, although the complainant’s genitalia was very tender. She produced the treatment notes, P3 form and the PRC form as exhibits 2, 4 and 5 respectively. She said she filled the P3 form on 24/7/2017, almost 50 days after the examination. 18. In cross examination PW5 said the incident started in December 2016 and the complainant came to hospital 7 days after the incident. 19. PW6, PC Joseph Kisau testified that the case fie was handed over to him on 14/11/2017 by PC Okindo, although he took over the case on 25/12/2016. He said the complainant had said she was defiled by her uncle PW, and reported to her grandmother. Her mother took no action. According to him, the defilements occurred on 25/12/2016 and 27/5/2017. 20. The accused opted not to give any evidence. However, no undue inference can be made against him for this choice. Proof of Incest 21. In a case of incest, the key ingredients that must be proved are those that also establish the offence of defilement, as stated in CRA 32 OF 2017 G.O.A v Republic (2018) where the court held: “The key ingredients of the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator of the offence.” In addition, however, in a case of incest, the familial relationship of the accused to the complainant must be proved. In this case, the complainant was the niece of the accused as she testified, he was her uncle. 22. To its credit, the trial court also considered the case of WOO v Republic [2016] eKLR where the ingredients of incest are stated to include “Relationship, within the meaning of the law and penetration”, and Section 22(2)(a) of the SOA wherein the definition of “Uncle” is defined as follows:
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“(2) in this Act – (a) ‘Uncle’ means the brother of a person’s parent, and aunt has a corresponding meaning” (emphasis added. 23. Section 21(1) Sexual Offences Act defines incest by a male person as an indecent act or act which causes penetration with a female person who to his knowledge is his daughter, grand-daughter, sister, mother, niece, aunt, or grandmother. The trial magistrate correctly found that PW1 described the accused as her uncle: “He is a brother to my mother”. As such PW1 was his niece, and properly fits into the description set out under Section 21(1) SOA. 24. The trial court also correctly evaluated the evidence adduced when it found that PW1 had been able to identify the accused to PW2, 3 and 4 and also identified the accused as her uncle. Age of the complainant 25. The trial magistrate in her judgment also found that the complainant was aged about 9 years at the time of the incident. This was evidenced from the statement by PW1 during her voir dire examination, and supported by the Birth Certificate, MFI 1. That certificate indicated that she was born on 27/09/2007 and PW1 identified it in court. It was exhibited as Exhibit 1. The accused did not challenge that Exhibit or even raise any question on it in cross examination. The trial court noted that PW1 had stated that she had told the truth and the court was entitled to take that evidence as such, though under caution. 26. The evidence of PW2 also tended to corroborate that of PW1, as PW2 stated that PW1 was her minor pupil at St Joseph Academy. Penetration 27. As to proof of penetration, the trial court considered, correctly in my view, the substantial evidence of PW1 that the accused covered her mouth, removed her trouser and his trouser, then inserted his penis into her vagina. She also said she felt pain and was offered 200/which she declined. 28. Although I am unable to clearly appreciate from the evidence of PW1 the distinct differences in the characteristics of the defilement between the incident of 25/12/2016 and that of 27/5/2017, there is no doubt from the evidence of PW1, that the accused defiled her at least two times. 29. The evidence of defilement was supported by the medical examination reports of PW5 which showed that PW1 had tenderness of the labia minora and majora, suggesting a recent penetration. The hymen was also broken, but, according to PW5 it was not possible to tell the age of the injury. That is not inconsistent with prior penetration. 30. As to the sentence meted by the trial court, it is clear in the proviso to Section 20(1) of the SOA that incest against a female who is under the age of eighteen years is punishable by a sentence of life imprisonment. The trial court correctly established the relationship and the age of the complainant. Disposition 31. In light of all the foregoing, all the grounds of appeal of the appellant fail, and there is no basis for interfering with the conviction or sentence. I thus confirm both conviction and sentence. 32. The appeal is therefore dismissed and conviction and sentence upheld. 33. Orders accordingly DATED AT KERUGOYA THIS 10TH DAY OF FEBRUARY, 2022 RICHARD MWONGO JUDGE Delivered in the presence of: 1. PWM the Appellant 2. Mamba for the State 3. Winnie Wanjiru Court Assistant
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