Republic v JM (Sexual Ofience 20 of 2016) [2017] KEMC 127 (KLR) (10 January 2017) (Judgment) Neutral citation: [2017] KEMC 127 (KLR) REPUBLIC OF KENYA IN THE NYAHURURU LAW COURTS SEXUAL OFFENCE 20 OF 2016 PA NDEGE, PM JANUARY 10, 2017 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND JM .............................................................................................................. DEFENDANT JUDGMENT Introduction 1. The Defendant herein is a farmer and a herdsman. He is a father to the victim herein (PW1) whom he got with her mother, PW2, on 14.08.20061. 2. In the month of September 2014, the defendant had separated with the complainant's mother, PW2, and were therefore staying separately. According to the prosecution witnesses, the defendant used to waylay the victim herein, her daughter, while from school and used to intentionally and unlawfully penetrate her organ using his2. He used to entice her with snacks, before leading her to his house where he used to commit the act on her. 3. At one point, on 11.09.2014, during one of the lucid moments in their relationship, the defendant went to visit the victim's mother and spent there. In the course of the night, the defendant was found having gone to the victim's bed and according to the victim, defiled her. The mother responded to her cries and found him while in bed with the victim. She also noted some whitish discharge from the victim's genitals. The defendant was then unashamedly still caressing the victim, while lying on 1 Refer to the birth certificate produced by PW4 as PEXH. No. 4. 2 Refer to PW1's evidence - in - chief at pg 16 of the handwritten proceedings: ' He used to remove the uniform. He also used to remove his inner pant. He used his big organ and inserted it inside me at the genital area. We were lying on the bed. He did that several times every day after coming from school. I then used to go home...' https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/127/eng@2017-01-10 1
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her. The matter was reported to the elders and the children ofice. Meanwhile, the defendant went underground immediately after the act. 4. On 23.09.2015, the report was eventually made to Mairo-inya Police Station where it was attended to by PW4, No. 1085 PC Eric Odak, who referred the complainants to Nyahururu District Hospital for examination. 5. The medical examination was done by PW3, DR. Joseph Karimi. He confirmed that the victim's hymen was broken at the time, and had pus cells infections at her genitals. She had been treated at the hospital a day prior to the examination. He produced the treatment notes dated 22/09/14 as PEXH No 1, Medical Examination Report Form (P3) as PEXH. No. 2 and a Post Rape Care (PRC) form that was also filled and issued as PEXH. No. 3. 6. On 22.02.2016, the defendant herein resurfaced. PW4, No. 1085 PC Eric Odak, arrested and charged him with the present ofience. Charge and Procedure 7. On 29.02.2016, the defendant was charged with 2 alternative counts of the ofiences of Incest contrary to section 20(1) and Committing an Indecent Act with a Child c/s 11(1) both of the Sexual Offences Act No. 3 of 2006 (hereinafter abbreviated as SOA). 8. He denied in the main count that on diverse dates in the month of September 2014, being a male person, he intentionally and unlawfully caused his penis to penetrate the vagina of M.N.M. who was to his knowledge his daughter aged 8 years old. In the alternative count, he also denied that on diverse dates in the month of September 2014, at the same village, he intentionally and unlawfully caused his penis to come into contact with the vagina of the same child. 9. The hearing was delayed because of bond and bail hearing. On 13.05.2016, I finally did order that the defendant be released on a bond of Kshs. 500,000/= upon presenting a surety of a similar amount. He was however unable to meet the bond terms. He has therefore been in remand custody throughout the duration of the trial herein. He was unrepresented. 10. The prosecution on the other hand was led by Mss. Maina and Chelangat, prosecution counsel, instructed by the Director of Public Prosecutions, who, by virtue of Article 157(6) of the Constitution, exercises state powers of prosecution within the Republic of Kenya. 11. Hearing of the prosecution's case commenced on 13.05.2016, and closed on 23.09.2016. On 29.11.2016, I called upon the defendant herein to make his defence, which he promptly did and closed his case. All the adjournments and the reasons therefor have been well captured and explained in the record of proceedings herein and do not therefore require any additional explanation herein. Substantive Facts of the Case 12. The substantive facts of the case are basically as per the introduction hereinabove. The defendant when called upon to make his defence denied having committed the ofience stating that his faith cannot allow him to commit such an heinous act as alleged. Issues, Burden and Standard of Proof 13. It is not in dispute that the victim herein is a daughter to the defendant. It is also not in dispute that the victim was under eleven years as at the month of September, 2014, when the ofiences are alleged to have been committed. The remaining issue herein is whether the prosecution has proved to the required standard that the defendant herein intentionally and unlawfully caused his penis to penetrate https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/127/eng@2017-01-10 2
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the victim's vagina, as charged in the main count; or that he intentionally and unlawfully caused his penis to come into contact with the vagina of the victim herein as charged in the alternative count. 14. The burden of proving the same lies with the prosecution and the standard of proof is beyond reasonable doubt3. Determination 15. The evidence by the prosecution was straightforward, consistent on the material allegations herein and unchallenged even during cross-examination. The victim confirmed that the defendant herein used to defile her on several occasions upon being enticed with snacks. The allegations were confirmed by the victim's mother, PW2, when on one night, she found the defendant herein while committing the act on the victim herein. The defendant herein soon thereafter went underground, only to resurface 2 years later, perhaps thinking that the issues had subsided. The defendant had no serious questions to ask the witnesses on the allegations. His faith notwithstanding, he did defile the complainant herein on several occasions as confirmed by the victim herself, and corroborated by her mother who caught him red-handed while committing the act on the victim, his daughter. 16. The medical evidence adduced herein further corroborates the fact of a sexual activity on the victim. Such evidence includes the absence of hymen and the genito-urinary tract infection that were noted. The medical evidence was gathered after some time and the absence of spermatozoa or related sexual discharge may be understood to be because of the lapse in time. 17. There was however a contradiction on the dates herein which I still do not find material so as to challenge the evidence of the defilements herein. Such variance in dates also amounts to variance in time and by dint of section 214(2) of the Criminal Procedure Code, I find such variance to be immaterial and do not therefore afiect the substance of the charges facing the defendant herein. Section 214(2) of the Criminal Procedure Code provides as follows: Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged ofience was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof 18. I find no limitation of time law with respect to the ofiences facing the defendant herein. He defiled the victim whom to his knowledge was his daughter, he then went underground till he resurfaced two years later on, when he was arrested and arraigned in court for the present trial. I do find that the prosecution has been able to prove its case against him to the required standard of beyond reasonable doubt. He is as such guilty as charged. Conclusion 19. I do hereby convict the defendant herein of the ofience of Incest contrary to section 20(1) of the SOA as charged in the main count. The conviction is pursuant to the provisions of section 215 of the Criminal Procedure Code. 20. I shall hereinafter receive the evidence and material relevant to sentencing. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 10TH DAY OF JANUARY 2017 ALOYCE-PETER-NDEGE 3 See Elizabeth Waithiegeni Gatimu Vrs Republic [2015] eKLR. https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/127/eng@2017-01-10 3
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PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Tiktik Prosecution counsel: Chelangat Defendant: Present Victim: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/127/eng@2017-01-10 4
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