Republic v Njuguna (Criminal Case 980 of 2013) [2017] KEMC 133 (KLR)

5. Hearing of the matter however commenced before me on 24.03.2015, after several adjournments. On 20.09.2016, I called upon the defendant herein to make his defence. Pursuant to the call, the defendant herein opened his defence on 14.11.2016, and closed the same on 15.11.2016. Submissions were confirmed closed on 26.01.2017. Facts of The Case 6. The facts and evidence adduced herein are that the victim herein, the complainant herein, PW2, Susan Wanjira, is a daughter to PW1, Joel Thuku Njuguna, who is a brother to the defendant herein. PW1's wife had passed away at the time, and the victim herein was therefore staying with her other siblings at home which neighbours the defendant's. Their father, PW1, Joel Thuku Njuguna, was at the time staying in Nairobi. The defendant herein was their neighbour and was taking care of them at the time. On 01.06.2013, the victim herein became pregnant and was therefore sent away from school. Gong by her birth records, she was then approaching 20 years at the time1. The victim's evidence is that the defendant herein made sexual advances towards her from the year 2010 till 2013, when, on one of the nights, he forcefully defiled her in the presence of her younger sister then aged 6 years old. She claims that she was a child aged 15 years at the time. That she made the report to the school the following morning who referred her to the hospital and also informed her father, PW1, Joel Thuku Njuguna. 7. It is the victim's evidence that she became pregnant because of the single sexual act by the defendant herein. The pregnancy however terminated in unclear circumstances. 8. The matter was eventually reported to Ol Jororok Police Station where it was handled by PW4, No. 52060 PC Titus Ngati. The victim was then examined by Dr. James Wagura at Nyahururu District Hospital2. There were no major findings on her. The Medical Examination (P3) Form was produced on behalf of Dr. James Wagura by PW3, Dr. Joseph Karimi, as PEXH. No. 3. 9. The defendant herein testified and called his wife, DW2, Tabitha Wanjiku Waweru. He denied having committed the ofience. His evidence is that the complainant's father has a grudge with him. His wife, DW2, Tabitha Wanjiku, corroborated his evidence and confirmed that he has never left his house to go to the victim's so as to sexually molest him as alleged herein. Submissions 10. There were powerful submissions by the defendant herein as at the close of the hearing. He mainly submitted that the testimony of the prosecution witnesses is contradicting in term of substance. That there is therefore no evidence of incest or indecent act with a minor as charged herein. That there was no evidence of pregnancy as alleged. That key witnesses were not called to testify herein. That the prosecution has not adduced evidence to link him with any sexual act between him and the victim herein. He therefore urged the court to find that the prosecution has failed to prove the charges levelled against him to the required standard f beyond reasonable doubt. Issues, Burden and Standard of Proof 11. The relationship between the defendant herein and the complainant herein is not in doubt. He is an uncle to the complainant, and the complainant is his niece. There are however issues herein which ought to be interrogated. The first issue is whether the defendant herein penetrated the complainant's vagina with his penis herein as charged? In interrogating the same, it should be noted that consent, or 1 Refer to her birth certificate produced as PEXH NO. 3 which confirms that the victim was born on 23.08.1993 2 Currently the Nyahururu County Referral Hospital https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/133/eng@2017-03-07 2

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lack thereof, or age, are not essential ingredients of the ofience of incest. The next issue is whether the complainant was a child, as charged in the alternative count. 12. The burden of proving the same, as correctly submitted by the defendant, is on the prosecution. The standard of proving the same is beyond reasonable doubt. Determination 13. I have gone through the evidence herein. The same should be considered as a whole, and not in isolation. I find a lot of contradictions therein. The first contradiction is on the age of the complainant herein. She stated that she was defiled in 2013 when she was 15 years old. That the defendant herein went to her at night, in the presence of her sister, and forcefully defiled her at the time. That she then became pregnant. It is her evidence that could connect the defendant herein with the ofience herein. I however find her to be untruthful. She is a liar. She was not a child at the time of the alleged defilement. She in fact lied to the investigating oficer that she was defiled on diverse dates from the year 2010. The issue of the pregnancy and how it terminated did not also come out clearly. The defendant, in his evidence has denied sexually molesting the complainant herein. He stated that he was being framed because of some disputes he has with the complainant's father. Though he ought to have raised the defence earlier on while cross-examining the prosecution witnesses, I do hereby find, and therefore rule, in his favour given the contradictions in the evidence of the complainant. 14. I do therefore find doubts in the evidence for the prosecution. Given the high standard of proof required from the prosecution herein, I have no option but to enter a finding of not guilty. Final Disposal Orders 15. Pursuant to the provisions of sections 215 of the Criminal Procedure Code, I do hereby acquit the defendant herein of the ofiences of Incest by a Male Person c/s 20(1) and Indecent Act by a Child c/s 11(1) both of the SOA as charged in the alternative counts herein. His surety is also hereby discharged and any security deposited on his behalf be released to the depositor. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 07TH DAY OF MARCH, 2017 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Frank Prosecution counsel: Chelangat Defendant: Present Victim: N/A https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/133/eng@2017-03-07 3

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