Republic v Abdallah alias "Kibabu" (Sexual Ofience 11 of 2019) [2020] KEMC 19 (KLR) (15 September 2020) (Judgment) Neutral citation: [2020] KEMC 19 (KLR) REPUBLIC OF KENYA IN THE HOLA LAW COURTS SEXUAL OFFENCE 11 OF 2019 PA NDEGE, PM SEPTEMBER 15, 2020 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND MOHAMED ABDALLAH ALIAS "KIBABU" ..................................... DEFENDANT JUDGMENT 1. In this matter the defendant herein, Mohamed Abdallah alias "Kibabu". has been charged with the ofience of Sexual Assault c/s 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act, No. 3 of 2006, and alternatively, Committing an Indecent Act with a Child c/s 11(1) of the same Act. 2. The defendant and the complainants herein are neighbours. On 05.05.2019, in the evening hours, the complainant herein, PW2, D.M.K., then aged 3 years, was playing with colleagues outside their home. Her mother, PW1, N.D., was then preparing food in the house. Her mother later responded to her calls and found her while with the defendant herein, as the other children whom she was playing with had left. The defendant had placed her on his thighs at the time and were in a stair case of a certain house there. Later on that evening, she realised that the child had some injuries at her genital area. The child then informed her that the defendant herein had inserted his fingure into her front private parts (vagina) after having undressed her. 3. The child was then taken to the hospital for examination. PW3, Dr. Hawa Abdul, a reproductive health oficer, examined the cjild at Hola District Hospital. She found the hymen to be intact, but that the vagina was red, indicating that it had been penetrated. She produced the treatment notes and Medical Examination (P3) as Pexh. Nos 2 and 3, respectively. The defendant was later sought, arrested and charged with the present ofiences. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/19/eng@2020-09-15 1
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The Charge and Procedure 4. On 24.06.2019, the defendant denied that on 15.05.2019 at about 6.00pm at a village in Tana River Sub-County within Tana River County, he unlawfully used his finger to penetrate the vagina of D.M., a child aged 3 years old. He also denied in the alternative charge that on the same day and place, he intentionally touched the vagina of the same child using his finger. 5. Hearing of the prosecution’s case commenced on 05.07.2019 as scheduled. The prosecutons called 4 witnesses and closed its case on 08.08.2019. On 05.12.2019, I exercised my discretion under section 150 of the Criminal Procedure Code1 and recalled PW3 for further clarifications on her findings on medical examination of the child herein. 6. On 15.07.2020, after a long break due to the covid-19 restrictions on hearings of cases, the medical practioner, PW3, reappeared in court and made her clarifications. The prosecution’s case eventually closed and on 21.07.2020, I delivered a ruling, finding the defendant herein with a case to answer, and placing him on his defence. 7. Pursuant to the call, the defendant made his statement on 29.07.2020. He called 2 other witnesses in his defence, before closing his case on 31.08.2020. This matter is therefore pending for this judgment. All the other adjournments and the reasons therefor have been explained in the record of proceedings herein. 8. The defendant was unrepresented throughout the trial herein. He has been out on bond since 05.06.2020, when he presented a suitable surety. The prosecution was, however on various occasions, represented by Ms. Karanja, Gacheru and Atika, prosecution counsel, duly appointed by the Director of Public Prosecutions. Substantive Facts of The Case 9. The child herself testified through her mother as PW2. She emotionally informed the court that the defendant herein removed her underpants and then painfully inserted his hands into her genitals. The medical practioner, PW3, in her evidence upon being recalled confirmed that the victim’s vagina was penetrated by something. That the penetration was partial and that could not have broken the hymen. 10. The defendant in his statement in defence denied commiting the ofience. He stated that he is a good person who cannot commit such an ofience. He stated that he has no grudge or dispute with the complainants and therefore wondered why they are implicating him with the heinous crime herein. He called his neighbours, DW1, M.H. and DW2, G.K., who denied seeing the defendant commit the act on the child as alleged. They stated that all were mere allegations as they had immediately inspected the victim and found her to be intact. Issues, Burden and Standard of Proof 1 11. The relevant provisions herein are in section 5(1)(a)(i) of the Sexual Offences Act which provides for the ofience of Sexual Assault to be committed when any person unlawfully penetrates the genital organ of another person with any part of the body of another or that person. 12. That the defendant herein was with the victim herein on the material date is not in dispute. The age of he victim is also not an issue. The issue herein is whether the defendant unlawfully penetrated the child’s vagina using his finger as charged herein. The burden of proving the same is on the prosecution and the standard of proof is beyond any reasonable doubt. Cap. 75, Laws of Kenya https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/19/eng@2020-09-15 2
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Determination 13. The main issue as aforestated is whether the defendant unlawfully penetrated the child’s vagina (genital organ) with his finger as alleged. The medical practitioner confirmed that the victim’s vagina was penetrated, partially, and that the hymen was therefore not broken. A minor injury to the vagina was noted on examination and as corroborated by the complainats’ history to the medical practitioner. That history was replicated in their oral testimonies in court. The victim confirmed that the defendant herein penetrated her genitals using his “hands”, which on account of age can be construed to mean fingers as per the charges herein. I just find that the evidence of the prosecution is too consistent to be ignored. 14. The evidence of the defence has, on the other hand, not displaced, or in any way shaken, the consistent evidence of the prosecution. There was no evidence of a grudge amongst the parties herein. The complainant’s mother confirmed severally in her evidence that she had no grudge with the defendant herein. There was also no evidence of a grudge that came from the defendant witnesses, all neighbours. The defence witnesses were not throughout with the complainant and the defendant herein, more sepecially, at the stairs in the house, where the ofience was committed. Their evidence that the defendant did not commit the ofience cannot help much as it cannot displace the consistent evidence by the prosecution that the defendant did penetrate the child victim herein using a part of his body, and as provided for in section 5(1)(a)(i) of the Sexual Offences Act. The injury sustained by the victim during the ordeal has been confirmed by the medical evidence herein. That confirmation displaces, and even puts doubt into the credibility of, the evidence of DW1 and DW2 that the child victim herein was not injured at her genital area as alleged. This eveidence on the other hand, corroborates the mother’s evidence, PW1, that the child victim had injuries at her genital area that made her uncomfortable while urinating. 15. I just find the prosecution evidenced to have proved to the required standards of beyond reasonable doubt that the defendant herein penetrated the child’s vagina with his finger. He had no lawful justificatiion of doing that, and that act was definately unlawful. He is therefore hereby found guilty as charged. Conclusion 16. Pursuant to the provisons of section 215 of the CPC, I do hereby convict the defendant of the ofience of Sexual Assault c/s 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act as charge in the main count. I shall hereainafter receive the material and evidence, if any, relevant to sentenceing herein. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT (IN CAMERA) THIS 15TH DAY OF SEPTEMBER, 2020 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Buko Prosecution counsel: Atika Defendant: Present Victim/Guardian: n/a https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/19/eng@2020-09-15 3
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