John Makhani Kiminja v Republic [2015] KECA 273 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MUSINGA, GATEMBU & MURGOR, JJA.)

CRIMINAL APPEAL NO. 91 OF 2014

BETWEEN

JOHN MAKHANI KIMINJA ………….......................………..  APPELLANT

AND

REPUBLIC ………………………..…………..……....………..  RESPONDENT

(An appeal from the judgment of the High Court of Kenya at Kakamega (Kimaru, J.) dated 5th May, 2012

in

HCCRA.  NO. 99 OF 2010)

*********************

JUDGMENT OF THE COURT

1.  The appellant  was convicted by the Chief Magistrate's Court  at Kakamega on a charge of defilement of a girl, J. L., aged 9 years, contrary to section 11(1) of the Sexual Offences Act  and    sentenced to serve life imprisoment.  His first appeal to  the High Court was unsuccessful, hence this second appeal.

2.  In his memorandum of appeal to this Court, the appellant   faulted the first appellate court for upholding his conviction even when it was shown that a key witness had not been   called to testify.  He also alleged that there was insufficient   evidence to connect him to the said offence.  The appellant further stated that his defence was not taken into   consideration.

3.   This being a second appeal, our mandate as per section 361 (1) of the Criminal Procedure Code is confined to matters of law but because legal conclusions are derived from  the facts  and  the evidence presented to a court, in this case we have to   re-state, albeit briefly, the prosecution as well as the defence   case   before the trial court then relate that with the decisions   arrived at by the two courts below.

4.    The complainant testified that on 19th October, 2009 at about        2.00p.m. the appellant, whose father is a cousin to her father and was well known to her, came to their home.  The complainant was with her younger brother at the material     time.  The appellant requested the complainant to carry for  him a piece of wood and promised to give her K.Shs.5/=.  The    girl narrated how the appellant took her to a bush near their home and defiled her.  A neighbour by the name M  caught the appellant red          handed and reported that to the   complainant's mother, PW 3.  After the ordeal she was in  such pain that she could not walk and had to crawl back home. M could not be availed as a prosecution  witness because he disappeared shortly after the incident.

5.    The girl's parents took her to Kakamega Provincial General Hospital where she was examined.  Doctor Nyikul Duncan, PW 2, testified that the vulvas were inflamed and her hymen was broken. The witness concluded that she had been defiled.

6.   In his brief defence, the appellant stated:

“In my defence I ask for leniency whether I did it or not.  I leave it to God.  When I think of it I get a shock because I never committed the offence.”

7.  The trial court was satisfied that the prosecution evidence was overwhelming and proceeded to convict and sentence the  appellant as earlier stated.  Turning to the grounds of appeal,  it is not in dispute that a person who allegedly saw the appellant defiling the complainant, one M, was not called as a witness. According to the complainant's mother,   M disappeared   after the incident.  We believe that is the reason why he was  not called as a witness.  The court  cannot speculate as to the reason why he disappeared.  All we can say is that failure to call him was not fatal to the   prosecution's case, given the  provision to section 124 of the  Evidence Act which states:

“Provided that where in a criminal case involving a sexual offence the only evidence is that of a child of tender years who is the alleged victim of the offence, the court shall receive the evidence of the child and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the child is telling the truth.”

8.  Applying the above quoted law, the learned trial magistrate convicted the appellant, holding that the complainant was  truthful throughout.  As held by this Court in MOHAMED V  REPUBLIC [2005] eKLR, courts are no longer humstrung by   requirements of corroboration where the victim of a sexual  offence is a child of tender years, if the trial court is satisfied  that the child is truthful.

9.  The child herein knew the appellant as he was a relative.  She  had no reason to frame him, if at all he was not the one    who   had defiled her.  The offence was committed in broad day  light and therefore the complainant's evidence was that of  recognition which is always more reliable than that of identification; see ANJONONI V REPUBLIC [1980] KLR 59.

10. There was overwhelming evidence that the appellant defiled the complainant.  Both the trial court as well as the first   appellate court considered the appellant's defence but found it hollow and rejected the same.

11. We find this appeal lacking in merit and accordingly dismiss it in its entirety.

DATED and delivered at Kisumu

this 23rd day of October, 2015

D. K. MUSINGA

…...........................

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

…...........................

JUDGE OF APPEAL

 A. K. MURGOR

…..........................

JUDGE OF APPEAL

I certify that this is

a true copy of the original.

DEPUTY REGISTRAR