ALEX MWAGURE ………………………………………………… APPELLANT
Versus
REPUBLIC ……………………………………….………………. RESPONDENT
J U D G M E N T
The Appellant was convicted of the offence of indecent assault of a female contrary to section 144(1) of the Penal Code and sentenced to 15 years imprisonment with hard labour. He has appealed against both the conviction and sentence. He listed six grounds of appeal which he argued together.
The Appellant in his written submissions stated that there was no evidence to support his conviction. The complainant P.W.1 and P.W.4 having given contradictory evidence in that P.W.1 said there was penetration while P.W.4 said there was none. He also argued that P.W.2 said that he had removed his trousers half way contrary to what P.W.1 said. The latter, he argued, said that he had completely removed his trousers. Appellant also wondered why the complainant’s friend who was playing with her was not called by the prosecution.
The State Counsel Mr. Monda urged me to dismiss the appeal as there was ample evidence against the Appellant.
The prosecution case was that the Appellant found the complainant playing with another girl. He took her to an incomplete building and gave her Sh. 4/= to buy chips. He then undressed her and he also removed his own trousers and underwear apparently with the intention of defiling her but before he could do that P.W.2 intervened and raised an alarm. The complainant’s mother with members of the public rushed there, chased and arrested the Appellant and took him to Changamwe Police Station. The complainant was taken to hospital but after examination the doctor reported that there was no penetration.
The Appellant does not deny that he was arrested by P.W.2 and P.W.3 together with members of the public. What he said in his unsworn statement is that he had gone to the incomplete building to urinate when P.W.2, who held a grudge against him, raised an alarm. He did not give any details of the grudge P.W.2 held against him. He did not put that to her while cross examining her or even raise it in his unsworn statement. He alleged that P.W.2 held a grudge against him for the first time in this appeal. Also raised for the first time in this appeal is the allegation that P.W.3 gave P.W.1 Sh. 4/= and instigated her to testify against him. He does not say why P.W.3 would do that.
I have carefully examined the lower court record and the evidence adduced before the trial magistrate. P.W.1 stated that the Appellant removed her underwear after removing his own trousers and underwear. P.W.2 also saw the complainant child, P.W.1, without an underwear. She also saw Appellant’s penis. Like the trial magistrate I also believe the evidence of P.W.2 and see no reason why she would give false testimony against the Appellant. The allegation that she held a grudge against him raised for the first time in this appeal is clearly an afterthought and has no basis. Whether the Appellant completely removed his trousers or lowered it is immaterial. As I have already said I believe the evidence of P.W.2 which corroborates that of the complainant that the Appellant exposed his penis and also removed the underwear of the complainant. With that evidence the charge of indecent assault against the Appellant was clearly proved and I therefore dismiss the appeal against conviction.
On sentence, it is clear from the evidence adduced before the trial magistrate that the Appellant wanted to defile the young girl. Were it not for the timely intervention of P.W.2 he could definitely have defiled the young daughter of a neighbour whom he is supposed to protect from such heinous acts. The likes of the Appellant should be kept away from civilized society. The sentence of 15 years imprisonment is not harsh in the circumstances and the appeal against sentence is also dismissed. In the circumstances this appeal is hereby dismissed in its entirety.
DATED and delivered this 22nd day of November 2004.
D.K. Maraga
Ag. JUDGE