M K v Republic [2013] KEHC 492 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CRIMINAL APPEAL NO. 6 OF 2012

M K .................................APPELLANT

VERSUS

REPUBLIC.....................RESPONDENT

(From original conviction and sentence in Criminal Case Number 79 of 2011 in the Senior Resident Magistrate’s Court at Kyuso  - B. M. Mararo (PM) on 22^nd December, 2011) 

JUDGMENT

The Appellant, M K was charged with attempted defilement contrary to Section 9(1)(2) of the Sexual Offences Act No. 3 of 2006.  The particulars of the charge stated that on 28^th March, 2010 at [particulars withheld] in Kyuso District he intentionally attempted to cause his penis to penetrate the sexual organ of N M a girl aged 11 years.

In the alternative the Appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.  It was alleged that if the Appellant did not attempt to defile the said child, then he intentionally touched her sexual organ using his penis. 

After trial, the learned magistrate found the Appellant guilty of the alternative charge, convicted him and sentenced him to serve ten years in prison.  He now appeals against the decision.

At the hearing of the appeal, the Appellant indicated to the Court that his petition of appeal was filed on 5^th January, 2013.  I have looked at the petition of appeal in the Court record and find that the same was filed in Court on 5^th January, 2012.   The memorandum of appeal which has seven grounds of appeal can be reduced to three grounds namely:-

1. That the trial magistrate erred in fact and law by convicting the Appellant using uncorroborated evidence;
2. That the trial magistrate failed to consider the Appellant’s case and that of his witness ; and
3. That the trial magistrate was biased in favour of the prosecution.

A first appellate court is duty-bound to consider the evidence adduced in the trial and arrive at its independent conclusion.  In doing so, the appellate court should always remember that it did not have the opportunity of observing the witnesses as they testified.

The complainant (N M) testified as PW1 and told the Court that on the material day she was at home with other children when the Appellant arrived and asked for water.  She identified the Appellant as her cousin.  The Appellant was given water by M.  He took some of the water and poured the rest.  He then violently pulled her to the back of the house telling her that he wanted to show her something.  At the back of the house he laid her on a mat, removed her pants and also removed his clothes.  He defiled her and she started bleeding.  She started screaming and the other children also screamed.  He threatened to kill her if she did not co-operate.  The Appellant took off when the complainant’s mother arrived in response to the screams.

PW2 M M’s age is not captured in the Court proceedings.  This witness gave evidence similar to that of the complainant.  She told the Court that she was seeing the Appellant for the first time on the material day.  PW3 J N M the mother of the complainant and PW4 M M the father of the complainant told the Court that they were at their farm on the material day when they heard the children they had left at home screaming.  They rushed home and found the children crying.  They were informed that the Appellant had attempted to defile the complainant but had not managed to penetrate her.  PW3 inspected the complainant and saw spermatozoa on her.  They went and reported the matter to the grandfather of the Appellant.  The Appellant who appeared drunk assaulted PW4.  The matter was later reported to the police and the complainant taken to hospital where she received treatment. 

PW5 Francis Saku Mwendwa, a clinical officer, told the Court that he examined the complainant and found that there was no evidence of defilement.  There was no bleeding or injuries in her private parts.  He produced a P3 form in support of his findings. 

The Appellant gave unsworn testimony and informed the Court that on the material day at around 8.00 p.m. he was at home when PW3 and PW4 arrived.  PW4 hit him on the head and claimed that he was having an affair with his wife.  On 5^th June, 2010 he was arrested and charged. 

DW2 M M the grandfather of the Appellant told the Court that PW4 went to his house between 9.00 p.m. and 10.00 p.m. and assaulted the Appellant.  During cross-examination DW2 denied recording a statement with the police.  He was, however, confronted with a statement he recorded with the police on 8^th April, 2010.  A copy of the statement was produced as an exhibit.

I have looked at the evidence that was adduced before the trial Court and agree with the trail magistrate that there was indeed an act of indecent assault committed on the complainant.  The magistrate found that there was no evidence of penetration and this was indeed supported by the evidence of the mother of the child and that of the medical officer.  In accordance with the proviso of Section 124 of the Evidence Act, there is no need for corroboration.  The Court only needs to satisfy itself that the witness is telling the truth.  The only blemish in the evidence of the complainant is that she told the Court that she bled.  The evidence of her mother and that of the medical officer show otherwise.  Apart from this, the evidence against the Appellant was overwhelming. 

The magistrate considered the evidence of the Appellant and that of his witness and found it unbelievable.  I agree with him.  The Appellant in his testimony pretended that PW3 and PW4 did not complain to his grandfather (DW2) about what he had done.  The statement that DW2 recorded with the police and which he had attempted to cover up clearly shows that PW3 and PW4 had gone to complain to him that the Appellant had sexually molested their child.  In fact the name of the complainant is given in the statement as the name of the child who had been sexually assaulted.  The Appellant and his witness could not therefore be believed.  There is no evidence on record to show that the trial magistrate was biased in favour of the prosecution. 

Looking at the evidence that was adduced before the trial court, I am satisfied that the Appellant was properly convicted.  The sentence of ten years imprisonment is also in accordance with the law.  Since there was no evidence of penetration the trial magistrate was correct in convicting the Appellant in respect of the alternative cahrge.

For the foregoing reasons I find that this appeal has no merit and the same is dismissed in its entirety.

Orders will issue accordingly. 

Prepared, Dated and signed this 27^th November 2013

W. KORIR,

JUDGE OF THE HIGH COURT

Dated and delivered on 2nd day of December, 2013

S.N.MUTUKU

JUDGE OF THE HIGH COURT