Ndeje v Republic (Criminal Appeal E040 of 2021) [2023] KEHC 26392 (KLR) (10 November 2023) (Judgment)
Neutral citation:
[2023] KEHC 26392 (KLR)
Republic of Kenya
Criminal Appeal E040 of 2021
MS Shariff, J
November 10, 2023
Between
David Omondi Ndeje
Appellant
and
Republic
Respondent
(Being an Appeal from the conviction and Sentence of Hon S. O. Temu (SPM) in Nyando SPM S. O. No. 8 of 2018 delivered on 8th March, 2021)
Judgment
A. Case background
1.The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offences Act No 3 of 2006. The particulars were that on 13th September, 2016 at [Particulars Witheld] within Kisumu County the Appellant unlawfully and intentionally caused his penis to penetrate the vagina of JPA, a girl aged 9 years.
B. Evidence
2.Upon arraignment, the Appellant pleaded not guilty and the case proceeded to hearing where evidence was adduced as follows;
3.The victim testified as PW1 and her testimony was that on the material day while going to school with her brother, they met David who asked the brother to walk ahead. When they got near the river, the Appellant carried the victim into a nearby thicket and defiled her while threatening to strangle her if she failed to keep quiet.
4.The victim stated that after the ordeal, she reported the incident to Mama O who called the victim’s mother whereupon she was taken to Bolo Claire Hospital and later to JOOTRH.
5.PW2 HB, the victim’s mother stated that on the material day, the victim left for school at around 6.45 am in the company of her younger brother and at about 8.00 am, she received a call from her co-wife informing her that the victim was at St Claires Hospital Bolo. She headed to the hospital and found the victim bleeding from her private parts and her clothes were soiled and she informed her that Omondi had defiled her. The victim was referred to JOOTRH whereat she was admitted for a day.
6.PW3 Dalmas Kibet Kipsang, the government analyst produced a report of samples extracted from the victim and the Appellant and after analysis, he concluded that the DNA profile generated by the blood stains from the suspect’s short marched the DNA profile of the victim.
7.PW4, Zedekiah Okelo, the area Chief testified that he received a report from a resident named Fanuel that the Appellant had defiled the victim as she was going to school. He then accompanied Fanuel to the river and found the Appellant being assaulted by members of the public where he took him to police station.
8.PW5 Sgt Jackson Rioba , the investigating officer stated that the area Chief had arrested the Appellant and had taken him to Pap Onditi police station. He booked the report and went to the scene and to St Claire’s hospital. He took the Appellant to JOOTRH where the victim was admitted and requested for DNA profiling of the victim and the Appellant. He later charged the Appellant.
9.On being put on his defence, the Appellant tendered unsworn evidence to the effect that on that day, he woke up with his brother and sister and went to harvest sand. That 2 unknown people came to him asking him whether he knew the girl and when he denied knowing her, he was assaulted until he lost consciousness and only woke up while in police cells.
10.DW2, a 17-year old JO, the Appellant’s brother testified that he was with the Appellant harvesting sand when 2 people summoned him and started assaulting him.
11.After considering the evidence, the trial magistrate convicted the Appellant and sentenced him to 25 years in prison. The Appellant being aggrieved moved this court raising the following grounds;
12.The court directed the parties to file their written submissions but only the respondent complied.
Analysis and determination.
13.In a first appeal, the duty of the court is as was held in Mark Oiruri Mose v R (2013) eKLR thus;
14.This being a charge of defilement, the ingredients to be established are; the victim’s age, the act of penetration and the positive identity of the perpetrator.
15.On the issue of age, a birth certificate was produced into evidence showing that the minor was born on 15/8/2008 and the offence allegedly took place on 13th September, 2016 hence the minor was 8 years old then. I find that this limb was proved to the required standards.
16.The second limb is the act of penetration. The term is defined by Section 2 of the Act as partial or complete insertion of the genital organs of a person into the genital organs of another person. Case law has established that penetration can be proved by medical evidence and or the witness testimony as was held in Mohamud Omar Mohamed v Republic [2020] eKLR that;
17.The evidence available herein is that of the victim, her mother and PW3. The victim narrated how the Appellant chased and caught up with her when her bag fell. PW2’s evidence was that she saw the victim at St. Claire’s Bolo Hospital where she noted the minor’s genitals were bleeding. The victim informed her that it is the Appellant who had defiled her.
18.On his part, PW3 gave a report on DNA sample profiling of samples availed to him from the victim and the Appellant. According to this witness, upon conducting an analysis of the samples availed to him, the DNA profile generated by the blood stains from the suspect’s green short marched the DNA profile of the victim showing that there was flow of blood from the minor to the Appellant.
19.The DNA profiling was done pursuant to the provisions of Section 36 (1) of the Sexual Offences Act which provides;
20.Upon my re-evaluation of the evidence, I am satisfied that the scientific report produced in relation to the DNA samples profiling corroborated the victim’s testimony that it is the Appellant who defiled her. I therefore find that the element of penetration was sufficiently proved.
21.The last element is in relation to the Appellant’s identity in relation to the crime. When the victim made her report to Mama Ochieng she categorically stated that it was Ochieng who had defiled her. She also relayed the same information to her mother when she met her at St. Claire’s Hospital Bolo. She could also identify the Appellant in court.
22.This court has re-evaluated the above evidence together with the DNA results and is persuaded beyond any reasonable doubt that it is indeed the Appellant who defiled the victim wherefore I do find that the limb of identification was sufficiently proved.
23.On the issue of sentence, I take cognizance of the fact that Section 8(2) of the Act provides for a life imprisonment. In this instance, the trial court considered the victim’s injuries, the gravity of the offence and the Appellant’s mitigation and thus sentenced him to a 25-year prison term commencing from the date of his arrest.
24.The trial court did not hand down the statutory sentence and cannot therefore be faulted for lack of exercise of judicial discretion. The sentence meted was thus constitutional, proper and in fact lenient in the circumstances.
25.Based upon the re-analysis, re-evaluation and re-scrutiny undertaken by this court herein above, I find no reason to disturb the trial court’s finding on both conviction and sentence. The upshot being that this appeal lacks in merit and is hereby dismissed in it’s entirety.
26.Orders accordingly.
DELIVERED, DATED, AND SIGNED AT KISUMU THIS 10TH DAY OF NOVEMBER, 2023.MWANAISHA S. SHARIFFJUDGE