Republic v Nyamohanga (Criminal Case 198 of 2013) [2013] KEMC 106 (KLR) (15 November 2013) (Judgment)
Neutral citation:
[2013] KEMC 106 (KLR)
Republic of Kenya
Criminal Case 198 of 2013
PA Ndege, Ag. PM
November 15, 2013
Between
Republic
Prosecution
and
Daniel Nyamohanga
Defendant
Judgment
1.The Defendant herein, Daniel Nyamohanga, has been charged with the offence of Committing an Indecent Act with a Child contrary to section 11 of the Sexual Offences Act. He denied that on 08/05/2013 at around 12.30 p.m. at [Particulars Withheld] within Isebania Town in Kuria West District within Migori County, he intentionally and unlawfully touched the breasts of EW a child aged 16 years.
2.According to the complainant herein, PW1, EWG, she was on the material day at around 10.00 a. m., going back to St. Mary's Mabera School where she is in Form III. That she met with the defendant herein, whom she used to know, while waiting for a vehicle at Kehancha stage. That the defendant herein was able convince and offered to transport her using his motorcycle to Sirare which was towards the direction of her school in Mabera. That they went with the defendant till Sirare. At Sirare, she alighted from the motorcycle and left the defendant with her bag. She went to look for some books, but on returning, did not find the defendant at the spot where she had left him.
3.Meanwhile PW2, Lucia Gati Chacha, a guest maid at a nearby Vienna Guest House, was at her place behind the guest house when the defendant herein knocked by and requested her for a room. He paid her the fee for an overnight hire for the room, Kshs. 300/= and she then allocated her room number 6. That the rooms were then not locked. The defendant then left to collect his luggage.
4.The defendant then went out to meet the complainant herein, PW1, EWG. He tricked her to follow him to a place where he had kept her bag. The defendant led her to the room in the guest house herein. He then forced her inside the room and started to touch her breasts.
5.While they were still in the room, some two men went to inquire from PW2, Lucia Gati Chacha, and alerted her that there were some people in the guest room. She had anticipated that the defendant was to pass by with his luggage before handing over the room to him. They went with the men to the room. She saw the defendant sitting on a bed through the window. They were then able to force themselves inside the room. They found the defendant and the complainant herein, PW1, EWG, while sited on a bed inside the room. One of the men called the area chief on phone, who responded immediately and contacted police officers and the complainant's father, PW3, PGK. He got the contacts from the complainant.
6.PW3, PGK, confirmed that the complainant had left for school on the same day in the morning. That he got the phone call from the chief at around 1.00 p.m. The chief introduced himself to him and informed him that his daughter, the complainant herein, had been found with someone in a guest house in Isebania. He immediately took a motorcycle to Isebania.
7.Meanwhile, the defendant and the complainant, PW1, EWG, were escorted to Isebania Police Station where they recorded their statements.
8.While still on the way to Isebania, PW3, PGK, got another phone call from a police officer who directed him to report to Isebania Police Station's crime office. At the crime's office, he found the complainant herein while with the defendant whom he had not met before. He stated that his daughter, the complainant was born in 07/10/1996 and was at the time aged 16 years.
9.The final witness herein, PW3, testified on 11.06.2013. The prosecution were thereafter unable to present any other witness. On 05.09.2013, I declined to allow any further adjournment for the prosecutions. My ruling on that day and the reasons for the refusal are clearly recorded in the proceedings for the day and do not therefore require any further explanation from my part herein. The prosecution therefore closed their case with the evidence of the three witnesses herein.
10.The defendant was nevertheless placed on his defence. He opted to exercise one of his rights under section 211 of the Criminal Procedure Code by remaining silent.
11.I therefore find the prosecution evidence herein to be unchallenged. The complainant's father proved that the complainant herein was born on 07/10/1996. Though it is desirable that evidence on age be adduced through a birth certificate, which surprisingly was not produced herein, I still do believe that in the absence of a birth certificate, the court may still rely on other evidence to determine the age of complainant. Such other admissible evidence may come from the parents, or any relative of the child or complainant who was present when the child was being born and who can remember when the child was born. The father to the complainant herein, PW3, is one such witness and his evidence that the complainant herein was born on 05.09.2013, in the absence of any contradiction or challenge, is admissible and reliable to prove that the complainant herein, a school going child in Form III, was at the time of the incident herein still a child.
12.The evidence of how the defendant tricked the complainant into the guest room herein, how he hired the room from PW2, and how they were later found while in the room is also too consistent to be ignored. This when considered alongside the complainant's evidence that the defendant touched her breasts, proves to the required standard of beyond reasonable doubt that the defendant herein committed an indecent act with her by touching her breasts. They can never be a lawful touch on a school going child's breasts in a guest room.
13.The same must have been intentional given that the defendant employed some tricks so as to get the complainant into the guest room herein.
14.Section 2(1) of the Sexual Offences Act defines an indecent act to mean an unlawful intentional act which causes: -a.any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that cause penetrationb.exposure or display of any pornographic material to any person against his or her will.
15.I do hereby find the defendant herein guilty of committing an indecent act with the girl child herein c/s 11(1) of the Sexual Offences Act as charged herein. Though the charge did not specify the sub section 1 of section 11, i do not find any prejudice given that the whole of section 11 contains provisions for the offence of committing indecent act with a child.
16.I consequently do hereby convict the defendant herein pursuant to the provisions of section 215 of the Criminal Procedure Code of the offence of Committing an Indecent Act with a Child C/S 11(1) of the Sexual Offences Act.
DATED, SIGNED AND DELIVERED AT KEHANCHA IN OPEN COURT TIS _15TH DAY OF NOVEMBER , 2013ALOYCE-PETER-NDEGEAG. PRINCIPAL MAGISTRATEIn the presence of;Court interpreter:Prosecutor: CIP MachariaDefendant: Present