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JudgmentEDWARD KAIRO WAMBUI VS The Republic8 min read

EDWARD KAIRO WAMBUI VS The Republic

High Court at Muranga High Court · · Wendy Micheni


(BEING AN APPEAL FROM THE CONVICTION AND SENTENCE IN KIGUMO SPM’S COURT, HON E. AGADE SRM, IN CRC NO 12 OF 2019)

INTRODUCTION

  1. The appellant Edward Kairo Wambui was charged with the offence of Defilement contrary to section 8(1)(2) of the Sexual Offences Act no.3 of 2006. The particulars of the offence were that on 4th February 2019 at Kenol Township in Kimorori Location within the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of J.A.W without her consent a child with a mental disability aged 6 years old.
  2. The appellant was also charged with an alternative charge of committing an Indecent act with a child contrary to Section 11(1) of the Sexual Offences Act no.3 of 2006. Particulars were that on the 4th February 2019 at Kenol Township in Kimorori Location within the Republic of Kenya he intentionally and unlawfully touched the vagina of J.A.W without her consent a child with a mental disability aged 6 years.
  3. The prosecution called 3 witnesses who testified in support of the case against the appellant and upon conviction, he was sentenced to serve twenty-five years imprisonment. Being dissatisfied with the trial court, judgment, the appellant filed this instant appeal.

DUTY OF THE COURT

  1. This being a first appeal, this court is as a matter of law, is enjoined to analyze and re-evaluate afresh all the evidence adduced before the lower court and to draw own conclusion while bearing in mind that it neither saw nor heard any witnesses.
  2. In Okeno vs. Republic [1972] EA 32  the Court of Appeal set out the duties of a first appellant court as follows; "An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to afresh and exhaustive examination (Pandya vs. Republic (1957) E.A (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M.Ruwala Vs. R.(1957)E.A.570). It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusion. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter vs. Sunday Post.

INGREDIENTS OF THE OFFENCE

  1. For the offence  to be sustained, we have to prove the ingredients of the offence beyond reasonable doubt. The ingredients are:
    1. Age
    2. Mental Disability
    3. Penetration
    4. Identity of the Perpetrator

Age

  1. Pw1 gave evidence that her daughter was born on the of 10th November 2011. She produced the birth certificate number 6226622 TKA.CA.5684 of 20-12-2016 to confirm the same. It is P EXT I. The treatment notes and the P3 form also show that the victim was 6 years old and she also suffers a mental disability and cannot speak. So the first two elements were proved beyond reasonable doubt.

Penetration

  1. Section 2 of the Sexual Offences Act defines 'penetration' as; ...the partial or complete insertion of the genital organs of a person into the genital organ of another person. 
  2. It  also states that mental disability irrespective of its cause, whether temporary or permanent, and for purposes of this Act includes a person affected by such mental disability to the extent that he or she, at the time of the alleged commission of the offence in question, was— (a) unable to appreciate the nature and reasonably foreseeable consequences of any act described under this Act; (b) able to appreciate the nature and reasonably foreseeable consequences of such an act but unable to act in accordance with that appreciation; (c) unable to resist the commission of any such act; or (d) unable to communicate his or her unwillingness to participate in any such act; “
  3. Pw1 gave evidence that on the 3rd February 2019, she woke sick and went to Thika level hospital at around 13.00hrs. She was admitted to the hospital and left her three children under the care of her neighbor mama Lucy. She further stated that she is a single parent and the names of her children were, Alpha Wahome aged 1 year, Angel aged 7 years and Joy (victim) aged 6 years then. The following day she was discharged at around 1300hrs and went back home and arrived at around 1700 hrs.
  4. When she got home still in pain her last daughter A(victim) came running towards her and she realized that she was walking with a bend and could not stand well. She asked her neighbor where she knew what was wrong with her daughter but they told her that she bathed her since she was dirty and she knew that she was not around.
  5. She told her that she should check on her. Pw1 took her daughter inside and upon checking she noted her thighs were swollen and it appeared as if she had been defiled.
  6. She gave evidence that she was so weak and asked her daughter who had wronged her and that's when her daughter held her hand and led her to the appellant’s house which second floor.
  7. PW 1 gave evidence that whenever someone wronged her daughter she usually takes her hand and leads her to her offender since she has mutism and mental disorder but she can hear well.
  8. Pw1 testified that on that day she was so weak and her neighbours took her daughter to the hospital for a checkup. The victim was first taken to Kenol Hospital where she was treated and discharged.
  9. The following day she took her daughter to Maragua where she was examined and issued with treatment note and a P3 form which opined that her daughter had been defiled.
  10. Pw2 Antony Mwangi the Sub County Clinical Officer testified that he examined the victim on 5th February 2019. That the victim could not talk but she could hear. She was stable but was in pain. Her private parts had no discharge but there was slight redness around the vagina. He reviewed the medical documents from Kenol corroborated the same and filled out the P3 form.
  11. He also noted that the victim walked with difficulty and was in pain around the groin region and she was crying. He further gave evidence that when he examined the victim, her hymen was broken and due to the inflamed opening of the vagina it was newly broken. The vaginal opening was inflamed and there was pain and swelling in the right groin region.
  12. He testified that the high vaginal swab taken at Kenol hospital had moderate red cells and pus cells and spermatozoa were seen on the high vaginal swab. He opined that the victim was defiled.
  13. Pw1’s evidence was corroborated by Pw2 the clinical officer that penetration did indeed occur. The court finds that penetration was proved by the medical documents produced in court.

Identity of the perpetrator/whether the appellant was positively identified

  1. PW1 testified that she got home after being discharged from the hospital on 4th February at around 1700hrs, she noted that her daughter had difficulty walking. Upon checking she realized that she had swollen thighs and it was like she had been defiled. She was so weak and dizzy and she lay down. Her daughter/victim came and called her "mum" and that whenever anyone disturbed her she would hold her hand and take her to the person who had disturbed her.
  2. On that day she asked her daughter who had disturbed her and her daughter held her hand and walked her downstairs. She followed her and she went to the second floor and walked to house No.6 where the appellant lived, she stood at the door pulled the curtain aside and saw the appellant sleeping on the sofa and the let the curtain go. Pw1 asked the appellant why he had defiled her daughter.
  3. Pw1 testified that they lived on the third floor and the appellant lived on the second floor, and there are a total of 44 houses in the apartment. That the victim was so certain of her perpetrator. Pw1 gave evidence on the identity of the victim as an intermediary since her daughter could not talk but could hear well.
  4. The Respondent submitted that the victim did not herself testify due to her mental status. In cases like this where the victim cannot give evidence, Section 33 of the Sexual Offences Act Allows the trial court to rely on either the evidence of the surrounding circumstances or under Section 31 (4), to give evidence through an intermediary or both. In this case, the trial court took the extra precaution of having the victim assessed. A medical report prepared by doctor Anne Mwongela dated 14/9/2020 shows that the victim had a brain development disorder with incomprehensible. It was for this reason that she was declared a vulnerable victim and the mother was allowed to act as her intermediary.
  5. In the case of M.M R. vs Republic [2014] eKLR it was held; "Any requirement that insists on a child victim of defilement, irrespective of his or her age to testify in order to find a conviction would occasion a serious miscarriage of justice. What fair hearing would a child victim aged six (6) months, like that in the case of Robinson Tole Mwakuyanda V. R.H. C. Cr. Appeal No. 227 of 2007, get if the courts were to insist on the evidence of such a child, who on account of his/her tender age cannot speak."
  6. The court finds that all the precautionary steps were taken. The mother of the complainant even moved from the neighborhood after the incident.
  7. As regards the witnesses who did not testify, there was nothing to show that they had any crucial evidence to give. Further a case is not built on the volume or quantity of the evidence. There is no set number of witnesses who should give evidence. In fact, under section 124 of the Evidence Act, the court can even convict on the uncorroborated evidence of a child of tender age if they believe them and the reasons are taken down.  In this case, the child communicated to the mother in the language they had developed by taking her to the person who had wronged her. She identified the Appellant. The medical records show she was penetrated.  Even though she did not say it, in her own words, the court is satisfied that the identification was proper, and the penetration was by the appellant
  8. For these reasons the court finds that the conviction was sound and safe. The sentence was also commensurate with the offence

The Appeal is dismissed for want of merit on all grounds

DATED, SIGNED  AND DELIVERED VIRTUALY THIS 30TH DAY OF JULY 2024

WENDY KAGENDO

                                                                                    JUDGE

PRESENT

APPELLANT

Ms Maina for the Respondent

BERORA COURT ASSISTANT

    EDWARD KAIRO WAMBUI VS The Republic EDWARD KAIRO WAMBUI VS The Republic