(BEING AN APPEAL FROM THE JUDGMENT OF THE LOWER COURT AT SPM’S COURT AT KARATINA (K.M. NJALALE) PM DATED 30/5/2021 IN SO 25 /2018)
Background
1. ELIUD MUHORO WACHIRA hereinafter referred to as the appellant was convicted and sentenced to 20 years imprisonment for the offence of defilement contrary to section 8 (1) as read with Section 8 (3) of the sexual offences Act No.3 of 2006
2. The particulars being that on the 30th day of May 2020 at GathiururukO village Ichuga location in Mathira West Sub County within Nyeri County intentionally caused his penis to penetrate the vagina/anus of JSP a child aged 13 years.
3. In the alternative he was charged with Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 with the particulars being that on the 30th day of May 2020 at Gathiururuko village Ichuga location in Mathira West Sub County within Nyeri County intentionally touched the buttocks/vagina of JSP a child aged 13 years with disabilities
4. On count 3 he was charged with causing bodily harm contrary to Section 251 of the Penal Code with the particulars being that on the 30th day of May 2020 at Gathiururuko village Ichuga location in Mathira West Sub County within Nyeri County assaulted JSP thereby occasioning her grievous bodily harm.
5. The appellant pleaded not guilty to the charge and the case proceeded to full hearing and determination. The prosecution called 7 witnesses. The appellant gave a sworn testimony and did not call witnesses. He was convicted on the main count of defilement and sentenced to 20 years imprisonment.
6. Being dissatisfied with both the conviction and sentence the appellant lodged this appeal on the following amended grounds of appeal:
(a) That the learned trial magistrate erred in both law and fact when he failed to consider that the prosecution evidence was full of contradictions and inconsistencies hence unworthy to warrant any conviction.
(b) That the learned trial magistrate erred in law and while imposed[sic] and consequently upheld the sentence of 25 years of imprisonment without considering that the same is harsh and excessive.
(c) That the 1st Appellate court[sic] erred in law and fact to impose sentence without taking into consideration that being a first offender the appellant herein was entitled and qualified for the benefit of the least severe sentence as it is stipulated under Article 27(1)(2) and 50(2)(p) of the Constitution.
(d) That the trial magistrate erred in law and facts when she again failed to consider that the prosecution tendered contradicted, inconsistencies and uncollaborated evidence which was not supposed to be relied on base conviction on him.
(e) That the trial magistrate erred in law and facts when she disregarded the appellant’s defence without reason
(f) That more grounds to be produced during the hearing
Duty of the first appellate court
7. It is the duty of the first appellate court to re-evaluate and reconsider a fresh the evidence on record so as to arrive at its own conclusion while bearing in mind that it did not have the opportunity to observe the demeanor, of the witnesses Guiding principles are found in the cases of Okeno Versus R (1972) EA 32 Njoroge Versus R ((1987) eKLR 19, Kiilu & another Versus R 2005 1 KLR 174
Brief facts
8. PW1, stated that on 30/5/2020 she was called by Felister and Zachary Githui informing her that they found the appellant sleeping with the Appellant. She stated that she knew the Appellant and that the complainant is her child. She stated that the two informed her that they found the accused raping the minor. Since she was unable to travel due to curfew she asked them to assist her child by taking her to hospital. She stated that the next day when she was able to travel she found her daughter asleep and had been taken to hospital but that she could not control her neck and was not eating. She stated that she went to Kiamachimbi police station and recorded a statement and she took the child to Karatina hospital where they were referred to Nyeri hospital. That the scan showed that the head had internal bleeding. She stated that the accused is the one who hit her as she did not have the problem the previous day. She stated that the child was not eating because of what Muhoro did to her. She produced the complainant’s disability card as PExhibit 1. She stated that the complainant was referred to Kenyatta National hospital on 6/6/2020 and was operate done the same day and that she stayed in ICU for one month and 27 days. She produced the complainant’s birth certificate as PExhibit 2 indicating birth date as 16/10/2006. She produced P3 form MFI 3 and PRC form MFI 4. She stated that Muhoro is her cousin and has known the complainant since 2017.
9. In cross-examination she stated that she was told by Felister and Zachary about what the accused had done.
10. PW2 Joseph Kamau Nderitu stated that on 30/5/2020 he was going home from work and began looking for firewood he found the accused on top of his parents grave which is in front of his house and his trouser was halfway lowered and the complainant did not have clothes on. He stated that they were both lying on the ground facing each other and close to each other and he screamed. He stated that he shone his torchlight on them and that he called Mama Teresa who came with Zachary Githui as well as many other people. He stated that the mob started beating the accused and police having being called by the area chief arrived from Kiamachimbi. He stated that they took the child to hospital but he did not get the results. He stated that the accused raped the complainant because he found him on top of Joy naked on top of his father’s grave. He stated that he went there because he heard movements.
11. In cross examination he stated that the complainant had been left with the other children who left her alone to go watch TV and that is when the accused took her to the grave and raped her. That he got home at 8pm and he found the Appellant with Joy and that there are other witnesses who found him with Joy, the complainant. That the joy was not left in his care but in the care of other children. That he heard the movements as he searched for firewood and when he shone his torch he saw the Appellant with joy and that’s when he screamed.
12. In reexamination he stated that he did not tell the police about coffee but of the grave which is in front of his house. He stated that the movement he heard was in the plants near the grave and when he went to investigate he found the appellant.
13. PW3, Felister Selian Kuraru stated that on 30/5/2020 around 8pm she heard Kamau screaming stating, ‘Come see Muhoro!’ She stated that she went out with her child and found the accused lying on the ground and Joy on his side with the trouser lowered halfway. He stated that the complainant did not have clothes and she managed to see via torchlight. That they screamed and people came and beat him up and the village elder was called then called the police. She stated that they took the child to hospital, where she was examined and that she took her back home at 1:00am. That the appellant was arrested and when the complainant’s mother came in the morning, they went to Kiamachimbi and recorded a statement. She stated that the accused raped the child because she found him lying next to the child naked. That Muhoro is a cousin of PW1. She clarified that the grave is near Joseph’s house. She stated that she is married to Appellant’s’s cousin.
14. Under cross-examination she stated that she did not find him on top of the child thus could not know if he had finished but that he was naked she stated that the child was not left under her care. She stated that the neighbours did not record statements and that she heard Kamau scream and that she came she found him without his trouser.
15. In re-examination she stated that the complainant was under the care of Christine Wahito aged 16 years and that she had left Joy and had gone to her house.
16. PW4 Zachary Githui Muriuki stated that on 30/5/2020 he was at home when he heard screams and noises from outside and that it came from his brother’s homestead who is his neighbour. He went to the home and found the appellant being attacked by many people and that there was a child making noises and she had injuries on her face. He stated that Muhoro was lying on the ground and that he was informed by the mob that the appellant was found raping the child. He stated that he did not find the accused naked and that he asked the people to stop beating him and asked the uncle to call the child’s mother. He stated that the police were called and the appellant was arrested. He stated that the appellant’s father is his cousin.
17. Under cross-examination, he stated that he was in the house when he went out to find the appelant being beaten. He stated that he did not find the accused in the act and was told of the act.
18. PW5 Dr. Stephen Nderitu stated that he worked at Karatina sub county hospital and that he had a PRC and P3 form for a child named Joy Soipan Nopel aged 13 years who had been allegedly defiled in a bush. He stated that there were no injuries on the body and that the alleged cuts were said to have been occurred 24 hours prior. He stated that her genitalia had no injuries but the hymen was broken.
19. PW6, No. 89117622 Senior sergeant Stephen Kamau stated that on 30/5/2020 he was at the camp when he was phoned by the chief who informed him that he had arrested a person and needed his assistance. He stated that he went to Gathiethuku village where they found a man lying on the ground and when he inquired he was told that the man was found defiling a child. He stated that he noted the scene and saw that there was blood and the grass looked like it had been laid on. He stated that he arrested the appellant and took the child and the appelant to hospital. He stated that after three days the mother of the child informed him that the child was not okay and when he visited the child at Karatina hospital he was told the child had a brain injury.
20. Under cross-examination he stated that he did not take any photo because there were people and that the Appellant had been tied up That he did not see him with any obvious injuries though he took him to hospital because he was complaining of being beaten.
21. PW2 was recalled for further cross-examination and stated that he was picking firewood and saw the child in between the grave and the appellant was next to the child. He stated that the child had been left under the care of other children who were watching TV. He stated that he did not know how the complainant left the house he stated that he did not know if they were pulled outside. He stated that he did not fight with the appellant on 26/5/2020 over anything and what he remembers is that the appellant stole his crops and he did not take any action. That he was within the homestead prior to picking the firewood. He stated that he did not find the accused on top of the child but that he was lying next to her. That he was not happy with the appellant being jailed but that he needed to reform and stop defiling children
22. On further re-examination he stated that he knows the child well and that she does not walk by herself and that he found the accused with the child in the graveyard. He stated that he does not how the child got there. He stated that he screamed because he was shocked when he saw the child had no clothes and the accused had just worn his.
23. PW7, Dr. Charles Nguru Maina stated that he is a medical officer based at Karatina hospital and had with him a P3 form for the complainant aged 13 years. The patient was Joy Soipan Mopel and he filled the P3 on 30/5/2020. He stated the complainant came with a history of defilement and noted that she was not mentally stable. He stated that the external genitalia was normal, the hymen was missing, that there was no discharge or blood and that the labia majora and minora were intact. He captured the findings in the P3 form.(Pexh 3) and filled it on 31/5/2020. He stated that from his findings the external genitalia was normal and that the hymen was broken and that the child looked anxious. He produced PRC form as Pexh 4.
24. Upon cross examination Pw7 stated that since the hymen was missing, there is a possibility she had been defiled. He stated that he did not establish who did the act. He stated that he could not tell who the perpetrator was and that the appellant was not brought for testing and that he was not asked to examine him. He stated that the police would inform the court why he was not examined. He stated that he could not tell if the hymen was freshly broken as there was no lacerations.
25. Under re-examination, he stated that based on her age and the missing hymen he could not rule out penetration.
26. PW3 on further cross-examination stated that on May 30th she was in the house and heard noises and went out and found 3 people. She stated that the three were the accused the complainant and Kamau. She stated that Kamau recorded his statement. She further stated that child was on the ground naked and that he was also naked. She stated that the child was staying at her mother’s house and not with her. She stated that the child was under the care of her cousin and that they were at her home watching TV.
27. In further re-examination she stated that she found the accused and joy naked near a grave that is bushy.
28. DW1, Eliud Muhoro Wachira stated that on 29th May 2020 he began his day, went to the local center and went to Gathumbe to work and around 5pm went home, milked the cows and fed them and went to the shopping Centre to sell. He stated that he went to his employer’s place to receive the days wages and waited till 6:45pm and opted to go home at 7pm and on his way he met PW2 ,Joseph Kamau who found him with cabbages and they began to fight. He stated that the uncle to Joseph intervened and took them to hospital. That after receiving medical attention he was taken to the police station and charged with defilement. He stated that PW2 said that he was fetching wood but testified that she was from the shopping Centre and there was a curfew whose hours saw the police only allowed to be found. He stated that PW2 had told the community about this case and that the community sent 10 representatives who have never appeared in court and in their statements indicate that they do not know of defilement. He stated that PW3 did not come to court(?). He stated that PW4 advised that they stop fighting and go to hospital because they were injured and that they did not see anyone else(?)
Issues for determination
29. The ingredients for the offence of defilement are -:
(a) The age of the victim
(b) The act of penetration
(c) Identification
Age of the victim
The evidence adduced in court by the victim is that the incident took place on 30/05/2020. Her birth certificate NO 3834284 and the evidence of her p3 form show that that the victim was born on 16/10/2006. By 30/05/2020 which was the time the matter was reported to police she was 14 years.
Penetration
PW7, Dr. Charles Nguru Maina who examined the complainant stated that though the external genitalia was normal, the hymen was missing, that there was no discharge or blood and that the labia majora and minora were intact. He stated that from his findings the external genitalia was normal and that the hymen was broken and that the child looked anxious. He that since the hymen was missing he could not rule out penetration.
A broken hymen, as was rightly observed in the Canadian case of the Queen –vs- Manuel Vincent Quitanilla, 1999 ABQB 769, of which the Court of Appeal relied on in one the case of PKW –vs- Republic, HCCRA No. 331 of 2008, on its own is not adequate evidence of penetration.
The court observed that:-
“Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, Masturbation, injury and medical examinations can also rapture hymen. When a girl engages in vigorous physical activity like horse back riding, bicycle riding and gymnastics, there can also be natural tearing of the hymen”.
In the case of E E v Republic [2015] eKLR the court expressed itself on the question of penetration as follows;
Penetration is defined in section 2 of the Sexual Offences Act as
“‘Penetration’ means the partial or complete insertion of the genital organ of a person in the genital organ of another person.
The penetration or act of sexual intercourse has therefore to be proved to sustain a charge of defilement. In Bassita Hussein – VS – Uganda, Supreme Court criminal appeal No. 35 of 1995, the court stated,
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
The mere fact that the child was found naked next to the accused, and he himself being naked with his trouser being halfway down is in itself serious circumstantial evidence that lends it self to the ingredient of penetration being proven. The medical evidence thereafter indicates that the hymen was was broken. The Canadian authority aforementioned in this case does not aid the accused as the complaint is disqualified as being born without a hymen as the complainant had a broken hymen. Further that the complainant being minded all the time for activities such as eating and going to relieve herself it is further implausible that she could have inserted objects into her vagina given as is contemplated by the learned justices of the Canadian court system. Further the vigorous physical activities that would rapture the hymen such as those contemplated in the Canadian case is further implausible given her physical condition. Her hymen was raptured but not by her own doing. Thus penetration was proven in this instance.
Identification
PW2 stated that he heard noises in the bush as he made his way through his homestead where his parents’ remains lay and when he shone the light he found the appellant lying naked with his trouser halfway down and the complainant was completely naked. Further, PW3, Felister Selian Kuraru upon hearing PW2 screaming and upon investigation , stated that she found the accused lying on the ground and Joy on his side with the trouser lowered halfway. She stated that the complainant did not have clothes and she managed to see via torchlight. This evidence of testimony two eye witnesses was unrefuted as the appellant did not challenge the lighting. Further the evidence of both PW2 and PW3 was consistent. They properly identified the appellant whom they said was lying next to the girl with his trouser halfway down and the complainant herself completely naked. It is noted that the appellant does not refute the presence of the naked complainant beside him in his defense. He neither challenged the lighting of that night. PW4 stated that he found the complainant lying naked and making noises on the ground as the accused was lying on the ground by which time had arrived was dressed even as the community descended upon him.
The court therefore finds that the trial court properly analysed the facts, set out the relevant issues and applied the law. The defence was also considered and found to be wanting. The conviction was safe and it is upheld.
On Sentence
30. It is noted that the appellant was sentenced to 20 years imprisonment. Section 8 (3) of the Sexual Offences Act provides for a sentence of not less than twenty years imprisonment.
31. I opine that the conviction was safe and find no reason to upset the lower court’s findings. Both the conviction and sentence are upheld and the Appeal is dismissed on all grounds. The Appellant to continue serving his sentence.
DATED SIGNED AND DELIVERED VURTUALLY THIS _31ST____DAY OF JULY 2024
WENDY K. MICHENI
JUDGE
IN THE PRESENCE OF
THE APPELLANT
MS KIUNA ADVOCATEFOR THE APPELLANT
MS MAINA FOR THE RESPONDENT
BEBORA