Background
1. JOHN MWANGI NDERITU 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/or on about the 7th day of June 2015 at Amboni sub-location, Kieni West District within Nyeri County, he unlawfully and intentionally caused his penis to penetrate the anus of David Njuguna Wanjohi a child aged 15 years.
3. The appellant pleaded not guilty to the charge and the case proceeded to full hearing and determination. The prosecution called 6 witnesses. The appellant gave a sworn testimony and opted not to call witnesses on his behalf.
4. Being dissatisfied with both the conviction and sentence the appellant lodged this appeal on the following grounds
(a) That the learned trial magistrate fell into error in failing to note that the complainant made first report of unknown person.
(b) That the learned trial magistrate erred in law and fact by basing conviction on unreliable medical report and the P3 form contents therein.
(c) That the learned trial magistrate erred in law and facts by affirming conviction and sentence without considering that identification parade was not conducted to acclaim this case.
(d) That the learned trial magistrate fell into error by convicting the Appellant by failing to consider the Appellant’s credible evidence.
Duty of the first appellate court
5. It is the duty of the first appellate court to re-evaluate and reconsider afresh 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 demeanour, of the witnesses Guiding principles are found in the cases of Okeno Versus R (1972) EA 32 Njorege Versus R ((1987) eKLR 19, Kiilu & another Versus R 2005 1 KLR 174
Brief facts
6. PW1, DNW, the complainant stated that on 7/6/2015 at 11 am he went to watch a football match at Ruringu, 15 minutes away. He met one D G at Ruringu, they found that the football match was not ongoing and thereafter decided to head back to Nyeri town. At Nyeri town, they were contracted for casual labour at Kingongo and dropped off DG as he did not look strong enough. The complainant stated that he did know where Kingongo was and later learnt that he was taken to the area toward Kimathi University.
7. From there, PW1 stated that they boarded a matatu to a place called Ark Road and cut through a maize plantation and into a homestead where the Appellant told him to remain silent as his aunty did not like commotion in her homestead as they made their way to a house within the homestead. He stated that it was now 7:30pm. PW1 stated that the Appellant brought him food and tea and also gave him three tablets for a cough he had.
8. PW1 stated that while sleeping he realized someone was on top of him and had removed his shorts and put his penis into his anus and resistance was futile. PW1 stated that in the morning he was again sodomised for one hour and then again for another 30 minutes and the accused left, bolting the door from outside.
9. PW1 stated that the accused later came with food and tea and after eating he told him to jump over the fence and leave. After leaving, PW1 noticed the Accused trailing him from behind and when he got to him, PW1, he told threatened to kill him if he disclosed what happened and he gave him KShs.150/-.
10. PW1 then made his way to school and told the teacher what happened and he was taken to the hospital where he told the doctor what happened. PW1 then went to the police and recorded a statement, and he was given a P3 form and PRC. They also visited the scene where he was sodomised on 14/6/2015 with his mother and on 19/6/2015 the Appellant was arrested. On cross-examination, he stated that he did not know the appellant before. He stated that they got to Nyeri Seminary at 1:00pm.
11. PW2, DG stated that on 7/6/2015, a Sunday, while in the company of PW1, they went to Ruringu to watch a football match that unfortunately did not materialize. They headed back to Nyeri. PW2 stated that at Nyeri town at Total petrol station, a certain old man came and asked them to do manual work in Kingongo and stated that PW2 was too young for the work. PW2 stated that PW1 and the appellant proceeded towards Temple road. The Appellant told him to go away as he wanted to talk adult things with the complainant. That on Tuesday he met the complainant in civilian clothes and asked him if he was paid but PW1 said that he was not paid but sodomised. PW2 then recorded his statement. PW2 identified the Accused in the dock.
12. PW3, AGATHA NYAMBURA, The head teacher at Wanderi Primary School, testified that on 8/6/2015 at school, the complainant approached her at 2 00 pm in his home clothes. The complainant looked tired, weak and hungry and upon inquiry, she found out that he had been assaulted by a stranger who cheated him that he would be paid Ksh/= 3000 for work. PW3 stated that the complainant alleged that he had been drugged and defiled twice. PW3 then took the complainant to the hospital and his mother joined them there. PW3 stated that they took PW1 to Nyeri Hospital the following day. The complaint said he could identify the mzee and she witnessed the arrest of the accused person.
13. PW4 LEAH WANJIKU WANJOHI stated that the complainant did not come home on 7/6/2015. On 8/6/2015 the head teacher called her to Nyeri Provincial General Hospital where she was informed by PW3 that her son had been defiled. They later reported to the police and were issued with a P3 form. The complainant told them that he was defiled and he identified the Accused. She produced P Exhibit 3 which was the birth certificate.
14. PW5, No. 90868P Joshua Mseti stated that he was the investigating officer. On 8/6/2015 he was ordered to conduct That he interrogated the witnesses and established that the promise of work by the Accused was a lure to sodomise the complainant. A P3 was issued, filed, and the complainant led them to the Accused person’s home. On cross-examination, he stated that he was the one who arrested the Accused and he was also the Investigating officer. He stated that he did not do an identification parade as the accused was pointed out by the complainant as the one who sodomised him.
15. PW6 Dr. NJOROGE CYRUS produced the P3 form which was filled on 17/6/2015. He noted that the anus presented bleeding and loose mucus membrane with tenderness. He conducted a HIV test and he put PW1 on an antiretroviral drug regimen. He classified the injury as severe harm. He stated that the patient reported to the hospital on 8/6/2015 and the report was filled on 17/06/2015. He stated that he did not know when the offence was committed.
16. DW1, JOHN MWANGI NDIRITU STATED that he was woken up on 18/6/2015 by two police officers alleging that the complainant had spent the night in his house. That he left a worker in his house when he went to work. That he was not in the house when the complainant was sodomised. That the worker was nowhere to be seen when he looked for him and he was charged in his stead. He stated that the complainant alleged that he was sodomised by an unknown person. Upon cross-examination, he stated that he did not defile the complainant.
Issues for determination
17. 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
18. PW 4 the mother of the complainant produced P Exhibit 3 which was the birth certificate which put the Complainant At 15 years of age. The complainant was therefore a minor.
Penetration
19. The complainant testified that the appellant lured him to his house in Amboni having promised him work in Kingongo which did not materialize. He testified that when he came to, he realized that someone was on top of him with his penis in his anus. PW5, a medical doctor stated that the anus of the complainant presented bleeding and mucus membrane consistent with defilement. Further, on the 2nd and 3rd instances of defilement, the complainant was aware of who was defiling him in the morning after 7/6/2015/. To wit the complainant stated, ‘ I was lying on my stomach. He sodomized me. He inserted his penis into my anus. It was already 12:00 mid night…’’
20. The complainant reported the incident to his teacher and was taken to hospital. The medical records corroborated his assertions that he had been penetrated. He repeated the story to the doctor and his friend PW2. The trial court believed this evidence and I am satisfied the finding was proper and sound.
Identification
21. The complainant stated that the accused took him to his house in Amboni sub-location after having met during the day when he took cognizance of his appearance. Even though in the first instance of defilement he was unconscious as he had been drugged by the appellant, he was alert during 2nd and 3rd instances of defilement.
22. The court notes that the two met in Nyeri town during the time, they spoke when the Appellant offered the manual job. They then travelled together all the way from Nyeri town to Amboni during the daytime. The court notes that the complainant had presence of mind and saw the Appellant when the second and 3rd defilement occurred and the next day when the appellant offered him Ksh 150/= to buy his silence.
23. We also have the identification by PW2 who said he was with PW1, and it was the Appellant who offered PW1 the manual job and dismissed him Pw2 for being too young. PW2 also said he saw PW1, and the Appellant go towards Temple Road.
24. There was no mention of any grudge that would have made Both PW1 and 2 falsely implicate the Appellant and it is the complainant who led the police to the Appellant’s house. The court is satisfied that the identification was proper.
SPECIFIC GROUNDS OF APPEAL
25. The first ground of appeal is that the Complainant said that he was defiled by an unknown person. The court has analysed the evidence on identification and as stated above, it was proper. PW1, not only knew who had defiled him but also his residence to which he led the police to effect the arrest. This ground is tied to the need for an identification parade. The court agreed with the investigator that there was no need to hold the identification parade since it was the complainant who led the police and he was present during the arrest.
26. On the ground that the conviction was based on an unreliable medical report and the P3 form and contents therein, the court finds that the documents were properly filed and produced as P EXTs 1 and 2 and there was nothing to challenge their authenticity.
27. On the allegation that there was another man in his house on the material day, the Appellant has not produced the names of the worker who allegedly stayed in his house nor an alibi for his absence in another place. PW1 and PW2 positively identify the Appellant from the daylight hours of 7/6/2015 and the day when the Accused was arrested.
28. The court therefore finds that the trial court properly analyzed the facts, set out the relevant issues and applied the law. The conviction was safe and it was upheld.
On Sentence
29. 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.
30. 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 is 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 MAINA, For The Respondent
DEBORA, Court Assistant