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JudgmentKELVIN WANJOHI MANEGENE VS The Republic13 min read

KELVIN WANJOHI MANEGENE VS The Republic

High Court at Kiambu High Court · · Moses Ado

REPUBLIC OF KENYA

IN THE HIGH COURT AT KIAMBU

CRIMINAL APPEAL NO. E020 OF 2023

KELVIN WANJOHI MANEGENE…………………………………………..APPELLANT

VERSUs

REPUBLIC…...………………………………………………………………..RESPONDENT

(Being an appeal against both conviction and sentence by Hon. G. Omodho PM in the Chief Magistrate’s Court at Kiambu in Criminal S.O. Number 22 of 2019)

JUDGMENT

  1. The appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act, Cap. 63A. The particulars were that on the 1st day of May 2019, at Guthurai 44 area within Kasarani Sub-County, within Nairobi County, intentionally and unlawfully caused his penis to penetrate the vagina of one CW a child aged 17 years.
  2. The appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, Cap. 63A, the particulars being that, on the 1st day of May 2019, at Guthurai 44 area within Kasarani Sub-County, within Nairobi County, unlawfully and intentionally touched the vagina of CW, child aged 17 years.
  3. The appellant pleaded not guilty to both the main and the alternative charges and the case proceeded to full trial. At the trial, the prosecution called for (4) witnesses to support its case. At the close of the prosecution’s case, the appellant was placed on his defence, the trial court having found that the prosecution had established a prima facie case.

The Prosecution case

  1. The minor testified as PW2 and she gave sworn evidence after the court conducted voire dire examination on the minor. She stated that she was 17 years old and was in secondary school. It was her evidence that on the evening of 1st May 2019, at the invitation of the appellant, she went to the appellant’s house at around 6pm. That the house was behind a shop. That the appellant started caressing her and before she new it, the appellant had penetrated her through the anus using his penis. That the appellant used his penis to have intercourse in her anus. That she tried to scream but the appellant blocked her mouth.
  2. It was further her evidence that as a result of the penetration, she started bleeding and her clothes got soiled. That the appellant subsequently gave her his trouser, a blue track suit, which she put on after showering and thereafter proceeded back home that evening. That the bleeding could however not stop and when she got home, her mother, PW1 realized and asked her about the same. That she initially lied to her mother about the cause of the bleeding. That the mother took her to the hospital where she was treated for the injury suffered. That it is while the hospital that she disclosed to the doctor that the injuries in her anus had been caused by Kevin Wanjohi using his penis. That after being treated, together with her mother, they proceeded to the police station on the same day, reported and obtained a P3 form. That the police on the same day proceeded to Kevin Wanjohi’s house where they got him arrested. It was further her testimony that she knew Kevin Wanjohi since they had been in constant communication and he lived about 200 meters from their house in Githurai.
  3. Esther Wangechi, the minor’s mother gave evidence as PW1 stated that CW is her daughter and that she was born in July 2002. That on 1st May 2019, when she came back home that evening, she found CW bleeding and the floor had blood. That the minor had a towel wrapped on her. That when she asked her, the minor started crying. That she thereafter took her to the hospital. That it is while at the hospital that the minor told the mother in the presence of the doctor she had been defiled. That the minor was later treated and stitched for the injuries at Kiambu hospital.
  4. In cross examination, PW1 stated that the appellant was identified by the CW. She further stated that she did not have any ill intention of giving evidence against the appellant.
  5. Sgt Katherine Nyambura testified as PW3 and stated that a case of defilement of a minor was reported by PW1, the victim’s mother, accompanying her was the victim. That she subsequently directed the minor and her mother to the hospital for filling of the P3 form. That the victim was a minor. That her birth certificate indicated that she was born 1st July 2001. That as part of the investigations, they got the PRC filled. They also collected blood-stained clothes, which included a blue track suit from the victim. That the accused was arrested by the police from his house in Githurai on 2nd May 2019 and later charged with the offence of defilement.
  6. On cross examination, Sgt. Katherine, PW3 stated that the arrest was made on 2nd May 2019 and recorded in OB 3/2/5/2019 at 1am.
  7. Christine Muthoni Kamau, a doctor at Kiambu Level 5 hospital standing in for Dr. Oginda Mokoro who filled the P3 form gave evidence as PW4. She stated that she had worked at the hospital from 2016 and that she knew and worked doctor Oginda Mokoro since 2018. That doctor Mokoro had left service for further studies. That she was familiar with doctor Mokoro’s handwriting and signature.
  8. Dr. Christine stated that according to the P3 form, the victim CW who was 16 years old had complained of a sexual assault by a known person on 1st May 2019. That observation saw a tear at 6 o’clock and vaginal bleeding. That she had blood stain on clothes. That the injury was a day old. That it was concluded that the injuries were as a result of defilement.
  9. The doctor also produced a PRC form which indicated that there was a tear between anus and vagina. That the tear was fixed on 1.5.2019.
  10. On cross examination, the doctor stated that the minor had been referred the hospital from Githurai clinic. That the examination revealed that due to struggle, there was tear between the vagina and the anus. That the hymen was intact but the minor had a per vaginal bleeding which is not a monthly period. In re-examination, the doctor testified that it is possible to have a perennial tear with intact hymen if the penis did not go into the vagina.

The Defence case

  1. On being put on his defence, the appellant gave sworn evidence but did not call any witnesses. He stated that on 1.5.2019 at around 7pm, he had a knock on the door and he went to check, he found PW2 and another. He admitted knowing PW2 and her family since they were their clients in the shop. That the two got into his house and demanded to know what he had done to PW2. That complainant’s mother demanded Kshs. 50,000 from him but he did not have and the minor’s mother promised that he would return. That at around 12 am on the same day, he was arrested from his house and taken into police custody. It was his testimony that he was charged because he had failed to pay the mother of the complainant. He denied defiling the complainant.
  2. Upon considering the evidence that was adduced by both prosecution and the defence, the learned magistrate found that the prosecution had proved its case beyond reasonable doubt. The court convicted the appellant and sentenced him to 15 years, less the 2 years 3 months the appellant had served in custody while undergoing trial.

The Appeal

  1. The appellant being dissatisfied with the decision of the trial court filed the petition of appeal on the 23/5/2023 wherein he listed the following grounds of appeal;
  2. That the learned trial magistrate erred in both matters of law and fact by failing to find that the critical ingredients of the offence were not established against the appellant, thereby leaving the conviction unsafe.
  3. That the learned trial magistrate erred in both matters of law and fact by failing to find that there was no corroborative evidence to support the prosecution’s allegations against him.
  4. That the learned trial magistrate erred in both matters of law and fact by failing to find that the whole of the prosecution’s case was marred by material contradictions and inconsistencies on record which were so central to the establishment of the burden of proof.
  5. That the learned trial magistrate erred in both matters of law and fact by failing to find that the prosecution failed in its entirety to establish legal burden of proof to the required standards.
  6. That the learned trial magistrate erred in both matters of law and fact by failing to properly weigh and consider the defence case in light of the totality of the whole evidence which reasonably exonerated the appellant from any wrong doing.

Analysis and Determination

  1. In this appeal, the court gave directions on filing of submissions but none of the parties has complied. The court will therefore proceed on the basis of the material available in the trial file, the record of appeal and the grounds as disclosed in the memorandum of appeal.
  2. In dealing with this appeal, this court is fully cognizant of its duty as the first appellate court as expressed in the case of Okeno Vs R (1972) EA 32 where the court stated as follows:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion”.

  1. Further, this court bears in mind that this being a criminal case, the standard of proof required is that of beyond any reasonable doubt and that the same is a burden placed by law on the prosecution.
  2. The appellant argued that the learned trial magistrate erred in both matters of law and fact by failing to find that the critical ingredients of the offence were not established against the appellant, thereby leaving the conviction unsafe.
  3. This court notes that the appellant was charged with the offence of defilement contrary to Section 8 (1) as read with 8 (3) of the Sexual Offences Act, Cap. 63A Laws of Kenya. The said provisions provide as follows: -

“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”

  1. In a charge for defilement, the following ingredients of the offence must be proved; the age of the complainant, proof of penetration and positive identification of the assailant. The Court of Appeal in Edwin Nyambogo Onsongo Vs Republic (2016 eKLR stated as follows on the issue of proof of age; -

“... the question of proof of age has finally been settled by recent decision of this court to the effect that it can be proved by documents, evidence such as birth certificate, baptism, card or by oral evidence of the parents or the guardian or medical evidence among other credible form of proof. We think that what ought to be stressed is that whatever the nature of the evidence preferred in proof of the victims age it has to be credible and reliable.”

  1. The above position by the Kenyan Court of Appeal is similar to that held by its counterpart, the Ugandan Court of Appeal in the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000 that; -

“In defilement cases medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.”

  1. To prove age of the complainant, the prosecution produced, as exhibit, the birth certificate of the victim. The birth certificate shows that she was born on 13th July 2021 and that by the time the incident took place, she was not yet eighteen (18) years, and was therefore a minor for the purposes of the law at the material time.
  2. The appellant in his submissions attacked the prosecution case on the basis that from the evidence availed by the prosecution, there were inconsistencies as to when the victim was actually born. According to the appellant, the evidence by the victim’s mother as to the date of birth of the minor as July 2002 contradicted that in the birth certificate, which was 13th July 2001. 
  3. While the court agrees with the appellant that there were some inconsistencies in the evidence tendered as to the date of birth of the victim, the court finds that the said inconsistency as to the date of birth is minor and therefore not material enough to affect the credibility of the witnesses and cannot vitiate a trial.  This view is supported by the case of MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) where Mativo J (as he then was) stated that “Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. That minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. 
  4. The question as to the exact date of birth can only be resolved by having reference to the birth certificate which is the official document for that purpose. See Edwin Nyambogo Onsongo Vs Republic (2016 eKLR. According to the birth certificate, the victim was born 13th July 2001. This is the correct date of birth.
  5. As stated above, the inconsistency as to the date of birth is not fundamental since, in any event, in both instances, the victim was still a minor. For it to be material, the inconsistency or contradiction must be one that creates doubt in the mind of the trail court that an accused is entitled to benefit from.
  6. The proof of age of the victim in a defilement case is critical since the sentence to be imposed depends on the age of the victim. In Hadson Ali Mwachongo Vs R the Court of Appeal underscored this point when it stated that “The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
  7. In this case, this court is satisfied that the age of the victim was proved to the required standards by the prosecution and that the victim was aged 17 years at the material time.
  8. Regarding proof of penetration, penetration is defined under Section 2 of the Sexual Offences Act as “[t]he partial or complete insertion of the genital organs of a person into the genital organs of another person”.
  9. The doctor, PW4 stated that on examining PW2, she had a tear between the anus and the vagina. That the injury was one day old and it was her conclusion that the injuries were as a result of defilement. This corroborated the evidence by PW2, the victim that the appellant had penetrate her through her anus using his penis and that she was injured in the anus as result of the appellant’s action.
  10. On identification of the perpetrator, it is on record that the appellant was known to PW2. The appellant himself in his testimony before the trial court admitted that he knew the victim. That the victim and her mother were his customer at the shop. PW2 in her evidence also testified how she went into the appellant’s house after the appellant had called her and invited her earlier in the day. That after the appellant had penetrated her, the appellant gave her his blue track suit trouser to put on since her clothes had been soiled with blood. From her evidence, it is clear that this was a case of recognition, which is much more reliable for the purposes of identification of the perpetrator.
  11. In the case of Reuben Taabu Anjononi & 2 Others Vs Republic the Court of Appeal in Nairobi held that; -

“………. recognition not identification of assailants is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. See also the case of Julius Waititu Muthutite Vs Republic.

  1. Based on the recognition, I find that the victim positively identified the appellant as the perpetrator.
  2. The above analysis answers the appellants grounds (i), (ii), (iii) and (iv) as listed in the memorandum of appeal.
  3. On the contention by the appellant that his defence was not considered, I have judiciously gone through the judgment by the trial court. The trial court considered the defence of alibi raised by the appellant but found the same not plausible, weighed against the evidence tendered by the prosecution.
  4. On the sentence, the appellant merely stated in his memorandum of appeal that his appeal related to both sentence and conviction. The appellant however failed state the basis of this ground of appeal. Consequently, the same fails.
  5. This court finds, as the trial court did, that given that the victim was 17 and 10 months as at the date of the incident, the sentence applicable is found under section 8(4) of the Sexual Offences Act and not Section 8(3) of the same Act.
  6. In the premises, I find that the appeal lacks merit and therefore dismiss the same against both conviction and sentence.
  7. Consequently, I affirm the trial court’s findings, both on conviction and on sentence.
  8. It is so ordered.
  9. Right of appeal 14 days

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF JULY 2024

MOSES O. ADO

JUDGE

Moses – C/A

………N/A……………………………….for the Appellant

.…………N/A……………………………for the Respondent

    KELVIN WANJOHI MANEGENE VS The Republic KELVIN WANJOHI MANEGENE VS The Republic