MATHEMBE M'NJAGI VS The Republic MATHEMBE M'NJAGI VS The Republic

(Appeal arising from the decision of Hon. E. N Wasike (P.M) in the Magistrate’s Court at Siakago MCSO Case No. 49 of 2019 delivered on 14^th November, 2022)

The appellant herein was charged with the offence of defilement contrary to section 8(1) of the sexual offences Act, No.3 of 2006. The particulars are that on diverse dates between the year 2018 and 2019 at Muthanthara location in Mbeere North Sub-county within Embu County intentionally caused his penis to penetrate the vagina of LMM, a child aged 15 years. The alternative charge was committing indecent Act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006 whose particulars are that on diverse dates between the year 2018 and 2019 in Muthanthara location Mbeere North Sub-County within Embu County intentionally and unlawfully caused his penis to come into contact with the vagina of LMM a child aged 15 years.
At the trial, the appellant pleaded “not guilty” to the charge. The case proceeded to full hearing and subsequently he was convicted and sentenced to 25 years imprisonment.
The appellant, being dissatisfied with the decision of the trial Court, filed the petition of appeal on the 29^th November, 2023 seeking orders that the appeal be allowed, the conviction be quashed, sentence set aside and that he be set at liberty.
The appeal is premised on the following grounds of appeal
The learned magistrate erred in law and facts by failing to rely on the D.NA of the appellant and the complainant knowing that genes move from generation to another.
The learned magistrate erred in law and in fact by disregarding the appellant’s defence without giving cogent reasons.
The learned magistrate erred in law and facts by failing to put into consideration that the evidence does not support the finding and the judgement of the trial court.
A summary of the evidence adduced at the trial is as follows: PW1 who was the complainant testified that she was 16 years old at the time she gave her evidence and that her father who is the appellant herein used to make love to her since the year 2018. That her biological mother died in the year 2013 after which her father married another woman who testified as DW2. That her father used to force her to have sex with her and when she refused he used to cane her. That the appellant threatened her with dire consequences should she tell anyone of the defilement. When the appellant realized that she was pregnant, he sold some two goats and took her to Ishiara Hospital and upon being examined by the doctor, she was 7 ½ months pregnant. The appellant asked the doctor if the pregnancy could be terminated but the doctor advised him against it because the pregnancy was at an advanced stage. That she ran away from home to her sister’s place, then to her brother’s place and in the company of her cousin, they reported the matter at Ishiara Police station and their statements were recorded by the police. That she carried the pregnancy to full term and delivered the baby on the 22^nd February, 2020. A DNA test was later carried out which revealed that the father of her child is the appellant herein.
PW2, P.C Gideon Cheboi, stated that he investigated the case. That he summoned the guardian who went to the station and he recorded the statements of the witnesses. He then arrested the accused person and referred the complainant to a medical facility for examination and treatment and a P3 form and other medical documents were filled. That the pregnancy test was positive. That later on, he escorted the complainant, the baby and the appellant to the government chemist in Nairobi for a DNA test which revealed that the appellant is the biological father of the infant with a probability of 99.999%. He then charged the appellant with the offence of defilement. On cross examination, he stated that the report was made by one Rose Wanyaga who is a cousin to the complainant and that he was to investigate a case of incest but he charged the appellant with defilement after he established that he was not the biological father of the complainant. He further stated that the report was made when the complainant was seven months pregnant and could not have been made earlier since the complainant and the appellant were living together in the same house.
PW3, Joshua Ireri Njagi, a clinical officer at Ishiara level 4 hospital examined the complainant who by the time of examination, was approximately 28 weeks pregnant. She had a torn hymen. He signed the P3 and PRC forms which he produced as exhibits.
PW4 Rose Wanyaga a cousin to the complainant, stated that, on the 26/11/2019, she received a telephone call from her sister Jane who informed her that the complainant had disappeared from home because she was pregnant. In the company of Jane, they went and made a report at the children offices/rescue centre following which she was eventually traced at Kiritiri area where she was staying with her brother. They then reported the matter to the police. That on interrogating the complainant, she said it was her father, the appellant herein who impregnated her.
PW5 Pamela Khamala Okello, a government analyst produced a government analyst report dated the 02/09/2020; which she prepared after analysing samples which were forwarded to her by P.C Benjamin Kioko. The buccal samples were obtained from the appellant, the complainant and Whitney Mwereri(a minor). He analysed the samples using DNA technology generated profiles for each party and cross matched them after which he found that the appellant was the biological father to Whitney Mwireri(complainant’s child) with a chance of 99.999%.
At the close of the prosecutions case, the appellant was placed on his defence after the trial court found that he had a case to answer.
In his sworn evidence, he denied having defiled the complainant stating that the witnesses lied to Court. He stated that the genesis of the whole case is the personal differences that he and the mother to the complainant had, after he divorced her and married another wife. He also took issue with the manner in which the DNA was carried out and he stated that he disputed the results.
The trial Court after analysing the evidence found that the prosecution had proven the case beyond reasonable doubt and the appellant was convicted and was sentenced to serve 25 years imprisonment.
In the appeal herein, the Court directed the parties to file their written submissions which directions the parties complied with.
In his submissions, the appellant stated that his rights to a fair trial were violataed in that he did not understand the nature of the charge that he was facing and he was not given an interpreter. He relied on the cases of Paul Matungu Vs. Republic (2016) eKLR, and that of Fidel Malecha Walushi Vs. R (2019) that the appellant ought to have been provided with an advocate at the expense of the state due to the seriousness of the charge that he was facing. He urged the Court to order a re-trial relying on the case of Fale Hali Manji Vs. R (1966) AE 343.
On it’s part, the respondent submitted on the five grounds of appeal raised by the appellant and stated that the evidence that was tendered at the trial was reliable and that all the elements of the offence were proven beyond any reasonable doubt.
On penetration, it submitted that the complainant in her testimony stated that the appellant was her father who she was staying with, along with her brother and sister. That in the year 2018 the appellant used to make love to her and in the year 2019 she became pregnant and upon realizing, the appellant took her to Ishiara Hospital to procure an abortion, but the same could not be done as the pregnancy was at an advanced stage. That the complainant’s evidence was corroborated by PW3 who upon examining the complainant, found her 28 weeks pregnant. On the age of the complainant, a birth certificate was produced as an exhibit which shows that she was born on the 2^nd day of October, 2004. On the identification of the perpetrator, it was submitted, that the appellant was the father of the complainant, and this is a case of recognition and not identification. That the evidence of the complainant was corroborated by PW5, the Government Analyst who produced the DNA report that confirmed that the appellant was the biological father of the complainant’s child. On whether the trial Court considered the appellant’s defence, the same was considered and the trial magistrate found that PW1 was consistent throughout her evidence in chief and cross examination. That the appellant’s defence did not cast any doubt on the prosecution’s case and the Court dismissed his defence as a mere denial in the light of the prosecution’s overwhelming evidence.
The issues for determination are as follows:
Whether the offence was proved beyond reasonable doubt.
Whether the rights of the appellant under Article 50 of the constitution were violated.
As to whether the offence was proven beyond reasonable doubt, section 8 (1) and (2) of the Sexual Offences Act provides for the elements of the offence as follows:
The age of the complainant – that the complainant was a child.
Penetration as defined under section 2 (1) of the Sexual Offences Act happened to the child.
The perpetrator was positively identified.
The offence of defilement is deemed as a sexual offence committed against a child. Under the Kenyan Law, a child is an individual under the age of 18 years. In the case of Hadson Ali Mwachengo Vs. Republic, the Court of appeal stated thus:

“ 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. At the time of the offence, the complainant was a minor as evidenced by the birth certificate which shows that she was born on the 2/10/2004.

On the issue of penetration, 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 organs of another person.”

In her evidence, the complainant testified that it was her father who used to force her to have sex with her. She became pregnant in the year 2019 and upon realizing, the appellant took her to Ishiara Hospital to procure an abortion but the same could not be done as the pregnancy was at an advanced stage. PW3, the Clinical officer who examined the complainant testified that when he examined her, she was 28 weeks pregnant and she had a torn hymen. He filled for her the P3 and PRC forms which he produced as exhibits. In his estimation, the injury was weeks old which injury referred to the torn hymen.

On the identification of the perpetrator, the complainant identified the perpetrator as her father who she was living with, together with her step mother who she married after the death of her biological mother. In her evidence, she narrated how, the appellant used to force her to have sex with him and would cane her if she declined. That he used to undress her and defile her until she became pregnant in the year 2019. The pregnancy was confirmed by PW3 who examined the complainant. As submitted by the prosecution, the evidence implicating the complainant was not entirely that of the complainant. The other piece of evidence can be traced to PW5 the Government Analyst who produced a DNA report that confirmed that the appellant was the biological father of the complainant’s child.
On whether the learned magistrate failed to consider the appellant’s defence, I have perused the record of the trial Court and it shows that the learned magistrate considered the appellant’s defence and found that it was not sufficient to displace the overwhelming evidence tendered by the prosecution witnesses which clearly implicated him with the offence. In the learned magistrate’s judgment, he stated that he assessed the demeanours of the witnesses and found that the prosecution witnesses were firm, consistent, compelling and their evidence corroborated each other’s whereas the defence put forth by the accused was a basic denial. I also agree with the analysis by the learned magistrate.
From the foregoing, I find that the appeal lacks merit and the same is hereby dismissed.
It is so ordered.

Delivered, dated and signed at Embu this 28^th day of August, 2024.