(Being an appeal against the conviction and sentence arising from S.O NO 13 OF 2018 REPUBLIC VS PATRICK KIRIMI JULIUS.HON D.K MATUTU PM delivered on 6TH APRIL 2022 MUKURWEINI)
Background
1. PATRICK KARIMI JULIUS 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 about the 26th day of July 2018 at Kiawatha location in Mukurwe-ini sub county within Nyeri county intentionally caused his penis to penetrate the vagina of RWW a child aged 14 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 26th day of July 2018 at Kiawatha location in Mukurwe-ini sub county within Nyeri county intentionally touched the vagina of RWW a child aged 14 years.
4. The appellant pleaded not guilty to the charge and the case proceeded to full hearing and determination. The prosecution called 8 witnesses. The appellant gave a sworn testimony and did not call witnesses.
5. Being dissatisfied with both the conviction and sentence the appellant lodged this appeal on the following amended grounds of appeal:
(a) That he never pleaded guilty to the charges.
(b) That the learned trial magistrate erred in both law and fact when convicting in not considering that there was no supportive document to withstand the victim’s age hence occasioned miscarriage of justice
(c) That the learned trial magistrate erred in law and while relying on the purported evidence when ignoring my defence without giving apparent reason whereby I am alive to the principle that the burden of proving the falsity an accused’s persons defence lies on the prosecution.
(d) The learned trial magistrate erred in both law and fact when convicting in not seeing that the provisions of Section 193 of the CPC, Article 50(2)(h) were not complied with since the appellant was ignorant in the field of law thus miscarriage of justice occurred
(e) Other grounds to be adduced during the hearing of this appeal thereof and the appellant to be furnished with the trial court proceedings for further action.
Duty of the first appellate court
6. 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 Njorege Versus R ((1987) eKLR 19, Kiilu & another Versus R 2005 1 KLR 174
Brief facts
7. PW1, RM, stated that she was a student at Kiawatha primary school in class 8. That on Thursday 26th July 2018 she was sent from school due to lack of fees and informed her father who then instructed her to sell the milk he had milked at Gathage centre. That along the way she met her friend EW who accompanied her and as they proceeded back home they met a certain Baba Collins(not the accused). This Baba Collins called her friend first and she followed slightly behind and he pushed her friend into the homestead’s gate and pushed her in as well. There was no one else in the house and that when they entered the sitting room Baba Collins locked the door and proceed to remove her friend’s clothes and pushed her into a bed in the adjacent bedroom. They stayed for five minutes and when they came out, Baba Collins then went out and came back with tea and they drank and noticed the accused person (Patrick Karimi). She then stated that she started feeling dizzy. That when she regained consciousness the next day she was at the appellant’s home which was about 500 meters from Baba Collin’s house . She stated that earlier when they had began taking tea that Baba Collins had asked , the appellant ,when they were having tea who he wanted to have sex with and he stated that he wanted Everlyne but was told that Everlyne had already slept with him (Baba Collins) and then said he would have her (PW1) .
8. That when at the Appellant’s house , Baba Collins came and took Everlyne and they had sex. She stated that Baba Collins left at around 4pm and Patrick came and took her to the bedroom, removed her clothes and had sex with her and when he was done she saw some blood in her pants. She stated that that night she had sex with Patrick. She stated that on Saturday Baba Collins came and had sex with Everlyne and that Patrick had sex with her on Saturday night. On Sunday, She stated that on the order of Baba Collins to release her, the accused had sex with her at least five times and then released her. She stated that the accused told her not tell what had happened. When she was released she saw Everlyne walking up ahead with her father and she ran and caught up with him and when he inquired where she had been all these days she disclosed to him where they were. That then when they got home they were given food and other parents came to their home and advised that they report at the chief’s office. That they then went to the chief’s office on Monday and were directed to Mukurwe-ini police station where they reported and were referred to hospital. She stated that while at the accused’s place he would play loud music using his subwoofer to drown the noise. She stated that her birth certificate MFI-1 is before court and that her date of birth is 6th February 2004. She stated that she was given treatment notes MFI-2 dated 30/7/18 and a PRC form MFI-3. She stated that Patrick is the one in court and that she used to see him in the neighborhood but did not know his name.
9. Under cross-examination she stated that she was a witness 2 weeks ago in Everlyne’s case. She reiterated that she met the appellant on the way home having been sent away due to lack of fees. That there were no people on the road at that time. They did not protest when Baba Collins pushed them into his house and that there was no-one in the home though she knew baba Collin’s wife and Collins himself. That when Baba Collins pushed them into the room ,he bolted the door behind them and that they were able to escape. That Baba Collins also put loud music to drown the sounds of his deeds. That she did not know how the appellant got to Baba Collin’s place and that they only got unconscious after drinking tea. She did not know how they got to Kirimi’s place and reiterated that there was a subwoofer at both Baba Collins’ and at the appellant’s house. They did not eat food for four days nor relieved themselves even once outside. their parents did not look for them at the appellants’s place and it was impossible to know many times she was defiled and that her parents did not report that they were lost.
10. In re-examination she stated that she wrote two letters to school but the headmaster told her not to mention Baba Collins and that he gave her a full scalp and dictated to her what to write and that it was him who told her to state that she was at her boyfriend’s place in Gatura. She stated that the headmaster is a friend of Mama Collins and she believes that is the reason she was told to write what she wrote. She stated that she has no boyfriend in Gatura.
11. PW2 EWM, after having been conducted a voire-dire stated that on 28th July 2018 on a Thursday she was sent away from school by the principal for lack of fees and on getting home found no-one and went and checked at PW1’S home but found they were not home as well. That PW1 had also been sent home for lack of fees. That she looked for and upon finding PW1 , she urged her to go back to school to see if the teacher would allow them back to school .That PW1 had some milk for sale and they went to the Gathage to sell it. That on the way back , Simon Gumo (Baba Collins) called her and she went there and was pulled into the homestead and Rosemary followed her and got pulled into the homestead. That they were both taken into the house and the door locked. That the house had four rooms and Baba Collins removed her clothes and had sex with Her after which he told her to go the sitting room after wearing her clothes. That when Patrick came and said that he wanted to have sex with her but was told that Baba Collins had her and he could have her companion.
12. She stated that both the accused and Gumo (Baba Collins) went out to bring them tea which they drunk and that she tried to get out but Gumo kicked back. She stated that as they drunk the tea they started feeling dizziness then they fell asleep and when she regained consciousness, she realized that they were in Patrick’s house with PW1. She stated that she does not know how they got to Patrick’s house. She stated that Gumo would have sex with her while Patrick would have sex with Rosemary. That the ordeal began on Thursday and that she heard Rosemary crying from the bedroom. She did not scream because Gumo threatened them and locked the door from outside. That the appellant had sex with Rosemary from 9pm to 10pm while she was in the sitting room. That Gumo came on Saturday and had sex with her and he left with the Appellant. That the following morning Gumo was in the house and threatened them if they told on them. That she left the house first and she met PW1’s father who inquired where she had been then PW1 joined them along the way. They went to PW1’s house where they agreed to report the matter on Monday and on the said day went to the chief’s place and were directed to the police station and given P3 forms. She identified the accused as Patrick.
13. Upon cross examination ,she stated that Rosemary was her 1st witness . That Gumo took her to the house under duress and had sex with her and by that time the accused had not arrived. That Gumo’s house was far and that no one saw them enter his , Gumo’s , house. That they ate rice on Friday but had nothing to eat on Saturday and Sunday. That they used a bucket for long and short calls. That when they returned to school the headmaster told them to write letters and they were beaten and dictated to them what to write. That Rosemary was beaten by the headmaster when she stated the truth. That she did not scream at the appellant’s place as he had a sub woofer.
14. PW3 Githinji Mutahi was the assistant chief of Muyu Sub location. His evidence was that on 30/7/2018 he was in his office when two school girls PW1 and PW2 accompanied by their parents and reported that they had been defiled. He then called the APS and when he inquired further they did not give that information and only divulged when the parents had left that they had been defiled by persons known to them. That the girls said the accused and another by the name Ngunjiri Gumo had defiled them. He then advised that they report the same to the police station and get medical advice and that later he came to know the accused had been arrested.
15. Under cross-examination he stated that he knew the homestead where the accused was working. That he had not received a report of missing children prior to that date. He knew the headmaster of Kiawaita primary school. That he was not aware whether the parents of the girls had summoned the girls before .
16. PW4, Cecilia Mukami testified that Rosemary Muthoni is her daughter in form 2 now aged 16 years as she was born on 6/2/2004. That the accused is known to her but not prior to the incident. That on 26/7/2018, her daughter was sent home from school due to lack of fees and at the time (8;30am) she was at Mweru. That when she returned at 2:00pm she saw PW1’s bag but that her daughter was not at home. She learnt that her husband had sent PW1 to sell milk. That she went to look for her when she delayed and learnt that she was seen with a friend called Everlyne Wairimu. She then went to Mama Everlyne’s house and learnt that Everlyne was not at home either and that her and Everlyne’s Mother went searching for the girls and her husband reported the missing girls the next day. She stated that on 29/7/2018 she met her son who told her that his sister had come back but was hiding out of fear. She went and found pw1 shaking out of fear and after she gave her a meal, she learnt from her daughter that a certain Simon Gumo pulled her into a house with a woofer and he put on loud volume. That Simon went out and made a call and the accused asked Gumo to make tea. That PW1 told her that the following day they found themselves at the home the accused having lost consciousness after taking the tea. That they went to the Nyumba kumi elder and that thereafter they took PW1 to hospital where the doctor told them that the girl had been defiled. She stated that she knew Simon as a neighbour and that the girls had been locked up at the house of Kirimi and that he was the accused person.
17. Under cross-examination she stated that she did not know the accused person and that the girl told her she was with him for three days having being abducted by Ngumo. That her daughter told her that Ngumo Simon took them to his house and called Kirimi. She did not go to the house of the accused.
18. PW5 No. 2008075871, Scholastica Keruhi’s , evidence was that on 30/7/2018, she was at Kaheti police post when the father of the complainant came with an arrest order for the accused on a defilement charge. That on 3/8/2018 they arrested the accused from his place of employment from the servant quarters. She stated that the house is made of iron sheets and they informed the accused the purpose of their visit but he denied defiling the girl.
19. Under cross-examination she maintained that she arrested the accused person. That she did not enter the house and in reexamination she stated that they were sent to arrest Patrick Kirimi.
20. PW6 James Wambugu Gichuru testified that he stays at Kaheti. That on 26/7/2018 at around 10am he was in the boma milking when his daughter came home stating that she had been sent home due to lack of fees. That he sent her to the dairy to sell the milk. He was a watchman and that on 27/7/2018 , his daughter did not come back home while he was away on his night job as watchman. That on Sunday he met her school mate one Everlyne who informed her that they met with Ngunjiri who took her to his house and that his daughter had not yet been released. When he got home , he however found that the girl had returned . That PW1 told them that she had been defiled by one Ngumo Ngunjiri. He took the girls to the police and they were issued with a P3 form .That his daughter is about 13 years but her mom knows better. He stated the girls told him that the house they were in had a loud subwoofer and that when the accused came in said he wanted his daughter. That his daughter told him that later, she found herself at the accused’s house.
21. UPON cross-examination he sated that he is the father to the complainant and that they had come to court on Everlyne’s case. He stated that his daughter came back on Sunday after she went missing on Friday and that he reported to the elders on Saturday. He stated that he did not report to the teacher. He stated that he did not confirm the issue of fees and that he never went to the accused place. He did not know about the letter the girls wrote to the headmaster.
22. PW7 James Njaramba was a clinical officer at Mukurwe-ini subcounty hospital with a diploma in clinical medicine and surgery. He produced the P3 form was filled by Dr. Njeri. And the PRC form which was filled by Evan Mwangi a former colleague. He stated that the P3 form for the complainant indicated that she was aged 14 years and blood was noted on her panties. He stated that she reported that she was captured forcibly by a person known to her and was given tea an she lost consciousness and that on regaining consciousness she had no pantys and had pain in her genitalia. That the nature of the offence was defilement and a small laceration noted in the labia with hymen broken and no blood seen. He had an outpatient card for the same patient aged 14 years from Kaheti showing that the assailants were known and that the incident happened 4 days ago at Kageru Kaheti. given a cup of tea. That the PRCform stated that her hymen was broken and her anus intact.
23. Under cross examination, he stated that she had changed clothes. That panty is part of clothing. The lab results did not reveal that they were drugged. He did notknow how many time the complainant was defiled and that he accused was not examined.
24. In re-examination he stated that the panty was blood stained and she may not have changed . That the complainant was defiled from 26/7/2018 to 29/7/2018 and that he saw the patient after 4 days.
25. PW8, No. 236527 IP Sally Kimeu was the investigator’
Issues for determination
26. 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 1/09/2020. Her birth certificate number A8923112011 CA 31763 OF 24TH JUNE and her p3 form show that that the victim was born on 6TH th FEBRUARY 2002. By 30TH JULY 2018 which was the time the matter was reported to police she was 14 years. So the fact of minority was proved satisfactorily.
Penetration
27. The complainant testified how she found herself in the appellant’s house and that he had penetrative sex with her several times including 5 times on the last day before she was released. That she bled after the ordeal. PW3 a medical doctor stated that upon examining of the complainant he noted small lacerations in the labia , the hymen broken the panties were blood stained. PW7 produced , the treatment notes, Ext2, a p3 form Ext 4 and PRC form pext 3 to that effect. This was sufficient proof of penile penetration.
Identification,
28. There is ample evidence from PW1 that she identified the Appellant as they had moved from to Gumo’s to the Appellant’s house. The appellant was clearly seen by the complainant as the they stayed together for 3 days. There was also the evidence of PW2 WHO LIKE HER was part of this ordeal. The 2 girls also knew baba Collins and they led the police to the Appellant’s home and a sketch plan was even drawn PExt 6 . T the herefore this cannot be the possibility of mistaken identity.The trial court also considered the defence and I agree with the analysis
Statutory defence provided under Section 8(5) and (6) of the Sexual Offences Act obtained in thismatter occasioning a serious dictation of justice
29. Under Section 8(6) of the Sexual Offences act No.3 of 2006 the appellant could have proven that he took steps to ascertain the age of the complainant. To wit the section reads
(5) It is a defence to a charge under this section if - (a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant [ emphasis mine]
In the absence of the ` any evidence tendered by the Appellant this ground cannot be availed him
The Inconsistencies and contradictions
30. The contradictions and or inconsistences are very minor and do not go to the root of the case nor are they capable of creating doubts in the mind of the court.
SECTION193 OF THE CPC
31. The Appellant also raised the issue that he was not granted an Advocate as provided for under section 193 0f the CPC. Indeed that is one of the rights of an accused persons under Article 50 0f the Constitution. The right is however being realized progressively and as the section provides, the accused May be represented denotes its not mandatory during the trial . Further the Appellant did not seek legal aid. The record shows that he was able to participate fully in the trial with lengthy cross examination and therefore his rights to fair trial were not breached.
Conclusion
All the components if defilement were proved and non of the grounds raised on appeal on conviction has merit,
32. On Sentence
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.
I find that the lower court judgment was sound and find no reason to disturb it.
The appeal is dismissed on all grounds.
It is so ordered.
DATED , SIGNED AND DELIVERED VIRTUALLY THIS 31ST DAY 0F JULY 2024
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF
APPELLANT
Ms kaniu for the Respondent
BEBORA COURT ASSISTANT