(Being an appeal from the conviction and sentence delivered RUIRU SPM S.O NO. 0 OF 2019(Hon CA OTIENO )delivered on 30.9.2022
1. The Appellant was charged with the offence of Incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on diverse dates between 1st January 2018 and 30th July 2019, the accused person caused his penis to penetrate the vagina of S.W.N. who was to his knowledge his daughter.
2. The Appellant person also faced an alternative charge of committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on diverse dates between 1st January 2018 and 30th July 2019, the accused person intentionally and unlawfully touched the vagina of S.W.N, a child aged 9 years with his penis.
3. In support of the charges, the prosecution led evidence through their 6 witnesses. The Appellant was placed on his defence and he gave evidence and also called one witness.
4.At the end of the trial he was convicted and sentenced to serve a term 20 years
5.The Appellant being dissatisfied and aggrieved with the above Judgment appealed to the High Court of Kenya at Kiambu from the said Judgment dated 30th September 2022 on the following grounds:-
1. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate the contradictory evidence tendered by the prosecution’s witnesses on record.
2. THAT the Learned Trial Magistrate erred in law and fact by arriving at a decision that was contrary to the medical evidence on record.
3. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate the hostile relationship between the mother of the complainant and the Appellant for oblivious frame up.
4. THAT the Learned Trial Magistrate erred in law and fact by relying on evidence that was no corroborated.
5. THAT the Learned Trial Magistrate erred in law and fact by over relying solely on the evidence of a child of 9 years to convict the Appellant.
6. THAT the Learned Trial Magistrate erred in law and fact by arriving at a decision contrary to the weight of the evidence on record.
7. THAT the Learned Trial Magistrate erred in law and fact by totally ignoring the plausible defense of the Appellant and to fairly analyze the evidence on record
8.I will first analyze the evidence afresh guided by the principles set in okeno vs Republic
9.The complainant stated that the accused person who was her father had sex with her while she went to see him on her way from school after he separated with her mother. She stated that the accused person did “tabia mbaya” to her.
10.PW 2 E.M.N, the complainant’s mother told the court that the complainant informed her that the Appellant person had done “tabia mbaya” to her when she visited him. It was her evidence that the complainant informed her that the appellant had sex with her. She then took the complainant to hospital in Mathare where she was examined. She stated that the complainant led her and police officer to where the appellant was living after they separated. She stated that the complainant was born on 4th September 2009.
11. PW 3 Rose Waruguru Muchemi from Ruiru Level 5 Hospital told the court that the complainant was taken to MSF on 31st September 2019 where she was examined after she reported that she had been defiled by her father. On examination, a thick, moist discharge was seen. Her hymen was found to be torn at 3o’clock, 6 o’clock and 9 o’clock. It was concluded that she had suffered grievous harm and that the history the minor gave tallied with what she found.
12.PW 4 Police Constable Juliana Naserian, the investigating officer told the court after the case was minited to her, she escorted the samples of the accused person to the government chemist. She later charged the accused person with the offence before Court.
13.PW 5 Joyce Kihoro, a government analyst stated that she analyzed the complainant’s hi-vaginal swab, swab from the accused person together with the hair and blood samples from the accused person. It was her finding that the hi-vaginal swab was stained with blood of human origin but there was no seminal fluid detected. She stated that the blood was from an unknown female. The DNA profile generated from the genital swab of the accused and the pubic hair of the accused person matched with the DNA profile generated from the blood sample of the accused person. She produced the exhibit memo form (P.Exh.7) and her report (P.Exh.8). 14.PW 6 Peninah Angwenyi, a clinical officer at MSF told the court that her colleague John Kirumba left MSF and that he had examined the complainant on 31st July 2019 who reported that she had been sexually assaulted by her father on several occasions with the last being on 30th July 2019. On examination, a thick discharge was noted with tears on her hymen at 3, 6 and 9 o’clock positions. It was her evidence that a vaginal swab was carried out which showed spermatozoa. The medical report was produced as P. Exh 1 while the PRC form was produced as P. Exh.2. This was the close of the prosecution’s case.
15.Having been placed on his defence, the appellant stated in his sworn evidence that he worked in a store where he used to work from 6am to 10am then from 5pm to 8pm. He stated after he separated with PW 2, he lived with his friend Jackson Irungu. He stated that on 26th July 2019, he worked as usual and nothing happened. He stated that the complainant did not go to him on that day or on 30th July 2019. He stated that he was arrested on 2nd August 2019 and taken to Kimbo Police Station and then to Ruiru Sub-County Hospital on 4th August 2019 and accused of defiling his daughter.
16. DW 2 Jackson Irungu told the court that on 26th July 2019, he was living with the appellant who was his colleague. He stated that they would commence work at 6am to 10am take a break and return at 5pm to 8pm. He stated that he had never seen the accused person’s daughter at his house and that he had gone to work with the appellant and returned with him on 26th July 2019. He stated that on 30th July 2019, they went to work and returned at 10am. They then went to repair a fence and returned at 3pm. It was his evidence that he did not see the appellant’s daughter on that day. He stated that he learnt that the appellant had been arrested on 2nd August 2019 for defiling his daughter.
ANALYSIS
17.he state was required to prove to prove that the Appellant committed the offence of incest with a minor and to do so they had had to prove the following components; relationship between the victim and the perpetrator, penetration, identification and age of the victim for purposes of sentencing. In W O O vs Republic [2016] eKLR, the court stated as follows
The ingredients of an offence of incest are as follows:-
“relationship, within the meaning of the law and penetration”
18. In criminal cases, the burden of proof rests on the prosecution and the standard of proof is that of beyond any reasonable doubt.
19. As regards the main count, Section 20(1) of the Sexual Offences Act No. 3 of 2006 under which the accused person is charged provides that:-
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years;
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person”.
20.Section 22 of the Sexual Offences Act sets the test of specific relationship which may be considered for an offence of incest. Section 22 (1) and (2) provides :-
“ In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not. In this Act –
a) “uncle” means the brother of a person’s parent and “aunt” has a corresponding meaning;
b) “nephew” means the child of a person’s brother or sister and “niece” has a corresponding meaning;
c) “half-brother” means a brother who shares only one parent with another;
d) “half-sister” means a sister who shares only one parent with another; and
e) “adoptive brother” means a brother who is related to another through adoption and “adoptive sister” has a corresponding
21.RELATIONSHIP
The relationship of the minor and the appellant is not disputed given the evidence presented including the minor’s birth certificate that the accused person is the biological father of the minor S.W.N.
22. Section 2 of the sexual offences act defines penetration to mean;
The partial or complete insertion of the genital organs of a person into the genital organs of another person.
23. The complainant testified that her assailant had sex with her when she went to see him on her way from school. PW 2’s evidence was that the complainant informed her that her assailant had sex with her. The trial court analyzed the evidence as hereunder; ‘’ The evidence of PW 1 and 2 on penetration was corroborated in every material aspect by that of PW 6 who stated that after examination, penetration was linked to the thick mucoid discharge, spermatozoa seen and the old tears. I note that the defence offered did not dislodge the prosecution’s evidence that penetration occurred and I find that the prosecution proved to the required standard that penetration had occurred.’”
24. I note that there was a DNA analysis and scientific evidence is the strongest evidence which dislodges claims of framed up cases as is want to up. In this case I find that the trial court properly analyzed the evidence as regards the identity of the assailant.
25. IDENTIFICATION
PW2 stated that the complainant identified the person who had sex with her as her father. Since the accused person is well known to the complainant’s her father, identification in this case was by recognition. The effect of recognition as opposed to the identification of a stranger is that it drastically reduces the possibility of mistaken identity. In defence, the accused person denied seeing the complainant on 26th and 30th July 2019 stating that he worked from 6am to 10am on the two days and then from 5pm to 8pm. That evidence was however shatterd by the DNA analysis
26. AGE
PW 2’s evidence was that she was born on 4th September 2009. Her birth certificate produced as P. Exh.4 corroborated this assertion. The minor was therefore 9 years old at the time the offences stated in the charge sheet are said to have occurred. The prosecution’s evidence with regard to the age of the minor was not challenged and I find that it has been proved to the required standard that the minor was 9 years old at the time relevant to this case.
27. I find that all the ingredients of incest were properly proved and none of the grounds of appeal held water. The defence was considered and there were no glaring discrepancies in the evidence as alleged. The medical evidence was cogent and corroborated PW’S evidence. In any case this was a child of tender ages and the court did not find any reason that she was part of any conspiracy.
28. As regards the sentence, the appellant is lucky not to have received the mandatory life sentence asper the Apex court’s decision in Republic vs Joshua Gichuki Mwangi.
29. Accordingly, I find that the appeal that the appeal lacks merit and it is hereby dismissed.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 31ST DAY OF JULY 2024
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF;
THE APPELLANT
MS MAINA FOR THE STATE
BEBORA COURT ASSISTANT