A G K v Republic [2014] KECA 369 (KLR)

INTHE COURT  OF APPEAL

AT NAIROBI

(CORAM:MWERA, G. B. M. KARIUKI & MURGOR, JJ.A.)

CRIMINAL APPEAL NO. 158 OF 2013

BETWEEN

A GK.…….................…….……………….……..….….....APPELLANT

AND

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

(Appeal from theJudgment of the High Court of KenyaatNairobi (Ochieng,J.) dated 26thSeptember,2011in

HC.CR.A.248OF 2007)

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JUDGMENT OF THE COURT

The appellant, A G K, was charged in the  Chief Magistrate’s Court  at Thika  with committing two  (2)  offences of incest by  a male  contrary to Section 166(1) of the  Penal Code, with his two  daughters on diverse dates  between 2004  and  2006.  He also faced alternative charges of indecent assault  on  the  two  females under the  age  of 16  years  contrary to Section 144(1) of the  Penal  Code.    The  names of the  two  daughters duly stated in the  charge sheet were  aged  seven  and nine  years  at the  time of the trial.  He was found guilty on the  main  counts and  ordered to serve  25 years in prison for each.   The sentences were  to run concurrently.

The  learned trial magistrate was  satisfied on  evidence tendered that the  two  victims were  children of the  appellant; he had  defiled both  of them by having carnal knowledge with them, when  he slept with them in the  same bed   during  the   time  their  mother had   left the   matrimonial  home.   The appellant’s  defence that  the   charges  had   been   laid   against  him   on  the instigation of the  mother was dismissed as being untrue.

The  appellant  appealed to  the   High  Court  (Ochieng,J)  on  several grounds in that the  sentences were  illegal; he had  not been  brought to court within 24  hours  of his  arrest, but  after 13  days  in  detention; the  evidence was  inconclusive and  uncorroborated and  that some  essential witnesses did not testify.   It was  added that he  was  convicted on  a  statutory provision different from that stated in the  charge sheet.

After hearing the  appeal, the  learned Judge went over  the  evidence on record afresh and  concluded that the  grounds of appeal had  no  merit.  He dismissed the  appeal concluding that even  as  Section 166(2) of the  Penal Code  provided for the  sentence of 5 years, the  victims were  under 13 years of age,  and  on  conviction the  sentence was  life in  prison.  Therefore the sentence of 25 years  handed down  was lawful.

Being   further  dissatisfied with  that,  the   appellant  has   lodged  this second appeal claiming that his  conviction was  based  on  mere  allegations; the   prosecution  case  could   not be  relied on;  there was  no  investigating officer and he was denied justice.

When  the  appeal came  up for hearing, the  appellant filed written submissions to  which Mrs. G. W. Murungi, learned Assistant  Director of Public  Prosecutions, made  a reply and the  appellant responded.

The  appellant told  us  that a charge that spoke  of the  offence having been  committed on  diverse dates  between the  year  2003  (2004?) (sic)  and 2006  was  not specific as to  the  time of the  offence.   Mere  allegations had been  put  forth by the  complainants and these  led to his conviction.  Even the doctor’s  evidence could   not support the   allegations.   He  added that  the examining doctor relied on the  evidence of PW2 (the  child  aged  9 years) to give  an opinion when  he examined the  witness 13 days  later.  Someone else had  seen  her  earlier yet he was  not called as a witness.  That evidence did not relate to  an  offence which allegedly occurred over  3 years  period.  The appellant repeated that he had  been  held  in police custody for over  15 days before being produced in court, thereby breaching his constitutional rights to be produced in court within 24 hours  of arrest.  Again  the  appellant said that the  charges against him  were  fabricated on  the  instigation of the  victims’ mother, who  though had  been  away  from the  matrimonial home  when  the offences were  allegedly committed, had  her  mind on  taking away  from the appellant  some   sums   of  money  he   had   in   the   house   to   be   used   for construction.  And that all evidence tendered constituted lies.

Mrs. Murungi opposed the  appeal basically stating that the  evidence in the  lower court was  strong, direct and  overwhelming coming from PW2 (the daughter/victim) who shared the  bed with her sibling (PW1).    The sibling had been  too  overwhelmed to  testify against their father, the  appellant, who committed  the   offences  during  the   period  their  mother  had   left  the matrimonial  home.   That  PW2  told   the  learned trial magistrate how  their father inserted his male  member in their private parts over  a long  period, a fact that the  doctor verified as penetration and  recorded the  same  in the  P3 forms exhibited.  Those who  testified included the  teacher of the  children, an investigating officer (PW5),  besides the  children.   Counsel   discounted the ground that the  charge sheet was not exact as to the  time the  offences were committed, because PW2 testified that their father defiled them many times over   a  long   period.    Therefore,  the   statement  that  the   offences  were committed on diverse dates, between 2004  and 2006  was in order. It did not cause  doubt or  prejudice to  the  appellant in  any  way.    As  for the  alleged grudge with the  appellant’s wife, we  heard that both  the  two  courts below dismissed it finding that she was away  from home  during the  commission of the  offences.  And  finally that the  delay to  take  the  appellant to  court was due to non-availability of the  P3 form.  That that explanation was rendered to court’s and found satisfactory.

This  being  a  second  appeal  we  are   enjoined  by  the   provisions  of Section 361(1)of the Criminal Procedure Codeas has been  enunciated in may  decisions of this  Court, including Njorogevs Republic [1982] KLR

388that: -

“On   a   second    appeal,  the  Court  of   Appeal  is   only concerned with points of  law.   On  such  an  appeal, the court was  bound  by the concurrent findings of fact  made by  the lower courts, unless  those findings were shown not to be based on evidence.”

Thus, addressing the  initial grounds of appeal side  by side  with the  amended grounds the  appellant filed with his  written submissions, is it that on points of law,  we  should allow   this  appeal?  Though not so  specifically said,  the ground that the  lower courts found against the  appellant on mere  allegations and  not reliable and  cogent evidence laid  as proof can be maintained in law. It  is   required  in   criminal  prosecutions  that  charges  are   predicated  on

particulars  which  point  to   breach  of  the   law,   requiring  proof  beyond  a reasonable doubt in order to convict.

In  the  appeal the  charges read  that on  diverse dates  between 2004 and  2006  the  appellant had  carnal knowledge of his two  girls  whom the  trial court found to be the  daughters of the  appellant.  That he slept with them in the  same  bed  and  defiled them many times.  Medical  evidence established that there was vaginal penetration and  given that PW1 was too  traumatized to   testify,  the   court  was   satisfied that  on  the   totality  of  evidence, the appellant committed the  offences of incest.  He did  so many times over  the period between 2004  and  2006  and  thus  the  charges properly read  that the offences were  committed on  diverse dates.   Accordingly, the  charge sheet was  not defective and  evidence presented was  not on  mere  allegations.  It was  sufficient to  sustain a conviction.   After the  evidence established that the  victims were  the  children of the  appellant who  defiled them, and  after discounting the  defence of a grudge by his wife, the  lower court’s conclusion was that: -

“The accusedwas  the person who  had  sexually assaulted them.  I therefore find  that the prosecution have  proved their case  beyond reasonable doubt and  the accused is convicted of count I and  II.”

When  the  appellant moved to the  High  Court, the  learned Judge approached the  appeal as he was bound to, and stated thus,

“Ihave  reevaluated all the evidence on record and  drawn my  own  conclusion. I will  thus take in  account my  said conclusions  as  I  analyze the  submissions made before me.”

The  record shows  that the  evidence of each  witness including that of P.C .Peter  Ndulumana(PW5),   the   investigating  officer  was   reviewed.    So contrary to the  claim by the  appellant that there was no investigating officer in the  case, indeed there was one – PW5.  He even  gave  an explanation as to why  taking the  appellant to court was delayed.  The learned Judge noted:

“He   explained that  the  delay occurred because the  P3 form  had  not yet been  filled --- because the children were far, at the Kandara Children’s Home.”

Taking that explanation in  regard, the  learned judge also  cited the  case  of Julius Kamau MbuguaV Republic Cr.A.No.50of  2008, noting that the appellant’s right under Section 72(6) of the  now  repealed Constitution had not been  violated. If it had  been,  the  appellant could  have  recourse by filing a claim for damages in  separate civil  proceedings and  not as a defence in criminal proceedings such as these.

So all in all the  two  courts below made  concurrent findings that the  charges were  properly laid  and sufficient evidence was led to prove them.  There  was also the  concurrence on the  sentence.  Section 166(1)of the Penal  Codeprovided for life imprisonment for the  offence of incest to  a female person under the  age of thirteen years.  The trial court imposed 25 years.  The High Court  confirmed it as  lawful.   We  find that the  subordinate court had  the power to impose it and so it remains.

Accordingly,  we  find that this   appeal  has  no  merit and  we  hereby dismiss it in its entirety.

Datedand  Delivered at Nairobi this 3rdday  of October, 2014

J. W.MWERA

………………………................

JUDGE OF APPEAL

G. B. M. KARIUKI

….................................................

JUDGE OF APPEAL

A. K. MURGOR

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JUDGE OF APPEAL

I certify that this  is a true copy  of the  original.

DEPUTY REGISTRAR

jkc