David Wainaina Gatimu v Republic [2017] KEHC 703 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL APPEAL NO: 45 OF 2017

(From Original Conviction and Sentence in Criminal Case No: 888 of 2012 of the Senior Principal Magistrate’s Court at Gatundu)

D W G...................................APPELLANT

-V E R S U S-

REPUBLIC.......................RESPONDENT

J U D G M E N T

1. This is the judgment of Criminal Case No: 45 of 2017. The appellant D W G, was charged at Gatundu Senior Resident Magistrate’s Court with incest contrary to Section 20 (1) of Sexual Offences Act of 2006.

The particulars thereof were that on the 26th day of September, 2012in Gatundu South within KiambuCounty, did an act which caused your genital organ namely a vaginal of J N M whom you knew the girl to be your niece.

2.  He is charged with a second count of incest contrary to Section 20 (1) of the Sexual Offences Act of 2006. The particulars are that on the 26th day of September, 2012 in GatunduSouth Sub county within Kiambu County did an Act which caused his genital organ namely penis to penetrate in the genital organ namely vagina of J N M who he knew was his niece.

3. The appellant was convicted of the first count and sentenced to20 years imprisonment.

4. APPEAL.

Being aggrieved and dissatisfied the appellant has appealed against both the conviction and sentence. The appellant is unrepresented. One of his major ground of appeal is that DNA sampling was irrelevant and unconstitutional. And that there was a violation of Section 200 of Criminal Penal Code.

5. The respondent was represented by Madam Ngalyukiafor the Director of Public Prosecution (DPP) she opposed the appellant’s appeal.

1. There is sufficient evidence of incest, since the appellant is an uncle to the complainant, PW2.

2. In this regard the most important evidence was DNA. The DNA confirmed that the appellant had sired the younger son of the complainant. The trial court relied on that DNA evidence.

3. We thus support the conviction on the basis of the DNA evidence.  The sampling was properly, and freely given, was consequently given by the appellant following a court order.

4. On issue of Section 200 of the Criminal Penal Code, there was no violation. The matter started afresh when it was seized by another magistrate.

5. The appellant’s defence was rightly considered. In the light of DNA evidence the defence was of no effect.

6. Therefore the conviction was proper.

7. We urge this court to dismiss the appeal & uphold the sentence.

6. FIRST APPEAL

This being the first appeal this court is enjoined to read the proceedings of the lower court evaluate the evidence and come to its own conclusion bearing in mind that it neither saw nor heard the witnesses when they testified before the lower court which fact is the only allowance this court must make in this consideration. See generally Okeno Vs Republic [1972] E.A. page 32.

7. QUESTIONS FOR DETERMINATION

1. Whether the appellant knew that the complainant was his niece?

2. Whether the appellant committed an act which involved penetration with his genital organ with the sexual organ of the complainant?

3. Whether the prosecution proved their case beyond reasonable doubt?

8. THE PROCEEDINGS: ANALYSIS

The DNA proved 99. 99% that the appellant had sired a child with a daughter of his elder brother. This full proof evidence beyond which there is no iota of doubt.

He was habitually eliciting the girl for further sex escapades. The girl protested and did not want further pregnancies.  The daughters’ father and the local chief asked the appellant to desist from sexually molesting the complainant.

I agree with the prosecution that the conviction is proper.

9. FINDINGS

For these reasons, this appeal is dismissed. The conviction and sentence herein is upheld.

Right of Appeal -14 days.

JUDGMENT WRITTEN AND SIGNED BY:

C. B. NAGILLAH

JUDGE

JUDGMENT DELIVERED, DATED AND COUNTERSIGNED IN KIAMBU BY:

THIS 3rd DAY OF October 2017

JOEL NGUGI

JUDGE

In the Presence of:

……………………………the Appellant

...………………………for Respondent

……………………for Court Assistant