Robert Mweri Charo v Republic [2014] KEHC 6849 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NO. 5 OF 2012

ROBERT MWERI CHARO  …......…............................................... APPELLANT

VERSUS

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

(From original Conviction and Sentence in Criminal Case No.44 of 2011 of the  Senior Resident Magistrate's Court at Mariakani – Hon. Machage - SRM)

JUDGMENT

ROBERT MWERI CHARO hereinafter referred to as the Appellant was Convicted and Sentenced to fifteen (15) years imprisonment for the offence of defilement of a girl contrary to section 8(1) as read with section 8(4) of the Sexual offences Act No. 3 of 2006.

The particulars of the charge were that on the 11th day of February, 2011 at [Particulars withheld] village, Kaloleni of Kilifi County he unlawfully and intentionally committed an act which caused penetration of his male genital organ namely penis into the female genital organ namely vagina of S K a girl aged sixteen (16) years.

The Complainants age of sixteen (16) years is not contested. She was assessed by a doctor and the age was found  to be sixteen (16) years.  It is noted in her evidence that of her mother that she attends a school for special children.

The learned trial magistrate did note at page 6 line 12 of the record of proceedings  that,

“It is not possible to know or detect that she is special unless she says        so”.

This was also revisited in his Judgment wherein at page 12 line 15 he notes,

“From the onset it is worth  of note   that the Complainant was  said to be a  special person but throughout her         testimony, I did not pick anything to    suggest that she is special in any       way”.

Based on that finding the learned trial magistrate proceeded to believe the evidence of the Complainant which was to the effect that on the 11th February, 2011 at 2:00 p.m.  The Appellant called her and told her that he was to send her to buy airtime. She proceeded to his house where he proceeded to undress her and had sexual intercourse with her.  Afterwards she went and reported the incident to her mother who reported the matter to the village elder and police.

The Complainants mother who is PW 2 had testified to have seen the Appellant call her daughter with a view to sending her.  Later her daughter informed her of what had transpired between her and the appellant thereafter.  She reported the matter to police and took the Complainant to Hospital for examination.

The Clinical officer who examined the Complainant found that she had a perforated hymen and swollen vulva.  A lab analysis showed that she had pus cells an indication that she had a sexually transmitted disease.

In his defence which was vide an unsworn statement he denied the offence, by stating that he is a watchman and had gone home at 6:00 a.m.  He went to rest till lunch time when he decided to go to a nearby road bus stage to meet a friend.  Upon return he saw the Complainant peeping at his door.  Upon seeing him she ran away crying.  When he asked her why she was crying her mother confronted him alleging that the had  defiled her daughter. He further told the Court that they had a dispute over a shamba (piece of land).

In his grounds of appeal he questions the Doctors evidence wherein it is indicated that there was no spermatozoa found in the vagina.

Secondly, that it was the Doctors evidence that the  Complaint was found to have been infected with a sexually transmitted disease.

On the issue of the existence of a grudge between the Complainants mother and the appellant. The learned trial magistrate found that there was none. A careful analysis of the evidence adduced before the lower Court shows that at no time did the appellant allude to the existence of a grudge between himself and the Complainants mother during cross- examination of the Witness.  He only mentions this in his defence.  This is clearly an afterthought.

Absence of spermatozoa.  Absence  of spermatozoa can be explained by several factors.  The first one depending on when the Complainant is placed before a Doctor for examination. Because spermatozoa have a life span.  Secondly, the Appellant could have used a condom or he may not have ejaculated.

Lastly, the fact that the Complaint was infected with a sexually transmitted disease.  It is noted that the Appellant himself was not taken to Hospital for examination and therefore it cannot be said that he was not suffering from the same.

The upshot is that I find no good ground to disturb the Conviction and Sentence.

The appeal has no merit and it is dismissed.

Judgment delivered dated and signed this 27th day of February, 2014.

…..............

M.  MUYA

JUDGE

27TH FEBRUARY, 2014

In the presence of:-

Counsel for the State Miss Fundi

The appellant present in person

Court clerk Musundi.