Stephen Emathe v Republic [2017] KEHC 2304 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NANYUKI

CRIMINAL CASE APPEALNO.  157 OF 2015

STEPHEN EMATHE ………….………………………APPELLANT

VERSUS

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

(Being an appeal from the original conviction and sentence by Hon. W J Gichimu principal Magistrate dated 14th July 2015   at Nanyuki Chief Magistrate Court Criminal Case No. 911 of 2014)

JUDGMENT

1. STEPHEN EMATHE(the appellant herein) has filed this appeal against his conviction and sentence before the Nanyuki Chief Magistrate’s court for the offence of defilement Contrary to Section 8(1) (2) of the Sexual Offences Act.Thetrial court after convicting the appellant sentenced him to life imprisonment.

2. This court as the first appellant court is duty bound to analyse and re-evaluate the trial court’s evidence and to come with its own conclusion on that evidence. See the case DAVID NJUGUNA WAIRIMU – V- REPUBLIC [2010] eKLR.

3. The prosecution’s evidence was that the appellant had on 7th October 2014 visited the home of the mother of JA. JA was a 9 year old girl. The mother of JA sent JA to go purchase paraffin. It seems she was to purchase the paraffin at a neighbour’s home. JA walked out of the house and the appellant, thereafter, also walked out. JA’s mother in evidence said that she presumed the appellant had gone to the toilet. When however JA took more than 15 minutes to return homeher mother got concerned and she together with a neighbour began to look for JA. On returning home she found her daughter JA and she began to chastise her. It was then that JA told her that the appellant had dragged her to the bush and defiled her.

4. JA in evidence said that the appellant followed her as she went to buy paraffin and held her hand telling her that her mother had requested him to escort her. That the appellant led her to the bush. She further said.

He (appellant) did bad things to me. He removed my pants. He lay on top of me. He blocked my mouth with his hands. I saw the “thing”. He placed it in my private part. It was bad”.

5. The father of JA corroborated the evidence of JA and JA’s mother that the appellant followed JA out of the house and that when JA returned home she said the appellant had defiled her.

6. The Clinical Officer RONALD MUTAI at the Nanyuki Teaching and Referral hospital on examining JA found her hymen was missing. Blood stains and few puss cells were noted on JA’s vulva. He concluded that JA had recent penetration.

7. The appellant in his unsworn statement in defence said that he had earlier on that day gone to JA’s mother’s home where JA’s mother and others were taking local brew. He declined an invitation to stay at that home.  Later at 5p.m that day as he went past that homestead he heard a child crying and checking he saw it was JA’s Mother beating JA. He pleaded with the mother to stop where up the mother asked him where he had been with JA. The mother began to scream and members of public began to assault him. He denied committing the offence.

8. On the first ground of appeal the appellant submitted that the the evidence of defilement was not corroborated and that the prosecution’s evidence had inconsistencies.

9. JA informed the court that the appellant held her by the hand leading her to the bush, removed her clothes and defiled her. The fact of defilement was confirmed by JA’s mother who said that she saw appellant’s semen when she examined JA. Further the clinical officer confirmed that there were blood stain on JA’s vulva and confirmed there had been penetration. The offence of defilement as stated by JA was therefore corroborated.

10. There were no inconsistencies in the prosecution’s evidence and the appellant erred to submit that the evidence of JA and her mother about the events leading to the defilement and events thereafter contradicted each other. In the case ERIC ONYANGO ONDENG – V- REPUBLIC [2014] eKLR the court stated that not all contradictions warrant rejection of evidence. The court  in stated:

“The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case”.

11. In that first ground the appellant also argued that the neighbour who JA’s mother said had told her that she had seen JA being led by a tall man, should have testified. It is important to consider the law in relation to the prosecution’s duly to call witnesses.

12. Section 143 of the Evidence Act Cap 80is in the following  terms:

“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact”.

13. In the case BUKENYA – V- UGANDA [1971] E.A. 549 the court in considering the duty of the prosecution to call witnesses held:

“The prosecution in duty bound to make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent with its case”.

The court would only interfere with the prosecution’s discretion to call witnesses if it is shown that the prosecution was influenced by some oblique motive. SEE MWANGI – V- REPUBLIC [1984] KLR 595.

14. In this court’s view the witness who said she saw JA being led away by a tall man did not identify that tall man as the appellant and the prosecution’s decision not to call that person as a witness cannot be faulted.

15. Appellant on the second ground of appeal submitted that the prosecution failed to produce preliminary notes of treatment. That submission has no basis in law because the clinical officer filed the P3 form whose information is obtained from the treatment notes.

16. On the P3 form the Clinical Officer after noting the hymen was missing stated that it was an “indication of recent penetration on attempt”.

17. Penetration  under  Section  2 of the Sexual  Offence  Act is  defined as:

“Means the partial or complete insertion of genital organ of a person into the genital organs of another”.

It follows from that definition that the conclusion of the clinical officer confirmed penetration.

18. The trial court, contrary to submissions of the appellant, did consider the appellant’s defence and termed it an afterthought.

19. This court has considered that defence. It was unsworn. That defence had no probative value. That was what was stated by Justice J Kamau, and I agree with that statement, when  the learned  Judge quoted  the case MAY – V- REPUBLIC  [1981] KLRviz:

“An unsworn statement …. Potential value is persuasive rather than evidential”.

20. The appellant’s defence junxtapositioned with evidence under oath of JA, her mother and Clinical Officer will lead this court to find that that defence was an afterthought. The issue the appellant raised in that defence were not put to the prosecution witnesses as they testified.

21. Having given careful consideration of the prosecution’s case and the appellant’s defence I find that the prosecution proved the case against the appellant beyond reasonable doubt.

22. On sentence the law is clear under Section 8(1) (2) that it is life imprisonment.

23. The upshot is that the appellant’s appeal is devoid of merit and is dismissed. The trial court’s conviction is upheld and thesentence is confirmed.

Dated and Delivered at Nanyuki this 8th November, 2017

MARY KASANGO

JUDGE

Coram

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

Appellant:  Stephen Emathe

For state:  ………........................................

Language ....................................................

COURT

Judgment delivered in open court

MARY KASANGO

JUDGE