Kiambu High Court has upheld a life imprisonment verdict in it’s entirely for a man who defiled his niece in Muti Village, Murang’a County in 2016.
In her Judgment after hearing the appeal Lady Justice Esther Maina said “the upshot is that there is no merit in the appeal, either against the conviction or the sentence”.
Paul Muli Mutua had been sentenced by Thika Principal Magistrate Ms. Otieno Omondi on June 15, 2017 after the court found him guilty as charged.
Aggrieved, he appealed against the conviction and sentence through a written submission to which the prosecution responded orally.
Facts of the case were that on 2nd September 2016 at Muti village of Gatanga Sub-county in Murang’a, the appellant defiled the minor who had been playing with her cousins and siblings outside his house.
Her younger sister, Magdalene, entered the house with other children and found her uncle eating githeri. The appellant chased the other children away, remained with and locked the house.
The Court heard that he then undressed the complainant and himself, took her to his bed and defiled her, then threatened to kill her if she revealed to anyone what he had done.
The court heard that when the complainant’s mother noticed a discharge on her private parts, she took her to Matuu Health Centre and also reported to Ithanga Police Station.
The examination at the Health Centre revealed lacerations on her private parts and missing hymen.
Following the confirmation of defilement, the appellant was arrested on October 31 2016 and subsequently arraigned in court.
In his unsworn statement, the appellant claimed that on the said date, he was away attending a burial only to return home after two days to learn that he had been suspected to have defiled a minor.
He claimed that the complainant’s mother had threatened to fix him as she suspected that he had been selling her chicken and that there was a land dispute between them.
He also questioned the Investigating Officer did not interview his parents when he visited the scene though they were present.
However, in her verdict, Justice Maina said the evidence on penetration was corroborated and that she believed the evidence by the complainant who was confident, consistent and remained unshaken in cross-examination.
On identification, she said the appellant was positively identified and the scene was his house where the complainant was found by her mother’s friend.
On grounds that the charge was defective as they should have charged him with incest contrary to section 20(2) since he was an uncle and not defilement, Justice Maina maintained that both offences involved acts which caused penetration and that the prosecution was at liberty to charge the appellant with either of the offences.
She added that his case would have been tenable if it were that incest would have attracted a lesser sentence.
“That, however, is not correct as the victim in this case being a child, the sentence prescribed for incest under section 20 is life sentence,” she summed up.
Justice Maina is in-charge of Nyamira High Court and had been deployed to the Kiambu High court during the service week in which courts got additional judicial officers to assist in clearing the backlog of cases. It was, however, read by the duty Judge Lady Justice Christine Meoli.
By Lydia Shiloya
