JOHN MBURU V REPUBLIC[2012]eKLR
REPUBLIC OF KENYA
High Court at Machakos
Criminal Appeal 262 of 2010
JOHN MBURU……………………………………….....APPELLANT
VERSUS
REPUBLIC ..…………..………………………….......RESPONDENT
(Being an appeal from the original conviction and sentence in Kitui Principal Magistrate’s Court Criminal
Case No.3 of 2009 by Hon. B.M. Kimemia on 22/9/2010)
JUDGMENT
The appellant, John Mburu was charged before the Principal Magistrate’s Court at Kitui with the
offence of unnatural offence contrary to section 162 (a) of the Penal Code, particulars being that on 15th
November 2009 at about 3.am at G.K. Kitui Prison, township sub location in Kitui District of the Eastern
Province, he willfully and unlawfully had an act which caused penetration to M.M. aged 20 years against
the order of nature. The appellant denied the offence and was soon therefore tried.
The case for the prosecution in a nutshell was that on the night of 14th and 15th November at
about 3am, M. M. “the complainant” and an inmate at Kitui G.K. Prison was asleep when the appellant
sexually assaulted him through the anus. In an attempt to restrain the appellant, he parted him but the
appellant warned him to keep quite. He was able to see the appellant as he slept next to him and the
electricity light was on. The following day, the complainant reported the incident to the incharge. He was
then taken to Kitui General Hospital where he was examined by Davis Nyamai, a clinical officer. He
noted that the complainant’s pair of shorts were torn and had dry seminal fluid on the outside. Anus
examination revealed tenderness and mucontic inflammation. The conclusion was that there was
evidence of forceful penetration causing blunt trauma on the anal mucosa. He assessed the degree of
injury as grievous harm on the basis of interruption of anal muscle. Corporal Ahron Makau was the
incharge of early shift at Kitui G.K. Prison. On 15th November, 2009 at about 7.15 am, the complainant
reported to him that he had been sodomised by the appellant. He showed him the torn pants and the
semen which had been ejaculated on it. He is the one who took the complainant to hospital
subsequently. Following the medical report, the appellant together with the complainant were escorted
to Kitui Police Station where they were received by P.C. Joseph Musomba, the investigating officer in
the case. After carrying out further investigations in the case, he preferred the charge against the
appellant.
Put on his defence, the appellant elected to give a sworn statement of defence and called no
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