Mwangi v Republic

4. PW3, Christine Kado a social worker on getting the information regarding the incident visited the complainant's home and accompanied her to hospital. PW4, Purity Kajuju, a clinical ocer, treated the complainant. She had diculties in walking and looked sad. She noted several bruises and the inner labia wall was red though the hymen was intact. However, no spermatozoa was found. She opined nonetheless that there had been sexual activity. 5. PW5 Dr. Shaka, a police surgeon also examined the complainant and found her external genitalia normal, though the labia minora had reddened and the hymen had a tear at 5 O’clock. He prepared the P3 form and later examined the appellant. PW6 PC Nancy Bukayo from Eastleigh Police Base was assigned to investigate the case and upon conclusion of the investigations she preferred the charge against the appellant. 6. The appellant testied in his defence and called one witness. He stated that he worked as a cleaner and while heading home from work he was accosted by four men who started beating him on allegations that he was terrorizing PW2. It was at this juncture that PW2 emerged claiming that he had deled the complainant. Administrative Police Ocers on patrol saved him from the beatings and took him to the chief’s camp and later to Shauri Moyo Police Station. That PW2 had a grudge against him as she used to live in a plot where the appellant was a caretaker and garbage was found in her house which caused her to be evicted and upon being evicted, she had vowed to teach the appellant a lesson. 7. His witness DW2, Jane Muthoni a caretaker at a at in Eastleigh testied that the appellant on 11th May 2014 worked continuously until 3p.m. Accordingly the appellant could not have committed the alleged oence at 4 pm. 8. After evaluation of the evidence on record, the trial magistrate found the appellant guilty of the oence charged, convicted him and sentenced him to life imprisonment. 9. The appellant was aggrieved by the conviction and sentence and appealed to the High Court where he contended that the case was not proved beyond reasonable doubt, that the complainant's evidence was not corroborated and that her age as well as penetration which are key elements of the oence were not proved. Lastly, that his defence was not considered. 10. The 1st appellate court upon hearing the appeal on merits dismissed it in its entirety. Dissatised with the decision, the appellant has approached this court on a second and perhaps last appeal on grounds that the rst appellate court erred in law and fact for failing to nd that: voire dire examination conducted on the complainant was improper; the age and penetration of the complainant was not proved; he was not properly identied as the perpetrator of the crime, the reasons given by the trial court were insucient to justify invocation of Section 124 of the Evidence Act; to re-evaluate the evidence and cure the inconsistencies; and lastly failure by the trial court to consider his defence. 11. At the hearing of the appeal the appellant appeared in person while the respondent was represented by Mr. Njeru Solomon, Senior Prosecution Counsel. Both parties led written submissions which they relied on entirely and opted not to highlight. 12. In his submissions, the appellant while citing several authorities which we have considered submitted that there was failure to prove the key ingredients of the oence of delement. Firstly, there were inconsistencies in the prosecution evidence as to who had committed the oence. secondly, the age of the complainant was not cogently proved. That PW2 and PW3 never testied as to the age of the complainant and the same was only disclosed in the P3 form and post rape care forms. 13. The appellant further submitted that critical witnesses were never called to testify which left a huge gap in the prosecution’s case. Lastly, the appellant submitted that, failure to consider the defence of https://new.kenyalaw.org/akn/ke/judgment/keca/2022/817/eng@2022-07-22 2

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alibi that he raised and the existence of a grudge between him and PW2 which resulted in the framedup charge, occasioned him injustice. 14. Opposing the appeal Mr. Njeru Solomon, urged that the trial magistrate made no error in arriving at the ndings of facts and law which were echoed by the 1st appellate court. The 1st appellate court was equally alive to its duty to re-evaluate and re-assess the evidence and arrive at an independent conclusion. On voire dire, examination, the respondent submitted that the same was properly conducted and even though the complainant was thereafter armed, the appellant exhaustively crossexamined her. The appellant did not therefore suer any prejudice or injustice. On identication, it was submitted that the appellant was properly identied by the complainant whilst in the act. She knew him as they used to live in the same plot. Similarly, PW3 testied that when she was informed of the incident and proceeded to the home of the complainant, she found members of the public at the scene about to lynch the appellant. Furthermore, the appellant himself admitted that he was at one time a caretaker of the premises where the complainant lived. Accordingly, the identication of the appellant cannot be disputed. On the issue of penetration, it was submitted that the complainant narrated graphically how the appellant had penetrated her vagina. That PW2 also testied as to nding the beddings of the complainant soiled with blood. That though the hymen was not completely broken, that in itself was no proof that penetration did not occur. As per Section 2 of the Sexual Offences Act, penetration includes partial or complete insertion of the genital organ and in the instant case, there was partial penetration as per the medical evidence. 15. Lastly, as to the age, it was submitted that though the complainant and PW2 did not produce any documentary evidence regarding the age of the complainant, there was the medical report which estimated the age of the complainant to be 10 years, which was equally reected in the medical report from MSF clinic and post rape care form. Lastly, the complainant herself testied that she was 10 years of age which assertion was not challenged by the appellant at all. Counsel further submitted that, it is settled law that age is not necessarily proved by documentary evidence alone, but can be equally proved by visual observation and oral evidence and that is what happened in the current case. 16. Having considered the record of appeal, submissions by both parties, we take cognizance of the fact that this is a second appeal and by dint of Section 361 of the Criminal Procedure Code, we are conned to considering matters of law only. See the case of Karingo v Republic [1982] KLR 213. 17. The issues of law that we have to determine are whether the prosecution proved to the required standard the ingredients of the oence, voire dire examination, re-evaluation of the evidence and consideration of the appellant's defence. As analyzed in this judgment before, the two courts below arrived at concurrent ndings that the complainant was a minor, that prove of age was not necessarily by documentary evidence but could also be proof by virtual observation and oral evidence. In the circumstances of this case the evidence of the complainant, PW2, PW3 and PW4 was sucient to proof the age of the complainant. Courts have accepted dierent mediums of evidence to proof age in cases of delement. For instance, in the case of Richard Wahome Chege v Republic Criminal Appeal No. 61 of 2014 (UR) this Court held as follows: “ On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certicate, PW2 the mother of the complainant testied that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 (the Doctor) who examined the complainant, and the complainant herself.” https://new.kenyalaw.org/akn/ke/judgment/keca/2022/817/eng@2022-07-22 3

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18. In the instant case, the complainant stated her age when voire dire was being conducted and when she testied; so was the evidence of evidence of PW2. Again there was the evidence of the medical personnel who examined the complainant. 19. On penetration the two courts below once again concurred that there was partial penetration and that as per the law, whether partial or complete penetration all constituted penetration. This is in line with Section 2 of the Sexual Offences Act We have no reason to depart from those concurrent ndings. 20. On to the third issue of whether the appellant deled the complainant, both courts believed the evidence of the complainant which was unshaken during cross- examination. Further the appellant was well known to the complainant and PW2. The two courts below arrived at concurrent ndings of fact that the complainant was deled and that the appellant was the person who committed the oence. Further both courts relied on Section 124 of the Evidence Act and properly so in our view. This Court whilst dierently constituted elaborated on the import of the proviso to Section 124 of the Evidence Act with relevance to delement cases as follows:“ The import of the proviso to Section 124 of the Evidence Act is that the trial court can convict an accused facing the charge of delement solely on the evidence of the victim, if for reasons to be recorded, the court is satised that the victim is telling the truth. Medical evidence is not mandatory under that proviso, a position which was reiterated thus by this court in George Kioji v Republic Cr. App. 270 of 2012(NYERI) ‘Where available, medical evidence arising from examination of the accused and linking him to the delement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for delement. The court can convict if it is satised that there is evidence beyond reasonable doubt that the delement was perpetrated by accused person. Indeed, under the proviso to Section 124 of the Evidence Act Cap 80 Laws of Kenya, a court can convict an accused person is a prosecution involving a sexual oence, on the evidence of the victim alone, if the court believes the victim and records the reason for such belief.’” 21. We agree with both courts below on their reliance on the above section as the evidence by the complainant was unshaken and indeed the complainant came out as a truthful witness. The two courts were thus justied in invoking the proviso contrary to the submissions of the appellant. 22. On voire dire examination of the complainant, we agree with counsel for the respondent that the same was properly conducted, and, the appellant subsequently intensely cross-examined the complainant. Accordingly, he did not suer any prejudice. In any event failure to conduct a proper voire dire examination cannot vitiate criminal proceedings if the appellant did not suer prejudice or injustice. See the case of Maripett Loonkomok v Republic [2016] eKLR. We discern no such misgivings in the circumstances of this case. 23. This Court in the case of Adan Muraguri Mungara v Republic [2010] eKLR stated the circumstances in which the court 2nd appellate court may interfere with the concurrent ndings of fact by the trial court and the rst appellate court as follows: As this Court has stated many times before, it has a duty to pay homage to concurrent ndings of fact made by the two courts below unless, on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such ndings. That would mean that the decision is bad in law, thus entitling this Court to interfere.” https://new.kenyalaw.org/akn/ke/judgment/keca/2022/817/eng@2022-07-22 4

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25. Applying the above yardstick to the circumstances of this case we nd no justication at all to interfere with the concurrent ndings of fact that were made by the two lower courts. 26. On the issue of the appellant’s defence, we have carefully looked at the record and there is clear evidence that the same was considered by the trial court in her judgment. The trial court meticulously summarized and considered the appellants defence before dismissing it. We also agree with 1st appellate court’s observation that indeed the appellant’s defence was duly considered and rightly dismissed. The appellant advanced the defence of alibi which was completely dethroned by the overwhelming evidence of the complainant whose evidence was believed by the two courts below. The same goes for the alleged grudge between PW2 and the appellant. 27. In the end we nd no merit in this appeal. It is dismissed in its entirety. DATED AND DELIVERED AT NAIROBI THIS 22 ND DAY OF JULY, 2022. HANNAH OKWENGU .................................................... JUDGE OF APPEAL ASIKE-MAKHANDIA .................................................... JUDGE OF APPEAL S. ole KANTAI .................................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/817/eng@2022-07-22 5

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