REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS Criminal Appeal 90 of 2005 FRANCIS KATUA MUTINDA VERSUS REPUBLIC (Appeal from original conviction and sentence in Machakos CM’s Court Criminal Case No.100/2005 by D Mochache, SRM on 24.8.2005) JUDGMENT 1. The Appellant in this case, Francis Katua Mutinda was the accused person in Machakos CM’s Court Criminal Case No.100/2005. He was charged with the offence of defilement contrary to section 145(1) of the Penal Code. The particulars were that “on the 28th day of January, 2005 at Mukunuku Village, Kangundo Location in Machakos District within the Eastern Province ,[he] had unlawful carnal knowledge of J M M a girl under the age of sixteen years.” In the alternative that he committed the offence of indecent assault of a female contrary to section 144(1) of the Penal Code. The particulars in the alternative charge were that on the same day and in the same place, he touched the private parts of the said JMM. 2. In her judgment, the learned trial magistrate Hon.D. Mochache, SRM found that the charge in the first count had been proved beyond reasonable doubt and sentenced the Appellant to serve 20 years in prison. He appealed and from the Petition of Appeal and submissions the Appellant raises the following issues;i. Whether he was properly identified as the person who defiled the complainant. ii. Whether the circumstantial evidence was sufficient to prove the charge. iii. Whether the learned trial magistrate based her judgment on extraneous matters. 3. The evidence that led to the conviction was as follows:PW1, JM M, a 13-year old Form I student at M High School stated that on 28.1.2005 at about 10.00am she was walking home from hospital and decided to enter her father’s shamba to pick mangoes. Before she turned off the road into the shamba, she noticed a man walking 10 – metres behind her. He was wearing blue jeans, black T-shirt and a red cap with a white stripe. When PW1 entered the shamba, the man passed on but emerged in the
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shamba and grabbed PW1. She recognized him as the man she had seen a few minutes earlier. The man picked soil and put the same in her eyes, mouth and nose and tied a handkerchief on her neck. He proceeded to tear off her underpants as he continued to beat her. She fought back and scratched his face but he overpowered her and she lost consciousness after the man fell on top of her. When she regained consciousness, the man had left but she was in pain especially in her private parts. She staggered to the road and fell down. A man called Kamau saw her and she told him what had happened. Peninah Syokimau, PW2 also came and washed her face, removed the soil from PW1’s mouth and took her to Kangundo Police Station and later to Kangundo Hospital. After emergency treatment was given, the alleged victim was taken to Nairobi Women’s Hospital for specialized treatment and was released after 4 days. She later went to the Kangundo Police Station and picked out the Appellant in an Identification Parade. She was able to do so from past recognition and more so because he had an old scar on his face and the scratch marks she had inflicted on his face during the incident. 4. PW2, Peninah Syombua is one of the persons who found PW1 lying by the road side and she noted that her mouth and eyes had soil and her torn underwear was next to her. As she assisted PW1, one Musyoki arrived and said that he had seen a man with a red cap, white/black T-shirt and blue jeans plus safari boots on the road and he looked soiled but brushed off the soil before taking off. PW2 cleaned PW1’s mouth and took her to hospital. 5. PW2 added that on 1.2.2005 the same Musyoki who had allegedly seen the suspected assailant reported to PW2 amongst others that he had again seen the same man at Kisuke Hotel in Kangundo. The person was arrested and he had the same clothes elsewhere described above. It turned out that the person was the Appellant. 6. PW3, Dr. Beatrice Kirubi examined PW1 on 28.1.2005 and she noted that she had a blood stained dress, soil in the face, eyes and lower limbs. She also had a swollen forehead, bleeding in the nose and jaw and scratch marks on the left part of the nose. Her body was generally covered in dust and her hymen was broken and she had bruises in the vaginal opening which also had blood clots. 7. PW4, Ancent Makau Musyoki is the one who on 28.1.2005 met a man coming from the shamba belonging to PW1’s father. He noted that the man was dusting soil off his body and clothes and then ran away towards Kangundo Town. PW4 said that he did not have any suspicions until he saw people gathered around PW1 and then he realized that he may have been the offender. Together with others he tried to follow the man but he could not get him. However on 1.2.2005, he saw him at Kangundo, and the Appellant was arrested the next day at Kisuke Hotel. Like PW1, PW2 he also identified the clothes that the Appellant was allegedly wearing on the date of the offence was committed. (The clothes were in court during the hearing) 8. PW5, CK, mother of PW1 recalled that when she received the report of her alleged defilement, she rushed to Kangundo Police Station and noted that PW1 was bleeding in the vagina and her clothes were soiled and bloody. PW1 was then taken to hospital and later the Appellant was arrested. 9. PW6, James Musyoki Munywoki, Assistant Chief, Matetani sub-location received the report of the alleged defilement on 28.1.2008 and a day later received a report that the alleged offender had been seen and on 2.2.2005, the person was arrested and handed over to the police. 10. PW7, I.P. Joseph Kibet conducted an Identification Parade on 8.2.2005 at Kangundo Police Station. The members were seven and the Appellant stood between member No.5 and member No.6. PW1 readily identified him by touching him and the Appellant did not protest. 11. PW8, Isaac Lazaro was the officer who investigated the case and produced the clothes recovered from the Appellant and which witnesses identified as having been worn on the material date. He formed the opinion after taking all witness statements that the accused should be charged with the offence of defilement and so he was.
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12. When the accused person was put on his defence, he stated that he did not commit the offence and that on 28.1.2005, he was at Tala Market until dark and then he went home at a place called “Airport”. On 2.2.2005 he was arrested by PW6 and later charged. He faulted the Identification Parade because the complainant had previously known him. 13. On my part I should begin by looking at the alibi evidence tendered by the Appellant. As I know it, that defence is only useful to a subject if it can be shown that the alibi defence dislodges the evidence tendered against the accused person and it must be raised early in the case. As was stated in Karanja vs Republic (1983) KLR 501 at 505, “… we agree with the observations of the Court of Appeal for Eastern Africa in Republic vs Ahmed Bin Abdul Hafid [1934]1 EACA 76, and with those of the former Court of Appeal in Republic vs Little boy , [1934] 2 KB 413, that in a proper case the court may, in testing a defence of alibi and in weighing it with all the other evidence, to see if the accused person’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence, or his alibi, if it amounts thereto, at any early stage in the case, and so that it can be tested by those responsible for the investigation and prevent any suggestion of afterthought. This, indeed, is the object of the statutory amendments in 1982.” 14. In this case, nowhere in cross-examination was the alibi defence raised and it came too late in the day to be responded to by the Prosecution. In any event, looking at the evidence of PW1 and PW4, it cannot be true that the Appellant was not at the scene on the material day. That holding will necessarily lead me to address the issue of identification. PW1 had two opportunities on the material day, to see the Appellant. She initially saw him as they both walked on the road from Kangundo. Moments later, she saw him again when he attacked her. She noted his clothing, save his shoes, and was able to describe them to PW2 and her mother as well as PW8. She confirmed that recognition in the Identification Parade conducted by PW7 and of importance is that she was able to note two special features on the Appellant; an old scar on his face and two scratch marks on his face that she inflicted during their encounter. Neither that recognition nor identification can be faulted. 15. PW’1’s identification is lent credence by the evidence of PW4 who saw the Appellant moments after the incident emerging from the shamba with soiled clothes and after dusting himself, ran away towards, Kangundo. PW4 was able to identify him on the next day, and on the day of his arrest, as he was still wearing the same clothes. 16. I see no reason whatsoever to doubt the evidence of identification and the Appellant was properly identified in close view and in broad daylight. 17. The Appellant has raised the issue that all evidence against him was circumstantial but it is wholly not. Once I have found that the evidence of PW1 is credible and PW4 was able to recognize the Appellant, the identification although partly based on PW4’s evidence is still water-tight and cannot be shaken. 18. On the whole, I find that PW1 was defiled and the evidence of PW2 and PW3 as well as PW5 and PW8 on that aspect of it is consistent and clear. I have said that the Appellant was properly identified at the scene and in the parade and his alibi defence was an afterthought. The learned trial magistrate reached a proper decision and I see nothing that is extraneous in her decision. The conviction was proper. 19. As to sentence, the Appellant was sentenced to serve 50 years in prison. The repealed section 145 (1) of the Penal Code as inserted by Act No.5/2003 provides as follows:“Any person who unlawfully and carnally knows any girl under the age of fourteen years is guilty of a felony and is liable to imprisonment with hard labour for fourteen years together with corporal
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punishment.” 20. In my view and in the circumstances of this case, where a person preys upon an innocent young Form 1 virgin, defiles her with brute force, leaves her unconscious with soil stuffed into her mouth, eyes and nose, and nonchalantly takes a walk as if there was peace in his world and there was in fact none, I would have seen no reason to interfere with the sentence if it was lawful and proper. In this case 50 years was not the sentence under section 145(1) of the Penal Code aforesaid. In fact 14 years imprisonment was the lawful sentence. I shall therefore reduce the sentence to 14 years as is the law. 21. The Appeal is allowed to that extent. 22. Orders accordingly. Dated and delivered at Machakos this 16th day of December 2008. Isaac Lenaola Judge In the presence of: O’mirera for Republic Appellant present in person Isaac Lenaola Judge
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