John Mutua Munyoki v Republic

conjecture by making a far fetched inference on the guilt of the Appellant -By failing to warn herself of the danger of convicting on uncorroborated evidence of the complainant. -By rejecting the appellant’s defence without due consideration. -By convicting the appellant on proceedings conducted by an unqualified prosecutor and that; -The Magistrate was biased, she failed to appreciate the law applicable and evidence adduced in the circumstances of the case. 5. Facts as presented by the prosecution were that PW1, J K (Complainant) was a student at [particulars withheld] Girls Secondary School. On the 5th day of June, 2010, she was going back to school. At about 9.00 pm she was at [particulars withheld] junction waiting for a motor-vehicle that would take her to school. She encountered her teacher, PW3, D M who assisted her to get means of transport to school. They boarded a motor-vehicle owned by Catholic nuns which was however overloaded. Upon reaching the junction they encountered the appellant who had a motor-vehicle. Ladies in the motor-vehicle requested the appellant to take the complainant to school, a request that was acceptable to him. Instead of taking her to school he drove the motor-vehicle towards the opposite direction. Ultimately he stopped the motor-vehicle in the bush and caressed her by touching her breasts and legs. He removed her innerwear and they engaged in coitus. He then gave her Ksh.1000/- and asked her not to divulge the information to anyone. Subsequently he took her to school. 6. They reached at about 12.15am. She was received by PW10, P M K, the watchman, who took her to PW5 M M as instructed by PW3. They released the complainant to go to bed. On Monday, PW3 pursued the issued as it had taken the complainant too long to reach school. The complainant confessed having had sex with the appellant. The matter was reported to the School Administration. Consequently they reported the matter to the police. PW9 No.88218 P.C. Joseph Musomba investigated the case and caused the appellant to be charged. 7. When put on his defence, the appellant, a catholic priest admitted having been requested to take the complainant to school. He however stated that he complied by taking her to school and having ensured that she was settled. He returned to the parish and escorted other Christians to [particulars withheld] Church. He returned to his parish and slept at 12.20am. The following day, on Sunday the 6th he celebrated mass at [particulars withheld] Girls School at 8.30am. He learnt of the allegations from his fellow priest, Father K. He went to Kitui Police Station where he met the Officer Commanding Police Division (OCPD) who confirmed the allegation. He recorded a statement. He denied having defiled the complainant. He did not understand why the charges were trumped up but stated that Mrs K who requested him to take the girl to school overcharged him for curtains she was making for him which he declined to pay. He denied having given the complainant Ksh 1000/-. 8. This being the first appellate court, it is duty-bound to re-look at the evidence adduced at trial afresh, re-evaluate and re-assess it then reach its own independent conclusion, bearing in mind the fact that it neither saw nor heard witnesses who testified. (see Okeno vs Republic (1972) EA 32). 9. The learned trial magistrate has been faulted for convicting the appellant in proceedings conducted by an unqualified prosecutor. Submissions filed by the appellant’s counsel did not set forth any argument in that regard but being a ground of appeal,I must consider it. A perusal of proceedings in the lower court reveals that a prosecuting officer described as “Prosecutor Apindi” prosecuted part of the case. The

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issue of competency of prosecutors has been considered in a myriad of cases and put to rest. In the case of Laban Nyaga Njue vs Republic (2015) eKLR the Court of Appeal stated thus: “Act No.7 of 2007, which came after that line of cases invalidating prosecutions by junior police officers addressed the incongruity by deleting the qualification in section 85(2) that only police officers of the rank of Assistant Inspector and above could be appointed as prosecutors…” That ground of appeal therefore fails. 10 This is a case where the trial magistrate analyzed evidence adduced and made no finding on the alternative charge as the main charge was proved to the required standard. She observed the demeanor of the complainant whom she found to be truthful. She considered evidence adduced by the defence and reached a finding that the explanation given was not reasonable. 11.To prove the case the prosecution had a duty of proving that the appellant committed an act that caused either partial or complete insertion of his genital organ into that of the complainant. Secondly, the age of the complainant must have been proved as being under the age of eighteen years. 12. Evidence adduced was that the complainant was a form three (3) Student at [particulars withheld] Girls High School. At the outset the trial court recorded that she was sixteen (16) years old. On crossexamination she stated that she was born on 12th of October, 1994. She was subjected to age assessment at Kitui district Hospital on the 13th July, 2010 and found to be sixteen years old by Doctor Naftali Muturi, PW7. In the case of Francis Omuroni v Uganda Criminal Appeal No 2 of 2000 it was held that: “In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence”. Evidence adduced proved the fact that the complainant was 16 years old. It was indeed important for the prosecution to prove the age of the complainant a duty it duly discharged. (Also see George Hezron Mwakia v Republic (2010 eKLR). 13. It was admitted by the appellant that he encountered PW3 who was referred to as Mrs K, Mrs K and three nuns at [particulars withheld] junction. Further, that PW3 requested him to take the complainant to school and he accepted. According to him they drove a distance of 50 kilometers and after taking other passengers to the parish, he took her to school that was a kilometer away. He however denied having stopped the motor-vehicle along the way as stated by the complainant. 14.In her testimony the complainant stated that when she remained with the appellant in the vehicle he had to drive a distance of 500 meters away. After driving for 200 meters the appellant stopped the motorvehicle. He gave an excuse that he had to confirm if people who were waiting for Mutitu bus had left. They returned to the Parish. The bus left and the appellant took an opposite direction to school. She sought to know where they were going and the appellant wondered aloud whether she had a problem. He opted to give her a place to sleep if she had been sent away from school. It was at that juncture that he stopped the motor-vehicle, switched off lights and stated touching her breasts. Ultimately he removed her underwear and forced her onto the seat and they had sex. He took her to school thereafter. On the fateful night she did not disclose to any person what happened. But the following day she told the School Principal. On cross-examination she stated that she didn’t tell either the watchman or the matron what transpired because the appellant gave her money and told her not to tell anyone what happened. 15. PW2, M M the matron stated that she observed the complainant on the material night and noted that she looked scared. The complainant told her that she was with the appellant and said no more.

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16. The complainant underwent medical examination following the report made to the police. PW8, Abebian Muoka Wayua a Clinical Officer who examined her on the 10th June, 2010 found her having no tears or bruises but the hymen was absent. PW6, Martin Njue, the clinical officer who filled the P3 form in that respect examined her and formed the opinion that lack of hymen was due to sexual penetration. 17. The issue that had to be addressed, therefore, was whether the appellant was the perpetrator of the act that resulted into the penetration of the Complainant’s genital organ. 18. The trial court reached a finding that indeed the appellant committed the act of penetration in the circumstances. The learned trial magistrate has been faulted for not being clear on the issue of corroboration in her judgment. This was because at one point she stated that the complainant’s evidence was corroborated by that of PW3, PW5 and PW10 while at another point she stated that the evidence of defilement was solely of the complainant and appellant. An excerpt was reproduced from the judgment to this effect: “PW1 narrated how she was defiled by the accused in his car as he was going to take her to school. This evidence is corroborated by the evidence of PW3, 5 and 10 who saw the accused with PW1 when PW1 was defiled.” Then she was also quoted as having stated: “Even though the evidence before the court on the defilement is that of PW1 and that of the accused, the court warns itself on depending entirely on evidence of the PW1. However, in a sexual offence, only two (2) people are involved.” This may have been ambiguous but it was a matter of the learned magistrate’s expression. This does not change evidence tendered. 18. As correctly argued by the appellant’s counsel in his submissions, corroboration is: “…independent evidence which affects the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it”. (see Republic –v- Marilal Ishwerlal Purshit (1949) EACA 58,61). 19. Corroborative evidence adduced herein did prove that the appellant was the person who took the complainant to school on the material night. The question to be posed however is: Whether corroboration of the fact that the appellant did the act that caused penetration of the complainant’s genital organ was a requirement in the instant case? 20. In the year 2003 the Court of Appeal considered various case law and reached a finding that there was no basis for requiring corroboration in such cases as long as the trial court believes that the complainant is telling the truth. The belief must of course be founded on some reasons to be recorded (see Mukungu v Republic 2003. AHRLR 175 (Ke CA 2003). 21.The trial magistrate has been faulted for warning herself before conviction as this was viewed as having dismissed the appellant’s defence prior to the court warning itself. 22. In her judgment the learned trial magistrate stated thus: “Even though the evidence before the court on the defilement is that of PW1 and that of the accused, the court warns itself on depending entirely on the evidence of PW1.However, in a sexual offence, only two people are involved in the act. In the EVIDENCE ACT section 124,

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there is a requirement of a child to be corroborated by other material support “EXCEPT…..wherein a Criminal Case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court SHALL receive the evidence of the alleged victim and proceed to convict…..the court is satisfied that the alleged victim is telling the truth….” Therefore owing to the nature of the offence, having duly warned myself…” 23. It is important to point out that although the trial magistrate appreciated the law as amended, she failed to note that since such a case is treated differently the caution was not required. The warning was irrelevant and unnecessary. As stated in the case of Solomon Mungai Kanyango v Republic (2012) eKLR- The old practice requiring corroboration in Sexual Offences and a court to warn itself on the danger of convicting on uncorroborated evidence of the truth of the complainant’s evidence was changed by the amendment of section 124 of the Evidence Act. This therefore brings us to the issue whether the defence tendered was considered? 24. The learned magistrate captured what the appellant stated in his defence. While analyzing the entire evidence she stated thus: “…The accused denied having had sex with PW1. On the material date it is clear that….. The accused stated that he had no grudge with Any of the witnesses, contradicting the submissions of the counsel….. The accused did not give any reasonable explanation…..The defence is not plausible in the circumstances…… I find that the line of defence is therefore baseless and I dismiss the same”. It is apparent that the trial magistrate took into consideration the defence put up by the appellant. 25. In his defence the appellant stated that he was framed up. He claimed that PW3, Mrs K had overcharged him for curtains and cushions which excess sum he failed to pay. He could not tell if this was the basis of the frame up. PW3 D M who was referred to as Mrs K was a teacher at [particulars withheld] Girls School. The business venture was indeed acknowledged by the witness. On crossexamination she stated that the appellant paid her money, having left a balance which he did not pay. He accepted the curtains without any complaint. She denied having framed up the appellant. 26. Looking at the events that unfolded,there was no arrangement for the complainant to meet PW3 at the junction where they eventually met the appellant. PW3 found her waiting for means of transport to school. On cross-examination it emerged that indeed PW3 had known the appellant for about 8 years. She trusted him therefore allowed a student to board his motor-vehicle alongside other people. The complainant on being subjected to cross-examination denied an allegation that she framed up the appellant to escape punishment. Blaming the complainant for a different reason from the one suggested to PW3 was proof that these were mere speculation and conjecture. 27. PW5 P M M the then Deputy Principal went along with the complainant and the appellant. It was his testimony that the appellant requested him to remain at the Parish as he took the complainant to school. He returned thereafter. He could not tell what transpired along the way. 28. The trial magistrate considered the evidence in its entirety and dismissed it. There was no miscarriage of justice. The alleged inconsistencies cited by the appellants counsel were immaterial as they did not go to the core of the act committed.

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29. It is submitted that material witnesses were left out including the sister of the complainant, whom she said had a hotel at the junction where she ate before meeting PW3. In the case of Julius Kalewa Mutunga –vs- Republic Criminal Appeal No.31 of 2005 (unreported). The court of appeal stated thus: “As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive”. 30.It is obvious that the alleged witness may have been with the complainant prior to even meeting PW3. Her evidence would not have added any value to the case, failure to call her was not fatal to the prosecution’s case. 31. Having re-evaluated evidence adduced it is apparent that the prosecution proved to the required standard that the appellant had sex with the complainant. To engage in coitus with her, he committed an act that caused his genital organ to penetrate her genital organ. From what the complainant stated she never cried nor pushed him away. There was no resistance on her part. She even willingly accepted money offered to her which was an incentive for her silence. However, she was 16 years old, a child incapable of consenting to such an act. This was defilement. 32. From the foregoing, I find the appeal lacking merit. Accordingly, it is dismissed. Bail accorded to the appellant is hereby cancelled. Therefore he shall commence serving the sentence passed by the trial court. DATED, SIGNED and DELIVERED at KITUI this 24th day of SEPTEMBER, 2015. L. MUTENDE JUDGE

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