REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA HCRA No. 67 OF 2017 ISSAC MUSEMBI ALIAS PETER AND THREE OTHERS....APPELLANTS =VS= REPUBLIC....................................................................................RESPONDENT (An Appeal from the conviction and sentence of 20 years imprisonment by Hon. E. KAGONI (SRM) at Mombasa law courts in CR. CASE No. 831 of 2016 S.O 38 of 2016 on 4/04/2017) JUDGMENT 1. The four Appellant were each charged with two accounts of defilement contrary to section 8 (1) of sexual offences Act No. 3 of 2006. Each of the Appellant was also charged with two alternative charges of committing an indecent Act with a child Contrary to Section 11(1) of the Sexual offences Act No. 3 of 2006. 2. The particulars of the counts were all identical and were as follows:- COUNT I: On the diverse dates between January 2015 and April 2016 atTuder area in Mombasa, each of the Appellant was charged separately with intentionally and unlawfully causing his penis to penetrate the vagina of XX a child aged 10 years old. COUNT II: At the same material particulars as in count I (above) each of the Appellant was again charged separately with intentionally and unlawfully caused his penis to penetrate ANUS of xx, a child aged 10 years old. 3. The four appellant were again charged with two alternative charges to counts I & II (above) in that at the same material particulars as in counts II & II above each of the Appellants intentionally and unlawfully touched the VAGINA (alternative charges to count I) and ANUS (alternative charges for counts II) of XX, a child aged 10 years old. 4. The prosecution evidence in summary was that the complainant's teacher (PW4) noticed that the complainant was looking sickly and withdrawn. She interrogated the complainant (PW 1) in the presence of other teachers and the complainant opened up and told them that she had been sexually molested several times by different men most of whom were neighbours. Matter was reported to the police and the complainant was taken to a rescue centre. 5. PW5, the complainant's class teacher noticed that the complainer was absent minded and she was not concentrating in class. The complainant had also dropped in class-work. When the complainant was interrogated, she gave two names of the people who were amongst the men who had abused her sexually severally. The names she gave were Peter and Komu. 6. The complainant who testified as PW1 said her mother and her father separated and her mother took her to Mama N. N and her husband always fought and the complainant's father went and took her. While she was at her father's house, D (the 1st Appellant) who is her uncle went and took her to his house where he undressed her and he inserted his thing into her thing (kitu cha kukojoa). After he finished, he told her to go and take a bath. 7. The complainant said the following day Komu (2nd Appellant) asked the complainant to follow him to his place. A neighbour saw it and
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told her mother. By the time the mother arrived Komu had had sex with her. Komu opened the door and ran away. The matter was reported to Makupa police station. 8. The following day the complainant said while on her way to her father's home she met Peter (the 1st Appellant). He convinced her to go with him to his place. When they got there the 1st Appellant started showing her pornographic pictures. She said the 1st Appellant stays near a video shop in Mworoto. The 1st Appellant had sex with her after showing her pornographic pictures and then he asked her to leave. She went to her father's home. 9. The complainant said the following day while on her way to play with her friends she met M (4th Appellant) who is married to her aunt. He asked her to accompany him to his place. When they got there, he forced her to undress and have sex with him. The complainant said she told her mother after 2 days because she had difficulties passing urine. She said it was her teacher who took her to Makupa Police Station as her parents were not there. After she recorded her statement she was taken to a rescue centre. 10. PW3 DR Mohamed Munor who produced the p.3 form filled by Dr. Amal said the complainant had a history of defilement. She had whips marks on the thighs and abrasions on the vagina and her hymen was broken. The P.3 was filled on 11/4/2016. He said the HIV was reactive. 11. The Appellants in their defence evidence denied that they defiled the complainant. The 3 rd and 4th Appellant said they had differences with the complainant's mother and that she blamed them for her separation with her husband. 12. The trial court found all the Appellant guilty and convicted 1 st , 3rd and 4th Appellants and sentenced them to life imprisonment. The 2 nd Appellant was convicted and sentenced to 20 years imprisonment for attempted defilement. 13. The Appellants have appealed against conviction and sentence on the following grounds. I have consolidated the grounds for the 1 st ,3rd and 4th Appellants as follows:(i) THAT the learned trial magistrate erred in law and fact in convicting me the appellant without considering that the charge sheet which was relied upon to convict the appellants was fatally and incurably defective contrary to section 89,134,137, (a) (i) (f), 214, 275(1)and 276(1) of the CPC. (ii) THAT the learned trial magistrate erred in law and fact in convicting the appellants without considering that the AGE of the complaint was not ascertained beyond any reasonable doubt to warrant the conviction thus contravening to section 8(2) of the sexual offences Act NO. 3 of 2006. (iii) THAT the learned trial magistrates erred in law and fact by convicting the appellants without considering that the burden of proof in the present case was not established beyond any reasonable doubt contrary to section 36(1) of the sexual offences Act. (iv) THAT the learned trial magistrate erred in law and fact in convicting the appellants without considering that the evidence adduced and subsequently put in the committal proceedings were full of invariance's and contradictions that did not reconcile nor corroborated to warrant the conviction of the appellants thus contravening to section 153 and 154 of the evidence Act. (v) THAT the learned trial magistrate erred in law and fact in convicting the appellants without considering that the exhibits mentioned In the present case was not brought in court for examination i.e. the clothes smeared with semen thus contravening section 63 of the evidence Act and Article 159 (2) (a) (d) of the constitution. (vi) THAT the learned trial magistrate erred in law and fact in convicting the appellants without considering that the key witnesses who were subsequently mentioned in the present case were never compelled to appear before court to clear the doubt upon the prosecution contrary to section 144 and 150 of the CPC. (vii) THAT the learned trial magistrate erred in law and fact in convicting the appellants without giving weight to the alibi defences advanced by the appellants which were credible enough to be vindicate them thus contravening to section 212 as read with section 235 of the C.P.C. 14. The grounds of Appeal for the 2nd Appellant who was sentenced to 20 years imprisonment were as follows:(i) THAT the trial court erred in law and fact by convicting and sentencing the 2nd Appellant to 20 years imprisonment by
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failing to note that the charge sheet was fatally defective under Section 136 (a) (b) of the CPC which rendered the conviction unsafe. (ii) THAT the trial court erred in law and fact by convicting and sentencing the 2 nd Appellant to 20 years imprisonment by failing to note that the age of the victim was not proved before court by any document rendering the conviction and sentence unsafe. (iii) THAT the trial court erred in law and fact by failing to note that the source of the 2 nd Appellant's arrest was not established to have any connection with this offence in question as the arrester/s was not summoned to testify and clear the doubts of my arrest. (iv) THAT, the hon. learned trial magistrate erred in law and by convicting and sentencing to the 2 nd Appellant 20 years imprisonment without seeing that section 214 as read with section 275(2) of the CPC was not complied with. (v) THAT the trial court erred in law and fact by failing to note that Section 50(1) (2) as read with Section 70 of the Evidence Act was not complied with. (vi) THAT the trial court erred in law and fact when upholding the conviction and sentence by failing to note that Section 216 of the CPC was not complied with. (vii) THAT the trial court erred in law and fact by convicting and sentencing the 2nd Appellant to 20 years imprisonment without considering that this was harsh contrary to Article 50 (p) of the constitution. (viii)T HAT the trial court erred in law and fact when upholding the conviction and sentence by failing to take into account the defence by the 2nd Appellant. 15. The Appellants submitted in writing and I have consolidated their submissions as follows:(i) That the charge sheet was fatally defective in that it did not agree with the evidence and the word 'boy' of 'girl' was omitted. Further that the charges were the same yet the complainant was alleged to have been defiled in 4 different places. (ii) That no age assessment report or birth certificate was produced in respect of the complainant and therefore the age of the complainer was not proved. (iii) That section 36 of the sexual offences Act was not complied with in that no samples were taken from both parties to be subjected to forensic testing to establish whether the Appellants had committed a felony or not and therefore the prosecution did not prove its case to the required standard. That the Doctor who filled the P.3 was not called. (iv) That Key witnesses were not called to testify such as the complainant's father and Mama N who was staying with the complainant before she went to stay with her father. (v) The Appellants also submitted that their defence evidence was not taken into consideration. 16. The Respondent submitted orally in court as follows:(i) That the charge was not defective and in the unlikely event that it was defective, section 90 (2) and 382 of the C.P.C states that the same is not fatal and further that the said issues were not raised before the trial court. (ii) On the issue that the age of the complainant was not proved, the Respondent submitted that the trial took place one year after the incident and that at the time of the offence, the complainant was 10 years old having been born on 24/06/2015. (iii) On the ground that section 26 (1) of the sexual offences Act was not complied with, the Respondent submitted that the court made an order that the HIV status of the Appellants be established. That the report for all the Appellants was negative, while the complainant was HIV positive. The Respondent submitted that the Appellants were not charged with transmitting HIV to the complainant. (iv) On the ground that the evidence on record is full of variances, the Respondent submitted that no such variances were brought out by the Appellants.
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(v) On the issue that the Doctor who filled the P3 form did not produce it, the Respondent submitted that a basis was laid for the production of the P3 by PW3 as the Doctor who filled it was away on maternity leave. (vi) On the ground that the prosecution did not discharge the burden of prove, the law is very clear that in sexual offences, the court can convict on the evidence of a minor alone for reasons to be put on the record. In the current case, the evidence of the complainant was corroborated by that of her mother. (vii) On the ground that vital witnesses were not called, the Respondent submitted that the prosecution called a total of 6 witnesses and their testimony was sufficient to prove the case to the required standard. (viii) On the last ground that the defence evidence was not taken into account, the Respondent submitted that the court found that the complainant had no reason to begrudge anyone for any reason. (ix) Finally, the Respondent submitted that the 2 nd Appellant was convicted of an attempt to defile the complainant because he escaped and did not complete the act because the mother of the complainant knocked on the door and he ran away. 17. I have considered the evidence adduced before the trial court. This being a first appeal, it is the duty of this court scrutinize, re-evaluate and analyze the evidence submitted in the lower court and arrive at its own conclusions making allowance for the fact that it did not have the benefit of seeing the witnesses testify in line with the decision in the case of Okeno v. R whereby it was held that "An appellant on a first appeal is entitled to expect, the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions." 18. My findings are as follows:(i) The three elements of defilement were proved namely penetration, identity of the perpetrators and the age of the complainant. The court was right in relying on this testimony of the complainant order section 124 of the Evidence Act. (ii) The complainant knew all the Appellants who were her relatives and neighbors. PW2, the Appellant's mother corroborated the evidence of the complainant. The 1 s and 2nd Appellants were neighbors While the 3 rd and 4th Appellants were relatives. PW3, the mother of the complainant stated on page 16 of the proceedings as follows:"Accused 4 was a boyfriend to my sister, Accused 3 is my husband's step brother and Accused 2 is a neighbor. Accused one (1) was mentioned by the child". (iii) I find that the age of the complainant was proved by the Production of the child health card which shows that the complainant was born on 24/06/2005 and therefore she was 10 years at the time of the alleged offence in January 2015. (iv) I also find that the court considered the defence evidence by the Appellants and found that the complainant had no reason to begrudge anyone for any reason. At page 10 of the judgment the court stated as follows:"This court still believes that the complainant was not dropping names at will to implicate anyone.... She had as PW3 and PW4 told the court, been suffering both physically and psychologically because of the repeated acts of sexual abuse she had undergone". (v) Finally, on the issue that the complainant was found to be HIV positive while the Appellants were found to be HIV negative, I find that the Appellants were not charged with transmission of HIV. The HIV status of the complainant does not negate the acts of defilement. (vi) I accordingly find that the convictions herein are secure and the sentences lawful. I dismiss the Appeal and confirm both the convictions and sentences.
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Dated, Delivered and Signed at Mombasa this 14th day of November 2017 in the presence of the parties. ASENATH ONGERI JUDGE.
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