James Mutwiri Moses v Republic

5. That, the learned trial magistrate erred in law and facts by not considering that the Appellant’s rights were violated, when he was not taken to the doctor for a prove, if really he was the offender, hence violating Sec. 36 (1) of the Sexual Offences Act No. 3 of 2006. 6. That, the learned trial magistrate erred in law and fact by not informing the Appellant that it was his constitutional right to be assigned an advocate by the state at its expense and to be informed of his right promptly, hence contravening article 50 (2) (g) of the constitution. The appeal proceeded by way of written submissions. The 2nd, 3rd and 4th grounds of appeal are related and I shall consider them together. On his part the appellant submitted that the prosecution did not prove the case beyond reasonable doubt as required by the law. He averred that the learned magistrate in finding him guilty relied on the evidence of PW1, PW2 and PW7 which lacked merits to support both the conviction and the sentence. The appellant faulted the learned magistrate for relying on the evidence of PW7 to base his conviction on the victim’s broken hymen as a prove of penetration. He argued that broken hymen is not evidence to prove defilement considering that the complainant did not have other injuries like laceration or tears. It was his contention that absence of other injuries on the complainant was evidence that the hymen could have been broken long before her alleged encounter with the appellant. Another argument advanced by the appellant was that some women are born without hymen while for some, the same can be broken through other means and not necessarily by Sexual intercourse for example through swimming, riding bicycles and gymnastics. In support of this contention he cited the case of P.K.W Vs. the Republic eKLR (2012) where the Court of Appeal sitting in Nyeri observed that broken hymen is not a factor to prove defilement. The appellant further submitted that the evidence of PW1 and PW2 was contradictory and that PW1 was coached on what evidence to give in court so as to incriminate him. The appellant further contended that the case was a frameup in that PW6 who is the mother to the complainant did not report the case until the 1st September whereas the alleged offence was said to have been committed on the 30th august, 2015. The appellant stated that he had lodged a complaint against PW4 and it was after PW4 had been arrested that she revealed about the defilement of the complainant. On the first ground of appeal, the appellant submitted that his defence was rejected by the trial magistrate and that, in doing so, he did not give reasons for rejecting the same. With regard to grounds 5 and 6 of the appeal, the appellant averred that his rights were violated as he was not medically examined to prove that he committed the alleged offence which violated section 36 (1) of the Sexual Offences Act No. 3 of 2006. That the trial court erred in failing to inform him of his constitutional right to be assigned an advocate by the state which is contrary to Article 50 (2) (g) of the constitution. On her part, counsel for the respondent submitted that the appellant was not at all framed by any of the witnesses who testified before the trial magistrate. She averred that PW1 who was the complainant clearly stated to the court what the appellant did to her and that her testimony was corroborated by that of PW2 who witnessed the incident and also that of PW7. She contended that there was no contradiction with regard to the testimonies of the prosecution witnesses and that the appellant was positively identified as the person who committed the offence and there was no mistaken identity. Submitting on the evidence of PW7, she stated that the doctor did not solely state that there was no broken hymen but he did also state, upon examination of PW1, that the hymen was not intact and that there was a white discharge and he came to the conclusion that there was penetration. That it was his evidence that for a girl of 13 years like the complainant, the hymen was expected to be full and complete. On the delay in reporting the incident, it was submitted that the same was due to the fact that the appellant had threatened to kill both the complainant and her mother (PW2) should they reveal what had happened to the complainant on the 30/8/2015. In response to ground one of the appeal, it was submitted that the learned magistrate did not reject the defence put forth by the appellant but rather the same was considered

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together with the other evidence availed by the prosecution and the exhibits produced in court. In response to the 5th ground of appeal, it was contended that there was no need for a DNA test because the issue in dispute is not that of paternity and that section 36 of the Sexual Offenses Act is not mandatory. On the 6th ground of appeal, the respondent averred that there is no legislation with regard to the appellant being assigned an advocate by the state and therefore, the appellant’s right to a counsel was not at all violated. The court has considered the grounds of appeal, the submissions made by the parties in support of their respective positions with regard to the appeal herein. This being the first appeal, the law ordains the first appellate court to re-evaluate the evidence as tendered and come to its own conclusion. See Okeno Vs. R. PW1 testified that on the 30/8/2015 she was from Kanja Market with her sister PW2 when she heard a person calling them. They stopped and the appellant went where they were and requested them to escort him to his home which they did. At around 10pm, they asked him to escort them home but the appellant refused alleging that it was very late. He prevailed upon them to stay and in the night he dragged her into a bed, removed his underwear and laid on top of her. He was naked, he inserted his penis into her vagina and penetrated her. Her sister who was in the sitting room woke up and went to the bedroom and found the appellant lying on top of her sister. This evidence is corroborated by that of PW2 (the complainant’s sister). He told the court how they escorted the appellant to his house but when they requested him to escort them to their home, he refused and asked them to stay on. It was PW2’s further evidence that PW1 and herself slept on the seat (sofa) while the appellant went to sleep in the bedroom but at 4.30am when she woke up, she did not see PW1 on the sofa. She heard PW1 scream in the bedroom and on proceeding there he found the appellant on top of PW1 having sex with her. The appellant was naked, he picked a knife and threatened her (PW2). PW3 testified on how PW2 and Pw1 visited his home on 2/9/2015 at about 6.30pm and PW2 told him to tell his wife to warn the appellant for defiling PW1. Pw4 confirmed that PW1 and PW2 visited their house on the 2/9/2015 when she heard PW2 speak to PW3 saying that the appellant had defiled PW1. She is the one who reported the matter to the police. She also informed PW6 the mother to PW1 and PW2. Pw5 told the court that PW1 informed her what the appellant had done to her and she advised her to inform her mother. The evidence of PW1 and PW2 was corroborated by that of PW7 who examined PW1 and filled a P3 form for her. He confirmed that the hymen was not intact though she did not have other injuries she had a whitish discharge. It was his evidence that for a 13 years old, the hymen is expected to be full and complete which thus suggested penetration. The ingredients of the offence of defilement which the prosecution was required to prove are that there was penetration, the victim was a minor and the identification of the assailant. The evidence of PW7 is clear that there was penetration of the genital organs of PW1 which led to the breaking of her hymen. In view of the evidence of PW1, PW2, PW3, PW4, PW6 and PW7 there is no doubt that the case against the appellant was proved beyond reasonable doubt and therefore grounds 2, 3, and 4 of the appeal are dismissed. On the first ground of appeal, it’s true that the learned magistrate failed to consider the defence put forth by the appellant in his analysis. The appellant herein raised the defence of alibi which in law is a specific defence. See. Court of Appeal at Mombasa Criminal Appeal No. 50/2007 (Ali Mlako Mwero Vs. Republic where the court observed that the defence of alibi must be clearly and specifically stated by the

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appellant. It does not entail a destination at large. Looking at the defence mounted by the appellant in this regard, it was too general on the dates and the whereabouts of the appellant on the night of 30/8/2015. He did not tell the court the specific place where he was accommodated. He did not tell the court who had accommodated him and in which particular part of Kiangugi he was accommodated. Without those particulars it would be two onerous to expect the prosecution to dislodge the so called alibi as the same did not constitute as alibi in law. In any event, the evidence of PW1 and PW2 was overwhelming on the whereabouts of the appellant on the night of the 30/8/2015. That ground also fails. On ground 5 of the appeal, I note that section 36 (1) of the Sexual Offenses Act No. 3 of 2016 is not couched in mandatory terms. Under that section the court may direct taking of appropriate sample or samples from an accused person for purposes of forensic and other scientific testing, including DNA test, in order to gather evidence and to ascertain whether or not the accused person committed the offence. The fact that the court did not direct the taking of samples is not fatal to the prosecution’s case. On ground number 6, let me start by appreciating that Article 50 (2) of the constitution is clear on the provision of advocates by the state to an accused person. However, as ably submitted by counsel for the respondent, the constitution has placed an obligation on parliament to enact legislation which would ensure realization of an accused person’s right to the fair trial under that Article. To date, parliament has not enacted the appropriate legislation to give effect to Article 50 (2) of the constitution. The court of appeal in the case of Moses Gitonga Kimani Vs. Republic Meru Criminal Appeal No. 69/2013 which was cited in Karisa Chengo & 2 others Vs. Republic 2015 eKLR was faced with a similar situation and the learned Judges lamented the obvious lack of appropriate legislation to provide guidelines on legal representation at the expense of the state. In view of the lack of legislation, the Appellant’s rights cannot be said to have been violated. In view of the aforegoing, I am satisfied that there were no material misdirections or application of the wrong principles by the trial court to warrant the interference by this Honourable court. I hereby dismiss the appeal for want of merits and do affirm the judgment of the trial court. Dated, signed and delivered at Embu this 2nd day of October, 2017. ....................... L. NJUGUNA JUDGE In the presence of …………………………For the Appellant ……………………For the Respondent

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