Musyoka Mwova v Republic

5. The last set of grounds of appeal relate to the evidence adduced by the Prosecution, whereby it was submitted that the said evidence was insufficient to warrant a conviction, and the offence was not proved beyond reasonable doubt. It was alleged in this respect that the evidence of PW4 did not prove penetration, as he testified that upon examination the complainant’s genitalia and urine were normal, and there was no spermatozoa found. Further, that the Appellant was not medically examined, and there was no evidence that linked him to the alleged defilement. 6. In addition that the evidence of PW1 and PW5 had inconsistencies and contradictions on the date and numbers of times the Appellant is alleged to have defiled the complainant. Furthermore, that the bloodstained clothes worn by PW1 at the time of the alleged defilement, and the money that PW1 and PW2 alleged was given to the complainant by the Appellant were not produced in Court as exhibits. The Appellant also alleged that there were persons mentioned in the evidence adduced by the witnesses as having knowledge of the defilement who were not called to testify. 7. Lastly, the Appellant contended that his defence of alibi was not considered. The Appellant cited various judicial authorities in support of his arguments. 8. Mr. Alexander Muteti, the learned prosecution counsel, made oral submissions in response during the hearing of the appeal on 13th July 2017, wherein he urged that the appeal lacked merit as the statement of the offence in the charge sheet was clear and the particulars therein disclosed an offence. In addition the Appellant cross-examined all the prosecution witnesses and he therefore understood the nature of the charge facing him. Mr. Muteti submitted that the Prosecution’s Exhibits 1 and 2, being the complainant’s child health card and the P3 form respectively, proved the age of the complainant to be 14 years. 9. It was also submitted by the prosecution that the evidence adduced was sufficient and reliable, as PW1 who was the complainant stated clearly how the offence was committed after undergoing a voire dire examination, and the trial magistrate gave reasons why her evidence was believable after warning himself on the danger of relying on a single identifying witness. Therefore, that the proviso to section 124 of the Evidence Act was met. 10. Lastly, it was submitted that the testimony of the clinical officer (PW4) corroborated the element of penetration as the complainant’s hymen was found to be broken. It was thus contended that the evidence by the prosecution established the offence beyond reasonable doubt, and the Appellant’s conviction was safe. The Evidence 11. As this is a first appeal, I am required to conduct a fresh evaluation of all the evidence and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32). 12. The prosecution called five witnesses to prove their case against the Appellant. PW1, was FM, the complainant, and she narrated the events of December 2013 to March 2014 when the Appellant is alleged to have defiled her. Her testimony will be analysed further later on in this judgment. PMK (PW2) who was an uncle of the complainant and neighbor of the Appellant, testified as to the report he got of the defilement from his wife, and that he took the complainant to record a statement. 13. PW3 was Nzivo Muathe, a neighbor of both the complainant and Appellant, who testified that he saw the two together looking after cows, and alerted the complainant’s parents out of concern and suspicion. Paul Mwambeo (PW4) was a clinical officer at Msambweni District hospital who examined the complainant and filled a P3 form on 22 nd February 2014, which he produced as the Prosecution’s exhibit 2. He testified that upon examination the complainant’s hymen was broken and her upper limbs had bruises. 14. The last prosecution witness (PW5) was Corporal Joel Andawa, who was attached to Lunga Lunga Police station. He testified that he recorded the statements of PW1 and PW2 and commenced

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investigations on the report made of PW1’s defilement. He produced PW1’s child health card as the Prosecution’s Exhibit 1. 15. The Appellant was found to have a case to answer and put on his defence. He gave sworn testimony and called one witness. The Appellant who was DW1 denied defiling the complainant, and stated that he knew the complainant who was his neighbor. Further, that he had heard rumours that he was suspected of the defiling her whereupon he was then arrested. DW2 was Fransica Mosi who denied that she was the Appellant’s witness, and stated that she did not know what he had done and was not present. The Issues and Determination 16. I have considered the grounds of appeal, the arguments made thereon and evidence adduced in the trial Court, and I note that there are three issues for determination. These are firstly, whether the Appellant was convicted for the offence of defilement on the basis of a defective charge. If not, secondly, whether the age of the complainant was proved, and lastly whether the Appellant’s conviction for the offence of defilement was on the basis of sufficient and satisfactory evidence. 17. On the first issue, the Appellant alleges that the charge sheet was defective as it did not indicate whether the child who was defiled was a girl or boy. In Peter Ngure Mwangi v Republic, [2014] eKLR the Court of Appeal sitting at Nairobi held that there are two limbs to the issue of a defective charge sheet. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not. 18. The issue of when a charge is defective is to be examined in light of the requirements of the law as regards the framing of charges as stated in section 134 of the Criminal Procedure Code which provides as follows: “Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 19. In addition, it was held in Sigilani vs Republic, (2004) 2 KLR, 480 that: "The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence." 20. In the present appeal, the charge sheet that was read to the Appellant to which he pleaded indicates that he was charged with defilement contrary to section 8(1) as read with subsection (4) of the Sexual Offences Act, which provide as follows: “(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 21. The particulars of the charge were that between the months of December 2013 and February 2014 in Kwale County within Coast region intentionally and unlawfully committed an act which caused his penis to penetrate the vagina of FM, a child aged 14 years. 22. The charge sheet therefore stated the correct sections creating the offence of defilement and the

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penalty which were sections 8(1) and (4) respectively of the Sexual Offences Act, as well as particulars of the offence, which included the date of the offence, the place of the offence, the act constituting the offence and the name and age of the victim. 23. I find that the omission in the charge sheet to state whether the child was a girl or boy did not materially affect the proceedings in the trial Court, as the section creating the offence which is section 8(1) of the Sexual Offences Act, is specific that offence is that of defilement of a child, and which was clearly stated in the particulars of the charge sheet. The charge sheet also clearly indicated the age of the child to be fourteen years old, which the Appellant knew from the time of pleading to the charge, and he was thereby not in any way prejudiced. 24. In addition, the omission is one which is curable under section 382 of the Civil Procedure Code which provides as follows in this regard: “Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 25. As to the second issue as to whether the complainant’s age was proved, The ingredients of the offence of defilement were highlighted in Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 as follows: “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” The Court of Appeal in addition stated in the case of Kaingu Elias Kasomo vs Republic, Malindi CRA No. 504 of 2014 that age is a key ingredient to the offence of defilement, and failure to prove it beyond reasonable doubt amounts to failing to prove the offence. 26. The said Court in Moses Nato Raphael vs Republic [2015] eKLR further clarified the difference between proof of age for purposes of establishing the offence of defilement and for purposes of sentencing as follows: “On the challenge posed by the uncertainty in the complainant’s age, this Court had occasion to deal with a similar issue in Tumaini Maasai Mwanya v. R, Mombasa CR.A. No. 364 of 2010, where we held that proof of age for purposes of establishing the offence of defilement which is committed when the victim is under the age of 18 years should not be confused with proof of age for purposes of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. As long as there is evidence that the victim is below 18 years, the offence of defilement will be established. The age, which is actually the apparent age, only comes into play when it comes to sentencing. The contradictions in respect of the child’s age cannot therefore assist the appellant to avoid criminal culpability.” 27. Therefore, the Court has discretion to find what the apparent age of a victim is from the documents presented to it and from the victim’s testimony, when the only inconsistency is as regard the age of a minor as regards the various categories of ages provided by section 8 of the Sexual Offences Act for purposes of sentencing. This was also the position taken by the Court of Appeal in Stephen Nguli Mulili vs Republic, Criminal Appeal No 90 of 2013. 28. However, the issue whether the victim is below 18 years old, and therefore a minor for the offence of

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defilement to be found to have been committed, must be proved beyond reasonable doubt as emphasised in the above-cited decisions. 29. In the present appeal, the evidence provided during trial as to the age of the victim was the testimony of the complainant who was PW1, who stated that she was fourteen years old during her voire dire examination, and that of PW5, who produced the child heath clinical card as the Prosecution’s Exhibit 1. The said child health clinical card indicated that the complainant was born on 20 th January 2000, and was therefore about 14 years old when the offence was committed. It was therefore proved that the complainant was below 18 years old at the time of the alleged offence. 30. As regards the last issue as to whether the Appellant was convicted on the basis of sufficient and satisfactory evidence, the Appellant alleges that evidence given by the witnesses did not prove the ingredients of defilement beyond reasonable doubt and was contradictory. 31. The key witness in this regard was PW1 who testified as follows on 6th May 2010 as to her defilement by the Appellant: “In December 2013, Musyoka followed me where I was looking after cows. He requested me to have sex with him. He gave me 20 shillings. He took me inside the bush. He removed my pant and removed his trouser as well. He then instructed me to sleep on the ground. He used his penis and inserted into my vagina. I felt pain and blood starting oozing. Musyoka instructed me not to report. Again January 2014 while I was fetching firewood Musyoka came and gave me Kshs 50 shillings. I took the money and he took me again inside the bush. I did not tell anybody. In March 2014 the accused came again for me. He gave me 50 shillings. I refused and went home. I informed my mother.” 32. It is my view in this regard that the evidence of PW1 was sufficient on its own under section 124 of the Evidence Act to prove penetration as she was consistent in her evidence and upon cross-examination. Section 124 of the Evidence Act in this regard provides as follows: “Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him. Provided that where in 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 accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 33. The Appellant claims that the evidence by PW1 was inconsistent, as PW1 stated that he defiled her on three occasions including in March 2014, when he was already arrested and in custody. However, the trial record shows that the Appellant was admitted to bond on 24 th February 2014, and the security deposit was released to his surety on 9th June 2015 after his conviction. The Appellant was therefore not in custody in March 2014 as alleged, and PW1 was truthful in her evidence and there is no reason to doubt her testimony. 34. Furthermore, the Appellant was a neighbour of and known to the complainant, a fact which he admitted. In addition, there was corroboration of penetration by the evidence of PW4 and P3 form produced as Exhibit 2, which showed that there was hymen was absent in the complainant’s genitalia and that there were mild bruises in her minor labia. 35. I however find that the evidence of PW3 cannot be given much weight as corroborative evidence, for reason that the date when PW3 saw the Appellant and complainant was not stated nor established.

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36. Lastly, it was argued by the Appellant that his defence of alibi was not considered. The defence of alibi is to the effect that an accused person was not at the scene of the crime at the time the crime was alleged to have been committed. In addition, an accused person is required to raise this defence at the earliest possible opportunity to give the prosecution time to respond to it. I have examined the Appellant’s evidence and find that his claim is not supported as his defence was a mere denial, and he did not raise any effective defence of alibi. 37. On the appeal against the sentence, I note that the even though the Appellant was a first offender, the minimum sentence for the offence of defilement of a child aged 14 years is 15 years imprisonment, and this Court therefore has no discretion to revise or reduce the sentence imposed upon the Appellant. 38. I accordingly uphold and affirm the conviction of the Appellant for the charge of defilement contrary to section 8(1) and (4) of the Sexual Offences Act, No. 3 of 2006, and the sentence imposed upon him of 15 years imprisonment is also upheld. 39. It is so ordered. DATED AND SIGNED AT MOMBASA THIS 18th DAY OF JULY 2017. P. NYAMWEYA JUDGE

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