Stephen Mutinda Musembi v Republic

Appellant as the person who defiled her. He was convicted and sentenced to twenty (20) years imprisonment. 5. Aggrieved by the conviction and sentence the Appellant appealed on grounds that: • Evidence adduced was uncorroborated and contradictory. • Conditions that existed did not favour recognition. 6. The Appeal was disposed off by way of written submissions. 7. Counsel for the Appellant, Mr. Mwalimu submitted that penetration was not proved, the Appellant was not properly identified; and the age of the Complainant was not sufficiently established. 8. In response, the Prosecution Counsel submitted that PW1 identified the Appellant positively, the Child Health Card adduced in evidence ascertained the age of the Complainant and the alibi defence put up did not disapprove the Prosecution’s case. He cited the case of Abdub Golicha Qancham vs. Republic (2015) eKLR where it was held that in cases of defilement the Prosecution was required to prove three (3) elements of the charge namely: The age of the Complainant, penetration even if it is partial and that the Accused is the culprit or the person who committed the act. 9. This being a first Appellate Court, my duty is to analyze and re-evaluate evidence adduced at the Lower Court and come up with my own conclusions on evidence adduced without overlooking the conclusions of the trial Court. I must also remember that I did not have the opportunity of seeing or hearing witnesses who testified. (See Okeno vs. Republic (1972) EA 32). 10. In the case of Kaingu Elias Kasomo vs. Republic, Malindi Criminal Appeal No. 504 of 2014 the Court of Appeal stated that age is a key ingredient to the offence of defilement. It was therefore imperative on the part of the Prosecution to prove the age of the Complainant beyond reasonable doubt. 11. To prove the age of the Complainant the Investigation Officer adduced in evidence a Child Health Card issued to M. The father’s name was given as M. The document had the date of birth as 22nd September, 1998. In the case of Stephen Nguli Mulili vs. Republic (2014) eKLR the Court of Appeal stated that: “The “Diagnostic HIV Testing and Counseling Card”, the ‘General out patient record’ and P3 form were all presented as exhibits……. Appling the law and facts of the present appeal, we are satisfied that the Complainant’s age was proved to the required degree.” In this case other than the Child Health Card which cannot be disputed as having been issued at birth was adduced in evidence together with a P3 form which indicated the Complainant’s age as sixteen (16) years. This was proof of her age beyond reasonable doubt. She was a minor of an apparent age of 16 years. To be specific she was 15 years and 9 months old. 12. It was the evidence of the Complainant that she was defiled on the 16th December, 2014 She adduced evidence that due to her familiarity with the Appellant, they agreed to meet. They went to Pembeni Lodging where they slept and had consensual sex. She was taken to hospital by her father PW2 J M M after the matter was reported to the police. Following an examination done it was established that she had engaged in sexual intercourse. PW7 who examined her confirmed that her hymen was missing. A high vaginal swab carried out established the presence of spermatozoa and some bacteria. This was proof that she had sexual intercourse with a male. In order for the presence of spermatozoa to be established this was proof of penetration of a male genitalia into her genitalia. The act of defilement was proved beyond any reasonable doubt. 13. The Appellant denied vehemently having penetrated the Complainant, he argued that although he travelled home and ended up sleeping at Pembeni Bar and Lodging Room No. 2 he was alone. He

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explained that he reached late and the ‘bodaboda’ operator who was to collect him did not turn up that is why he had to lodge at Pembeni. Further, he explained that after getting a meal at the restaurant he went to sleep at about 11.00 p.m. He woke up at 8.00 a.m., had breakfast at the hotel and went home. 14. PW4 Jane Mueni, the Lodging Attendant who served the Appellant stated that he went to the counter at 9.00 p.m. She left him at the room and went to serve other customers. Her evidence corroborated that of PW1 that they arrived at Mwangeni at 9.00 p.m. and went to look for a place to sleep, which was at Pembeni Lodge. The witness however added that she did not see the Complainant on the material night but there were two (2) gates to the premises, the front gate and rear gate and when one enters the room it would be difficult to tell whether or not there is another person inside. 15. In her testimony the Complainant stated that the Appellant woke up at 4.00 a.m. and left her. He told her that he was returning the motorcycle that they used as a means of transport but did not return. After bathing she went to sit with PW3 and the Chef. She went to where PW3 in particular was because she had given her water to bathe. PW3, a waitress at Pembeni Point Lodge stated that the Complainant requested her to take her to the bus stage to look for Mutinda Musembi. She asked why Mutinda had gone away from the Lodging leaving her but she did not answer. She (PW3) had the knowledge that Mutinda Musembi slept at the Lodging. She assisted the Complainant and took her to her house. When she asked whether she could facilitate her by giving her fare to go back home, she declined saying that Mutinda would go for her. Thereafter a Chief sent someone to look for her. 16. The Appellant was well known to PW3 and PW4. They saw him at the Lodging on the material night and the Appellant admitted the fact that he slept at the Lodging. 17. The Complainant was categorical that the sexual activity that happened between them was done willingly as she chose to. She had no reason to lie. The trial Magistrate was right in believing her. She recognized the Appellant as a person she got to know and they used to relate well. She travelled with him in broad day light and they slept together. She could not have been mistaken as to his identity. 18. Therefore he is the person who penetrated the Complainant and had consensual sex with her. 19. The Complainant herein having been a minor had no legal capacity to consent to any sexual activity. In the circumstances she was defiled. Therefore the case against the Appellant was proved to the required standard. The conviction was safe and I confirm it. 20. With regard to sentence, Section 8(4) of the Sexual Offences Act provides thus: “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.” In the case of Ogola s/o Owoura vs. Reginum (1954) 21 270 the Court of Appeal stated that: “The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James vs. Republic (1950) 18 EA CA 147, “It is now settled law that sentence is a matter of discretion of the trial court and must be based on facts and circumstances of each case. An appellate court will not normally interfere with sentence unless the sentence is manifestly excessive or is based on wrong principles.” 21. In the instant case the minimum prescribed sentence is fifteen (15) years imprisonment. The Appellant was a first offender. He mitigated on sentence as required by law. It is a case where the learned Magistrate should have considered imposing the minimum sentence prescribed. In the

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circumstances I find the Appeal on sentence meritorious. It is allowed. Therefore I quash the sentence meted out and substitute it with one of fifteen (15) years imprisonment. 22. It is so ordered. Dated, Signed and Delivered at Kitui this 28th day of July, 2017. L. N. MUTENDE JUDGE

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