Herman Moi v Republic

5. After carefully analysing both the prosecution and the defence case, as well as submission made and the law, the learned trial Magistrate was satisfied that the prosecution had proved its case against the appellant on the main count reasonable doubt. The appellant was found guilty and accordingly convicted under Section 215 of the Criminal Procedure Code (CPC). As provided by Section 8(2) of the SOA the appellant was sentenced to life imprisonment. The Appeal 6. Being completely dissatisfied with both conviction and sentence, the appellant filed this appeal. On 15.6.2017, the appellant filed his home made amended petition of appeal comprising the following grounds. 1.) That the learned trial Magistrate did not note that the prosecution failed to avail very crucial witness to testify. 2.) That the evidence adduced by the prosecution were shroud[ed] in contradiction and inconsistencies.(sic) 3.) That the evidence adduced by the prosecution had been obtained through coaching and collusion. 4.) That the trial magistrate totally mis-evaluated the evidence adduced during the proceedings and hence made an unsound and biased decision based on falsehood. 5.) That the trial Magistrate misdirected herself by overlooking my sworn defence that featured a long existing grudge between me and PW6, the architect of the allegations – the fact which was hardly interrogated. 6.) That the trial Magistrate failed to note that the case was poorly investigated resulting into an unfair trial 7.) That the trial Magistrate erred in law by denying me a chance to mitigate upon my conviction. 8.) That this amended petition may form part of my appeal records. 9.) The appellant thus prays that the appeal be allowed, conviction quashed and sentence set aside. Submissions 8. The appellant filed 5 pages of written submissions in which he highlighted the evidence in support of the 7 substantive grounds of appeal. He also highlighted the submissions when the appeal came up for hearing. He pleaded with the court to set him free. 9. The appeal was opposed. Prosecution counsel, Mr. Juma Ochieng maintained that from the evidence on record, the prosecution case against the appellant was water tight and therefore that the conviction was safe. Regarding the sentence, counsel submitted that the sentence imposed by the learned trial Magistrate was both legal and lawful. Counsel urged the court to dismiss the appeal. Further details of the rival submissions will come out during the analysis and determination. First appeal 10. This is a first appeal, and as such, this court is under a duty to consider afresh both the facts and the law in determining whether the findings of the learned trial Magistrate are standing on solid ground. 11. In this regard, this court is under a duty to reconsider and evaluate the entire evidence afresh, with a view to reaching its own conclusions in the matter. It is however important to remember that this court

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does not have the privilege the trial court had of seeing and hearing the 6 witnesses who gave evidence during the trial, and for that reason, due allowance must be made for that fact. While exercising that caution, this court must look at each piece of evidence very carefully, since the appellant expects his case to be given fresh scrutiny and not a mere gloss-over. For the above propositions, I rely on the case of Mwangi – vs – Republic [2006] KLR 28 where the court held, inter alia 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.” This was also the position taken by the court in the earlier case of Pandya – vs – R[1951]EA 336, where it was held , inter alia, that “ An appellate court ought to treat the evidence as a whole to that fresh and exhaustive scrutiny which the appellant is entitled to expect ….. affirm a conviction on evidence that has been reviewed.” 12. With the above principle in mind, I now proceed to set out the evidence adduced before the trial Court The prosecution case 13. From the 6 prosecution witnesses, the case for the prosecution is as follows;- At about 5.30pm on 15.07.2013, Y.M. in the company of her brother N.Y and one D.E. was going home from school at [particulars withheld]Academy when they encountered the appellant whom they all knew sitting on a stone. According to Y.M, the appellant runs a shop which is near the home of Y.M. As the three children were passing the appellant called Y.M and said he wanted to send her to get some change for her. She stretched out her hand to be given the money to be changed, but instead, the appellant held her right hand and gave her two Mandanzi which he said Y.M. should share with N.M. and D.E. The appellant pulled Y.M. right up to where he was sitting on the stone. Meantime, N.M. and D.E proceeded to wait for Y.M. but further ahead. 14. The appellant then removed Y.M.’s clothes, but she screamed. He then closed her mouth and using his hand. With the free hand, the appellant lifted her clothes up, as he also opened his trouser and his inside shorts. He then removed Y.M.’s panty and put her on the ground. He removed his penis (dudu) which was black in colour and put it in her vagina (dudu for urinating). The appellant defiled the complainant as she lay down while he was kneeling. Y.M. testified that she felt pain and cried although the appellant had covered her mouth and nose. 15. Before the appellant completed his mission Kevin arrived at the scene. The appellant fled. Y.M. put on her underpant and went home where she reported the incident to her uncle E V and her mother A. Ann testified that at around 6.00pm on 15.07.2013, she was at the river harvesting sand when her brother E V called her and asked her to rush home as something had happened to her child Y.M. On arrival at home, she found two village elders Muhonja and Mulela as well as other neighbours with her child. She was informed pastor had done bad manners to her child YM. Y.M also explained what pastor had done to her and thereafter,. Ann took Y.M. to Mahanga police post where she (A) reported the incident. At the police post, Y.M. was checked her allegations and the woman police officer established that Y.M had been defiled. Ann also watched as the police woman checked Y.M. and she confirmed that indeed Y.M. had been defiled. The next morning the police Officer took Y.M. to Vihiga District Hospital where she was examined by Sammy the Clinical Officer. 16. Sammy testified that when Y.M arrived at the hospital, she gave a history of what had happened to her the previous evening on her way home from school. On ex\amination Sammy found that Y.M’s hymen was torn and the genitalia swollen and tender on touch with visible reddening around the torn hymen. There were also visible bruises and reddening on both sides of the vagina though the perineum was intact, but painful. On digital examination routine tests done on Y.M, namely HIV, Syphilis and bacterial infection were all negative. Haemoglobin level was 12.8. Sammy concluded that Y.M. had gone through an intentional and forceful penetration without consent and unprotected. Sammy produced the P3 form dated 16.7.2013 as PExhibit 1. The treatment notes, the post rape care forms as PEXH 2, laboratory request form as PExhibit 3 and the child health card as PExhibit 4. According to the child health card, Y.M. was born on 07.01.2004. 17. Sammy also produced the P3 form on the appellant as PExh 5 and laboratory request results as

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PExhibit 6(a) and (b). According to Sammy, the appellant was aged 69 years as the time of examination. In answer to one of the questions in cross examination, Sammy told the court that Y.M.’s vagina was very small and that force had to be applied for penetration to occur. 18. APC Carolyne testified that on 18.7.2013 at around 6.20 am she together with Cpl Simiti arrested the appellant at Bukura Market. This was after a tip off. At time of his arrest, the appellant was heading towards Majengo Market. APC Carolyne also testified that she was present at Mahanga AP Post when Ann went to make a report of the incident. 19. PC (W) Emily of Vihiga police station investigated this case. The received instructions from the OCS on 16.7.2013 to carry out the investigations. She took Y.M. to the hospital for examination. She later visited the scene but made no recoveries. The report was made on 15.07.2013. 20. Kevin was PW6. He testified that he saw what happened to Y.M. from a distance of about 5.6 m. After the appellant went away, Kevin took Y.M. to the village elder. Later, the appellant went to village elder’s home and said there was no truth in the allegation that he had defiled Y.M. Defence 21. At the close of the prosecution case, the appellant was put on his defence. He gave sworn evidence and denied committing the offence. He stated he knew the Y.M. who had been a neighbour for 2 years. He however stated that he saw Y.M. and the other 2 children who asked him for Mandazi. He gave out 2 mandazi to the children. The appellant alleged that Kevin had once been caught stealing his (appellant’s) maize and that from that time in August, 2012, there was a grudge between him and Kevin and that whatever Kevin had said in evidence was a pack of lies. The appellant did not call any witnesses. Issues for Determination 22. After setting out and analyzing the entire evidence as above, the issues that arise for determination are the following;a. Whether the age of Y.M. was proved to the required standard b. Whether the evidence on record connects the appellant to the alleged crime c. Whether there was penetration? 23. The law requires that the prosecution proves all the above ingredients for the charge of defilement to stand. The SOA has set out strict sentences which are dependent on the age of the complainant hence the necessity for the prosecution to prove the age of the victim. The age can be proved through documentary evidence such as birth certificate or some other reliable document as child Health clinic card or the same can be proved by oral evidence from the mother or father of the child or some other close relative who has personal knowledge of the child. 24. In the instant case, Ann who is the mother to Y.M. testified and told the court that Y.M. was born in 2004 and was her second child. Ann said that the child had a health clinic card. PEXH 4. From the said card, Y.M’s date of birth is given as 07.01.2004. Clearly the age of YM was proved beyond any reasonable doubt and by the time of defilement, Y.M. was about 9 years of age. See the case of Pappyton Mutuku Ngui – vs – Republic Machakos High Court Criminal Appeal No. 296 of 2010. 25. The Second issue for determination is whether the appellant has through the evidence adduced by the prosecution been connected to the crime. It is not disputed that the appellant saw Y.M. and the other 2 children in the evening in question. The fact that is disputed is whether the appellant did what Y.M. and Kevin alleged he did to her. According to the appellant Kevin lied to the court because of a grudge that had simmered since August, 2012 when he caught Kevin stealing maize in hi (appellant’s) farm. Kevin’s evidence supports Y.M’s testimony that the appellant defiled Y.M. I have carefully considered the

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testimony by Kevin and the cross examination by Mr. Onyiso advocate for the appellant. There is no suggestion from the cross examination that Kevin stole the appellant’s maize in 2012 and that there was a grudge between Kevin and the appellant. It is my considered view that the appellant’s allegation of a grudge with Kevin was an afterthought, although he made submissions touching on the issue. 26. Could there have been mistaken identity of the appellant? I think not. First and foremost, there is no denying the fact that both appellant and Y.M. met on that evening. Secondly, the incident took place during day time. The appellant was well known to Y.M. and she said that Tony who was walking home with her that evening was appellant’s grandson. The appellant also said he knew Y.M. and her family. Infact in this case the issue of possible mistaken identity has not arisen and I have no reason to doubt the testimony of both Y.M and Kevin. In light of this evidence, the appellant’s denial that he committed the offence is founded on quick sands and I hereby dismiss the same. 27. The final issue is whether there was penetration and whether it is the appellant who caused it. Starting with the second limb of the issue, I have accepted the evidence given by Y.M. and Kevin that the appellant lured Y.M with a mandazi, removed her clothes and his own clothes and according to Y.M, he removed his “dudu” which was black and inserted it into her “dudu” which she uses for urinating. Clearly Y.M’s “dudu” was her vagina. Kevin testified that he found the appellant in the act Kevin stated the following in part of his evidence in chief. “As I was walking slowly, I stepped on dry leaves and he pushed the girl aside. As I stood 5.6m [from him] I asked him what he was doing to a child. I put on the girls clothes and when I asked him why he was doing it with a young girl he responded and said “No wetu” in Maragoli which meant “ni wetu” translated she is ours. I asked him though she was theirs, why would he still do so? He then told the girl to go home, but I held the child’s hand and took her to the village elder Muhonja where we found outside her house.” 28. The evidence given by Kevin corroborates the testimony given by Y.M. and the appellant’s complaint that there are contradictions and inconsistences in the prosecution evidence is not supported by the record. I also do not find merit in the appellant’s contention that Y.M. was coached to tell her story in court. It is the same story that she told APC Carolyne and it is the same story she told Ann as well as PC (w) Emily. She repeated the same story to Sammy. 29. On the first limb of whether or not there was penetration, Sammy gave evidence about his findings when he examined Y.M. He stated that Y.M’s hymen was torn swollen and tender to touch with visible reddening around the torn hymen. Sammy also testified that there were bruises on both sides of the vagina. Sammy confirmed that there was penetration. 30. Under Section 2 of the SOA penetration need not be complete because as it has been held by the Court of Appeal, defilers are always in such a hurry that many times they do not penetrate deep into the vagina. Both Y.M. and Kevin testified that the appellant committed the offence against Y.M. The medical evidence adduced by Sammy has sealed this position and I have no doubt in my mind that there was penetration, the depth of it not being an issue. There is every reason to believe these testimonies as opposed to the appellant’s defence of denial and allegations of a grudge between him and Kevin. Other issues 31. I have also carefully considered the other issues raised by the appellant in his appeal, such as the failure by the prosecution to call a vital witness and lack of proper evaluation of the evidence by the learned trial court. On the issue of witnesses, it is the prerogative of the prosecution to call persons they feel should testify. Further, in this case, the evidence on board in my view does not leave any lacuna. If there were, this court would have been perfectly in order to call for such evidence. As to whether or not the learned trial Magistrate evaluated the evidence, I am satisfied that she did so and the record fully vindicates her. The appellant also complained that the investigations were not well done. Having made a finding that there were no contradictions and/or inconsistences in the prosecution case against the appellant, the complaint of poor investigations has no bearing on the outcome of this appeal.

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32. The appellant also complained that the learned trial Magistrate did not allow him to mitigate before sentence. This cannot be further from the truth because after the judgment was delivered the record shows the following’ “Prosecutor;- Treat the accused as a first offender Mitigation;- Am an old man and where I work I have children who depend on me at home. I live with the complainant as a neighbour. I still deny having defiled her. Am praying to court that I cannot serve an imprisonment sentence because am too old to do so.” 33. After the appellant had given his mitigation, the learned trial Magistrate proceeded to say that though she had considered the mitigation, she had no option about the mandatory sentence prescribed by Section 8(2) of the SOA. She thus sentenced the appellant to life imprisonment. 34. From the above record, I am satisfied that the appellant was given the opportunity to mitigate and the learned trial court took the appellant’s mitigation into account before sentencing him. The appellant’s complaint therefore lacks merit and is accordingly dismissed. Conclusion 35. From all the foregoing, I find and hold that the appellant’s appeal on both conviction and sentence lacks merit and is hereby dismissed. Right of appeal to the Court of Appeal within 14 days from the date of this judgment. It is so ordered Judgment delivered, dated and signed in open court at Kakamega this 5th day of October 2017 RUTH N. SITATI JUDGE In the presence of;Present in person……Appellant Mr. Ngetich(present)….Respondent Polycap……Court Assistant

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