REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU CRIMINAL APPEAL NO. 15 OF 2018 ERIC MWENDA MUTEA...........APPELLANT -versusREPUBLIC................................. RESPONDENT (Being an appeal arising from the conviction and sentence by Hon. E. M. Ayuka. Resident Magistrate in Nkubu Senior Resident Magistrate’s Court Criminal Case No. 40 of 2016 delivered on 14/02/2018) JUDGMENT 1. The Appellant herein, Eric Mwenda Mutea, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 and in the alternative committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The appellant denied both counts. 2. The particulars of the offence of defilement were that ‘on the 13th day of December 2016 within Meru County, intentionally and unlawfully caused his penis to penetrate the vagina of E G a child aged 12 years with mental disabilities’. 3. The appellant was subsequently tried, convicted on the main count of defilement and accordingly sentenced. 4. The prosecution called five witnesses in support of its case. The minor testified as PW2 (hereinafter referred to as 'the complainant') whereas her mother, RNM, testified as PW1. PW3 was an Area Manager one J Kirimi. PW4 was a Clinical Officer then working at Kantakine Level 4 Hospital. The investigating officer was one No. 96274 PC(W) C. Mueni from Nkubu Police Station who testified as PW5. The Appellant appeared in person during the trial. For the purposes of this judgment I will refer to the said witnesses according to the sequence in numbers in which they testified before the trial court except for the complainant. 5. The prosecution’s case and the Defence were so captured by the trial court in its well written and clearly reasoned judgment rendered on 14/02/2018 whereof I hereby incorporate herein by reference. By the said judgment the trial court found the appellant guilty and convicted him of the offence of defilement. The appellant was then sentenced to 25 years imprisonment upon mitigations. 6. Being dissatisfied with the conviction and sentence, the appellant lodged an appeal and filed his Petition of Appeal filed on 21/02/2018 challenging both the conviction and sentence. He preferred the following nine main grounds of appeal: 1) THAT the learned trial magistrate erred in both law and facts by failing to note that the prosecution witnesses gave inconsistent, contradictory and conflicting testimonies. 2) THAT the learned trial magistrate erred in both law and facts by failing to note that the prosecution case was not proved beyond reasonable doubts. 3) THAT the learned trial magistrate erred in both law and facts by failing to note that the expert report didn’t support the allegations as the expert recited that no spermatozoa seen but physical injuries were seen, hence the child was taken to the facility a few hours after the incident. 4) THAT the learned trial magistrate erred in both law and fats by failing to note that the expert report didn’t support the allegations as the expert recited that no spermatozoa seen but physical injuries were seen, hence the child was taken to the facility a few hours after the incident. 5) THAT the learned trial magistrate erred in both law and facts by failing to note that the accused person was taken to the hospital for examination but the doctor failed to take measures to make sure the accused was examined to confirm the same. 6) THAT the learned trial magistrate erred in both law and facts when he recited that the child (complainant) was insane but
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the prosecution failed to bring authentic document to support the same. 7) THAT the learned trial magistrate erred in both law and fact by failing to note that the examination officer (doctor) failed to take all necessary actions to make sure that the child was examined to prove the allegations of defilement. 8) THAT the learned trial magistrate erred in both law and facts by failing to note that the prosecution failed to avail the doctor who did the examination to the complainant (child) to clear doubts. 9) THAT the learned trial magistrate erred in both law and fact by failing to give the appellant enough time to prepare his defence, as the defense witnesses were not called. 7. The appeal was heard by way of written submissions where the appellant expounded the foregone grounds. He mainly submitted that the offence was not proved as required in law. The State opposed the appeal and relied on the record to submit that the offence was duly proved as required in law and supported the conviction. This Court was urged to dismiss the appeal. 8. The role of this Court as the first appellate Court is well settled. It was held in the case of Okemo vs. R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs. R (2013) eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that. 9. In line with the foregoing, this Court in determining this appeal is to satisfy itself that the ingredients of the offence of defilement, or alternatively those of the offence of committing an indecent act with a child, were proved and as so required in law; beyond any reasonable doubt. Needless to say, I have carefully read and understood the proceedings and the judgment of the trial court as well as the record before this Court and also the written submissions. 10. The key ingredients of the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator of the offence. On looking at those aspects in this judgment, this Court shall consider each of them. (a) On the age of the complainant: 11. The age of the complainant was not contested in this appeal. The prosecution produced the complainant’s Certificate of Birth No. xxxxxxx which indicated that the complainant was born on 09/08/ 2004. The age of the complainant was hence 11 years 4 months at the time of the commission of the alleged offence. (b) On the issue of penetration: 12. Section 2 of the Sexual Offences Act defines penetration as: ‘the partial or complete insertion of the genital organs of a person into the genital organ of another person.’ 13. This position was fortified in the case of Mark Oiruri Mose vs R (2013) eKLR when the Court of Appeal stated thus: ‘…Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ….’ (emphasis added). 14. Later the Court of Appeal, then differently constituted, in the case of Erick Onyango Ondeng v. Republic (2014) eKLR held as such on the aspect of penetration: "In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured." 15. The appellant contended that penetration was not proved. He submitted that since no spermatozoa was found on the complainant then penetration was not confirmed. He also challenged the production of the Treatments notes that the maker thereof did not produce the same to allow him to cross-examine him and further that the medical evidence was inconsistent with the allegation of defilement.
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16. In this case the complainant narrated how the ordeal unfolded. She partly stated as follows: ‘…..He called me…..I was at the road. I went. He then took me to his house. He undressed me. I was wearing a trouser. He also removed his trouser. He lay me on the seat. He then laid on me. He started pumping his penis into me. He put it in my vagina. I felt a lot of pain on the abdomen and private parts. He finished and left. He sent me away…….I went home. I narrated to my mum (PW1) what had happened……..’ 17. PW1, who was the mother stated that the complainant opened to her in the evening of 13/12/2016 and narrated what had happened. On learning of what had transpired PW1 did as follows: ‘…..I checked the complainant’s private parts. She had sperms on her private parts. I took her to the accused house and confronted his wife. She also checked the child private parts. The accused stated that we need to go to the doctor…..’ 18. PW4 filled in the P3 Form on 14/12/2016 on the strength of the treatment notes from Consolata Nkubu Hospital where the complainant had been seen first. PW4 examined the complainant. She observed bruises on her private parts and the hymen was freshly broken and missing. To PW4 the bruises were caused by a blunt object. PW4 was satisfied that there was adequate evidence to support penetration. 19. There is no doubt that the complainant sustained injuries on her private parts. The complainant narrated how she sustained the injuries. The trial court had the following to say on the demeanor to the complainant: ‘….I observed the complainant’s demeanor throughout her testimony. Though she is said to be of mental disability, she was clear and consistent in her evidence, both in chief and cross examination. She was very specific in her narration of what happened. I am persuaded that she told the court the truth. I trust her testimony.’ 20. It is the trial court which had the advantage of observing the demeanor of the witnesses and hearing them give evidence and I must give allowance for that. There is no material placed before me challenging the demeanor of the complainant for me to arrive at a finding that the complainant was not truthful. I must therefore re-affirm the finding of the trial court that the evidence of the complainant can be safely relied upon. 21. Going by the narration by the complainant, the ordeal that occurred between herself and the assailant was a male-female genital sexual intercourse. It is that intercourse which led to the undisputable injuries on the complainant’s private parts. 22. The appellant submitted that upon examination no spermatozoa was found on the complainant hence the issue of penetration was not proved. I have severally stated that the presence of spermatozoa is just one way of proving penetration but not the only way. Even without such presence still penetration can be proved depending on the evidence tendered and going by the definition of penetration in law. 23. The appellant also challenged the way the medical treatment notes were produced. He took the position that they be expunged from the record since they were not produced by the maker. Whereas it is true the said notes were not produced by the maker, who was a colleague Clinical Officer to PW4, three things are of utmost importance. First, the appellant did not oppose the production of the notes. Second, Section 33 of the Evidence Act, Cap. 80 of the Laws of Kenya provide for instances where documents can be produced in evidence by other people other than the makers. In this case PW4 prepared the P3 Form after perusal of the medical notes which had been earlier on prepared. But, that was not the end. PW4 stated in evidence that she also examined the complainant and confirmed the contents of the medical notes. Third, the medical notes are public documents and can be produced by any appropriate officer in which case PW4 was one. I hence find no merit in this ground and is hereby dismissed.
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24. From the foregone, and on careful consideration of the evidence of PW1, PW4 and the complainant and on the strength of the P3 Form and the Post Rape Care Form produced as exhibits, I am as well satisfied that there was a penile penetration into the vagina of the complainant. 25. I therefore have no difficulty in finding, which I hereby do, that penetration into the complainant’s vagina by a penis was proved. c) On whether the appellant was the perpetrator: 26. Having believed the evidence of the complainant, suffice to say that the said evidence also touched on the identity of the assailant. The complainant stated that he knew the appellant as she usually sees him at her home and that she also knew his home. He description of the events were clear on the appellant. Even when the complainant opened to PW1 she named the appellant as the assailant. The incident also took place during day time. 27. The appellant contended that the evidence of the complainant should not be believed because it was not corroborated by any other eye witness. To me whereas there was no any other eye witness on how the ordeal took place Section 124 of the Evidence Act, Cap. 80 of the Laws of Kenya is clear that the evidence of a minor in a sexual offence case need not to be corroborated by any other evidence and the trial court can sustain a conviction even on the sole evidence of the child victim as long as the court is satisfied that the minor victim is telling the truth for reasons to be recorded in the proceedings. The section states as follows: "124. 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.” (emphasis added). 28. But, the appellant raised a defence. Whereas he admitted that the he was a neighbor to PW1, he raised an alibi that at the alleged time he had gone to work around 5 kms away and he returned home at around 07:30pm. He blamed PW1 for framing him up due to a serious land disputes between them which had led to PW1’s son assaulting the appellant’s wife at one time. That, the matter was however settled by the village elder. 29. The possibility of some differences between neighbors or people generally cannot be overruled. It is a normal occurrence in life. However, for one to benefit from such the position that he/she was framed due to the differences, it must be demonstrated that the differences, which may yield to grudges, were the basis of the case and nothing else. I say so because even in cases where there are grudges other offences can be committed which may not have any relevance to the differences. One must readily inform the investigating officer of such a position for the officer to investigate any possible link between the differences and the allegations. That did not happen in this instant case. PW1 denied the alleged differences and was not aware of the allegation that her son assaulted the appellant’s wife. PW1 dismissed the allegations as untrue. 30. I have considered the defence. By placing the defence and the prosecution’s evidence side by side I am inclined to find that the defence did not raise any doubts on the prosecution’s case. There is evidence that the complainant went to the appellant’s house as alleged and later her hymen was broken. Indeed, PW4 testified that on examining the complainant she found that the hymen was freshly broken and the trial court, as well this Court, believed the complainant’s narration further to the other corroborative evidence on record. I am therefore not convinced that the appellant was framed. There is adequate evidence to link the appellant with the commission of the offence including the fact that the offence was committed during day time and by a person so well known to the complainant. 31. I must therefore find that the third ingredient of the offence of defilement is also answered in the affirmative. For avoidance of doubt, I concur with the trial court that the identification of the appellant as the aggressor was not in error. Other issues raised by the Appellant: 32. As the appellant submitted that there were contradictions and inconsistencies on the record, I must state that I have carefully addressed my mind on the record. The alleged contradictions, if any, were adequately explained and reconciled by the court. Indeed, they were of a minor nature and cannot be said to have adversely affected the final finding of the court. In so finding, I echo the words of the Learned Judge in R =vs Pius Nyamweya Momanyi, Kisii HCRA No. 265 of 2009 (UR) when he stated thus: - “...It is trite law that minor discrepancies and contradictions should not affect a conviction.” In any event the provisions of Section 382 of the Criminal Procedure Code Cap. 75 of the Laws of Kenya safely come into play. 33. Lastly, on the mental status of the complainant, the Appellant submitted that the degree of incapacity was not proved to ascertain whether the complainant would be believed. That aspect was well dealt with by the trial court when the court dealt with the demeanor of the complainant. Further, PW1 stated that although the complainant had a mental problem she was intelligent and could effectively communicate. That fact was affirmed by the trial court upon hearing the complainant testify. I therefore do not see that aspect as an issue in this appeal.
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34. Having found all ingredients of the offence of defilement in favor of the prosecution, and since none of the grounds of appeal has succeeded, this Court finds that the appellant was properly found guilty and convicted. 35. On sentence, as the complainant was a child aged 11 years 4 months old, the age was on the borderline for sentencing between Section 8(2) and Section 8(3) of the Act. The court rightly sentenced him under Section 8(3). The prescribed minimum sentence under Section 8(3) is 20 years. As rightly stated by the sentencing court there were aggravating circumstances in this case and the court enhanced the sentenced to 25 years. The case of Wanjema v. Republic (1971) EA 493 laid down the principles upon which the first appellate Court may act on in dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion. I do not see how the court erred in the sentence. The appeal on sentence is equally dismissed. 36. Consequently, the decision of the trial court is hereby affirmed, and the appeal is hereby dismissed. Orders accordingly. SIGNED BY: A. C. MRIMA JUDGE DATED, COUNTERSIGNED and DELIVERED at MERU this 30th day of July, 2018. F. M. GIKONYO JUDGE
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