REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL APPEAL NO 13 OF 2016 HAMISI ALI MWAKILEO................................APPELLANT VERSUS REPUBLIC.......................................................RESPONDENT (An appeal against the original conviction and sentence of Hon. A. Ndung’u RM delivered on 21st October 2015 in Criminal Case No. 37 of 2014 in the Senior Principal Magistrate’s Court at Shanzu) JUDGMENT The Appeal 1. The Appellant was convicted and sentenced to serve twenty (20) years imprisonment for the offence of committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that on 14 th January, 2014 at [Particulars Withheld] area at Kisauni sub-county within Mombasa County, the Appellant touched the anus of A L, a child aged 12 years with his penis. 2. The offence the Appellant was convicted of was an alternative charge, and the Appellant also faced a main charge in the trial Court of defilement contrary to section 7 of the Sexual Offences Act, which the trial Court found was not supported by the evidence. 3. The Appellant had pleaded not guilty to the charges in the trial court, and after a full trial was convicted and sentenced as aforesaid. He is aggrieved by the judgment of the trial magistrate and has preferred this appeal against the conviction and sentence. The Appellant’s grounds of appeal as stated in Amended Grounds of Appeal that he filed are as follows: a) That the learned trial magistrate erred in law and fact in convicting the Appellant on the charge of defilement yet section 7 of the Sexual Offences Act stipulates rape and indecent act, thus contravening section 89, 134, 137(a) (ii) (f), 214, 275(1) and 276 of the Criminal Procedure Code. b) That the trial magistrate erred in law and in fact by convicting the Appellant without considering that the age of the complainant was not ascertained to the requirement of Sexual Offences Act since all sentences in sexual offences depend on the age of the complainant thus contravening section 8(3) of the Sexual Offences Act. c) That the learned trial magistrate erred in law and fact in convicting the Appellant while relying on the P3 form that had no substantial evidence to warrant the conviction of the Appellant, thus contravening section 36 of the Sexual Offences Act and sections 107 and 109 of the Evidence Act. d) That the trial magistrate erred in law and in fact in convicting the Appellant without considering that there was massive invariance and contradictions in the prosecution evidence, that was not credible enough to warrant the conviction of the Appellant thus violating section 153 as read with section 154 of the Evidence Act. e) That the trial magistrate erred in law and fact in convicting the Appellant without considering that the credible witnesses who were subsequently mentioned and put into the committal proceedings were never compelled to appear in court, to create a clear line of reasoning thus contravening section 144 as read with 150 of the Criminal Procedure Code. f) That the learned trial magistrate erred in law and fact in convicting the Appellant without giving due weight to the alibi defence advanced by the Appellant which was substantial enough to vindicate him, thus contravening section 212 as read with section 235 of the Criminal Procedure Code. That there was a grudge between PW2 and the Appellant over the unpaid two bicycles that he had sold to he,r hence leading to the present allegations against him. 4. The appeal proceeded for hearing on 17 th July, 2017, and the Appellant submitted that he would wholly rely on written submissions, save
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to add that he had differed with the complainant’s mother over business, and the said mother never gave evidence during the trial. 5. The Appellant in his submissions argued that the charge sheet upon which he was convicted and sentenced was defective. That it only contained the penalty section, but not the section of the offence of sodomy. Further, that the section he was charged with provides a minimum sentence of 10 years, yet he was sentenced to serve 20 years in prison. Thus, that the charge sheet was fatally defective and the conviction and sentence was unsafe. 6. The Appellant further argued that the complainant’s age was not proved, and that while the charge sheet indicated that the complainant was aged 12 years, the complainant in his testimony stated that he was age 6 years, and PW5 stated that he was aged 13 years. According to the Appellant, the age ought to have been proved by production of a birth certificate, and he cited the decision in Kaingu Elias Kasomo vs Republic, Malindi Criminal Appeal No. 504 of 2010 in support. Therefore, that the prosecution did not prove its case beyond reasonable doubt. He further cited Okethi Okale v. Republic [1965] E.A. in reliance. 7. The Appellant also pointed out various contradictions in the prosecution’s evidence. Firstly, that the evidence of PW4 was that the complainant had a laceration that had healed, yet it was said that he had been sodomized a day before his medical examination. Further, that it was not clear whether the act occurred at night or during the day, as the complainant’s gave contradictory evidence on the time of the offence. He further stated that there was a contradiction as to the exact time the complainant returned home. 8. The Appellant also took issue with the complainant’s statement that he told a ‘Baba Rashid’ that he left the Appellant at the beach, but the prosecution failed to bring the said Baba Rashid as a witness to corroborate the said evidence. He cited Bukenya vs Uganda [1972] EA 549 and John Kenga vs Republic Criminal Appeal No. 1126 of 1984 to illustrate the effect of failure to bring a crucial witness. Lastly, the Appellant lamented that he raised an adequate defence of alibi but which was not considered. 9. Ms. Ogweno, the learned prosecution counsel, made oral submissions at the hearing, and argued that the complainant testified as to the events on the day he was defiled, which was also collaborated by PW2 and PW3. Further, that the identity of the Appellant was ascertained, and that coupled with the results of the complainant’s medical examination, it was clear that Appellant was the offender. Lastly, that the sentence imposed was commensurate with the offence. 10. My duty as the first Appellate court is to re-evaluate the evidence and draw independent conclusions as held in Okeno v Republic (1972) E.A. 32. However, I am alive to the fact that I did not have the advantages enjoyed by the trial court of seeing and hearing the witnesses, as was observed in Soki v Republic (2004) 2 KLR 21 and Kimeu v/s Republic (2003) 1 KLR 756. The Evidence 11. A brief summary of the evidence adduced before the trial court is as follows. The prosecution called five witnesses. The complainant (A L,) was PW1, and testified that at about 4.00 pm on the material day, the Appellant carried him on a motor cycle to the beach. While there, the Appellant removed his pants and inserted his “mdudu” (penis) into his anus. That he was standing while the Appellant did so. He screamed, and that someone by the name Najamala came and witnessed the act from a distance. However, that the Appellant continued with the act and later gave him fare to go back home. 12. It emerged from the testimony of A W M (PW2) who was the complainant’s aunt, that on 13 th January 2014, the complainant had gone to school but did not return home for lunch. At 6.00 pm a report was made to the chief who assisted in the search for the complainant until 10.00 pm, and the complainant thereafter returned home at midnight. He was interrogated to find out where he had gone, and he stated that the person with a motor cycle who lived behind their home near ‘kwa mama chapati’ had taken him to the beach where he removed his trouser and did bad things to him in the buttocks. 13. PW2 further testified that a report was made to Nyali Police Station the next day, where a P3 form was issued and the complainant was taken to Coast General Provincial Hospital. A dentist also conducted an age assessment on the complainant. They then proceeded to look for the Appellant and found him at the beach where he was arrested and taken to the police station. 14. The evidence of PW2 was largely corroborated by that of B J (PW3), who was the complainant’s uncle. 15. Dr. Lawrence Ngome of Coast General Provincial Hospital was PW4, and he testified that he examined the complainant on 15 th January, 2014, and found that he had a healed laceration around his anal area which he found to have sand particles. That a swab was done but no spermatozoa was found. PW4 also testified that the complainant was mentally ill, and that the P3 form indicated that he was aged 12 years. He produced the P3 form as the Prosecution’s Exhibit 1 and Post Rape Care form (PRC form) as Prosecution’s Exhibit 2. 16. The last prosecution witness was Corporal Rozet Kuzimba (PW5) who stated that he received the report on the defilement on 15th January, 2014 and advised that the complainant seeks the assistance of community service police in arresting the suspect. That the Appellant was identified by the complainant on the same day, and arrested. PW5 accompanied the complainant to hospital, and using the information in the PCR form and P3 form together with the information he got from investigations, he preferred the charges against the Appellant. Further, that an age assessment was conducted on the complainant which revealed that he was 12 years. PW5 produced an age assessment report dated 17th January, 2014 as the Prosecution’s Exhibit 3. 17. The Appellant was put on his defence, wherein he gave unsworn testimony and did not call any witnesses. The gist of his evidence was as follows. That he used to sell bicycles, and one of his customers was PW2, who bought two bicycles for her neighbor but did not pay the purchase price. That when he was arrested on allegations of having committed a rape, he found that the complainant’s mother was the person who had taken the bicycles and had not paid for them.
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The Determination 18. I have considered the arguments made by the Appellant and the Prosecution, as well as the evidence before the trial court. I find that there are three issues for determination in this appeal. The first is whether the Appellant was convicted for the offence of committing an indecent act with a child defilement on the basis of a defective charge; and if not, the second issue is whether the Appellant was convicted for the said offence on the basis of sufficient and satisfactory evidence. The last issue is whether the Appellant’s alibi defence was considered. 19. On the first issue, the Appellant alleges that the charge sheet was defective as the charge sheet only specified the penalty section but did not provide for the offence of penalty. The Appellant was in this regard charged with the main offence of defilement under section 7 of the Sexual Offences Act. The particulars of the main charge were that on the 14 th January 2014 at [Particulars Withheld] area at Kisauni subcounty within Mombasa County, the Appellant intentionally caused his penis to penetrate the anus of the complainant, a child aged 12 years with mental disability. He was also charged with an alternative charge of committing an indecent act with a child on which he was convicted. 20. Section 7 of the Sexual Offences Act provides for the offence of acts which cause penetration or indecent acts committed within the view of a family member, child or person with mental disabilities as follows: “A person who intentionally commits rape or an indecent act with another within the view of a family member, a child or a person with mental disabilities is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than ten years.” The said section proscribes the rape of or indecent act with another within the view of a family member, a child or a person with mental disability, and the person with mental disability is the spectator in the said section and not the victim. 21. The section therefore does not provide for the offence of defilement. In addition, from the evidence adduced in the trial Court, the complainant was mentally ill, and was the victim of the alleged defilement and section was thus inapplicable to the circumstances of his case. The trial magistrate correctly found and noted in her judgment that the facts did not support the main charge, and that is why the Appellant was convicted of the alternative charge of committing an indecent act with a child. 22. As to whether the alternative charge pursuant to which the Appellant was convicted was defective, 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.” 23. 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." 24. The alternative charge in the trial Court in this regard stated the section creating the offence of indecent act with a child as well as the penalty for the same, which is sections 11(1) of the Sexual Offences Act, and which provides as follows: “Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.” The said section therefore provides for both the offence and penalty, and the particulars of the offence, which included the date of the offence, the place of the offence, the act constituting the indecent act, and the name and age of the victim were also indicated. 25. Therefore, to the extent that the particulars of the charge sheet did cite the correct offence and section of the law, and the particulars indicated the Appellant intentionally touched the anus of the victim who was aged 12 years with his penis, there was no defect in the said charge sheet. 26. On the second issue as to whether the prosecution proved that the Appellant committed the offence beyond reasonable doubt, the ingredients of an indecent act are found in its definition in section 2 of the Sexual Offences Act, which provides that an indecent act is as an unlawful intentional act which causes— “(a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration; (b) exposure or display of any pornographic material to any person against his or her will”. Under the section, a child has the meaning assigned to it under the Children Act, which is any human being under the age of eighteen years. 27. PW5 in this respect produced as age assessment report dated 17 th January, 2014 as the Prosecution’s Exhibit 3 which showed that the
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complainant was 12 years old, and therefore a child. The evidence of the other ingredients of the offence was mainly given by the complainant who was PW1. PW1 testified that the Appellant took him to the beach and put his mdudu (penis) in PW1’s buttocks. PW1 is also the one who identified the Appellant by taking PW2 and PW3 to where the Appellant was at the beach the following day. 28. Therefore, this was a case of evidence by a single identifying witness. In this regard, this Court finds that the trial Court ought to have warned itself of the dangers of relying on PW1’s sole evidence for the following reasons. 29. Firstly, there was evidence given by PW4 that PW1 was mentally ill, and the trial magistrate should have made a finding as to his competency as a witness to justify reception of his testimony in terms of section 125 of the Evidence Act. Which provides as follows : “(1) All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether body or mind) or any similar cause. 2) A mentally disordered person or lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them.” 30. In David Ndumba vs Republic (2013) eKLR, the Court of Appeal considered the competency of a witness who was a mental patient, and noted that the lower court had observed the said witness and the answers she gave to questions put to her at the trial, and specifically made a finding that she was a competent witness. 31. I am in this respect also persuaded by the holding by the English Court of Appeal in R vs Makanjuola (1995) 1 WLR 1348, that where there is evidential basis for suggesting that the evidence of a witness may be unreliable, then the Court should warn itself of the danger of relying on the uncorroborated evidence of such a witness. 32. Secondly, in Maitanyi vs Republic , (1986) KLR 196 the Court set out what constitutes favourable conditions for a correct identification by a sole testifying witness as follows: “Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error”. 33. I have also reminded myself of the guidelines in the case of Mwaura v Republic [1987] KLR 645, in which the Court of Appeal held, inter alia, that: “In cases of visual identification by one or more witnesses, a reference to the circumstances usually requires a judge to deal with such matters as the length of time the witnesses had for seeing who was doing what is alleged, the position from the accused and the quality of light”. 34. The evidence of identification at night must also be tested with the greatest care using the guidelines in Republic - v- Turnbull, (1976) 3 All ER 549 and must be absolutely watertight to justify conviction as held in Nzaro -v- Republic, (1991) KAR 212 and Kiarie - vRepublic, (1984) KLR 739. In the case of Maitanyi -v- Republic, (supra), the Court of Appeal stated that in determining the quality of identification using light at night, it is at least essential to ascertain the nature of the light available, what sort of light, its size and its position relative to the suspect. 35. In the present appeal, PW1 testified that the Appellant took him to the beach at around 4pm, when there was still daylight. On reexamination he stated that he was defiled at night. He also stated that he returned home at 9 pm, while PW2 and PW3 testified that he returned at midnight. PW1 did not testify as to how long he was with the Appellant, and in light of his contradictory evidence as to the time of the alleged offence, it was unsafe to rely on his sole identifying evidence. 36. Thirdly, there was also other contradictory evidence that was given by the witnesses that were noted by the trial magistrate as follows: “Before I conclude, I want to analyse anomalies in the prosecution case and whether amount to inconsistency. There several anomalies in the prosecution’s case worth noting. PW1 stated he was 6 years in class 4 at J. PW2 clarified that he was in class 1 at [Particulars Withheld] Junior Academy which PW1 calls J. His age was confirmed by the Age assessment Report (Pexb. 3). Secondly, PW2 stated the incident occurred on 13 th January, 2014 and not 14th January, 2014. All the other witnesses testified the incident happed on 14 January, 2014. Further, PW2 stated PW1 was taken to hospital the following day. The PRC form (Pexb. 2) confirms PW1 was examined on 15 th January, 2014. It follows then that the incident happened on 14th January, 2014 if PW1 was treated the following day the 15 th January, 2014. The anomalies do not affect the evidence of the material ingredient of the offence. They are resolved within the evidence and thus do not amount to inconsistencies.” 37. Taking all these factors into account, I am of the view that the finding by the trial magistrate that the evidence of PW1 did not require corroboration under section 124 of the Evidence Act, and that even though the complainant suffered from a mental ailment, his testimony was clear and consistent and that he was a credible witness was in error.
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38. Lastly, there was also doubt created by the evidence given by PW4 which was to the effect that upon examination of PW1 on 15th January 2014, a day after the alleged offence, he found that PW1 had a healed laceration around the anal region. There was thus insufficient corroboration of the evidence by PW1 to justify a conviction of the Appellant. 39. I accordingly quash the conviction of the Appellant for the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act for the foregoing reasons. I also set aside the sentence of twenty years imprisonment imposed upon the Appellant for this conviction, and order that he is set at liberty forthwith unless otherwise lawfully held. It is so ordered. DATED AND SIGNED THIS 16TH DAY OF AUGUST 2018 P. NYAMWEYA JUDGE DELIVERED AT MOMBASA THIS 3RD DAY OF OCTOBER 2018 D. O. CHEPKWONY JUDGE
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