Mkala Nyanje Mdzele v Republic

IN THE HIGH COURT OF KENYA AT MOMBASA CORAM: D.S. MAJANJA J. CRIMINAL APPEAL NO. 157 OF 2016 BETWEEN MKALA NYANJE MDZELE........... APPELLANT AND REPUBLIC......................................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. J. Kamau, RM dated 23 rd July 2015 at the Chief Magistrate’s Court at Mombasa in Criminal Case No. 637 of 2014) JUDGMENT 1. The appellant, MKALLA NYANJE MDZELE, was charged and convicted of the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act (“the Act”). The particulars were that on 27 th March 2014 in Likoni District within Mombasa County, he unlawfully and intentionally caused his penis to penetrate the vagina of MJ, a girl aged 4 years old. He was sentenced to life imprisonment and now appeals against the conviction and sentence. 2. As this is a first appeal, I am aware that it is the duty of this court to subject the evidence on record to a fresh review and scrutiny and come to its own conclusions all the time bearing in mind that it did not see the witnesses testify as to form its own opinion on their demeanour (see Okeno v Republic [1972] EA 32). 3. The facts emerging before the subordinate court were as follows. On 27 th March 2014 at about 5.00pm, PW 1 had left her 4 year old daughter, PW 3, at home as she went to buy vegetables. When she returned, she found PW 3 crying. She told her that the appellant had sexually assaulted her. She examined the child’s private parts and noted that they were swollen. She reported the matter to the village elder. 4. PW 3 gave unsworn testimony. She recalled that her mother had left her home when the appellant whom she identified as “Hassan” called her to his house and did, “bad manners” to her. She stated that he inserted his finger in her vagina and put his penis in her vagina. She told her mother what had taken place when she returned. 5. The appellant was arrested by members of the public and taken to the police station. At the police station, PW 4, the investigating officer, re-arrested him and issued the P3 form to PW 1 and sent her to the hospital. PW 2, the doctor who examined her on 28 th March 2014, observed her private parts and noted that the hymen was not broken and the labia were swollen and tender. He concluded that there was penetration. PW 5, a clinical officer, also confirmed that she received PW 3 at the hospital on 28 th March 2014. At the time she could not walk and when he examined her, the labia were swollen and tender. 6. In his unsworn statement, the appellant denied the offence. He told the court that on the material day, he worked as usual and when he returned home, PW 1 came to see whether she could help him wash his clothes but he refused as she was married. He left for a bath and when he returned, PW 1 demanded to have sex with him but he refused and she chased her away. PW 1 told him that he would regret his action. Thereafter he was arrested. 7. The appellant challenges his conviction and sentence on the grounds set out in his petition of appeal, amended grounds of appeal and written submissions. The substance of his appeal is that the prosecution did not prove its case beyond reasonable doubt. He submitted that the trial magistrate failed to consider his defence of a grudge and that the he was not connected to the alleged offence. The appellant also emphasized that the prosecution did not prove penetration as the medical evidence established that the child’s hymen was not broken. 8. The respondent opposed the appeal and submitted that the prosecution proved all the elements of the offence of defilement. 9. The main issue for determination in this appeal is whether the prosecution proved, beyond reasonable doubt, that the appellant defiled the complainant. In order to prove its case under section 8(1) of the Sexual Offences Act, the prosecution must show that the appellant did an act

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