Republic v Sammy Ngala Hinzano

PW6 – Mwalimu WS evidence was to confirm that the complainant was his daughter and in terms of the birth certificate Exhibit 1 her age was 16 years old. At the close of the prosecution case, the respondent was placed on his defence. He elected to give a sworn testimony where he stated that he met the complainant at Mariakani selling chapatis. He further admitted to have known the complainant for four years and at the time she alleged to have been nineteen years old. The respondent denied that he engaged in sexual intercourse with the complainant. He blamed it all on a grudge between him and the family of the complainant due to her habitual disappearance from home. The trial court considered all these material evidence by the prosecution and the defence in rebuttal to reach a definitive decision that the defence of presumption of maturity of the complainant be availed in his favour to exonerate him of any criminal liability. The essence of the Judgment by the court therefore was that the prosecution proved the case beyond reasonable doubt but for the test of age, it meant sufficiently that the element of penetration of a child about eighteen years old would be resolved in favour of the respondent. As seen from the record above, the test applied by the Learned trial Magistrate was a nature and extent that the complainant presented herself as an adult to the respondent. The value of the surrounding circumstances when the respondent met the complainant working at Mariakani, selling chapatis also rooted in the mind of the respondent that she was far more than a child who cannot engage in sexual intercourse. The appellant’s submissions It was submitted by the prosecution counsel that the Learned trial Magistrate acquittal of the respondent on grounds by the defence that the complainant at the time of the offence was presumably aged above 18 years old was erroneous and wrong in principle. To the appellant counsel the charge of defilement was proved beyond reasonable doubt against the respondent leaving no room for the Learned trial Magistrate to navigate so as to reasonably acquit the respondent. According to the Learned prosecution counsel all the elements of defilement stipulated in the Law were proved to be in existence by the six witnesses called in support of the prosecution. It is therefore, her contention that the order of acquittal be reviewed, and set aside for being illegal, and unlawful, occasioning prejudice to the victim and a failure of justice. Unfortunately, the respondent was never served with the court process and the record of appeal to participate at this trial. Notwithstanding, that position on absence of service, I would proceed to determine this appeal. Analysis and determination It is settled that this being a first appeal, the court has a duty to re-evaluate the evidence on record and make its own findings and or conclusions. For this legal position see the principles in Okeno v R {1972} EA 32, Kiilu & Another v R {2005} IKLR 174. At the heart of this appeal is the question whether the Learned trial Magistrate was right in acquitting the respondent for reason that the respondent reasonably believed the complainant to be above 18 years old. The position of the law on exercise of jurisdiction and discretion is of importance at this stage of the proceedings. In the case of Bundi Makube v Joseph Onkoba Nyachiro CA No. 8 of 1983 the Court of Appeal held as follows: “However, the Court of Appeal will not normally interfere with a finding by the trial court unless it is based on no evidence or on misapprehension of evidence or the Judge is shown ……… to have acted on wrong principles in reaching the findings he did.” In this case, there is no dispute that the Learned trial Magistrate did not factor the prosecution case upon examination of the entire evidence. It became clear that the complainant had presented herself as a mature girl capable of consenting in her own free will to engage in sexual intercourse with the respondent. Child defilement under the Sexual Offences Act connotes when a male person has sexual intercourse with a girl who is under the age of eighteen years. Based on this definition it is also an act of defilement when a man engages in sexual intercourse with a male child under the age of eighteen years. It is presented in this context that under Section 2 of the Sexual Offences Act, the genital organs as defined includes the anal orifice. The official age of consent of sexual intercourse in Kenya is taken to be eighteen years and above. It is therefore a complete defence for any person who engages into sexual intercourse with a girl above eighteen years so long as she consents to the sexual act. The exoneration provision for an accused person in which he may be acquitted of the offence is found under Section 8(5) of the Sexual Offences Act. It follows therefore that it’s a defence if proved that such a child deceived the accused person into believing: (a). That he or she was over the age of 18 years at the time of the alleged commission of the offence and (b). The accused reasonably believed that the child was over the age of 18 years. Thus, from the record its clear the Magistrate concluded that there was sufficient evidence for the respondent to believe the complainant to be of above the age of eighteen years old. According to the defence in rebuttal to the prosecution case, the respondent alleged that he had asked the complainant about her age and by

page 2 of 3

her own statement she was 19 years old. Further the appellant found the complainant working at Mariakani selling chapatis, a sign that she was capable of venturing out as an adult. This approach by the trial court on this issue to me was a crucial point of Law to draw from in determining the entire trial. This is a statutory defence which the respondent took advantage of to discharge the evidential burden of proof against the prosecution case. In the precincts of the well settled principle in Ruwala v R {1957} EA 370 and Answar Kipngetich v R CR Appeal No. 141 of 1985, I have considered the material and evidence before the trial court and the decision subject matter of this appeal. The ultimate question is if the trial court was right in arriving at the conclusion made that the words of the statute given their natural meaning were applicable to the facts of the case to entitle the respondent an acquittal. I am of the view that drawing inspiration from the principles in (Okeno (supra) Ruwala (supra), Kiilu (supra) authorities there was after all the advantage available to the Learned trial Magistrate to observe the demeanor, physical appearance and general dispositions of the complainant at the time of trial, to determine the held belief by the respondent. On appeal that fact cannot be overlooked on account that the observations made were sufficient and reasonable cause to inform the Judgment of the trial court. In the case of R v Coet Zee {1943} 10 EACA 56 the Court held: “A man who has carnal knowledge of a young girl whose appearance suggests that she is of or above the age of consent runs a decided risk and it is his business to address his mind to the question of age and assure himself on reasonable grounds that he is not committing a breach of the Law.” Applying these principles to the facts of the case, in my view the evidence by the defence went far enough in establishing a link, and a connecting factor between the sex act and the cogent reason that the complainant was above the age of eighteen years old. I consider that there was no mistrial or misdirection on the part of the Learned trial Magistrate to warrant an appeal court to interfere with the Judgment. The appeal fails and is dismissed. That is the order of the court. DATED, SIGNED AND DELIVERED AT MALINDI THIS 4TH DAY OF FEBRUARY 2020. ............................ R. NYAKUNDI JUDGE

page 3 of 3