Edward Muuo Makau v Republic

c. It is the duty of a first appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the decision appealed against or the entire proceedings if they are flawed. d. When the trial Court has breached provisions of the constitution or ignored statutory provisions, or misconstrued the law, or breached rules of procedure, or ignored crucial evidence or misread the material evidence or has ignored material documents, or in any manner compromised the accused rights to a fair trial or prejudiced the accused etc. the appellate court is competent to reverse the decision of the trial court depending on the materials in question. 3. The following is a proper evaluation and summary of the evidence led by the respective parties which culminated in this appeal. The prosecution case rested on the testimony of five witnesses namely, the complainant, her father, her mother, a clinical officer, and a police officer. The defence case rested on his sworn evidence. He did not call any witnesses. 4. The essence of the state’s case was that the appellant defiled the complainant, aged 10 years. The appellant’s defence on the other hand is that he was not involved at all, and that the prosecution did not establish the case against him to the required standard. 5. LKM, the complainant, then in class 2 two testified that the appellant came to their home and took her and other children. He then took her to a place where there was grass and asked her to remove her clothes but she refused. He asked her to remove her shirt for him to breastfeed. He removed her trouser and her panty and he removed his clothes and he put his thing for urinating between her legs in the place she uses to urinate. She felt pain and screamed but no one came to help her. He slapped her on the right side and told her to go home. She wore her clothes and went home and told her dad and mum what happened. Her parents went to the village elder. She was taken to Moi Hospital and also to the police. She identified the appellant in court. 6. PW2 NM, the complainant’s father testified that on 16th May 2020 the appellant came with his brother to his home. His brother used to live with his children, Charity and a boy. She said the appellant left with her two children, the complainant and Dorcas and his brother’s 2 children. After some time, he went looking for the children at the appellant’s brother’s house, but he was told the appellant had gone with the complainant to buy meat. He came back with Dorcas, but shortly, the complaint came running and told her mother the appellant had defiled her. His wife called him and the complainant told them that the appellant took her to a wall, and asked her to remove her clothes and expose her chest for him to suck. She said he removed her clothes and defiled her, she felt pain and cried and he told her he would give her his phone, then he slapped her and told her to go home. He said they looked for the appellant but they did not find him. They went to the village elder who called the police and they took the complainant to hospital. He identified the appellant in court. 7. PW3, MM, the complainant’s mother testified that Baba Steve came with his brother (the appellant) and the appellant left with the complainant, Dorcas and Steve’s two children. She said her husband noticed the children were missing and he went looking for them. He found the others, but the complainant came alone and reported to her that the man removed her clothes and inserted his penis in her vagina and she screamed. She said they went to the village elder who called the police and they were told to take the children to Moi Hospital, Voi. She identified the accused in court. Upon cross examination, she stated that they checked the complainant and she was very wet, and she had soil on her head and back. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/179/eng@2022-03-14 2

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8. PW4, Mr. Joto Nyawa, a Medical Officer at Moi Referral Hospital completed the complainant’s P3 form. He said her clothes status were not documented. He produced her P3 form. It shows her age as 10 years. He said her clothes were not documented. He said she had vaginal lacerations, her hymen was partly torn and she had an abnormal discharge from her vagina. He said no spermatozoa was detected and pregnancy test was negative. He said the vaginal lacerations and broken hymen showed that the minor was defiled. He said the accused was not brought for medical examination. Upon cross examination he said the complainant was aged 10 years but the age assessment was not done. 9. PW5 Sgt Lucy Macharia attached to Voi Police Station took over the investigations from Cpl Mwajuma who investigated the matter but had since been transferred to Thika Sub- County. She said she was conversant with his handwriting and that she was on duty when the matter was reported. She testified that on 17th May 2020 the complainant aged 9 years came to the station in the company of a one FNM. She said the complainant was treated at Moi Hospital Voi where it was confirmed she had been defiled. The appellant was arrested and charged in court. She produced her birth certificate showing that the complainant was born on 7th April 2011. 10. Upon being put on his defence, the appellant elected to give sworn defence. He stated that on the material day, his brother came to his place of work and told him that his wife was not at home and he wanted him to go with him to his home at Mwakingali. He said they went to a club, after which they went to the complainant’s home and his brother left him at the gate. He said he left his brother at the said home and he left with his children Steve and Charity after they told him they knew their home. He said he had a painful swollen finger and after waiting for his brother for a while, he took a boda boda and went to Kaloleni to pick some medication. He said later his brother called and asked him whether he had seen the child, but he told him he had not. He said he told his brother to tell the complainant’s father to meet him the next day at his place of work to discuss the claim, but on 17th he was arrested and later charged in court. He blamed his brother for framing the charges against him. 11. After analysing the prosecution evidence, the defence and the law, the prosecution was persuaded that the elements of the offence had been established. She convicted him and noted that the appellant was not remorseful and that the offence was rampant in the area. She sentenced him to serve 80 years imprisonment. 12. The appellant seeks to overturn the judgment citing 6 grounds, which can be reduced to 3, namely; (a) whether the prosecution proved its case to the required standard; (b) whether the appellant was properly identified as the offender; (c) whether the appellant’s defence was considered; and (d) whether the charge sheet was defective. 13. The Petitioner’s submissions are three-fold. One, he cited Manuel Vincent Quitntanila3in support of the proposition that hymen can be broken by many other factors other than sexual intercourse. Two, that he was not afforded legal representation contrary to section 5 of the Legal Aid Act4 and section 50(2) of the Constitution and that the court imposed a harsh sentence of 80 years. Three, the appellant cited contradictions in the evidence in that it was stated that the complainant was aged 9, 10 and 12 years. 14. The Respondent did not file submissions. 15. First, I will address the question whether the ingredients of the offence were proved. Its trite that age is such a critical aspect in sexual offences that it has to be conclusively proved. This becomes more 3 1999 BQD 769 cited in PKW v Republic HCCRA No. 331 of 2008. 4 Act No 6 of 2016. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/179/eng@2022-03-14 3

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5 important because punishment (sentence) under the Sexual Offences Act is determined by the age of 6 7 the victim. In John Cardon Wagner v Republic, it was held that in defilement cases, the age of the complainant is proved by either medical evidence or through other evidence since the sexual offences act 8 have different categories of ages and sentences of different ages. In Musyoki Mwakavi v Republic the court held that apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense. In Francis Omuroni v 9 Uganda, it was held that in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. The court also held that apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense. The complainant’s birth certificate was produced in court. It showed her age was 10 years. The charge sheet shows that she was 8 years old. Her mother gave her age as 10 years and 12. The Clinical Officer gave her age as 10 years. The P3 form shows her age as 10 years. The birth certificate showed that she was born on 7th April 2011. The learned Magistrate had the benefit of seeing the complainant in court. The 10 drafters of the Children Act were alive to situations whereby difficulties or inconsistencies could arise in determining the actual age of a child. In its wisdom, Parliament adopted the following definition at section 2 of the act, "age' where actual age is not known means apparent age. In the instant case, the actual age was known. The birth certificate was produced in court. It shows that her date of birth was 7th April 2011. I find and hold that age was proved to the required standard by the production of a birth certificate. 16. Next, I will address the question whether the offence of defilement was proved. There is no contest that the appellant went to the complainant’s home in the company of his brother who had left his small children with the complainant’s mother. There is unrebitted evidence that the appellant left his brother there talking to the complainant’s parents. There is uncontroverted evidence that the appellant left in the company of the children. The complainant’s father later went looking for the children at the appellant’s brother’s house but he found the other children except the complainant. He asked them the complainant’s whereabouts and they told him she went with the appellant to buy meat. He went home with one child and after some time, the complainant came running and told them that the appellant had defiled her. Her mother testified that she had soil on her head and at her back and upon crossexamination, she said her genitals were wet. 17. The complainant’s testimony was that the appellant took her to a place and asked her remove her clothes. He asked her to expose her chest for him to suck. He removed her trouser, panty and made her lie down and defiled her. Her testimony was corroborated by the medical evidence. The medical officer testified that the complainant had lacerations and a partly broken hymen which are consistent with defilement. 5 Act No. 3 of 2006. 6 See Hilary Nyongesa vs Republic High Court Cr Appeal No. 123 of 2009, Eldoret. 7 High Court Criminal Appeal No. 404 of 2009 (Nairobi). 8 High Court Criminal Appeal No. 172 of 2012. 9 Criminal Appeal no 2 of 2000- Court of Appeal. 10 Ibid. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/179/eng@2022-03-14 4

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11 18. Section 8(1) of the Sexual Offences Act provides that "A person who commits an act which causes penetration with a child is guilty of an offence termed defilement." This section provides the key elements of the offence of defilement. These are “Penetration,” and “Child.” The act defines “penetration” as partial or complete insertion of the genital organs of a person into the genital organs of another person. The other element is that the person must be a child. Presence of spermatozoa is not a requirement nor is it necessary that the assailant completes the intercourse by ejaculating. 19. It is important to mention that the appellant’s identity is not in dispute. In fact, he admits going to the complainant’s home with his brother. In his defence, he claimed that he was left at the gate and he left with his brother’s children after they told him they knew their way home. He claims he had a painful swollen finger, so, he took a boda boda and went to Kaloleli to pick medication. However, the defence must be weighed against the evidence offered by the prosecution. A trial court has a duty to weigh the evidence adduced in court by all the parties in totality and make a finding on the culpability 12 or otherwise of the accused. This is the basic calling of every court without exception. The question that follows is whether the explanation given by the appellant was reasonable or whether it rebutted the evidence adduced by the prosecution. It is settled law that the defence of alibi raised by an accused person is to be proved on a balance of probability and that for it to be rejected it must be incredible 13 and that the defence of alibi must be weighed against the evidence offered by the prosecution. The correct approach is to consider the alibi in light of the totality of the evidence in the case and the courts impression of the witnesses. 20. The evidence must be considered in its totality. In order to convict there must be no reasonable doubt that the evidence implicating the appellant is true. 21. The trial Magistrate had the benefit of seeing the witnesses first hand. It is acceptable in totality in evaluating the evidence to consider the inherent probabilities. The proper approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused's guilt. 22. 14 It is true that the accused enters the proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the State has on evidence put before the court satisfied the court beyond a reasonable doubt that the accused is guilty. The term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must 15 be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if the court believes the accused is guilty or likely guilty, that is not sufficient. In those circumstances the court must give the benefit of the doubt to the accused and acquit because the state has failed to satisfy the court of the guilty of the accused 11 Supra. 12 John Matiko & Another vs Republic, Criminal Appeal No. 218 of 2012. 13 See the Supreme Court of Nigeria in the case of Ozaki and another vs The State Case No. 130 of 1988. 14 See the South African case of Ricky Ganda vs The State {2012}ZAFSHC 59, Free State High Court, Bloemfontein. 15 See the 1997, the Supreme Court case of Cananda in R vs Lifchus {1997}3 SCR 320. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/179/eng@2022-03-14 5

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beyond a reasonable doubt. On the other hand, the court must remember that it is virtually impossible to prove anything to an absolute certainty and the State is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, the court is sure that the accused committed the offence, it should convict since this demonstrates that the court is satisfied of his guilty beyond reasonable doubt. 23. 16 Upon evaluating the totality of the evidence, the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am persuaded that there is no basis to fault the trial magistrate for her findings. The explanation offered by the appellant is in my view improbable and it does not dislodge the prosecution evidence nor does it cast reasonable doubt on the prosecution case. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge. 17 24. Other than including a ground stating that the charge sheet was defective, no argument was made to prove this ground nor do I find any merit in the said ground. 25. The other ground cited by the appellant is that he was denied legal representation. Though this is good ground, a reading of the entire record, the lower court’s judgment, there is nothing to show that the accused was prejudiced in the trial. 26. In conclusion, I have re-evaluated the evidence. I am satisfied that the prosecution proved the offence to the required standard. I find that the learned Magistrate correctly analysed the evidence and properly convicted the appellant. I find no reason to fault the learned Magistrate's findings. 27. Regarding the sentence, Section 8 (2) of the Sexual Offences Act provides that "a person who commits an offence of defilement with a child aged eleven years or less is liable upon conviction to be sentenced to life imprisonment." The learned Magistrate imposed a sentence of 80 years imprisonment. The above provision prescribes a mandatory life sentence; hence, the trial court had no discretion to substitute the life sentence mandatorily imposed by the law with a prison term of 80 years. It follows that the appeal on conviction fails. As for sentence, I substitute the prison term of 80 years with a term of life imprisonment. 18 Right of appeal explained. SIGNED, DATED AND DELIVERED VIRTUALLY AT VOI THIS 14THDAY OF MARCH 2022. JOHN M. MATIVO JUDGE 16 Ibid. 17 Duhaime, Lloyd, Legal Definition of Balance of Probabilities, Duhaime’s Criminal Law Dictionary 18 Supra. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/179/eng@2022-03-14 6

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