Jack Mwangi Muriithi v Republic

4. That the trial magistrate erred in facts and law in relying on the evidence of the prosecution that the matter was proved beyond reasonable doubt. He sought that the conviction be quashed and the sentence imposed set aside. Issues 4. The appellant’s case gleaned from the petition and written submissions raises the following issues: Whether there was proper identification of the accused Whether the contradictions in the prosecution evidence was so egregious that the witnesses cannot be relied upon Whether the prosecution proved the offence beyond reasonable doubt 5. It is now trite that the role of this court on a first appeal is to re-evaluate and analyse all the evidence adduced in the lower court and come to its own conclusions; bearing in mind that this court did not have the benefit of hearing and seeing the witnesses itself nor take note of their demeanour. In its analysis, this court is obliged to ascertain whether every element of the offence for which the accused was charged is proved beyond reasonable doubt. See Okeno v Rep [1972] EA and Kiilu and another v Republic [2005] 1 KLR 174. 6. The offence of defilement is defined in Sec 8. (1) SOA which provides: “ A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” The offence is committed if the following elements are proved: the age of the victim; that there was penetration, and that the perpetrator is properly identified. Identiffcation 7. The appellant’s case is that the prosecution did not prove identification of the accused person as the perpetrator. He argues that PW1 in her testimony stated that she did not know the accused person who came to their home at around 3:30 am on the material day. PW2, the mother of the complainant testified that she didn't know the suspect in the matter. In addition, that PW3 never proved identification of the appellant since the appellant was not examined by way of a DNA test as required under the Sexual Offences Act. 8. Further, the investigating Officer, CPL Mukunzu PW4, never identified the suspect as he did not conduct his arrest, but only conducted the parade. The said parade was not conducted in accordance with the correct police procedures in terms of section 46 of the police parade procedures. Instead of at least 8 people, the officer conducted two identification parades with three (3) and five (5) persons. 9. The appellant relied on Nduati Ngure v Republic, CR. APP. NO. 121/2014 where it was held that: “the evidence of visual identification in criminal cases can bring a miscarriage of justice and such evidence is supposed to be examined carefully.” 10. In addition, from the medical/clinical examination, there was no evidence linking the appellant to the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/630/eng@2022-05-05 2

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11. The evidence of PW1 is critical. She clearly asserted that she did not know the accused. But added that she saw him at home. When she was called to the identification parade, she said, she was able to identify the accused: “ …because when he defiled me he had not covered his head and face. He defiled me for about 15 minutes. So I saw him well. If I see him today I can recall him well” . 12. In cross examination, her evidence was even more graphic. She said: “ You were standing next to the bed holding knife, torch and panga. You were holding the torch with your left hand. When you defiled me you put the torch on the frame so I was able to see you. I had never seen you before. From where you were standing to where the bed was , was about 2 yards….. You went to the table room and left us in the bedroom. You said you would kill us if we leave…..you went for the medicine and came with milking jelly….. You placed the torch and knife on the frame and milking jelly on the frame when you defiled me….” 13. From the foregoing evidence, it is impossible not to conclude that the child was speaking of facts that occurred to herand in her presence; and which were in her clear knowledge. I do not see from her evidence any indication that she did not witness the accused do the things she testified to. 14. The appellant also argued that the parade was not properly conducted. He submitted that upon arrest there was no exhibit found in my possession which was alleged to be stolen from the witnesses. PW4 in his testimony stated that they arrested 3 suspects and took them to Kerugoya police station and conducted two identification parades. He further argued that the first report by the appellant to the police station was never produced in court as required by law. 15. PW4 NO 41804 CPL Joseph Mukunzu testified that he received the complaint from PW-1 and PW-2 on the 10th June 2018 at 6 am. This was very soon after the incident had occurred. He testified that on 24th June 2018 at a 12.30 am, he together with the area Assistant Chief conducted a night patrol and arrested three people the Appellant among them and called the complainant to identify him among the five people.That the complainant had informed him that the assailant had not covered his face on the fateful night hence was able to identify him easily. That he assembled two parades scrambling them but on both occasion, the appellant was picked by the complainants. 16. The appellant submitted that the complainant and the other witnesses testified that they did not know him. Further, that instead of having a parade of at least 8 people, he conducted two identification parades with three (3) and five (5) persons: which is not the correct police procedure under section 46 of the police parade procedures. 17. Chapter 42 paragraph 7 (5) (d) & (e) of the National Police Service Standing Orders provides: “ (d) the accused or suspected person shall be placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as him or her; https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/630/eng@2022-05-05 3

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(e) 18. Where the accused or suspected person is suffering from any disfigurement, steps shall be taken to ensure that it is not specially apparent;” For the evidence of identification to have some probative value, the identification parade must comply with the laid down procedure. The Court of Appeal in David Mwita Wanja & 2 others v Republic [2007] eKLR emphasized the importance of a properly conducted identification parade and expressed itself as follows: “ The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. 19. From the above evidence it appears undoubtedly clear that the appellant was not properly identified through the parade. Does the failure of the identification parade vitiate the other evidence concerning the offence? 20. The Court of Appeal in John Mwangi Kamau v Republic KLR stated as follows concerning identification parades: “ The identification parades are meant to test the correctness of a witness’ identification of a suspect. See this court’s decision in John Kamau Wametu v Republic CRA 68 & 69/2008. In this case, Eliud, George and Joseph testified that they had indicated in their initial reports that they had gotten impressions of the assailants and they could identify them. However, we cannot help but note that PW1, Cpl John Makumi in producing the Occurrence Book, testified that the incident was recorded as O.B. No.45 of 24/6/2003; the assailants were never described in the said report. We also note that the aforementioned witnesses did admit that they never gave the physical description of their assailants to the police. In Gabriel K Njoroge v Republic (1982 – 1988) I KAR 1134 this court observed: “A dock identification is generally worthless and the court should not place much reliance on it unless this has been preceded by a properly conducted parade. A witness should be asked to give the description of the accused and the police should then arrange a fair identification parade.” 21. No doubt then, from the foregoing, a witness ideally ought to give the description of the assailant for purposes of the police mounting an identification parade. In this case, there is no evidence that either PW1 or 2 gave the description of the robbers to the police. PW4 told the court that at the time of the incident the complainant had said she saw the accused whose face was not covered during the incident, and that she would be able to recognize the accused. This was apparently not recorded in the first report and neither was such a report produced. 22. The Court of Appeal faced with a similar scenario in Nathan Kamau Mugure v Republic CRA.63/08 expressed itself thus: “ As to the complaint in ground six that the witnesses had not given to the police the description of the appellant before the parade, we do not think that failure to describe https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/630/eng@2022-05-05 4

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the person to be identified necessarily renders an otherwise valid parade worthless. Even in GABRIEL’s case, supra, the Court did not go so far as to say that a witness must be asked to give a description of the person to be put on the parade for identification. All the Court said was that the witness ‘SHOULD’ be asked. That is obviously a sensible approach. It is not impossible to have a situation in which a witness can tell the police that though he cannot give a description of the person he had seen during the commission of an offence, yet if he (witness) saw that person again, he would be able to identify him. It would be wrong to deprive such a witness of an opportunity of a properly conducted parade to see if he can identify the person. Again, the police themselves may, through their own investigations, come to know that a particular suspect may have been involved in a particular crime though the witness or witnesses to that crime have not given a description of the suspect. Once again it would be wrong to deny the police the opportunity to put such a suspect on a parade to see if the witnesses can identify him. In either of the two cases, the parade cannot be held to have been invalid merely because the witnesses had not previously given a description of the suspect. The relevant consideration would be the weight to put on the evidence regarding the identification parade. We reject the contention that because James had not given to the police a description of the appellant, his evidence with regard to the identification parade ought to have been rejected.” 23. In light of the foregoing, the proper course is to give the identification parade less weight in the present circumstances. The peculiar circumstances of the case have to be taken into account. In Wambugu v Rep [1989]KLR 424 the Court of Appeal held thus: “ It is trite that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully to be satisfied that the circumstances of identification were favourable and free from error before it can safely make it the basis of a conviction.” 24. The trial court took this case into account in convicting the accused. What were the circumstances of the identification by the complainant? PW1 said she saw the accused in the light of the torch placed at the frame. It was not indicated that the torch was shining on the accused. It was about 3.30am, and she had until then, been sound asleep. The lights were off and were only later switched on by the complainant’s mother after the accused had left. She had not known the accused prior to that incident thus recognition was not a factor. None of the items stolen by the accused were found on him after his arrest. 25. PW2, the other eyewitness, said she was woken up by the voice of a man who shone a torch at her and also had a panga. She said “I didn’t see his face. He told me to co-operate”. She went with him to her daughter’s room and told her to sleep beside her daughter. She knew her daughter was being defiled because she cried out in pain. Again se affirmed: “I didn’t see his face. He was very swift. He asked me whether I should put on the lights and he said even if I saw him I would not recognize him because he wasn’t from the area”. She confirmed that she only switched on the lights after the accused had left. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/630/eng@2022-05-05 5

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26. Were these circumstances sufficient to enable the safe identification of the accused? Was the trial court entitled to rely on the evidence available to find accused as having been positively identified by the complainant? The trial court was cautious in its finding on identification. The court said: “ From the above authorities it is my understanding that the failure to conduct a proper identification parade does not necessarily mean that the suspect/accused person must be set free. It may only weaken the prosecution’s case…” The trial court concluded that the accused was positively identified at the scene by the complainant. 27. I find that the evidence of the complainant regarding the fact that she saw the accused in the uncertain light of the torch placed at “the frame” as he defiled her for about fifteen minutes whilst it is not to be disregarded, is in my view insufficient to find the accused was safely and positively identified as the perpetrator. The complainant had not indicated what features of the accused she saw that enabled her to identify the accused. Nowhere was a description of him given. I think it was patently unsafe for the trial court to rely on the complainant’s identification of the accused given the quite unfavourable circumstances of the alleged identification. 28. On this ground relating to identification, the appeal succeeds Age of victim 29. Regarding, this case, the age of the minor was clearly established through the evidence of PW1 and PW6. PW 1 testified that she was 13 years old and a class 7 student at [particulars withheld] Academy. She testified that she was born on 14/11/2005 She pointed to her birth certificate– MFI-1. 30. Further, PW 4, the investigating officer, testified that he had received the complainant’s birth certificate. It indicated that she was born on 27/9/2007. He produced the birth certificate as exhibit 1. This issue was not really contested. I find that the age of the complainant was 13 years as found by the trial court. Whether the offence of penetration was proved despite contradictions and inconsistencies in evidence 31. The appellant pointed out several inconsistencies in the prosecution evidence. Some of the critical contradictions are as follows: PW1 stated that her mother was in her bed covered with a blanket; and that she had breathing problems. Then she said that her mother sent the suspect to bring her medicine at the table: “ He went to the table room. He didn't take long. He came back with Vaseline, he gave mother the medicine and she smeared vaseline on my vagina and on his penis and he defiled me.” On her part, her mother, PW2 said: “ He tried to penetrate my daughter but wasn’t able. He then went for smearing oil. I told him to get me inhalers. ….he later went for smearing oil. He then defiled my daughter” 32. That evidence is rather contradictory. However, I do not think that the contradictions indicated by the appellant have the effect of invalidating the other evidence. Rather they affect the probative value and the weight overall of the prosecution evidence. 33. Finally, the appellant submitted that the clinical officer’s testimony, PW3, did not link him to the commission of the offence. When PW3 filled in the P3 Form he confirmed that the complaint’s hymen was not intact, and in testimony said the incident was on 16/6/2018; whilst in the charge sheet it is alleged that penetration was on 10/4/2018. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/630/eng@2022-05-05 6

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34. The appellant submitted that when PW1 was examined it was not by by PW3. The examiner was never called upon to testify as a witness, which was irregular and unfair to the appellant. His examination was that the inner genitalia were not intact. They took a blood test, it was non-reactive. They conducted urinalysis and blood test were both non-reactive. They failed to conduct D.N.A analysis to corroborate the same. The P3 form was filled on 24/6/2018, fourteen days after the examination and without explanation. The result was that there was no bleeding; and as for penetration PW3's evidence was that there “could be penetration but not a major one” . The prosecution failed to prove what caused the penetration and the period it took, and who did it. DNA was never conducted. 35. PW-3 testified that she filled the P3 form and examined the Complainant. She found the complainant had an infection with pus cells and yeast cells. She produced the treatment notes as exhibits 3 (a) (b) (c) and (d). She also produced the P3 form as Exhibit 4. Her concluding opinion was that indeed the minor had been defiled as the injuries were few hours old. 36. In rape and defilement cases courts routinely take the position whereby the key evidence they rely on in order to prove penetration is the complainant’s own testimony which is usually corroborated by the medical report presented by the medical officer. In this case, the evidence of the complainant (PW1) has been corroborated by PW3 - the clinical officer. Hence, the complainant was penetrated for the purpose of defilement. However, the identity of the defiler is uncertain. 37. The substance of the appellant’s complaint is that the prosecution case is based on the uncorroborated evidence of the complainant, PW1. That this left many gaps in the prosecution case that could have been filled by other witnesses if they had been summoned to testify. The appellant testified that there was no prosecution witness who identified him or described him. Nevertheless, he was arrested three weeks after the incident and the identification parade was not done procedurally. Whether the appellant’s defence was considered 38. The appellant also claimed that the trial magistrate failed to consider his defence and disregarded it. His defence was that on the material day, he went to his work place as a barber and never committed the said offence. That there was nothing linking him to the offence. 39. I have perused the trial court’s judgment and note that the learned magistrate did consider the accused’s defence at page 17 of the judgment. He assessed the defence evidence as follows: “ l must point out that I do not find the defence evidence to be credible for he hasn’t given a good reason why the complainant and her mother would want to frame him. No evidence of bad blood between the accused person and the complainant has been shown to exist…” 40. I see nothing questionable about the trial court’s finding on the defence. 41. Taking all the foregoing issues into account, I come to the conclusion that the appellant’s case regarding the failure to properly identify him and thus link him to the offence, has merit. I thus find and hold that it was unsafe to convict the accused for the offence on the ground that he was positively identified, when clearly there were serious gaps in his identification, that it is fair to say he was not properly identified. As such, the conviction was unsafe. Disposal 42. Ultimately, the appeal succeeds on the point of identification. Accordingly the conviction and sentence are hereby set aside. The accused is set at liberty forthwith unless otherwise lawfully held. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/630/eng@2022-05-05 7

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43. Orders accordingly DATED AND DELIVERED AT KERUGOYA THIS 5TH DAY OF MAY, 2022 HON JUSTICE RICHARD MWONGO JUDGE Delivered in the presence of: The Appellant in person Mr. Mamba for the state Mr. Murage, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/630/eng@2022-05-05 8

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