REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. E036 OF 2021 ELIJAH MAKAU MUTIU...............................................................APPELLANT -VERSUSREPUBLIC......................................................................................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. E. Muiru in Kilungu Principal Magistrate’s Court Sexual Offence Case No.19 of 2018 pronounced on 17th March, 2021). JUDGMENT 1. The appellant was charged in the magistrates’ court with defilement contrary to section 8(1) (2) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 24 th April 2018 in Makueni County unlawfully and intentionally caused his genital organs to penetrate the genital organs of SW (name withheld) a child aged 9 years. 2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, the particulars of which being that on the same day and at the same place intentionally touched the genital organs of SW a child aged 9 years with his hands. 3. He pleaded not guilty to both counts. After a full trial, he was convicted of attempted defilement after the magistrate invoked the provisions of section 180 of the Criminal Procedure Code. He was then sentenced to ten (10) years imprisonment. 4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following amended grounds – 1) That he is remorseful and appealing for leniency, having learnt the lesson the hard way. 2) That he left behind an aged wife and young siblings who were dependent on him and is a father of eight (8) children four (4) of whom were under 18 years who were suffering especially during the Covid-19 epidemic. 3) That he had taken advantage of numerous rehabilitations courses in prison and had reformed and promises to lead a crime free life. 4) That he asks that his sentence commences from the time of arrest April 2018, reduce conviction or grant non-custodial sentence or slash conviction as the court deems fit. 5. The appellant relied on the amended grounds of appeal and did not file written submissions. The Director of Public prosecutions filed written submissions which I have perused and considered. 6. This is a first appeal. Though the appellant has relied on grounds that mainly emphasize the issue of sentence, being a layman, I am duty bound to consider the entire proceedings, the conviction and the sentence – see Okeno –vs- Republic (1972) E.A 32 on the requirement for reconsideration of the evidence. 7. In proving their case, the prosecution called 3 witnesses. The case was retrial, and Pw1 was the alleged victim who stated that the appellant pushed her quickly behind the kitchen door, opened the zip of her trouser and touched her genitals and shortly, the grandmother
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Pw2 arrived. 8. Pw2 was MWN the grandmother of Pw1, whose evidence was that she called the appellant to come and do roof repair work at her house then proceeded for a Christian Community Meeting. On return she found the kitchen door half closed, and on pushing it open found the appellant who came out. Then she saw the victim come out zipping her trouser. Later, the child told her what had happened and a report was made to the police. Pw3 was PC Charles Aricha the Investigating Officer, who charged the appellant. 9. When put on his defence, the appellant tendered unsworn defence testimony. He stated that he had been initially employed by the husband of Pw2 as a technician to repair the husband’s house. The husband travelled and Pw2 then did not pay him the entire amount due. In addition, the son of Pw2 one T also engaged him through Pw2 to do repairs to T’s house and payment was to be through Pw2. Again money for work done became owing. 10. It was his defence that on the day in question, he was called by Pw2 to go for work only to be trapped with the present case as a frame up. 11. I note that this case is a retrial, after the appellant had initially been convicted for attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act on 31st May 2018. 12. The elements of the offence of attempted defilement are first the age of the victim who has to be below 18 years. Secondly, the occurrence of the alleged act of attempt to defile. Thirdly, the identity of the culprit. I am aware that the grounds of appeal appear to relate to sentence, but the appellant is a layman. 13. With regard to age, the alleged victim Pw1 stated at the hearing in November 2020, that she was 11 years old. She did not rely on any documentary evidence nor indicate her date or year of birth. Her grandmother Pw2 MWN also did not testify on the age of the victim. However, the trial court saw the victim and allowed her to tender evidence but not on oath as she appeared to be a young girl. 14. In my view, though the prosecution should normally have brought additional supporting evidence on the age of the alleged victim, the fact that she said that 11 and it was not controverted and the magistrate saw and determined that the alleged victim was fairly young, was sufficient proof of the age of the victim. The prosecution thus proved that the victim was aged 9 years at the time of the alleged incident. 15. The second element of the offence was the act of the actual attempt to defile. I note that from the original trial where the appellant was convicted and a retrial ordered, and in the present trial, the appellant was charged with the main count of defilement, not attempted defilement. 16. The Investigating Office Pw3 does not state what the alleged victim stated to him, nor did he explain, why medical evidence was not produced, even if it was to say that there was no evidence of penetration. 17. Additionally, there is the defence of the appellant in which he stated that he was implicated due to a debt owing, which debt was not denied by Pw2 and infact there is evidence on record that some payment for the debt, was made by Pw2 during the criminal trial. In those circumstances, the prosecutor in my view should have called additional witnesses, at least the people who arrested the appellant and took him to the police to demonstrate the consistency of the allegations by both the alleged victim Pw1, and her grandmother Pw2. In the absence of such independent evidence, there will surely be a reasonable doubt in the mind of any court that the evidence of those crucial witnesses who were not called would be prejudicial to the prosecution evidence on record. Thus in line with the reasoning in the case of Bukenya –vsUganda (1973) E.A, I will give the benefit of that doubt to the appellant, and find that the prosecution did not prove an attempt to defile the victim. 18. With regard to the culprit, I find that the prosecution did not prove that the appellant was the culprit, as I have found already found that there was no attempt to defile the victim herein. 19. Consequently and for the above reasons, I allow the appeal, quash the conviction and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held. DELIVERED, SIGNED & DATED THIS 22ND DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI. ........................... GEORGE DULU JUDGE
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