REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. E069 OF 2021 KMM ……………………. APPELLANT -VERSUSREPUBLIC ………….. RESPONDENT (Being an appeal from the original conviction and sentence of Hon. C. A Mayamba in Kilungu Senior Principal Magistrate’s Court Sexual Offence Case No.9 of 2021 pronounced on 22nd June, 20201). JUDGMENT 1. The appellant was charged in the magistrate’s court with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on unknown date of 2020 in Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of LMM (name withheld) a child of age 7 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 unknown date and at the same place intentionally touched the vagina of LMM a child aged 7 years with his penis. 3. He denied both charges. After a full trial, he was convicted on the main count of defilement and sentenced to 10 years imprisonment. 4. Dissatisfied with the conviction and sentence of the trial court, the appellant has come to this court on appeal on the following grounds – 1) The magistrate erred in law and facts in relying on suspicion and fictitious evidence of Pw1 and without noting that Pw1 was subjected to duress thus incriminating the appellant. 2) The trial magistrate erred in relying on hearsay evidence adduced by complainant’s mother, in that there was a family dispute between his mother and the complainant’s mother, where the complainant’s mother promised to make revenge, thus charges against the appellant were born out of malice and ill will. 3) The trial magistrate erred in law and facts in convicting on mere allegations and presumptions and holding the testimonies of the prosecution witnesses as truthful and free from doubt without benefit of properly conducting deoxnucleic acid (DNA) required under section 2 of the Sexual Offences Act to ascertain whether or not the accused was linked with the commission of the alleged offence. 4) The magistrate erred in law and facts in finding the appellant guilty as charged in absence of corresponding medical evidence of sexual activeness on the part of the appellant. 5) The learned trial magistrate erred in law in shifting the burden of proof to the appellant and further ignoring his defence without proper evaluation. 6) The learned trial magistrate failed to test the evidence of prosecution witnesses and caution the circumspection thereby convicting on flimsy, inconsistent evidence that was not watertight enough to warrant a conviction. 7) The trial court erred in law and facts by not observing that there were no substantive investigations by the Investigating Officer thereby basing the conviction on mere allegations and fabrication in that the Investigating Officer failed by not visiting the scene of crime, and acted in malafides while handling the matter.
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8) The trial magistrate erred in law and facts by shifting the burden of proof to the appellant in that it is trite law that an accused person should only be convicted on the strength of the prosecution evidence and not the weakness of the defence. 9) The trial magistrate erred in law and fact by failing to find that the prosecution had not proved its case beyond any reasonable doubt as required by law and also failed to scrutinize and evaluate the prosecution evidence therefore arriving at an erroneous decision. 10) The trial magistrate failed to consider that the appellant was not arrested within the scene of crime and that the appellant availed himself at Kola Police Station in the company of his mother. 11) That the appellant is very remorseful and prays for leniency and that the entire judgment and sentence be set aside and he be set at liberty. 12) That the trial court erred in law by failing to find that the trial offended and contravened the appellant’s constitutional rights to a fair trial in accordance with Article 50 of the Constitution. 5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by the appellant and those filed by the Director of Public Prosecutions. 6. This being a first appeal, I have to start by reminding myself that I am duty bound to evaluate all the evidence on record and come to my own independent conclusions and inferences but bear in mind that I did not have the opportunity to see the witnesses testify and determine their demeanor – See Okeno –vs- Republic (1972) E.A 32. 7. In proving their case, the prosecution called (4) witnesses. Pw1 was the alleged victim who testified that she knew the appellant who grabbed and pulled her into his house and defiled her. Then her grandmother came and pulled her out, but the appellant pretended to be sleeping. Thereafter, she informed her mother about the incident and the matter reported to the police. She said that she did not know her age. 8. Pw2 was FNM the mother of the alleged victim whose evidence was that the victim was born on 15/4/2013 and relied on a birth certificate. It was her evidence that a child known as E noted the appellant and victim close themselves inside a room, informed his mother who called the grandmother of the victim, who came and found the victim outside. Then when the witness came later, the victim informed her about the incident and then took the victim to hospital after 3 days. According to her, the appellant was a son of a brother of his husband. She said that she could not recall the date when the victim was defiled. 9. Pw3 was PC Jonathan Mumbe whose evidence was that on 22/2/2021 at 3:52 pm the alleged victim and her mother went to Kavatanzou Police Post and reported the defilement. They then took the victim to hospital for treatment and later arrested and charged the appellant. 10. Pw4 was Eric Kasiamani a Clinical Officer at Kilungu hospital, whose evidence was that the hymen of the victim was broken and the vaginal opening was wide open, a sign of defilement. 11. When put on his defence, the appellant tendered sworn testimony and called one witness. It was his testimony that he was at his aunt’s home when she was phoned to go home where he was arrested. He added that he did not have anything to say about the charges. He denied knowing E. His witness Dw2 Julius Munguti Mumina stated that he did not know anything about the case. He stated that the appellant was a neighbour with the victim at Musalala. 12. The elements of the offence of defilement are the age of the victim who should be below 18 years. The second element is penetration of a sexual nature. The third element is the identity of the culprit. 13. With the evidence on record from Pw2 the mother of the victim who testified on the date of birth of the victim and produced a birth certificate as an exhibit in court, I find that indeed the prosecution proved beyond any reasonable doubt that the victim herein was aged 7 years at the time of the alleged incident that is 2020. 14. The second element to be proved by the prosecution beyond reasonable doubt was penetration of a sexual nature. In my view, with the medical evidence on record that the hymen of the victim was broken, and her vaginal canal was wide open for her age, the prosecution proved beyond reasonable doubt that sexual penetration had indeed occurred on the victim. However, in my view, there is no evidence on record that it was recent sexual penetration. 15. The third element is the identity of the culprit. The evidence that connects the appellant to the alleged incident is that of the victim of the alleged defilement Pw1 alone, as no one witnessed the sexual act. The mother Pw2 FNM was given the information about the incident by Pw1. I am aware that such evidence of a single witness victim of a sexual offence can sustain a conviction if believable and is so believed by a trial court on reasons to be recorded without necessity for any corroboration, as provided the provisal to section 124 of the Evidence Act (cap. 80). 16. In the present case, I find that the evidence of Pw1 was not believable. First, both herself and her mother Pw2 could not even remember the date or month on which the incident occurred. Secondly, neither E nor the grandmother of the victim were called to testify and no reason was given for the failure of the prosecution to call these two crucial witnesses. Thirdly, though the incident is said to have occurred in 2020, all reports and actions seems to have taken place in February 2021, months afterwards. Also Pw2 herself testified that she was informed
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about the incident by the victim only in February 2021, and she did not say in evidence that she made any attempts to verify that information, even from the grandmother of the victim. 17. In the circumstances, I find that the prosecution did not prove beyond reasonable doubt that the appellant was the culprit. Thus the appeal will succeed, and conviction will be quashed and sentence set aside. 18. 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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