REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. E007 OF 2021 KENNEDY MUSEMBI MUKULA.....APPELLANT -VERSUSREPUBLIC........................................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. Otieno J. (RM) in Makueni Chief Magistrate’s Court Sexual Offence Case No.33 of 2019 pronounced on 25th August, 2020). JUDGMENT 1. The appellant was charged in the magistrates’ court with defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 20 th September 2019 at about 1500 hours at [Particulars withheld] Village, Mbooni East Sub-County within Makueni County did cause his penis to penetrate vagina of MNM ( name withheld) a girl aged 17 years. 2. In the alternative, he was charged with indecent act with a child contrary to section 11(1) of the Sexual Offences Act, the particulars of which being that on the same date and at the same place did indecent act by touching the private part (vagina) of MNN a girl aged 17. 3. He denied both charges. After a full trial, he was convicted on the main count of defilement and sentenced to 6 years imprisonment. 4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds – 1. That the learned magistrate erred in both law and facts and misdirected herself in holding that the case for the prosecution was proved to the required standard whereas on the basis of the record the burden of proof was not discharged and indeed left reasonable doubts that ought to have been resolved in appellant’s favour. 2. The learned trial magistrate erred in law and fact by wholly relying on prosecution witness testimony which was fabricated and riddled with lies. 3. The honourable magistrate erred by failing to observe that the prosecution failed to present crucial witnesses who could corroborate Pw1’s statement but rather opted for witnesses whose statements were mere hearsay. 5. The appeal was canvassed through 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 am required to examine the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno –vs- Republic (1972) E.A 32. 7. In proving their case, the prosecution called five (5) witnesses. Pw1 was the alleged victim whose evidence was that she was 17 years old and that on 20/9/2019, the accused whom he only knew by appearance because he used to go to her home for her, went to where she was cleaning and gave her Kshs.100/= to buy mandazi. He then dragged her to a nearby bush and defiled her without using any protection. Next day, she opened up and informed her mother about what the appellant had done to her. She was then taken to hospital for treatment and a report made to the police. 8. Pw2 EM was the mother of the victim whose evidence was that the victim was born on 17/1/2002 and was in class 7 at [Particulars withheld] Primary School. It was her evidence that the appellant was employed by a relative. It was her evidence that the day after the incident the victim told her that Musembi (the appellant) had dragged her into the bush gagged her mouth and defiled her. They went to
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hospital on 25/9/2019 as she fell into shock after being told what had transpired. 9. Pw3 was Francis Mutunga Kamuta an Assistant Chief of Makinya Location, whose evidence was that on 25/9/2019 EM (Pw2) reported a defilement case on her daughter. He then mobilized local Nyumba Kumi people and arrested the appellant. 10. Pw4 Dr. Makau Alex of Makueni Referral Hospital testified that he filled the medical examination report (P3 form) for the victim. On examination of the patient he found no injuries in genitalia but hymen was missing. He filled the P3 form on 26/9/2019 and relied on treatment notes from Kalawa Health Centre. 11. Pw5 was Cpl John Ateka the Investigating Officer who testified that on 25/9/2019 at 10:20 am, he received a defilement report which was said to have occurred on 20/9/2019. He took the victim to hospital and also received the victim’s birth certificate which he produced in court as an exhibit. He then charged the appellant in court. 12. When put on his defence, the appellant tendered sworn defence testimony. He said that he was an employee of Mutua and used to milk Mutua’s cows. According to him, the mother of the victim (Pw2) used to feed the cows but was not properly feeding the cows. He reported this to his employer and he was told to feed the cows. According to him, this created a rift and grudge and thus he was implicated in this case with the offence. 13. The elements of the offence of defilement are the age of the victim which should be below 18 years. Secondly, penetration of a sexual nature, even if partial. Thirdly, the identity of the culprit. 14. With regard to the age of the victim, she was said to be 17 years old. The victim herself Pw1 stated her age. The mother Pw2 also gave her date of birth. A birth certificate was relied upon and produced in court as an exhibit. In my view, the prosecution proved beyond any reasonable doubt that the victim was aged 17 at the time of the alleged offence. 15. With regard to penetration of a sexual nature, the victim was 17 years old. She said that she was penetrated sexually. The medical evidence shows that the hymen was missing, but not freshly broken. There was no evidence of recent penetration. In my view, the fact that hymen was missing alone was not proof of sexual penetration, as the missing hymen can be due to other factors, including physical exercises. 16. With regard to the culprit, I find that the prosecution failed to prove that the appellant was the culprit. Weighing the evidence of the prosecution against the defence of the appellant, in my view the evidence of Pw1 and Pw2 was a fabrication against the appellant. This is also because the evidence of both Pw1 and Pw2 is wanting on why it took 5 days to report the incident even to the Assistant Chief. There is also evidence at all that any of the two told anybody about the incident for five days, which in my view is incredible. Secondly, there is no doubt that the appellant was employed by a relative of Pw2, and thus his defence story about a minor family dispute could as well be true. I find the delay in reporting the incident to be consonant with the appellant’s story of fabrication due to a dispute, there was no evidence of recent sexual penetration on the victim. The appellant was thus not proved to be the culprit. 17. 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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