REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. E003 OF 2021 COSMAS KINYILI MALONZA...........................................................................APPELLANT -VERSUSREPUBLIC.........................................................................................................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. C. A Mayamba in Kilungu Principal Magistrate’s Court Criminal Case (S.O) No.60 of 2019 pronounced on 19th September, 2019). JUDGMENT 1. The appellant was charged in the magistrate’s court with attempted defilement contrary to section 9(1) (2) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on diverse dates between 16 th and 17th August 2019 at unknown time in Uvaleni SubLocation Kasikeu Location in Makueni County intentionally attempted to cause his penis to penetrate the anus of EMN ( name withheld) a child aged 9 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 diverse dates and at the same place intentionally touched the buttocks of EMN a child aged 9 years with his penis. 3. He denied both charges. After a full trial, he was convicted on the main count of attempted 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) He did not plead guilty to the charges. 2) The Medical Officer did not confirm any fact which proved sodomising. 3) The case against him was a mere fabrication. 4) That he is a first offender and needed leniency. 5) That he wants the court to do justice and dismiss the case and set him at liberty. 5. The appeal proceeded by way of filing written submissions. In this regard, I have perused and considered the written submissions of both the appellant and the Director of Public Prosecutions. 6. This being a first appeal, I am duty bound to re-evaluate all the evidence on record 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 four (4) witnesses. Pw1 was the alleged victim who testified that he was going to the farm when the appellant, a neighbour promised to pick andgive him oranges. The appellant then took him to his house and locked it and thereafter through threats removed his clothes and inserted his penis into his buttocks the whole day and night. Next day, he opened the door for him,
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and when he went home his mother asked him what had happened and he thus gave her the story. It was his evidence that he was a 10 year old and standard 4 pupil. After informing his mother about the incident, he was then taken to hospital and the appellant arrested. 8. Pw2 was LMN the mother of the alleged victim (Pw1) whose evidence was that on 16/8/2019 she sent him to collect maize stocks, but he did not return. The next day the victim returned home, and she went with a stick to cane him, that is when he informed her that Kinyili had locked him in his house and did bad things to him. She then told him not to take a bath and next day took him to the police station. According to her the doctor confirmed an attempt to penetrate the anus of the victim. 9. Pw3 was Jackson Nzivo a Clinical Officer based at Sultan Hamud hospital. It was his evidence that on 19/8/2019 he filled a medical examination form (P3 form) for the alleged victim. He noted no tears or other injuries. He also relied on treatment notes. 10. Pw4 was PC Alex Kitur of Sultan Hamud police station whose evidence was that on 18/8/2019 the alleged victim reported that on 16/8/2019 he met the appellant who cheated him with fruits and locked him in his house and sodomised him. After investigations he charged the appellant with the offence. 11. When put on his defence, the appellant tendered unsworn defence testimony. He said that his mother sent him to Kasikeu to sell two cockerel to pay for chama which he did. That was on 15/8/2018. He then went for a burial and did not come back that day. On his way back he heard that mama Muuo said that he had defiled her son. He denied committing the offence. 12. The elements of the offence of attempted defilement to be proved by the prosecution were the age of the alleged victim, the act of an attempt to defile, and the identity of the culprit. 13. In my view, the prosecution proved the age of the alleged victim beyond reasonable doubt that he was aged 9. 14. With regard to whether there was an attempt to defile the alleged victim, the evidence on this act is that of the alleged victim, Pw1 alone as the medical evidence does not give any indication of sexual assault on the alleged victim. Such evidence of a single victim witness of a sexual offence can sustain a conviction, if it is believable and is so believed by a trial court for reasons to be recorded in the proceedings, even without corroboration in terms of the provisal to section 124 of the Evidence Act (cap.80). 15. In my view, the evidence of the alleged victim herein is not believable as he did not volunteer that information until he was threatened with caning by his mother Pw2. He also tendered evidence that the culprit had actual penetration of his anus using his penis for a whole day and night, while the doctor found nothing of the sort. I thus find that the prosecution did not prove beyond reasonable doubt that there was an attempt to defile the alleged victim. 16. With regard to the identity of the culprit, again I find that the prosecution did not prove that the appellant was the culprit. Though the alleged victim and the appellant knew each other well as neighbours, the burden was always on the prosecution to prove beyond reasonable doubt that the appellant was the culprit. The appellant did not have a burden to prove his innocence. See Woolmington –vs- DPP (1936) AC English case. 17. In the present case, the trial court seems to have wrongly shifted the burden of proof to the appellant by requiring that he explains where he was and what he was doing for those two or three days, which was a misdirection that prejudiced the appellant. Such shifting of the burden of proof is enough reason to allow the appeal, as it was a fatal error on the part of the trial court. 18. It is also a matter of concern that even the charge sheet is not clear on the date when the offence was committed, as it refers to diverse dates, while it should have simply stated that it was during the night of such and such dates. In my view, an accused person in the circumstances herein, would find it very difficult to answer to the charge and defend himself. This is an additional reason why the appeal will succeed as the allegations against the appellant were not clear. 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 23RD DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI. ...................... George Dulu Judge
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