REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL APPEAL NO. E033 OF 2021 GASPER LIGA MABIRI..................APPELANT -V/SREPUBLIC..................................RESPONDENT (Being an appeal against the judgment delivered by Hon. R. M. Amwayi, Senior Resident Magistrate on 22nd April 2021 in Criminal Case No. 87 of 2015, Republic v Gasper Liga Mabiri). JUDGMENT Background 1. Gasper Liga Mabiri was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars are that Gasper Liga Mabiri on the 12 th day of January 2015 in Changamwe within Mombasa County, intentionally and unlawfully caused his penis to penetrate the vagina of AA a girl aged 4 ½ years old. 2. In the alternative count, the appellant was also charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. 3. The trial magistrate considered the evidence of the four prosecution witnesses and the sworn statement of the appellant and his witnesses DW2 and DW3 and convicted the appellant who was sentenced to serve 30 - year imprisonment. 4. The appellant was aggrieved by the conviction and sentence and he preferred the appeal herein on the following grounds: 1) That the learned trial magistrate erred in law and fact in proceeding with a trial to conclusion on a charge that was defective. 2) That the learned trial magistrate erred in law and fact in finding that the charge as laid had been proven. 3) That the learned trial magistrate erred in law and fact in purporting to rely on the evidence of a child without properly recording the reasons thereto. 4) That the learned trial magistrate erred in law and fact in failing to appreciate that a child of such tender age could be misled and or couched. 5) That the learned trial magistrate erred in law and fact in failing to note that the charge specifically referred to a particular action which was never proven. 6) That the learned trial magistrate erred in law and fact in relying on a document, to with Post Rape Care Form (PRC) which was never produced in court. 7) That the learned trial magistrate erred in law and fact in failing to note and appreciate the contradictions in the prosecution evidence. 8) That the learned trial magistrate erred in law and fact in admitting a document to wit a birth certificate which was manifestly filled well after the fact.
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9) That the learned trial magistrate erred in law and fact in basing a decision on speculation, guess work and circumstantial evidence. 10) That the learned trial magistrate erred in law and fact in ignoring the well corroborated evidence of the accused person. 11) That the sentence was manifestly excessive and harsh in the circumstances. 12) That the conviction was not valid and so was the sentence. 5. The appellant prayed for the court to set aside the conviction and sentence and to direct that the Appellant be at liberty. This appeal was canvassed by way of written submissions. 6. The Prosecution’s case was that the Appellant took the Complainant from Nyanya Rose’s drinking den and went with her to his house where he defied her. The Complainant said there was nobody in the house and even when she felt pain and cried, nobody respondent. That after he had defiled her, he gave her sugarcane and took her back to their house. 7. The Complainant’s mother said that when the Complainant went to where she was in the bedroom she looked sad and told her that Baba Jeff had kissed her with his fingers. That he gave her soda and took his dudu and put in hers. That PW1 went to Baba Jeff’s immediately as she knew him as her brother’s friend and when he inquired, the Appellant did not respond and when she threatened to go and report him, the Appellant tried to stop her but she refused. According to PW1, a neighbor saw the Appellant take the child by hand to his house and her sister M saw the Complainant carrying sugarcane. PW1 mobilised neighbour’s and when the child was interrogated in the presence of neighbours, she confirmed that the Appellant had defiled her. PW1 took the child to hospital the next day and PRC and P3 Forms were duly filled after she was treated. 8. Dr. Samir Osman PW4 produced the P3 Form in respect to the injuries suffered by the Complainant where it was observed that the Complainant’s hymen was freshly perforated, there was fresh abrasion on the vaginal wall and swelling on the labia minora. According to PW1 and PW2, the Appellant was alone in the house after sending Jeff DW2 away. 9. The Appellant confirmed that he went with the Complainant to the house and he alleged that he was with his children DW1 and DW2 and therefore did not have the opportunity to commit the offence. His evidence was corroborated by the evidence of DW1 and DW2 his daughter and son respectively who were alleged to have been in the house and that she was given soda to take and was also given sugarcane. Appellant’s Submissions 10. The Appellant’s submissions were to the effect that he was charged and convicted on a defective charge. He said there was no offence known as defilement of a girl and whereas the Complainant is said to be a child of 4 ½ years, he was charged under Section 8(3) of the Sexual Offences Act which refers to defilement of a child between the age of 12 and 15 years. The Appellant argues that this confusion was extremely prejudicial to prosecution of the defence case. 11. On the issue of the age of the Complainant, the Appellant submitted that there are contradictions reflected in the charge sheet right into the proceedings where witnesses had stated different ages in their evidence. It was claimed that the certificate of birth presented in court was obtained on 22nd January 2015 whereas the Appellant was charged on 15 th January 2015. The Appellant’s contention is that it is not clear what age the trial magistrate used to sentence him. 12. The Appellant also faulted the prosecution for failure to produce the Post Rape Care Form which was used to fill the P3 Form. 13. The Appellant also submitted that that voire dire examination of the Complainant was not properly processed and that it was extremely casual. That since the age of the Complainant was given as 6 years instead of 4 ½ years and later 2 ½ years, it is proof that the Complainant could not sufficiently answer questions. 14. In regard to ground 7 and 9, the Appellant submitted that there were contradictions in the evidence of PW1, PW2 and PW3 where PC Orika PW3 stated that PW2 was sent to buy a soda but the shopkeeper of where the soda was bought was not called to testify and the children whom PW2 was playing with were also not called to testify. On the other hand, PW2 did not say whether she was playing with other children but rather that the Appellant removed her from Nyanya Rosie’s chang’aa den. 15. The Appellant also argued that the integrity of the P3 Form which was filled 24 days after the alleged offence was put into disrepute considering that the maker did not come to produce it and the PRC Form from which it was made was also not produced. The Appellant also expected that the blood stained panty of the Complainant ought to have been produced as proof that her hymen was perforated but it was never produced. 16. It was submitted that the Appellant did not have the opportunity to commit the offence as he was all along in the house with DW1 and DW2, and the trial court was wrong to say that the Appellant had the opportunity to commit the offence. Respondent’s Submissions 17. The Respondent on whether the charge sheet is defective or not cites the case of Sigilani v Republic [2004] 2 KLR, 480 echoed in B N D v Republic [2017] eKLR where it was held as follows: - “The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence
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should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence.” 18. Further, the Respondent stated that Section 134 of the Criminal Procedure Code provides that the components/ingredients of a charge sheet constitute as follows: - ‘Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.’ 19. The Respondent in submitting states that the test for whether a charge sheet is fatally defective is rather substantive than formalistic. That the substance to be established is whether the Appellant was charged with an offence known to law and was disclosed in a sufficiently accurate manner to give the accused adequate notice of the charges facing him. 20. The Respondent states that from page 34 of the proceedings, a voire dire test was conducted. That the Complainant remained calm and consistent in her testimony on who defiled her, and during cross examination, the child never controverted herself at any point and the defence did not cast doubt on the unsworn testimony of the minor. That the evidence of the victim was corroborated by the medical evidence and in accordance with Section 124 of the Evidence Act corroboration was not required as the trial magistrate believed that the child was telling the truth. The Respondent relied on the Court of Appeal authority in Eric Onyango Ondeng’ v Republic [2014] eKLR in which it was held that slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. 21. In regard to alleged contradictions in the prosecution’s case, the Respondent submitted that not every contradiction warrants rejection of evidence and that the Appellant did not establish that the evidence tendered by the medical expert was fabricated. 22. On sentencing, the Respondent submitted that the sentence was within the confines of the law and the Appellant should continue serving. This court was urged by the Respondent to dismiss the appeal. Analysis and Determination 23. This being the first appellate court, this court is guided by the principles in David Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: - “The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 24. After considering the grounds of appeal Records of trial court, submissions and circumstances of the case, issues for determination are: i. Whether the charge sheet and certificate of birth are defective. ii. Whether the charge was proved beyond reasonable doubt iii. Whether voire dire examination was properly conducted. iv. Whether there were contradictions and speculation in the Prosecution’s case v. Whether the trial magistrate considered the Appellant’s defence Whether the charge sheet and certificate of birth are defective 25. The undisputed evidence adduced by the prosecution for the offence of defilement is that the Complainant was 4 ½ years old at the time the offence was committed. This court has looked at the judgment of the trial court but did not see how the trial magistrate arrived at the sentence of 30 years when the charge sheet refers to a penalty under Section 8 (3) of the Sexual Offences Act No. 3 of 2006 which provides for imprisonment for a term of not less than 20 years. 26. Whether a charge sheet is defective depends on whether the alleged defect occasioned a failure of justice thereby prejudiced the Appellant as provided under Section 382 of the Criminal Procedure Code which provides: - “Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice.
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Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 27. Considering that the age of the Complainant in this matter was established as 4 ½ years, the penal section that the Appellant ought to have been charged with is Section 8 (2) and not Section 8 (3) of the Sexual Offences Act. While it is clear that the drafter of the charge erred in the framing of the charge, I don’t consider that to be sufficient reason to make this court interfere with the conviction. It is not even an issue in this appeal. The Appellant was well aware of the charge facing him. 28. The Appellant participated fully in the proceedings and was even represented by an advocate and was well aware that the charge against him was related to defilement of a child of 4 ½ years who was well known to him as she was a niece to his friend. The issue of the defect of the charge sheet was not raised during trial and this court finds that no prejudice was suffered by the Appellant. Proof of the age of the Complainant in a sexual offence case should determine the sentence to be meted out whether or not the proper penalty section is stated in the charge sheet. Whether the charge was proved beyond reasonable doubt 29. The ingredients of the offence of defilement were settled in the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 as follows: “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 30. On the age of the Complainant, the charge sheet shows that the Complainant was 4 ½ years old and the certificate of birth produced as Exhibit 1 to that effect. Although the defence counsel wanted to object to the production of the Birth Certificate, there is no dispute that the child was born on 18th June 2010. The ingredient of the age of the Complainant was therefore proved beyond reasonable doubt. 31. On whether the prosecution proved that the child was defiled, PW1 said that when her child returned home, she noticed that she was sad and confirmed that she had cried when the Appellant took her to his house and defiled her. PW1 took the Complainant to hospital, she was examined and it was established that her hymen was freshly perforated, there was fresh abrasion on the vaginal wall and swelling on the labia minora. The medical evidence in the P3 Form corroborate the Complainant’s evidence that she was defiled and the trial magistrate found the Complainant’s testimony consistent and coherent in her narration of what happened on the material day. 32. On the 3rd ingredient on the identification of the assailant, it is admitted that the Appellant went to the house with the Complainant who was a niece to his friend and were therefore known to each other. The Complainant said that she was alone in the house with the Appellant when he defiled her and that when she felt pain and cried, no one responded. When the Complainant went back to the house and PW1 noticed that there was something amiss with her, she inquired and PW2 told her that she had been defiled by the Appellant. PW1 immediately went to the Appellant’s house to confront him about the allegation and she said that the Appellant did not respond to her and when she threatened to go to the police station, the Appellant tried to restrain her. 33. PW2 said that the Appellant was alone at that time outside his house and that he had sent Jeff away to go and play after he had bought the soda. PW1 said that she called a few neighbours to the Appellant’s house and when the Complainant was interrogated, she said that the Appellant had pulled down her shorts, defiled her and told her to pull up her shorts. The evidence of the Complainant is corroborated by the evidence of the Appellant and his two witnesses that she was taken to the Appellant’s house and given sugarcane and her further evidence that she was defiled by the Appellant is further corroborated by the doctor’s evidence. It did not occur throughout the trial that there was any reason why the 4 ½ years old child, a niece to the Appellant’s friend could have framed him for such a serious offence. This court therefore finds that the three ingredients of the offence of defilement have properly been proved beyond reasonable doubt. Whether voire dire examination was properly conducted 34. Voire dire examination of the Complainant is shown in the proceedings of the lower court and were conducted on 3 rd March 2016 when the Coram shows that the advocate for the Appellant was present and participated in the same. Claiming that the proceedings were not proper when they were done in the presence of the Appellant and his advocate cannot be sustained. Whether there were contradictions and speculation in the Prosecution’s case 35. That the Complainant was given a soda in the Appellant’s house is evidence that was confirmed by the Appellant and did not need proof by the shopkeeper who sold the soda. The age of the Complainant was proved by documentary exhibit which was the certificate of birth. The medical officer PW4 was very clear that the P3 Form was filled from the primary source which is the PRC Form which the defence objected to its production. The alleged inconsistencies and contradictions are not of a magnitude that would make conviction of the Appellant unsafe. Whether the trial magistrate considered the Appellant’s defence 36. The trial magistrate considered the Appellant’s defence in detail although the Appellant says that his son and daughter were in the house when he left to go and get sugarcane for the Complainant. DW3 says he left the Complainant in the house with his sister and came back after 1 hour and did not get the Complainant at home. DW3 said it was not normal for his father to come to the house with the Complainant. DW2 said she remained in the house throughout until the Appellant took the Complainant back to her mother’s house. It is apparent the Appellant took advantage of the vulnerable state of the Complainant to sexually abuse her. He had no reason to take her to his house instead of taking her to her mother’s house which was closer to the Chang’aa den than to his house.
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37. In conclusion, this appeal lacks merit and is hereby dismissed. Right of appeal within 14 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS MARCH 2022 HON. LADY JUSTICE A. ONG’INJO JUDGE In the presence of: Ogwel- Court Assistant Ms. Kambaga for Respondent Mr. Makau for Appellant – Present Appellant present in person HON. LADY JUSTICE A. ONG’INJO JUDGE Mr. Makau Advocate: I do pray for certified copy of judgment Order: Certified Copy of judgment to be supplied upon payment of copying charges. HON. LADY JUSTICE A. ONG’INJO JUDGE 18.3.2022 18TH DAY OF
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