Samson Madzao Mwamunga v Republic

at 6 am when she was on her way from the shop to matchstick, the Appellant waylaid the Complainant and defiled her in the bush. The Complainant said that the Appellant started making advances to her in May 2017 and the first time he defiled her was in May 2017. That after defiling her, he gave her his contact number xxxxxxxxxxx together with Kshs. 80. She reported to her grandmother who in turn reported to her father PW3 and the complainant was treated at Lunga Lunga by PW1 who also filled a P3 form and said that the history given by the Complainant show that she was forcefully sexually assaulted and that if the Complainant’s hymen had been broken as a result of physical exercise, her vaginal canal would not have opened to the extent he found. 8. The offence was investigated by PW4 PC Kevin Otieno Ouma who preferred charges against the Appellant. PW4 said that the matter was concluded immediately after the act but he took two weeks to conclude investigations before charging the Appellant. 9. The Appellant was placed on his defence and gave sworn statement denying the allegations of defilement and alleged that he was framed. He said the matter ws not reported in school and the head teacher was not aware, he said that he had overstayed in the school and was prepared to go to college in August but he was arrested before he could go to college. 10. In cross examination, the Appellant confirmed having given his number xxxxxxxxxxx to the Complainant who was his neighbor. He said he was the Complainant’s father who wanted his contact but he did not know why. 11. This appeal was canvassed by way of written submissions. Appellant’s Submissions 12. In his submissions, the Appellant claimed that he was convicted on a defective charge sheet for reasons that the charge read ‘Defilement contrary to Section 8 (1) as read with Section 4 of the Sexual Offences Act No. 3 of 2006. 13. He submitted that the particular of the charge are not consistent with the law under which he was charged therefore rendering the charge fatally defective. He relied on the holding in Rashid Mwabeja Mbovu v Republic CR. App. No. 199 of 2014 that where the court proceeds upon a defective charge, the conviction arrived at cannot stand and must be quashed. 14. The Appellant also submitted that the medical evidence was inconclusive as examination was conducted 7 days after the alleged act and there was no significant evidence that could conclusively suggest that PW2 was defiled and the broken hymen could have been as a result of riding a bicycle or any other physical exercise. He also said that the medical evidence did not link him to the alleged offence. 15. In his submissions as to sentence, Section 8(4) is not mandatory and the trial court ought to have regarded his mitigation in sentencing him. He urged the court to consider the plight of his family that was undergoing hardships following his wife’s death and depart from the mandatory minimum sentence and consider a sentence proportionate to the criminal culpability of the Appellant. 16. By 10th February 2022 when this court fixed the appeal for judgment, the Respondent had not filed their submissions despite having been given the opportunity from 7 th October 2021. They were further granted leave to file their submissions by 24 th February 2022 but by the time of writing this judgment, the Respondent’s submissions were not in the file. Analysis and Determination 17. The appeal herein will therefore be determined based on the grounds of appeal, submissions by the appellant, and evaluation and analysis of the records of the trial court 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.” 18. After considering the grounds of appeal, Records of the trial court, submissions and circumstances of the case, the issues for determination are as follows: i. Whether the charge sheet was fatally defective ii. Whether the medical evidence corroborated the allegations of the complainant and whether medical examination of the Complainant after lapse of 7 days affected the evidence adduced by the prosecution iii. Whether the trial magistrate considered the Appellant’s mitigation before sentencing him Whether the charge sheet was fatally defective 19. The evidence adduced by the prosecution points to the fact that the complainant was a minor aged 16 years by the time the offence was committed. There was therefore an obvious oversight on the part of the prosecution and the court in stating that the offence was contrary to Section 8(1) as read with Section 4 of the Sexual Offences Act. The Appellant could not have been charged with the offence of attempted

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rape where the Complainant was a minor. 20. Having been adduced that the Complainant was defiled, it goes without saying that being that she was a minor aged 16 years, the only applicable section of the law that provides for aa penalty for the offence of defilement where the minor is 16 years is Section 8 (4) of the Sexual Offences Act. That oversight cannot be said to be fatally defective Whether the medical evidence corroborated the allegations of the complainant and whether medical examination of the Complainant after lapse of 7 days affected the evidence adduced by the prosecution 21. The Complainant reported that she had been defiled by the Appellant and although she underwent medical examination 7 days after the offence was committed, PW1 established that her hymen was broken and that had it been broken as a result of riding a bicycle of physical exercise, the vaginal canal could not have been opened to the extent that he found. He said the history of forceful sexual assault was consistent with his finding. The trial magistrate in his judgment was satisfied with the evidence of the complainant as a truthful witness and relied on it as per Section 124 of the Evidence Act. This court therefore finds that those grounds cannot stand. Whether the trial magistrate considered the Appellant’s mitigation before sentencing him 22. Section 8 (4) of the Sexual Offences Act states as follows: - ‘A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.’ 23. The trial magistrate’s discretion on sentencing only applies where the maximum and not minimum sentence has been provided for. In the Supreme Court Petition No. 15 and 16 of 2015, Francis Kariokor Muruatetu & Others v Republic where it was held that the mandatory death sentence in murder cases is unconstitutional. Subsequent advisory delivered on 6 th July 2021 clarified that the holding in the above petition was only applicable to murder cases and not in other offences with mandatory penalties. The sentence passed against the Appellant was therefore lawful, however, in consideration of the Appellant’s mitigation that he left 12 children at home whose mother passed away in the course of this trial, it will be important to call for a social inquiry to establish if the allegations by the Appellant are true and to consider if the sentence may be revised to mitigate the plight of the alleged children. 24. Mention on 31st March 2022 for sentence revision report. DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 10TH DAY OF MARCH 2022 HON. LADY JUSTICE A. ONG’INJO JUDGE In the presence of: - OGWEL- COURT ASSISTANT MR. NGIRI FOR THE RESPONDENT APPELLANT PRESENT IN PERSON HON. LADY JUSTICE A. ONG’INJO JUDGE

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