REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. 06 OF 2020 FELIX KALOLA MBITHI...............APPELLANT -VERSUSREPUBLIC.....................................RESPONDENT (Being an appeal from the original judgment of Hon. E.K Too in Makindu Principal Magistrate’s Court PMCR (S.O) Case No.73 of 2019 pronounced on 6th March, 2019). JUDGMENT 1. The appellant was charged in the magistrates’ court with attempted defilement contrary to section 9(1) (a) as read with section 9(4) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on diverse dates between February 2019 and 22 nd May 2019, at [Particulars Withheld] Primary School in Makindu Sub-County within Makindu County intentionally attempted to cause his penis to penetrate the anus of MNS a child aged 16 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 diverse dates, and at the same place, intentionally touched the anus of MNS a child aged 16 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) That the learned magistrate erred in law and fact when he convicted and sentenced the appellant without observing that the charge sheet was defective due to the way the charges were framed and the sections of the law used in the charge sheet which sections are non-existent in law. 2) The learned trial magistrate erred in law and fact by convicting the appellant without considering that there was no evidence to prove the offence of attempted defilement to the required standard in law beyond reasonable doubt. 3) The learned trial magistrate erred in law and fact by failing to consider that there was no evidence to prove the alternative count of indecent assault hence erred in convicting him based on extraneous evidence which was motivated by his own opinion without relying on evidence on record. 4) The learned trial magistrate erred in law and fact by failing to observe that the prosecution case was full of contradictions and inconsistencies, coupled with poor police investigations which rendered the prosecution case unbelievable. 5) The learned trial magistrate erred in law and fact when he dismissed the appellant’s sworn defence which alleged the possibility of being framed due to an existing grudge without giving cogent reasons as provided under section 169 of the Criminal Procedure Code. 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, this court is duty bound to evaluate all the evidence on record afresh and come to my own independent
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conclusions and inferences. See Okeno –vs- Republic (1972) E.A 32. 7. In proving their case, the prosecution called four witnesses. Pw1 was Dr. Mbugua a Medical Officer at Makindu hospital who testified on a medical examination report (P3 form), filled by Dr. Mutungi. According to him, the P3 form was filled four months after the alleged incident and nothing significant was done or disclosed therein. Secondly, though there was an entry of grievous harm, no such injury was seen by the doctor. 8. Pw2 was M.N.S the victim whose evidence was that he was 16 years old and a class 7 pupil at [Particulars Withheld] Primary School. He stated that in late February his teacher the appellant, called him to the staffroom at 4:40 pm and told him to suck his penis. When he refused the appellant attempted to put his penis in the witness’s anus but he again refused. The appellant then held him and tried to put his penis in his anus and when he pushed him, the appellant released sperms which was splashed on the floor. It was his further evidence that on 22/5/2019 the appellant again called him to the staffroom at the same time and made him suck his penis. 9. It was his evidence also that later his mother (Pw3) came to know about it and after her inquiry with other school boys KK and MK, the matter was reported to the police. 10. Pw3 was MMM the mother of the alleged victim (Pw2) whose evidence was that on 29/5/2019 while coming from prayers she met Phyllis Mwongeli who told her that the appellant was sodomising children at [Particulars Withheld] Primary School. Thus when her children came home from school she enquired from them and the victim was scared and that on 30/5/2019 the victim admitted that the teacher (appellant) was sodomising him. She was also told by other parents that their school going children had suffered from the same acts of the teacher. 11. Pw4 was IP Faith Chesire the Investigating Officer whose evidence was that on 1/6/2019, a report was made at Makindu Police Station, that a teacher had defiled the victim. The victim identified the appellant, who was thus arrested and charged. 12. When put on his defence, the appellant tendered sworn defence testimony. He stated that he was a PTA teacher at the school and that the victim was his pupil. He denied committing the offence and explained that the victim had disciplinary issues. He said that the inside of the staffroom was visible from outside, and that he could not do such a thing as alleged. 13. I also note that the trial court did visit the school and the headmaster a Mr. Ndolo, explained the situation to the court. Mr. Ndolo explained also that three pupils and the alleged victim had disciplinary issues. 14. This being a case of defilement, the prosecution was first required to prove the age of the victim. The evidence of the victim Pw2 and the mother Pw3 confirms that the victim was 16 years of age. That was not controverted. I find that the prosecution proved beyond any reasonable doubt that the alleged victim was 16 years old at the time of the alleged incident. 15. The second element to be proved was whether there was indeed an attempt to defile the victim. The evidence on the occurrence of the incident was that of the victim Pw2 and the mother Pw3. The mother Pw3 was informed by the victim, thus her evidence was secondary. 16. Was the evidence of the victim (Pw2) believable in terms of the provisal to section 124 of the Evidence Act (cap. 80)? In my view it is not so believable. First of all, there is the explanation of Mr. Ndolo the headmaster that the victim and his alleged two associate victims had disciplinary issues at the school. This was also what was said by the appellant in his sworn defence. 17. Secondly, Pw3 claimed to have been told about the sodomy by a woman Phyllis Mwongeli who was not called by the prosecution to testify and no explanation was given. The two boys KK and MK who were also said to be victims of the conduct of the appellant were also not called to testify by the prosecution and no explanation was tendered on same. 18. In my view, weighing the evidence of the prosecution and the defence, the allegation of the occurrence of the attempted sodomy could as well be an attempt by a naughty boy to divert attention from his disciplinary issues at school. It is not believable testimony. 19. On the element of identity of the culprit, since I have found that there was no attempt to defile, I also find that the prosecution did not prove that the appellant was the culprit. 20. The appellant has raised technical grounds of appeal alleging defectiveness of the charge. I find no material defect on the charge. I dismiss that ground as I find no prejudice that could have been caused to the appellant as a result of any minor omission or errors in the charge. 21. Since I have found that the charge of attempted defilement was not proved, I will allow the appeal. 22. 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 9TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI. ....................... George Dulu
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Judge
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