REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. 31 OF 2020 ALEX NDETO MUSEMBI...........................................................................APPELLANT -VERSUSREPUBLIC...................................................................................................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. J.O Magori in Makindu Principal Magistrate’s Court PMCR (S.O) Case No.33 of 2017 pronounced on 17th July, 2019). JUDGMENT 1. The appellant was charged in the magistrates’ court with defilement contrary to section 8(1) (3) as read with section 8 of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 12 th August 2017 at [Particulars Withheld] Village in Kibwezi SubCounty within Makueni County intentionally caused his penis to penetrate the vagina of MD (name withheld) a child aged 13 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 intentionally caused his penis to touch the vagina of MD a child aged 13 years. 3. He denied both counts. After a full trial, he was convicted on the main count of defilement and sentenced to 20 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 trial magistrate erred both in law and fact when he convicted and sentenced him without observing that the charge sheet was defective which rendered the same to be termed as duplex charges. 2. The learned magistrate erred both in law and fact when he convicted and sentenced the appellant without regard to his basic rights for disclosure of the prosecution evidence which was intended to be brought against him as laid down in Article 50(2) (j) of the Constitution. 3. The trial magistrate erred in failing to observe that the trial was conducted in contravention of section 19 of the Oath and Statutory Declarations Act concerned with the reception and admissibility of evidence of a child of tender years, Article 4 of the Constitution and section 2 of the Sexual Offences Act. 4. The trial magistrate erred both in law and fact by convicting him without considering that there was no evidence to prove the offence of defilement to the required standard in law of beyond reasonable doubt. 5. The trial magistrate erred both in law and fact by failing to apply section 124 of the Evidence Act and to observe that the prosecution case was full of contradictions and inconsistencies which rendered the prosecution case unbelievable. 6. The trial magistrate erred both in law and facts when he dismissed the appellant’s sworn defence which alleged the possibility of being framed up 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
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appellant and those filed by the Director of Public Prosecutions. 6. This being a first appeal, I have to start by reminding myself that as a first appellate court, I am duty bound to evaluate all 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 six (6) witnesses. Pw1 was the alleged victim. It was her evidence that she was 14 years old in 2018 having been born on 13/06/2004. It was her evidence that on 12/8/2017 their farm worker informed her that Alex had phoned and wanted to meet her at Mtito Andei. She then left home at 7pm and proceeded to Mtito Andei, met Alex and they proceeded to a house where Alex (the appellant) had sex with her for the night. 8. Pw2 was JMM the mother of the alleged victim whose evidence was that she noticed at 7:30 pm that the victim was missing from home and on enquiry was told that someone had called her on phone. Pw2 then informed the father of the victim who went out looking for the victim the whole night and came with her and the appellant in the morning. 9. Pw3 was Joseph Mueli Mukumbua a village elder who received a report on the incident on 13/08/2017 at 5am and mobilized the Community Policing to trace the victim, and that later it was established that the victim was with the appellant. 10. Pw4 was Doctor Dorcas Kavuli Musyoka who produced the medical examination (P3) form prepared by Dr. Josephine Maila. It was her evidence that the report showed that the hymen of the victim was broken and there were noticeable bruises in her vagina. 11. Pw5 was DMK the father of the victim, whose evidence was that on being informed about the disappearance of the alleged victim, he went out with a cousin to look for her. He tried to trace her through the phone number of the appellant but it was off. However, in the morning the appellant phoned him and on interrogation he admitted sleeping with the victim. 12. Pw6 was Pc Jackline Kajuju who took over investigations from Cpl Naimeta. It was her evidence that a report on the incident was received at Mtito Andei Police station on 13/08/2017. According to this witness, following carrying out investigations, the appellant was charged in court with the offence. 13. When put on his defence, the appellant tendered unsworn defence testimony. He denied committing the offence and said that on 12/8/2017 he was carrying customers on his motor cycle in the aftermath of celebrations following election of a Member of the County Assembly. He denied going home that night or meeting the victim. 14. The appellant has complained about defect in the charge. The defect he alleges is the section cited in the charge, that is, section 8(1) (3) of the Sexual Offences Act does not exist. In my view, the charge should have read section 8(1) as read with section 8(3) of the Sexual Offences Act. Again, section 8 should not have been repeated in the same charge. These were defects, however in my view, they are curable under section 382 of the Criminal Procedure Code (cap.75) as they did not occasion any prejudice to the appellant. I dismiss that ground. 15. The appellant has also complained that he was not provided with prosecution statements and that section 19 of the Oaths and Statutory Declarations Act with regard to the evidence of the victim was not complied with. From the record, I find no basis for the said complaints and they are dismissed. 16. This being a case of defilement the prosecution was required to prove all the elements of the offence beyond any reasonable doubt. 17. The first element of the offence was age of the victim. On this, a birth certificate was relied upon. It was not challenged. It shows the date of birth as 16/6/2004. Though in the P3 form the doctor indicated the age of the victim (Pw1) as 15 years, in my view the prosecution proved beyond any reasonable doubt that the alleged victim (Pw1) was aged 13 years at the time of the alleged incident. 18. The second element of the offence was penetration, even if of a partial nature. The medical evidence established that the hymen of the victim was broken. There were also lacerations in the vagina. The victim Pw1 stated that penetration did occur that night. In my view, the prosecution proved beyond any reasonable doubt that penetration of a sexual nature did occur on the alleged victim that night, as the evidence of the victim Pw1 and the medical evidence was clear and consistent on this. 19. The third element of the offence to be proved by the prosecution was the identity of the culprit. The evidence that connects the appellant to the incident is that of the victim alone. Such is usually the case in sexual offences as mostly they are committed in secret away from the sight of others, and only two people will be present. 20. The provisal to section 124 of the Evidence Act (cap.80) states such evidence of a single witness victim of a sexual offence, if believable and is believed on reasons to be recorded, can sustain the charge or prove a fact even if not corroborated. 21. In the present case the victim (Pw1) mentioned the appellant as the culprit. She had nothing to gain by wrongly implicating the appellant. Pw5 DMK the father of the victim having been given the phone number of the appellant and tried to call, the appellant later phoned him back and when they later met and discussed the subject, he agreed to being with the victim. This means the appellant was not a stranger. This in my view, the appellant being well known to Pw1, there can be no possibility of mistaken identity. Thus it was proved by the prosecution beyond reasonable doubt that the appellant was the culprit. 22. Having found as above, I am of the view that the conduct of the victim (Pw1) of voluntarily leaving her home at night to follow a man in town (Mtito Andei) and go to sleep with him overnight avails the appellant the defence under section 8(5) and 8(6) of the Sexual Offences Act as, unless the appellant had special knowledge of the age of the victim, as a reasonable man, he would not be able to know that the victim was below 18 years. On that account alone, I will give the benefit of doubt to the appellant due to the conduct of the victim which portrayed
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the conduct of an adult person. On this account alone, the appeal will succeed. 23. I thus allow the appeal, quash the conviction and set aside the sentence. I order that the appellant will be set at liberty, unless otherwise lawfully held. DELIVERED, SIGNED & DATED THIS 8TH DAY OF MARCH 2022, IN OPEN COURT AT MAKUENI. ............................... GEORGE DULU JUDGE
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