REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO.E029 OF 2020 MORRIS NZIOKA KATHUMA............APPELLANT -VERSUSREPUBLIC...........................................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. Otieno J. in Makueni Chief Magistrates’ Court CMCR Case No.31 of 2019 pronounced on 1st December, 2020). JUDGMENT 1. The appellant was charged in the magistrates’ court with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on diverse dates between 15/8/2019 and 17/8/2019 in Kilala Location within Makueni County intentionally caused his penis to penetrate the vagina of SM (name withheld) a child aged 11 years. 2. In the alternative, he was charged with committing an indecent act with a child contrary to section11 (1) of the Sexual Offences Act. The particulars of offence were that between the same diverse dates and at the same place intentionally touched the vagina of SM ( name withheld) a child aged 11 years with his penis. 3. He denied both charges. After a full trial, he was convicted of the main count of defilement and sentenced to serve 7 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) The trial magistrate erred in failing to find and rule that the evidence adduced by the prosecution is insufficient to sustain the conviction and sentence of the appellant and in convicting the appellant herein against the weight of the evidence adduced. 2) The learned magistrate erred in law and in fact in failing to find and rule that there was no cogent, substantial, credible and direct evidence connecting the appellant to the offence of defilement. 3) The learned magistrate erred in law and in fact in failing to revisit the locus in quo as the crux of the defence case is pegged on the description of the scene. 4) The learned magistrate erred in law and in fact in convicting the appellant on highly contradictory, misleading, inconsistent and unreliable evidence presented by the prosecution. 5) The learned trial magistrate erred in law and in fact in convicting the appellant on the uncorroborated and or insufficiently corroborated evidence of a minor. 6) The learned magistrate erred in law and in fact in failing to find and rule that evidence of a parent is not and cannot be sufficient corroboration of a testimony of a minor. 7) The learned magistrate erred in law and in fact in convicting the appellant on purely circumstantial evidence which was incompatible with the innocence of the appellant herein. 8) The learned magistrate erred in law and in fact in shifting the burden of proof of the charge from the prosecution to the appellant.
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9) The learned magistrate erred in law in placing reliance on incredible evidence of the prosecution and in failing to accord due weight to the evidence of the appellant. 10) That in any event, the learned magistrate erred in fact in meting out a sentence that was grave and excessive in circumstances. 11) The learned magistrate erred in law and in fact in failing to acquit the appellant for failure of the prosecution to prove the charge beyond any reasonable, and further convicting the accused without the investigating officer testifying. 12) The learned magistrate erred in law in refusing the defence evidence of alibi stating that the same was presented as an afterthought. 5. The appeal was canvassed through filing of written submissions, and I have perused and considered the submissions of both the appellant’s counsel Lawrence Obonyo and the submissions of the Director of Public Prosecutions. 6. This being a first appeal, I am required to evaluate afresh all the evidence on record and come to my own independent conclusions and inferences – see Okeno –vs- Republic (1972) E.A 32 and Pandya –vs- Republic (1957) E.A 336 which have been cited by courts over and over again. In particular, in the later case of Kiilu & Another –vs- Republic (2005) I KLR 174 the Court of Appeal stated as follows – 1. “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. 2. It is not a function of a first appellate court to merely scrutinize the evidence and see if there was some evidence to support the lower court’s findings and conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 7. In proving the case, the prosecution called three (3) witnesses. Pw1 was Jackson Masila Kathenge a Clinical Officer who produced a medical examination (P3) form prepared by a colleague Stella Muasya as exhibit. It was the finding recorded therein that the alleged victim had bruises on the vaginal wall and the hymen was not intact. This witness also produced a birth certificate of the victim as an exhibit. 8. Pw2 was the alleged victim who testified that she was 11 years old and that on 15/9/2019 she returned a washing brush to the appellant, only for him to defile her in the house. It was her testimony that her father and sister searched for her and did not find her but she later informed her mother about the defilement, after the mother enquired about her conduct. 9. Pw3 MKM was the mother of the victim, whose evidence was that she searched for the victim after being alerted about her absence by her husband. When she found the victim, she noted that the victim was a worried person and on enquiry the victim said that she had been defiled by Morris (the appellant). She then took the victim to hospital, and the matter was reported to police. 10. When put on his defence, the appellant tendered sworn defence testimony. He said that he was only a go between in a relationship between the victim and her boyfriend Kimanthi. He produced photographs of the alleged houses where he lived, and maintained that it was not possible for him to do what was alleged against him, as the houses were so close to one another. 11. Dw2 was Francisca Mutua the mother of the appellant whose evidence was that the appellant was engaged in brick making on the alleged material day. Dw3 was Leonard Mutua the father of the appellant. His evidence was that two children, who were siblings of the victim came and asked for a brush, and then that same night the area chief and police came and asked for his son (the appellant). 12. This being a case of defilement, the prosecution was required to prove firstly, the age of the victim, which has to be below 18 years. In this regard, the victim Pw2 stated in evidence that she was aged 11. She did not indicate her date of birth. Her mother Pw3 MKM did not testify on the age of the victim. However, Pw1 Jackson Masila Kathenge a Clinical Officer produced a birth certificate which indicates that the victim was born on 22/11/2008. 13. I note that this birth certificate was not mentioned by either the victim Pw2, nor by the mother Pw3. There is also no evidence on how the Clinical Officer came to have possession of the birth certificate. Additionally, the birth certificate is signed as having been issued on 21 st January 2019 the same year of the alleged offence, and it is not in evidence how the Registrar of Births came to know about the date of birth of the victim. 14. From the above evidence on record, in my view the prosecution failed to prove beyond reasonable doubt that the victim herein was aged 11 years. 15. The second element of the offence of defilement to be proved by the prosecution beyond reasonable doubt was sexual penetration, even if of a partial nature. In my view, with the evidence on record from the medical report form which shows genital lacerations and that hymen was missing, and the evidence of the victim on what happened between her and the appellant that day, it is my view that the prosecution proved beyond any reasonable doubt that
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sexual intercourse or penetration did occur. 16. With regard to the culprit, again in my view the prosecution proved beyond any reasonable doubt that the appellant was the culprit, as there was no possibility of mistaken identity and the defence of the appellant regarding another lover of the victim was merely an afterthought as no question on that lover or boyfriend was put to the victim in cross examination. 17. Thus, only for the reasons that the prosecution did not prove the age of the victim beyond any reasonable doubt, the appeal against conviction will succeed. 18. On the sentence imposed, grounded on the reasoning in the Muruatetu Supreme Court Petition, would be too lenient, as the Supreme Court recently issued directions on sentencing restricting it to murder charges. However, I leave it at that as in allowing the appeal on the conviction, the sentence imposed has also to be set aside. 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 10TH DAY OF FEBRUARY, 2022, IN OPEN COURT AT MAKUENI. ....................... George Dulu Judge
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