REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. E030 OF 2020 JOHN KALUNGU MUTUA..................................................................APPELLANT -VERSUSREPUBLIC............................................................................................RESPONDENT (Being an appeal from the original judgment of Hon. Mayamba C.A Principal Magistrate in Kilungu Principal Magistrate’s Court PMCR (S.O) Case No.20of 2020 pronounced on 16th November, 2020). JUDGMENT 1. The appellant was charged in the magistrates’ court with attempted defilement contrary to section 9(2) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 25 th April 2020 at Ilima Division in Kilungu Sub-Location in Makueni County intentionally attempted to cause his penis to penetrate the vagina of AWK (name withheld) a child aged 6 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 offence being that on the same date and at the same place intentionally touched the vagina of AWK a child aged 6 years with his penis. 3. He denied both charges. After a full trial, he was convicted of the main count of attempted defilement contrary to section 9(1) of the Sexual Offences Act and sentenced to 18 years imprisonment. 4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal relying on the following grounds – 1. That the case was a total fabrication by the Pw2 the complainant’s mother who was his former friend. 2. That he prays that his sentence starts from 25 th April 2020 but not 16 th November 2020 as per section 333(2) of the Criminal Procedure Code. 3. That Pw4, the doctor’s report shows the hymen of Pw1 was not broken then how was defilement confirmed by the learned magistrate. 4. That he is a first offender who needs careful consideration in determining sentence. 5. That he is a family man who also needs leniency. 6. That he asks the appellate court to dismiss the case and set him at liberty or any decision deemed fit for him. 5. The appeal proceeded by way of filing 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, 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.
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7. I have re-evaluated the evidence on record. In proving their case, the prosecution called five (5) witnesses. The appellant on his part, tendered unsworn defence testimony and called one witness. 8. The appellant has challenged both the conviction and the sentence. He was convicted of the main count of attempted defilement, thus the prosecution had a duty or onus to prove all the ingredients of the offence beyond any reasonable doubt. The accused had no burden to prove his innocence. The elements of the offence were the age of the victim, which must be below 18 years. Second, the actual act or acts of attempt to defile. Thirdly the identity of the culprit. 9. With regard to the age of the victim, Pw1 the victim stated that she did not know her age, and that she was in nursery school. However, Pw2, MKP her mother stated in evidence that the victim was born in 2015. An age assessment report was also relied upon and produced in court. I note that the evidence on the age of the victim was not controverted and the trial magistrate saw the victim in court, and was of the view that she was very young and could not understand the nature of an oath and allowed her to tender unsworn evidence. 10. In my view, with the evidence on record, the prosecution indeed proved beyond any reasonable doubt that the victim was a child aged 6 years at the time of the alleged incident. 11. Did the prosecution prove any act or acts that could constitute an attempt to defile the victim? 12. Under section 388(1) of the Penal Code (cap.60), an attempt to commit an offence is defined as follows – 388(1) When a person intending to commit an offence, begins to put his intentions into execution by means adapted to its fulfillment, and manifest his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.” 13. It follows therefore, from the above statutory provisions, that it must be proved by evidence that somebody did an act or acts which would show that he or she was intending to commit the offence, but failed to commit the complete offence. 14. In the present case, the evidence of attempt to commit defilement is that of the victim Pw1 who stated that she was in the house with her two siblings and the appellant, who chased out the other two children and did “bad things to her”, after removing her inner wear. It was her evidence also that she did not inform her mother about this. The other evidence on the same is that of Pw2 MKP the mother of Pw1 who testified that Pw1 was her second born child, and that her three children went into the house of the appellant while she sat outside on a bench. After a while, she went to the toilet only to come back and see the other two children playing outside but not the victim. 15. On calling the victim, she came out of the house but was limping and, on checking her, found her genitals full of fluids and on enquiry the victim told her that the appellant had done bad things to her. 16. On the same issue of the attempt to defile, Pw3 MK the grandmother of the victim testified that she was called on phone by Pw2 and on arrival, found the victim crying. On checking the victim, she found a lot of fluids which appeared like men’s discharge, and they then reported the incident to the police. 17. In my view, from the evidence on record before the trial court, the prosecution did not prove an act or acts amounting to an attempt to defile the victim. First, it is highly improbable that the appellant would have attempted to do such an act when the mother of the victim Pw2 was so near, and the other two children were also so near. Secondly, though Pw2 and Pw3 claimed that they saw fluid like male semen in the genitals of the victim, there was no medical finding on same to confirm if it was semen though the victim was taken to hospital without delay. 18. In my view, in addition to the above, courts have to caution themselves before making adverse findings in such cases where all those involved are close family or relatives who are living together as family. In the present case, Pw2 was not bothered when all the children went into the house of the appellant, whom she must have known well and she just sat outside. She then went to the toilet without checking on the children and on coming back sees two children playing outside, and calls the third child to come out of the house, which she did. That alone cannot be a reason to prove a charge of attempted defilement. Pw2’s assertion that the child (Pw1) was limping is not supported by the medical evidence, thus it is a mere lie. 19. With regard to the culprit, since I have found that there was no evidence to establish an attempt to defile, I also find that the appellant was not proved to be the culprit. The appellant was indeed in the house with the victim, but Pw2 explained the circumstances in which all the three children went in there and Pw2, did not have any issue with the children entering and remaining in that house, only to change her mind later for no sufficient reason. Thus the prosecution did not prove beyond reasonable doubt that the appellant was the culprit. It follows therefore that both the conviction and sentence herein cannot be sustained. 20. 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 8TH DAY OF FEBRUARY, 2022, IN OPEN COURT AT MAKUENI. ................................ GEORGE DULU JUDGE
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