Background
1. ABDALLA MUTUA was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars are that ABDALLA MUTUA on the 12th day of August 2020 at Mgombezi area in Mwereni Location, Kwale County unlawfully and intentionally caused his penis to penetrate the vagina of S.B. a child aged 15 years.
3. In the alternative count, the appellant was also charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. The trial magistrate considered the evidence of 4 prosecution witnesses together with the sworn evidence of three defence witnesses and convicted the appellant on the main charge of defilement and was sentenced to serve 15 years imprisonment which sentence was to run from the date of conviction.
5. The appellant was aggrieved by the sentence and he preferred the appeal herein on the following amended grounds filed on 20th June 2023: -
1) That the learned trial magistrate erred in law and fact for not appreciating that the prosecution case was not proved beyond reasonable doubt.
2) That the learned trial magistrate erred in law and fact by failing to consider that the prosecution partly failed to bring sufficient evidence within a reasonable time frame to prove their case beyond reasonable doubt.
3) That the learned trial magistrate erred in law and fact for not noticing that the medical evidence wasn’t established to corroborate the complainant’s evidence.
4) That the learned trial magistrate erred in law and fact for not considering that a crucial witness was not summoned in court.
5) That the learned trial magistrate erred in law and fact for dismissing my defence without any legal basis.
6. The appellant prayed that the appeal be allowed, conviction quashed and the sentence set aside.
Prosecution’s Case
7. PW1, S.B., the Complainant herein testified that on 12.8.2020 at 2.00 pm, she had been sent to collect firewood by Nyanya and that Bibi ya Mjomba, Agnes Mwaka told her to take the cows and goats to drink water. That when her aunt left, the Accused, whom she positively identified in court, showed up. That the Accused dragged her into a bush and defiled her. That she had a skirt and panty on while the Accused had worn shorts. That by the time he was dragging her into the bush, he had already unbuttoned and unzipped his shorts and removed them a little, that he then lifted her skirt, pushed her panty aside and inserted his penis into her vagina. The Complainant said that the Accused was standing in front of her and that when he did that, she jumped back because she was in pain, fell to her knees, held him by the waist, and bit him on the penis, lower stomach and right hand on the forearm.
8. PW1 further informed court that when the Accused released her, she ran home and that the Accused followed her and started beating her randomly using a cane. That he broke her skin on the forehead and under her right armpit and threatened her that she should find where to go if she went to Kwale. The Complainant said that her grandmother had gone for fellow at the neighbour’s place and that she followed her there. That they went to Lunga Lunga Police Station and to Lunga Lunga Hospital. The Complainant said she knew the Accused who was a neighbour and that he had made advances to her in the past which when she turned down, the Accused spread lies that she was a prostitute.
9. PW2, J. K. the grandmother to the Complainant testified that on 12.8.2020, she sent her grandchild to go fetch firewood and went for fellowship. That at 4.00 pm, the Complainant went to her crying and said she had been beaten by Abdalla Mutua who also assaulted her when she had gone to check on cows and goats by the river. That they went to Lunga Lunga Poice Station after prayers and that they were then sent to hospital for checkup. That PW2 was shown blood between the Complainant’s legs and that the cut on the side of her head was also bleeding. PW2 identified the Accused in court and that they are neighbours and that although they have boundary issues with his family, she has no problem with him.
10. PW3, Mwachaka Simba, the Clinical Officer, from Lunga Lunga Sub-County Hospital, said that she had a treatment booklet and P3 Form for the Complainant which had been filled by his colleague, Suleiman Mwamzagi, who was on study leave. PW3 informed court that the Complainant was taken to hospital on 13.8.2020 with a history of having been invaded by someone she knew. That on examination, her hymen was missing, some bruises and inflammation were seen at an angle of 3 o’clock and 12 o’clock on the vaginal walls. That the P3 Form was filled on 17.8.2020. He produced the treatment book as ExP2 and P3 Form as ExP3.
11. PW3 also testified that he examined the Accused, aged 42 years on 14.8.2020 who reported that he had been assaulted by a lady and that as a result he sustained injuries. That on examination, he had bite marks above the umbilical cord on his stomach and bruises on his right leg. PW3 produced the treatment book as ExP4 and P3 Form as ExP5.
12. PW4, No. 102125 PC Zaharai Hayani who was at Lunga Lunga Police Station Crime Division at the time testified that on 12.8.2020, the Complainant went to the station and reported that she had been defiled by someone called Shida but also known as Abdalla Mutua. That it was at 6.45 pm and PW4 took their statements and told them to return the next day which they did and that she referred them to Lunga Lunga Sub-County Hospital for examination and the doctor indicated that the complainant had been defiled. That PW4 also took the statement of the Accused and preferred the charge of defilement against him. The Complainant’s date of birth was 15.3.2004 per her Certificate of Birth which PW4 produced as ExP1.
Defence Case
13. The Accused, Abdalla Mutua gave sworn evidence that he is aware of the charges against him and that they are not true. That the Complainant and her aunt were herding next to the Accused’s shamba and that the animals trespassed to his shamba that had crops. That he went and reported to his parents and while speaking to her Babu, the girl started abusing him. That he took the stick she was holding and caned her. That the Complainant ran off to her grandmother who was attending a church meeting and that the two went to Lunga Lunga Police Station. The Accused said that he went to the Village Elder and to Lunga Lunga Police Station and that the girl had thrown a gogo at him when he was caning her which injured him at the navel area. That the police also referred him to hospital for treatment. The Accused said the Complainant’s grandmother had a grudge against him over some items that it was alleged she had stolen and that the Accused being a member of community policing was overseeing the issue. On cross examination over ExP4 and ExP5, the Accused said that the Complainant bit his hand and threw the gogo at him when he held her to cane her.
14. DW2, Beja Muguo Beja, the Chairman of Kiduka Village Mgombezi said that the Accused was a member of community policing and that the Accused went and informed him that the Complainant had beaten him after letting animals into his shamba. That when the Accused told the Complainant to remove the animals from the shamba, she insulted him. That the Accused went and informed the Complainant’s babu about the incident and that the Complainant continued insulting him. That the Accused took a cane and started caning her and that the Complainant continued to abuse him and even took a rungu and panga and wanted to attack the Accused. DW2 said that there were recurrent disputes about livestock of the Complainant’s family trespassing into the Accused’s land, and that there was a dispute over stolen items that were found in the home of the Complainant’s family which they agreed to settle out of court.
15. DW3, Denmas Kazungu, testified that he is a neighbour to both the Complainant and the Accused and that the Complainant was herding and in the process their cattle trespassed to the Accused’s shamba. That when the Accused questioned the Complainant about it, the Complainant abused him and that she still abused the Accused at the boma where he had gone to report to her grandfather. That the Accused took a cane and wanted to cane her and that later the Complainant and her grandmother went to the police station. That they later returned with a letter that the Accused had defiled the complainant and that the allegations were purely based on the grudge between the two bomas.
16. The appeal be canvassed by way of written submissions.
Appellant’s Submissions
17. The Appellant submitted on the Complainant’s inconsistent evidence that the evidence of the Complainant was inconsistent where she said she had gone to collect firewood then she changed and said she had gone to herd cows and goats and to take them for water. That this compels this court to examine the demeanor of the Complainant in assessing the truthfulness of her evidence. The Appellant cited the cases of Jon Cardon Wagner v Republic & 2 Others (2011) eKLR, Samuel Achieng’ Alego v Rep. HCCR App No. 187 of 2015 and Faud Dumila Mohammed, Cr. App No. 210 of 2003.
18. On the medical evidence inconsistent with the Complainant’s evidence, the Appellant submitted that the Complainant was defiled on 12.8.2020 and that she was taken to hospital the following day for medical examination. That the medical examination that was presented before the trial court indicated that the girl was taken to hospital on 13.8.2020. That however, the P3 Form indicates that the matter was reported on 12.8.2020, the Complainant was examined on 13.8.2020 but the injuries on her genitalia were 5 days old, meaning that the Complainant may have been defiled on 8.8.2020, five days before the date of examination on 13.8.2020. That further, the purported examination was conducted on 14.8.2020 but the P3 Form was stamped on 13.8.2020. That the date on which the Complainant was sent to hospital was altered to read 14.8.2020.
19. The Appellant submitted on the protracted dispute over land boundaries that the Complainant and her grandmother used the allegation of defilement to settle scores on the land dispute that had been in existence for a long time.
20. On whether the Appellant’s defence was considered, the Appellant argued that a critical scrutiny of the evidence adduced by the prosecution in comparison with what he told court shows clearly that his version of the story outweighs the prosecution’s case. The Appellant relied on the case of Morris Mutie Thomas, Cr. App No. 114 of 2014 where it was held as follows: -
There are two issues in this appeal that has caused us concern even though the Appellant did not raise them. The first is the manner in which the trial court dealt with the Appellant’s alibi defence. For an accused person to rely on alibi as a defence, it must have been raised at the earliest stage of the trial so that it can be tested by the investigative arm of the trial to prevent it from the suggestion of afterthought. Clearly that was a misdirection. An alibi defence put up late in the trial canot be ignored. As this court sated in GANZI & 2 OTHERS V REP (2005) 1 KLR 52 the correct approach is to weigh the defence of alibi against the prosecution evidence.
21. The Appellant contended that his mitigation was sufficient for the court to depart from the prescribed maximum sentence of 15 years to a lesser one. That in cases where the penal law is couched with the terms is liable to, the same does not connote that the stated penalty is a minimum mandatory but in fact the maximum as was held in the case of Swabir Bukhet Labhed v Republic, C. A. Cr. App. No. 52 of 2018. The Appellant therefore prayed for the court to impose a lesser sentence.
Respondent’s Submissions
22. On the ground that the Prosecution’s case was not proved beyond reasonable doubt, the Respondent relied on the case of George Opondo Olunga v Republic (2016) eKLR where the Court of Appeal held as follows: -
The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under Section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proved for a conviction to essue.
23. The Respondent submitted that the evidence adduced in support of the charges against the Appellant was cogent, consistent, corroborated and watertight. That all the requisite elements for the offence of defilement were proved beyond reasonable doubt and the defence evidence did not dislodge the same. That the trial court considered the evidence in support of the charges against the Appellant and rightly arrived at the conviction.
24. On the ground that medical evidence was not established to corroborate the Complainant’s evidence, the Respondent contended that medical evidence clearly corroborated the Complainant’s testimony. That PW3, the Clinical Officer also corroborated penetration through the medical evidence. That the Clinical Officer testified that on examination, there were some bruises and inflammation on PW1’s genitals. That the Complainant also testified that when the Appellant inserted his penis in her vagina, she felt a lot of pain and fell on her knees and bit the Appellant on his penis, stomach and his arms. That PW3, the Clinical Officer corroborated this that he examined the Appellant and he had injuries and bites on his stomach.
25. On the ground that court did not consider that crucial witness was not summoned in court, the Respondent submitted that the Prosecution called all the necessary witnesses to prove the charges against the Appellant. That the Prosecution was able to prove all the ingredients of defilement as provided for under Section 8(1) of the Sexual Offences Act No. 3 of 2006. That further, Section 143 of the Evidence Act provides that no particular number of witnesses shall in the absence of any provision of law to the contrary be required for proof of any fact.
26. On the ground that defence evidence was not considered, the Respondent argued that the Appellant gave sworn testimony with 2 witnesses and the trial court considered the defence evidence in detail as per page 34 line 3 all the way to page 35 of the typed proceedings. That the court then found that the defence evidence held no water as it was very contradictory.
Analysis and Determination
27. This being the first appellate court, this court is 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.”
28. Although the Appellant’s grounds of appeal are stated, he submitted only on evidence of the Complainant, medical evidence vis-à-vis the Complainant’s evidence, the protracted dispute over land boundaries, defence and sentence. After considering the grounds of appeal, records of trial court and submissions, issues for determination are: -
i. Whether the Complainant’s evidence was inconsistent
ii. Whether medical evidence was inconsistent with the Complainant’s evidence
iii. Whether the Appellant was charged because of protracted dispute over land boundaries
iv. Whether the Appellant’s defence was considered
v. Whether the sentence was harsh and excessive
Whether the Complainant’s evidence was inconsistent
29. The Appellant argued that it was unclear whether the Complainant was on a mission to graze cattle or fetch firewood and he concluded that the Complainant was not a truthful witness. He urged the court to observe the demeanor of the Complainant in this regard and assess the truthfulness of her evidence as it appeared she was trying to avoid telling the truth on what exactly happened. He said that demeanour of the Complainant depicts her as a witness whose evidence does not meet the threshold of beyond reasonable doubt and reliance on her evidence can only prejudice the Appellant.
30. When the Complainant testified and was cross examined by the Appellant, the Trial Court did not indicate that she was of questionable demeanor and this court cannot make a finding as to her demeanor as this court did not witness her testifying in court. The court can only rely on records of the trial court.
Whether medical evidence was inconsistent with the Complainant’s evidence
31. The Prosecution’s evidence was that the Complainant was defiled on 12.8.2020 and she was presented to hospital on 13.8.2020 when she was examined and treated as per the treatment notes ExP2. The P3 Form was later filled on 17th August 2020 and that explains why the Clinical Officer who examined the Complainant computed age of the injury as 5 days. That cannot be concluded to be an inconsistency between the medical evidence and the Complainant’s evidence. The medical evidence both in the treatment notes and P3 Form confirms that the Complainant had bruises and inflammation at 3 o’clock and 12 o’clock on the labia minora and that corroborates the evidence of the Complainant that the Appellant attacked her and forcefully penetrated her private parts.
Whether the Appellant was charged because of protracted dispute over land boundaries
32. On the issue of land dispute, PW2, the Complainant’s grandmother said the Appellant’s father bought land in their neighbourhood in 2006 and they had boundary issues with the Appellant’s family and not with the Appellant in person.
33. The Appellant on the other hand says he was a member of Community Policing and that the Complainant’s grandmother had stolen someone’s mattress and chairs and the Vice Chairman of Community Policing called him to escort her to Lunga Lunga Police Station. That she however negotiated and paid the owner of the items and she was released to go home. That as a result of this, PW2 kept raising issues and held a grudge against him. He said that when he reported that the Complainant had let animal on his shamba, she alleged that he had raped her. That as a result of the allegation, PW2’s husband left home from 2020 to date.
34. The Appellant did not say that he was charged because of the land dispute but an alleged grudge with PW2 which he did not raise with PW2 at cross examination. This ground cannot therefore stand.
Whether the Appellant’s defence was considered
35. The Appellant testified and called two witnesses. The Trial Magistrate considered their defence exhaustively analysing their evidence vis-à-vis the evidence of prosecution witnesses and found that the Appellant admitted that he had a bite mark on his hands but the P3 Form that was produced in respect to his injuries confirmed that he had bite marks on the stomach and this confirms the Complainant’s testimony that she bit the Appellant on the stomach when he was defiling her. If it is true that the Complainant threw a log at him, the Clinical Officer could not have found bite marks. The Appellant’s defence was therefore considered and the trial court cannot be faulted.
Whether the sentence was harsh and excessive
36. The Appellant had been charged under Section 8(1) as read with 8(3) of the Sexual Offences Act which provides: -
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
37. The Trial Magistrate however established that at the time that the Complainant was defiled, she was 16 years old and that the Appellant ought to have been charged under Section 8 (4) of the Sexual Offences Act. The Trail Magistrate therefore found the Appellant guilty of the offence of defilement under Section 8 (4) of the Sexual Offences Act and sentenced him to serve 15 years imprisonment from the date of conviction. Section 8 (4) of the Sexual Offences Act provides: -
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.
38. The Trial Magistrate considered the Appellant’s mitigation and found that the law under which the Appellant was charged call for a sentence of 15 years and she saw no reason to deviate from such provision. She therefore exercised her discretion to sentence the Appellant to 15 years.
39. In Philip Mueke Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment), Odunga, J. (as he then was) held: -
To the extent that the Sexual Offences Act prescribed mandatory minimum sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fell afoul of Article 28 of the Constitution. However, the court was at liberty to impose sentences prescribed thereunder so long as the same were not deemed to be the mandatory minimum prescribed sentences.
40. Further, in Jonah Isindu Limiti v Republic (2019) eKLR, Sitati, J. while dealing with a similar matter substituted a sentence of 15 years to 8 years imprisonment as sufficient punishment to enable the appellant learn his lesson, be rehabilitated and possibly be reintegrated into the community.
41. The trial magistrate was therefore under obligation to explain how she arrived at the sentence of a maximum 15 years in consideration of the current precedents and the Sentencing Policy Guidelines. In consideration of the Appellant’s mitigating factors that he has a housewife and 5 kids, that he is an orphan and that he is a first-time offender, this court therefore substitutes the sentence of 15 years with 8 years.
42. In conclusion, the appeal on conviction has no merit and the same is dismissed. The appeal on sentence succeeds partially in that the sentence of 15 years is substituted with 8 years to take effect from the date of conviction at the trial court 14 days right of appeal explained to the Appellant.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 30th day of May 2024
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for Respondent
Appellant present in person
HON. LADY JUSTICE A. ONG’INJO
JUDGE
1. ABDALLA MUTUA was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars are that ABDALLA MUTUA on the 12th day of August 2020 at Mgombezi area in Mwereni Location, Kwale County unlawfully and intentionally caused his penis to penetrate the vagina of S.B. a child aged 15 years.
3. In the alternative count, the appellant was also charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. The trial magistrate considered the evidence of 4 prosecution witnesses together with the sworn evidence of three defence witnesses and convicted the appellant on the main charge of defilement and was sentenced to serve 15 years imprisonment which sentence was to run from the date of conviction.
5. The appellant was aggrieved by the sentence and he preferred the appeal herein on the following amended grounds filed on 20th June 2023: -
1) That the learned trial magistrate erred in law and fact for not appreciating that the prosecution case was not proved beyond reasonable doubt.
2) That the learned trial magistrate erred in law and fact by failing to consider that the prosecution partly failed to bring sufficient evidence within a reasonable time frame to prove their case beyond reasonable doubt.
3) That the learned trial magistrate erred in law and fact for not noticing that the medical evidence wasn’t established to corroborate the complainant’s evidence.
4) That the learned trial magistrate erred in law and fact for not considering that a crucial witness was not summoned in court.
5) That the learned trial magistrate erred in law and fact for dismissing my defence without any legal basis.
6. The appellant prayed that the appeal be allowed, conviction quashed and the sentence set aside.
Prosecution’s Case
7. PW1, S.B., the Complainant herein testified that on 12.8.2020 at 2.00 pm, she had been sent to collect firewood by Nyanya and that Bibi ya Mjomba, Agnes Mwaka told her to take the cows and goats to drink water. That when her aunt left, the Accused, whom she positively identified in court, showed up. That the Accused dragged her into a bush and defiled her. That she had a skirt and panty on while the Accused had worn shorts. That by the time he was dragging her into the bush, he had already unbuttoned and unzipped his shorts and removed them a little, that he then lifted her skirt, pushed her panty aside and inserted his penis into her vagina. The Complainant said that the Accused was standing in front of her and that when he did that, she jumped back because she was in pain, fell to her knees, held him by the waist, and bit him on the penis, lower stomach and right hand on the forearm.
8. PW1 further informed court that when the Accused released her, she ran home and that the Accused followed her and started beating her randomly using a cane. That he broke her skin on the forehead and under her right armpit and threatened her that she should find where to go if she went to Kwale. The Complainant said that her grandmother had gone for fellow at the neighbour’s place and that she followed her there. That they went to Lunga Lunga Police Station and to Lunga Lunga Hospital. The Complainant said she knew the Accused who was a neighbour and that he had made advances to her in the past which when she turned down, the Accused spread lies that she was a prostitute.
9. PW2, J. K. the grandmother to the Complainant testified that on 12.8.2020, she sent her grandchild to go fetch firewood and went for fellowship. That at 4.00 pm, the Complainant went to her crying and said she had been beaten by Abdalla Mutua who also assaulted her when she had gone to check on cows and goats by the river. That they went to Lunga Lunga Poice Station after prayers and that they were then sent to hospital for checkup. That PW2 was shown blood between the Complainant’s legs and that the cut on the side of her head was also bleeding. PW2 identified the Accused in court and that they are neighbours and that although they have boundary issues with his family, she has no problem with him.
10. PW3, Mwachaka Simba, the Clinical Officer, from Lunga Lunga Sub-County Hospital, said that she had a treatment booklet and P3 Form for the Complainant which had been filled by his colleague, Suleiman Mwamzagi, who was on study leave. PW3 informed court that the Complainant was taken to hospital on 13.8.2020 with a history of having been invaded by someone she knew. That on examination, her hymen was missing, some bruises and inflammation were seen at an angle of 3 o’clock and 12 o’clock on the vaginal walls. That the P3 Form was filled on 17.8.2020. He produced the treatment book as ExP2 and P3 Form as ExP3.
11. PW3 also testified that he examined the Accused, aged 42 years on 14.8.2020 who reported that he had been assaulted by a lady and that as a result he sustained injuries. That on examination, he had bite marks above the umbilical cord on his stomach and bruises on his right leg. PW3 produced the treatment book as ExP4 and P3 Form as ExP5.
12. PW4, No. 102125 PC Zaharai Hayani who was at Lunga Lunga Police Station Crime Division at the time testified that on 12.8.2020, the Complainant went to the station and reported that she had been defiled by someone called Shida but also known as Abdalla Mutua. That it was at 6.45 pm and PW4 took their statements and told them to return the next day which they did and that she referred them to Lunga Lunga Sub-County Hospital for examination and the doctor indicated that the complainant had been defiled. That PW4 also took the statement of the Accused and preferred the charge of defilement against him. The Complainant’s date of birth was 15.3.2004 per her Certificate of Birth which PW4 produced as ExP1.
Defence Case
13. The Accused, Abdalla Mutua gave sworn evidence that he is aware of the charges against him and that they are not true. That the Complainant and her aunt were herding next to the Accused’s shamba and that the animals trespassed to his shamba that had crops. That he went and reported to his parents and while speaking to her Babu, the girl started abusing him. That he took the stick she was holding and caned her. That the Complainant ran off to her grandmother who was attending a church meeting and that the two went to Lunga Lunga Police Station. The Accused said that he went to the Village Elder and to Lunga Lunga Police Station and that the girl had thrown a gogo at him when he was caning her which injured him at the navel area. That the police also referred him to hospital for treatment. The Accused said the Complainant’s grandmother had a grudge against him over some items that it was alleged she had stolen and that the Accused being a member of community policing was overseeing the issue. On cross examination over ExP4 and ExP5, the Accused said that the Complainant bit his hand and threw the gogo at him when he held her to cane her.
14. DW2, Beja Muguo Beja, the Chairman of Kiduka Village Mgombezi said that the Accused was a member of community policing and that the Accused went and informed him that the Complainant had beaten him after letting animals into his shamba. That when the Accused told the Complainant to remove the animals from the shamba, she insulted him. That the Accused went and informed the Complainant’s babu about the incident and that the Complainant continued insulting him. That the Accused took a cane and started caning her and that the Complainant continued to abuse him and even took a rungu and panga and wanted to attack the Accused. DW2 said that there were recurrent disputes about livestock of the Complainant’s family trespassing into the Accused’s land, and that there was a dispute over stolen items that were found in the home of the Complainant’s family which they agreed to settle out of court.
15. DW3, Denmas Kazungu, testified that he is a neighbour to both the Complainant and the Accused and that the Complainant was herding and in the process their cattle trespassed to the Accused’s shamba. That when the Accused questioned the Complainant about it, the Complainant abused him and that she still abused the Accused at the boma where he had gone to report to her grandfather. That the Accused took a cane and wanted to cane her and that later the Complainant and her grandmother went to the police station. That they later returned with a letter that the Accused had defiled the complainant and that the allegations were purely based on the grudge between the two bomas.
16. The appeal be canvassed by way of written submissions.
Appellant’s Submissions
17. The Appellant submitted on the Complainant’s inconsistent evidence that the evidence of the Complainant was inconsistent where she said she had gone to collect firewood then she changed and said she had gone to herd cows and goats and to take them for water. That this compels this court to examine the demeanor of the Complainant in assessing the truthfulness of her evidence. The Appellant cited the cases of Jon Cardon Wagner v Republic & 2 Others (2011) eKLR, Samuel Achieng’ Alego v Rep. HCCR App No. 187 of 2015 and Faud Dumila Mohammed, Cr. App No. 210 of 2003.
18. On the medical evidence inconsistent with the Complainant’s evidence, the Appellant submitted that the Complainant was defiled on 12.8.2020 and that she was taken to hospital the following day for medical examination. That the medical examination that was presented before the trial court indicated that the girl was taken to hospital on 13.8.2020. That however, the P3 Form indicates that the matter was reported on 12.8.2020, the Complainant was examined on 13.8.2020 but the injuries on her genitalia were 5 days old, meaning that the Complainant may have been defiled on 8.8.2020, five days before the date of examination on 13.8.2020. That further, the purported examination was conducted on 14.8.2020 but the P3 Form was stamped on 13.8.2020. That the date on which the Complainant was sent to hospital was altered to read 14.8.2020.
19. The Appellant submitted on the protracted dispute over land boundaries that the Complainant and her grandmother used the allegation of defilement to settle scores on the land dispute that had been in existence for a long time.
20. On whether the Appellant’s defence was considered, the Appellant argued that a critical scrutiny of the evidence adduced by the prosecution in comparison with what he told court shows clearly that his version of the story outweighs the prosecution’s case. The Appellant relied on the case of Morris Mutie Thomas, Cr. App No. 114 of 2014 where it was held as follows: -
There are two issues in this appeal that has caused us concern even though the Appellant did not raise them. The first is the manner in which the trial court dealt with the Appellant’s alibi defence. For an accused person to rely on alibi as a defence, it must have been raised at the earliest stage of the trial so that it can be tested by the investigative arm of the trial to prevent it from the suggestion of afterthought. Clearly that was a misdirection. An alibi defence put up late in the trial canot be ignored. As this court sated in GANZI & 2 OTHERS V REP (2005) 1 KLR 52 the correct approach is to weigh the defence of alibi against the prosecution evidence.
21. The Appellant contended that his mitigation was sufficient for the court to depart from the prescribed maximum sentence of 15 years to a lesser one. That in cases where the penal law is couched with the terms is liable to, the same does not connote that the stated penalty is a minimum mandatory but in fact the maximum as was held in the case of Swabir Bukhet Labhed v Republic, C. A. Cr. App. No. 52 of 2018. The Appellant therefore prayed for the court to impose a lesser sentence.
Respondent’s Submissions
22. On the ground that the Prosecution’s case was not proved beyond reasonable doubt, the Respondent relied on the case of George Opondo Olunga v Republic (2016) eKLR where the Court of Appeal held as follows: -
The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under Section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proved for a conviction to essue.
23. The Respondent submitted that the evidence adduced in support of the charges against the Appellant was cogent, consistent, corroborated and watertight. That all the requisite elements for the offence of defilement were proved beyond reasonable doubt and the defence evidence did not dislodge the same. That the trial court considered the evidence in support of the charges against the Appellant and rightly arrived at the conviction.
24. On the ground that medical evidence was not established to corroborate the Complainant’s evidence, the Respondent contended that medical evidence clearly corroborated the Complainant’s testimony. That PW3, the Clinical Officer also corroborated penetration through the medical evidence. That the Clinical Officer testified that on examination, there were some bruises and inflammation on PW1’s genitals. That the Complainant also testified that when the Appellant inserted his penis in her vagina, she felt a lot of pain and fell on her knees and bit the Appellant on his penis, stomach and his arms. That PW3, the Clinical Officer corroborated this that he examined the Appellant and he had injuries and bites on his stomach.
25. On the ground that court did not consider that crucial witness was not summoned in court, the Respondent submitted that the Prosecution called all the necessary witnesses to prove the charges against the Appellant. That the Prosecution was able to prove all the ingredients of defilement as provided for under Section 8(1) of the Sexual Offences Act No. 3 of 2006. That further, Section 143 of the Evidence Act provides that no particular number of witnesses shall in the absence of any provision of law to the contrary be required for proof of any fact.
26. On the ground that defence evidence was not considered, the Respondent argued that the Appellant gave sworn testimony with 2 witnesses and the trial court considered the defence evidence in detail as per page 34 line 3 all the way to page 35 of the typed proceedings. That the court then found that the defence evidence held no water as it was very contradictory.
Analysis and Determination
27. This being the first appellate court, this court is 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.”
28. Although the Appellant’s grounds of appeal are stated, he submitted only on evidence of the Complainant, medical evidence vis-à-vis the Complainant’s evidence, the protracted dispute over land boundaries, defence and sentence. After considering the grounds of appeal, records of trial court and submissions, issues for determination are: -
i. Whether the Complainant’s evidence was inconsistent
ii. Whether medical evidence was inconsistent with the Complainant’s evidence
iii. Whether the Appellant was charged because of protracted dispute over land boundaries
iv. Whether the Appellant’s defence was considered
v. Whether the sentence was harsh and excessive
Whether the Complainant’s evidence was inconsistent
29. The Appellant argued that it was unclear whether the Complainant was on a mission to graze cattle or fetch firewood and he concluded that the Complainant was not a truthful witness. He urged the court to observe the demeanor of the Complainant in this regard and assess the truthfulness of her evidence as it appeared she was trying to avoid telling the truth on what exactly happened. He said that demeanour of the Complainant depicts her as a witness whose evidence does not meet the threshold of beyond reasonable doubt and reliance on her evidence can only prejudice the Appellant.
30. When the Complainant testified and was cross examined by the Appellant, the Trial Court did not indicate that she was of questionable demeanor and this court cannot make a finding as to her demeanor as this court did not witness her testifying in court. The court can only rely on records of the trial court.
Whether medical evidence was inconsistent with the Complainant’s evidence
31. The Prosecution’s evidence was that the Complainant was defiled on 12.8.2020 and she was presented to hospital on 13.8.2020 when she was examined and treated as per the treatment notes ExP2. The P3 Form was later filled on 17th August 2020 and that explains why the Clinical Officer who examined the Complainant computed age of the injury as 5 days. That cannot be concluded to be an inconsistency between the medical evidence and the Complainant’s evidence. The medical evidence both in the treatment notes and P3 Form confirms that the Complainant had bruises and inflammation at 3 o’clock and 12 o’clock on the labia minora and that corroborates the evidence of the Complainant that the Appellant attacked her and forcefully penetrated her private parts.
Whether the Appellant was charged because of protracted dispute over land boundaries
32. On the issue of land dispute, PW2, the Complainant’s grandmother said the Appellant’s father bought land in their neighbourhood in 2006 and they had boundary issues with the Appellant’s family and not with the Appellant in person.
33. The Appellant on the other hand says he was a member of Community Policing and that the Complainant’s grandmother had stolen someone’s mattress and chairs and the Vice Chairman of Community Policing called him to escort her to Lunga Lunga Police Station. That she however negotiated and paid the owner of the items and she was released to go home. That as a result of this, PW2 kept raising issues and held a grudge against him. He said that when he reported that the Complainant had let animal on his shamba, she alleged that he had raped her. That as a result of the allegation, PW2’s husband left home from 2020 to date.
34. The Appellant did not say that he was charged because of the land dispute but an alleged grudge with PW2 which he did not raise with PW2 at cross examination. This ground cannot therefore stand.
Whether the Appellant’s defence was considered
35. The Appellant testified and called two witnesses. The Trial Magistrate considered their defence exhaustively analysing their evidence vis-à-vis the evidence of prosecution witnesses and found that the Appellant admitted that he had a bite mark on his hands but the P3 Form that was produced in respect to his injuries confirmed that he had bite marks on the stomach and this confirms the Complainant’s testimony that she bit the Appellant on the stomach when he was defiling her. If it is true that the Complainant threw a log at him, the Clinical Officer could not have found bite marks. The Appellant’s defence was therefore considered and the trial court cannot be faulted.
Whether the sentence was harsh and excessive
36. The Appellant had been charged under Section 8(1) as read with 8(3) of the Sexual Offences Act which provides: -
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
37. The Trial Magistrate however established that at the time that the Complainant was defiled, she was 16 years old and that the Appellant ought to have been charged under Section 8 (4) of the Sexual Offences Act. The Trail Magistrate therefore found the Appellant guilty of the offence of defilement under Section 8 (4) of the Sexual Offences Act and sentenced him to serve 15 years imprisonment from the date of conviction. Section 8 (4) of the Sexual Offences Act provides: -
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.
38. The Trial Magistrate considered the Appellant’s mitigation and found that the law under which the Appellant was charged call for a sentence of 15 years and she saw no reason to deviate from such provision. She therefore exercised her discretion to sentence the Appellant to 15 years.
39. In Philip Mueke Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment), Odunga, J. (as he then was) held: -
To the extent that the Sexual Offences Act prescribed mandatory minimum sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fell afoul of Article 28 of the Constitution. However, the court was at liberty to impose sentences prescribed thereunder so long as the same were not deemed to be the mandatory minimum prescribed sentences.
40. Further, in Jonah Isindu Limiti v Republic (2019) eKLR, Sitati, J. while dealing with a similar matter substituted a sentence of 15 years to 8 years imprisonment as sufficient punishment to enable the appellant learn his lesson, be rehabilitated and possibly be reintegrated into the community.
41. The trial magistrate was therefore under obligation to explain how she arrived at the sentence of a maximum 15 years in consideration of the current precedents and the Sentencing Policy Guidelines. In consideration of the Appellant’s mitigating factors that he has a housewife and 5 kids, that he is an orphan and that he is a first-time offender, this court therefore substitutes the sentence of 15 years with 8 years.
42. In conclusion, the appeal on conviction has no merit and the same is dismissed. The appeal on sentence succeeds partially in that the sentence of 15 years is substituted with 8 years to take effect from the date of conviction at the trial court 14 days right of appeal explained to the Appellant.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 30th day of May 2024
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for Respondent
Appellant present in person
HON. LADY JUSTICE A. ONG’INJO
JUDGE