anpass zai mwabara VS The Republic anpass zai mwabara VS The Republic

(Being an appeal from the conviction and sentence of Hon. A. M. Obura (CM) in Voi Sexual Offence Case No. E026 of 2023 delivered on 3^rd July 2024)

The Appellant, ANPASS ZAI MWABARA was sentenced to 10 years imprisonment for the offence committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 which was an alternative charge.
The Appellant was acquitted on the main count of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 for reasons that he was caught before he could defile the child.
The particulars were that on 24^th July 2023 at 12:30hours at Kaloleni in Voi Subcounty within Taita Taveta County, the Appellant intentionally touched the vagina of A.C a child aged 3 years old with his penis.
The prosecution evidence was that on the material day, the Appellant was spotted by PW3 SAID NGONYO MWACHILA a boda boda rider and PW4 HOLINESS NYAMBU at an isolated place with the complainant, a child aged 3 years.
The Appellant had unzipped his fly and his penis was exposed and it had erected and he was holding the complainant about to defile her.
The Appellant was arrested by PW3 who said he held the Appellant’s penis for all to see. He raised an alarm and the Appellant was arrested and the mother of the child was called.
The complainant’s mother (PW2) said the Appellant was working for her at the time as a shamba boy. She said she was called to the school where she found the Appellant had been arrested.
The Appellant said it was the devil that tempted him. The complainant was taken to hospital and the doctor (PW6) found a small laceration outside the vagina.
The doctor who testified as PW6 said the hymen of the child was intact. He said there was an attempt to penetrate.
The Appellant denied the charge and said in his defence that he had worked for the complainant’s mother for 2 years and that he would have committed the offence even at home.
The Appellant called a witness (DW2) who said he was a driver at St. Jude Educational Centre and he said the Appellant would not have committed the said offence in broad daylight.
The trial court found the Appellant guilty on the alternative charge of committing an Indecent Act and sentenced him to 10 years imprisonment.
The Appellant is aggrieved and he has appealed to this court on the following grounds:-
1. The learned trial Magistrate erred in both law and fact when she misdirected herself.
2. The learned trial Magistrate erred in both law and facts when she shifted the burden of proof from prosecution to the Appellant.
3. The learned Magistrate erred in law when she considered the evidence adduced by prosecution full of massive contradiction.
4. The learned trial Magistrate erred in law in convicting the Appellant on poor investigation adduced by prosecution.
5. That the learned trial court Magistrate erred in law fact by convicting the Appellant to 10 years imprisonment without considering that the sentence meted on him was harsh and excessive.
6. That the learned trial court Magistrate erred in law and fact by convicting the Appellant to 10 years imprisonment without considering his reasonable defence.
The parties filed written submissions as follows:- The appellant submitted that his acquittal on the primary charge of defilement, followed by a conviction on the alternative charge of committing an indecent act, infringed upon his constitutional right to a fair trial.
He further submitted that the court improperly disregarded his alibi and that the prosecution's failure to call two potential witnesses who could have shed light on the alibi was a significant flaw.
Furthermore, the appellant emphasized that the medical evidence contradicted the claim of penile penetration, rendering the conviction on the alternative charge illogical.
He said that the court overstepped its role by effectively framing a charge at the judgment stage and failed to properly consider that his alibi was never disproven.
The appellant also asserts that the court did not fulfill its duty to acquit him given the evidence, particularly highlighting the inconsistency between the minor's testimony of penetration and the medical findings, suggesting the minor was untruthful.
Finally, regarding sentencing, the appellant points to his remorsefulness during mitigation and argues that the court should have considered a lesser sentence, taking into account the various objectives of sentencing guidelines.
Consequently, the appellant seeks to have the appeal allowed and be acquitted, or alternatively, to receive a reduced sentence.
The Respondent submitted that the Trial Court's decision to convict and sentence the Appellant to 10 years imprisonment for committing an indecent act against a minor was just and based on evidence beyond a reasonable doubt.
That the prosecution presented six witnesses. PW1, the minor, positively identified the Appellant as the person responsible for taking her to school and bringing her food. She also testified that the Appellant touched her inappropriately. PW2, the minor's mother, corroborated the fact that the Appellant was responsible for the child's transportation and meals.
Crucially, PW3 and PW4 testified that they found the Appellant in a secluded area with his trousers unzipped and penis exposed, holding the minor on his lap without any legitimate reason. PW6, through the minor's medical records, identified injuries consistent with an attempted defilement. PW5, the investigating officer, supported the testimonies of the other witnesses and presented the minor's birth documents confirming her age as 3 years at the time of the incident.
Based on this evidence, the Respondent contends that the prosecution successfully proved its case beyond a reasonable doubt, and therefore, the Appellate Court should uphold the Trial Court's judgment.
The first appellate court acts as the last court of facts and must ensure a proper re-evaluation of the evidence while correcting any errors in the trial court’s judgment. The first appellate court must re-examine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law. It cannot simply rely on the trial court’s findings but must apply its own mind.
The Court of Appeal in Okeno vs Republic [1972] EA 32 held that:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own 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, see Peters vs Sunday Post [1958] EA 424.”

The issues for determination in this appeal are as follows:-
1. Whether the prosecution proved the charge of committing Indecent Act against a child.
2. Whether the age of the complainant was proved.
3. Whether the sentence was excessive.
I have carefully considered the evidence presented at the trial court and the submissions made by both the Appellant and the Respondent and I find that on the issue as to whether the prosecution proved the offence, there is evidence that PW3 and PW4 spotted the Appellant at an isolated place holding the child with his fly open and his private parts exposed.
The first issue for consideration is whether the prosecution successfully proved the charge of committing an Indecent Act against a child. The trial court acquitted the Appellant on the main charge of defilement but convicted him on the alternative charge.
The prosecution's case rested heavily on the testimonies of PW3 and PW4, who stated that they found the Appellant in an isolated location with the three-year-old complainant. Their accounts indicated that the Appellant's trousers were unzipped, his penis was exposed and erect, and he was holding the child on his lap.
PW6, the medical doctor, testified to finding a small laceration outside the child's vagina, which he stated was consistent with an attempted penetration. While the hymen remained intact, this finding supports the assertion that some form of inappropriate touching occurred.
The Appellant, in his defense, denied the charge and said he would have acted differently if he intended to commit such an offense. He also called a witness who opined that the Appellant would not have committed the act in broad daylight.
However, the trial court found the testimonies of the prosecution witnesses, particularly PW3 and PW4, to be credible.
As a first appellate court, I must re-evaluate this evidence, keeping in mind that the trial court had the advantage of observing the demeanor of the witnesses.
Based on the record, the consistent accounts of PW3 and PW4 regarding the Appellant's physical state and his interaction with the child at an unusual location provide compelling evidence of an indecent act.
The medical evidence, though not conclusive of defilement, corroborates the fact that the child experienced some form of physical interference.
The second issue is whether the age of the complainant was sufficiently proved. PW5, the investigating officer, presented the minor's birth documents, which confirmed her age as three years at the time of the incident.
This documentary evidence was not challenged by the Appellant during the trial. Therefore, I find that the prosecution adequately proved the complainant's age.
I find that there is evidence that the Appellant committed an Indecent Act with a child.
I find that the sentence of 10 years imprisonment is lenient considering that there was an attempted defilement in broad daylight.
I find that the appeal is unmerited. The conviction is safe and the sentence secure.
I dismiss the appeal and uphold both the conviction and sentence.

Dated, signed and delivered this 9^th day of May 2025 virtually via MT at Voi High Court.

ASENATH ONGERI

JUDGE

In the presence of:-

Court Assistant: Maina/Millicent