Athman Mdoe Mboga, the appellant 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.
The particulars of the offence are that on the 31 st day of July, 2020 at Tudor area of Mvita Subcounty within Mombasa County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of L.M.T a child aged 16 years.
He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006 , which particulars of the offence are that on the 31 st day of July, 2020 at Tudor area of Mvita Subcounty within Mombasa County, he intentionally and unlawfully caused his penis to come into contact with the vagina of L.M.T a child aged 16 years using his penis.
The appellant was after full trial found guilty of the main count and no finding was made on the alternative count and thereby sentenced to fifteen (15) years imprisonment.
The appellant was aggrieved by the conviction and sentence, and he preferred the present appeal. He based it on grounds that the learned trial magistrate erred in matters of both law and fact by failing to find that the critical ingredients of the offence were not established against him, admitting and heavily relying on hearsay evidence, ignoring the submissions by the appellant’s counsel and failing to consider the victim a hostile witness instead of a refractory witness which finding vitiated fair hearing. Further, that the learned magistrate erred in law and fact in finding that the proper procedures had been followed in obtaining the statement and/or testimony of the victim and that the same was free from coercion and undue influence.
As at the making of this decision, neither the appellant nor the respondent had filed written submissions on record.
Determination
It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Whether the trial court vitiated the appellant’s right to fair hearing by treating the complainant as a refractory witness as opposed to a hostile witness?
It is noteworthy that the complainant during the commencement of trial gave an initial testimony where she circumspectly failed to implicate the appellant to the charges lodged against him.
Following the testimony by the complainant, PW3, the prosecution made an application to the trial court to have her treated as a refractory witness, at which point the complainant was remanded at Makupa Police Station from the 29/12/2021 until the 4/1/2022.
On the said 4 th January, 2022, after somewhat five (5) days in remand, PW1 gave her testimony thereby implicating the appellant as the person who defiled.
The appellant argues that the court’s decision to treat PW1 as a refractory witness as opposed to a hostile witness vitiated his right to fair hearing. Further, that the trial court failed to ensure that the proper procedures were followed in obtaining the complainant’s testimony or that the same was free from coercion and undue influence.
Section 152 of the Criminal Procedure Code defines a refractory witness in the following terms-
“152. (1) Whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence-
(a) refuses to be sworn;
(b) Having been sworn, refuses to answer any question put to him; or
(c) Refuses or neglects to produce any document or thing which he is required to produce; or
(d) refuses to sign his deposition, without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days and may in the meantime commit that person to prison, unless he sooner consents to do what is required of him.
From the proceedings of the trial court, the complainant did not refuse to be sworn, to answer any question, to produce a document or to sign a deposition. The prosecution’s complaint was that the complainant was retracting from her statement to the police. She refused to implicate the appellant in her testimony. To my mind she did not qualify to be a refractory witness under the above section.
In the contrary she was a hostile witness. Coles v. Coles, (1866) L.R. 1P. &D. 70, 71 cited with approval by the Court of Appeal in Abel Monari Nyanamba & 4 others v Republic [1996] eKLR a hostile witness is one who “from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court ’
Similarly, In Alowo v. Republic [1972] EA at page 324 also cited in the same case the court stated-
“The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible.’
I find that the lower court erred in finding that the complainant was a refractory witness and in ordering her incarceration.
Having found that the complainant was a hostile witness, her evidence is rendered to be of low probative value. See Abel Monari Nyanamba & 4 others v Republic (supra)). This court is enjoined to tread cautiously in that it should not found a conviction solely on the evidence of a hostile witness because her unreliability must itself introduce an element of reasonable doubt though it may be relied upon in clear cases to support the prosecution or defence case. As stated in Daniel Odhiambo Koyo v Republic [2011] eKLR a court will take a perverse view of the credibility of the hostile or refractory witness in view of his/her shift in position regarding his statement to the police regarding the case against the accused or is reluctance to testify.
In the present appeal, it is my finding that the complainant’s evidence is wholly unreliable. Firstly, it was apparent that she was not willing to tell the truth opting to remain dodgy and circumspect in failing to implicate the appellant.
Secondly, she was intimidated by the court when it wrongly ordered her incarceration for five(days). At the age 16, she was a young person and being remanded must have affected her negatively.
Thirdly, and worse still, I must add. PW1, the complainant’s mother testified that the complainant while at Makupa Police Station was “...beaten until she said where she slept.”
Against this backdrop, it is impossible to ascertain whether her evidence was intended to favour the appellant, or she was simply saying what she thought the prosecution or court wanted to hear so that she was not detained again.
Further, I have perused the PRC Form coupled with the Medical Examination Report (P3), as produced by Dr. Gabriel Mngola, PW4. The medical assessment established that the complainant’s hymen was broken with an ‘old scar’, thus creating an inference of defilement. However, the complainant in on narrating the circumstances of the incident she stated that ‘ she has been in a sexual relationship with her boyfriend of two weeks’. The question that follows is whether it was proved beyond reasonable doubt that the appellant was the one who defiled her, considering that she was in a sexual relationship with another.
Without any direct evidence linking the appellant to the offence by way of the testimony of the complainant or medical evidence the case is anchored on circumstantial evidence.
The Court of Appeal in Musili Tulo v Republic [2014] eKLR held that to sustain a conviction, such evidence must satisfy the following requirements-
(a) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(b) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(c) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
Weighing the above tenets as against the residue evidence before me, this court is unable to find an inference of guilt against the appellant cogently and firmly established by the said evidence. Simply, put the circumstances herein do not form a chain so complete to conclude that the crime was committed by the appellant. In fact, it points to the contrary. It is my opinion that the prosecution evidence fell below the required threshold. This court is unable to find beyond reasonable doubt that the appellant defiled the complainant.
From the above, it is the finding of this court that the appeal must succeed. The conviction of the appellant of the offence of defilement is hereby quashed and his sentence set aside. The Appellant be and is hereby set at liberty forthwith unless otherwise lawfully held.
DATED, SIGNED and DELIVERED at MOMBASA Virtually this…27TH …..day of…..JUNE………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPELLANT : MS NDUKU
FOR THE RESPONDENT.: MR SIRIMA
COURT ASSISTANT...........MS BEBORA
The particulars of the offence are that on the 31 st day of July, 2020 at Tudor area of Mvita Subcounty within Mombasa County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of L.M.T a child aged 16 years.
He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006 , which particulars of the offence are that on the 31 st day of July, 2020 at Tudor area of Mvita Subcounty within Mombasa County, he intentionally and unlawfully caused his penis to come into contact with the vagina of L.M.T a child aged 16 years using his penis.
The appellant was after full trial found guilty of the main count and no finding was made on the alternative count and thereby sentenced to fifteen (15) years imprisonment.
The appellant was aggrieved by the conviction and sentence, and he preferred the present appeal. He based it on grounds that the learned trial magistrate erred in matters of both law and fact by failing to find that the critical ingredients of the offence were not established against him, admitting and heavily relying on hearsay evidence, ignoring the submissions by the appellant’s counsel and failing to consider the victim a hostile witness instead of a refractory witness which finding vitiated fair hearing. Further, that the learned magistrate erred in law and fact in finding that the proper procedures had been followed in obtaining the statement and/or testimony of the victim and that the same was free from coercion and undue influence.
As at the making of this decision, neither the appellant nor the respondent had filed written submissions on record.
Determination
It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Whether the trial court vitiated the appellant’s right to fair hearing by treating the complainant as a refractory witness as opposed to a hostile witness?
It is noteworthy that the complainant during the commencement of trial gave an initial testimony where she circumspectly failed to implicate the appellant to the charges lodged against him.
Following the testimony by the complainant, PW3, the prosecution made an application to the trial court to have her treated as a refractory witness, at which point the complainant was remanded at Makupa Police Station from the 29/12/2021 until the 4/1/2022.
On the said 4 th January, 2022, after somewhat five (5) days in remand, PW1 gave her testimony thereby implicating the appellant as the person who defiled.
The appellant argues that the court’s decision to treat PW1 as a refractory witness as opposed to a hostile witness vitiated his right to fair hearing. Further, that the trial court failed to ensure that the proper procedures were followed in obtaining the complainant’s testimony or that the same was free from coercion and undue influence.
Section 152 of the Criminal Procedure Code defines a refractory witness in the following terms-
“152. (1) Whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence-
(a) refuses to be sworn;
(b) Having been sworn, refuses to answer any question put to him; or
(c) Refuses or neglects to produce any document or thing which he is required to produce; or
(d) refuses to sign his deposition, without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days and may in the meantime commit that person to prison, unless he sooner consents to do what is required of him.
From the proceedings of the trial court, the complainant did not refuse to be sworn, to answer any question, to produce a document or to sign a deposition. The prosecution’s complaint was that the complainant was retracting from her statement to the police. She refused to implicate the appellant in her testimony. To my mind she did not qualify to be a refractory witness under the above section.
In the contrary she was a hostile witness. Coles v. Coles, (1866) L.R. 1P. &D. 70, 71 cited with approval by the Court of Appeal in Abel Monari Nyanamba & 4 others v Republic [1996] eKLR a hostile witness is one who “from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court ’
Similarly, In Alowo v. Republic [1972] EA at page 324 also cited in the same case the court stated-
“The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible.’
I find that the lower court erred in finding that the complainant was a refractory witness and in ordering her incarceration.
Having found that the complainant was a hostile witness, her evidence is rendered to be of low probative value. See Abel Monari Nyanamba & 4 others v Republic (supra)). This court is enjoined to tread cautiously in that it should not found a conviction solely on the evidence of a hostile witness because her unreliability must itself introduce an element of reasonable doubt though it may be relied upon in clear cases to support the prosecution or defence case. As stated in Daniel Odhiambo Koyo v Republic [2011] eKLR a court will take a perverse view of the credibility of the hostile or refractory witness in view of his/her shift in position regarding his statement to the police regarding the case against the accused or is reluctance to testify.
In the present appeal, it is my finding that the complainant’s evidence is wholly unreliable. Firstly, it was apparent that she was not willing to tell the truth opting to remain dodgy and circumspect in failing to implicate the appellant.
Secondly, she was intimidated by the court when it wrongly ordered her incarceration for five(days). At the age 16, she was a young person and being remanded must have affected her negatively.
Thirdly, and worse still, I must add. PW1, the complainant’s mother testified that the complainant while at Makupa Police Station was “...beaten until she said where she slept.”
Against this backdrop, it is impossible to ascertain whether her evidence was intended to favour the appellant, or she was simply saying what she thought the prosecution or court wanted to hear so that she was not detained again.
Further, I have perused the PRC Form coupled with the Medical Examination Report (P3), as produced by Dr. Gabriel Mngola, PW4. The medical assessment established that the complainant’s hymen was broken with an ‘old scar’, thus creating an inference of defilement. However, the complainant in on narrating the circumstances of the incident she stated that ‘ she has been in a sexual relationship with her boyfriend of two weeks’. The question that follows is whether it was proved beyond reasonable doubt that the appellant was the one who defiled her, considering that she was in a sexual relationship with another.
Without any direct evidence linking the appellant to the offence by way of the testimony of the complainant or medical evidence the case is anchored on circumstantial evidence.
The Court of Appeal in Musili Tulo v Republic [2014] eKLR held that to sustain a conviction, such evidence must satisfy the following requirements-
(a) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(b) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(c) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
Weighing the above tenets as against the residue evidence before me, this court is unable to find an inference of guilt against the appellant cogently and firmly established by the said evidence. Simply, put the circumstances herein do not form a chain so complete to conclude that the crime was committed by the appellant. In fact, it points to the contrary. It is my opinion that the prosecution evidence fell below the required threshold. This court is unable to find beyond reasonable doubt that the appellant defiled the complainant.
From the above, it is the finding of this court that the appeal must succeed. The conviction of the appellant of the offence of defilement is hereby quashed and his sentence set aside. The Appellant be and is hereby set at liberty forthwith unless otherwise lawfully held.
DATED, SIGNED and DELIVERED at MOMBASA Virtually this…27TH …..day of…..JUNE………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPELLANT : MS NDUKU
FOR THE RESPONDENT.: MR SIRIMA
COURT ASSISTANT...........MS BEBORA