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JudgmentBENJAMIN KOMORA VS The Republic11 min read

BENJAMIN KOMORA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(From Original Conviction and Sentence of Hon. D. Mochache in the Senior Principal Magistrate’s Court at Shanzu, in Sexual Offence Case No. 13 of 2017 on 22nd March, 2019)


Introduction

  1. The Appellant was charged before the Court with the offence of:-

CHARGE: Sexual Assault contrary to section-5(1)(b) as read with section 5(2) of the Sexual Offences Act (SOA) 2006. Particulars of the same being that on the 15th day of January, 2017 at Bombolulu area in Kisauni Sub-Count within Mombasa County intentionally used his fingers to penetrate the vagina of Maulida Mwaka a girl aged 10 years.

ALTERNATIVE COUNT: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act no. 3 of 2006. On the above-mentioned date and place, the accused intentionally touched the vagina of Maulida Mwaka a child aged 10 years.

  1. The Appellant was charged, he denied the charges and the trial court put down the case for hearing. The prosecution called four (4) witnesses and at the close of the prosecution’s case, the trial court found the Appellant with a case to answer; put him to his defence, convicted and sentenced ten (10) years imprisonment.
  2. Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:
  3. THAT the learned trial magistrate erred in law and fact by convicting me in absence of any cogent and tangible evidence.
  4. THAT the learned trial magistrate erred in law and fact by forming a conviction in reliance of single witness’ testimony that was not substantiated by an independent witness.
  5. THAT the learned trial magistrate erred in law and fact by relying on contradictive, inconsistent and unsubstantiated witness’ account of the allegation levelled against him.
  6. THAT the learned trial magistrate erred in law and fact by failing to put into consideration the period he spent in remand while on trial.
  7. THAT the learned trial magistrate erred in law and fact by finding his conviction and sentence by failing to take into consideration his unshaken defence
  8. For the reasons advanced in his Petition of Appeal, the Appellant prayed the appeal be allowed, conviction quashed and sentence set aside and the appellant be set at liberty.

The Prosecution’s case

  1. The Prosecution called PW 1, Mariam Omar, a businesswoman and mother to the complainant testified that the Appellant was working for their tenant and that they used to refer to him as “daddy.” On 15th January,2017 at around 11:00am, her daughter (the complainant) called her twice. When she answered, the complainant started crying. Upon inquiry, the complainant informed her that the accused had entered into their room at night, tried to get inside the net with his trouser halfway removed and when she shouted her mum’s name, the accused ran away.
  2. PW 2, Maulida Mwaka, the complainant gave sworn evidence after the court satisfied itself that she was of sufficient intelligence to give sworn evidence. She told the court that she is the second born in her family having been born on 12th January, 2007 and a standard 5 pupil at Tumaini Academy-Kisauni. She testified that she used to sleep with her brother and her cousin Saumu. She knew the accused as “daddy.”
  3. On the material day, she went to sleep with her cousin, brother and sister. Her sister woke her up at night asking for water. When she woke up, she saw the accused person having removed his trouser and hers too and his hand was touching her vagina (touching her private parts). She stated that her bed had a net and could see the accused person very well because the lights were on. His head and hands were inside the net while the other body parts were outside the net. She told the accused to leave her alone but he told her to keep quiet and promised to give her Kshs. 50/- for simsim. The accused left when she called her mother. She told the court that they had closed the door when they went to bed and did not know how the accused managed to access the house. She further stated that she never gave her sister water as she was scared.
  4. On cross examination by the accused, she told the court that her sister woke her up and when she opened her eyes she saw the accused person. She was not aware whether her sister saw her when she woke up as she was asking for water while asleep. She stated that one can pass through the top of the house as it does not have a ceiling. She further testified that she knew Matano, her teacher who offers her tuition at home.
  5. PW 3, Dr. Majoam Hassan attached to Coast General hospital produced a P3 form as exhibit 1, filled by Dr. Umu whom she was familiar with his signature and handwriting. On examination, there were injuries on the labia minora, freshly broken hymen and the degree of injury was assessed as maim. The P3 form was filled on 5th March, 2016. She also produced the PRC form, treatment notes and birth certificate as exhibits 2, 3 and 4 respectively. On examination, there was no presence of spermatozoa but the child had pus cells due to the injuries. The child was examined on 17th January, 2017.
  6. PW 4, No.87535 Sgt. Cecilia Salama attached to Nyali Police station performing investigation duties recalled the 20th January, 2017 when she reported on duty and came across this case which she had been assigned to investigate. Later, the complainant and her mother went to the office after they had already gone to Coast general hospital for treatment. She took down their statements.
  7. On cross examination by the accused, she stated that she received information from the child and her mother that his name was daddy. According to the doctor's evidence, there were lacerations on the labia minora and the hymen was freshly torn. The minor informed her that the accused entered her room at night. The complainants were referred to hospital and she subsequently issued them with a P3 form which was filed. She testified that the P3form is never handed over to any other person save the investigating officer and that it is in order for a patient to elect to go to hospital first then go to the police station.
  8. She told the court that a fellow officer visited the scene and that is how the accused person was arrested and that there was no need for further investigations because the offence was committed at night. The neighbors did not witness anything hence she did not bother to ask them any questions. She further stated that the complainant never mentioned her Aunt and that the P3 form was filled in her presence. The initial treatment was on 17th January according to the PRC form yet the offence was committed on a weekend on which the gender desk is not usually open. She maintained that the offence occurred on Saturday towards the morning of 16th January.
  9. The accused person was found with a case to answer. However, he opted to keep quiet and await the court’s decision.

Analysis and Determination

  1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
  2. The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32. In this case the court stated-;

“The duty of the 1st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-

The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse 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 decision.”

The court of appeal further stated that – “ an appellant on a 1st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.

In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.

  1. In the  case of Gabriel Kamau Njoroge – Versus -  Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”

  1. Having done so, I find that two key issues arise for my determination namely: -
  2. Whether the evidence adduced by the prosecution was sufficient to prove the charge of sexual assault preferred against the appellant beyond any reasonable doubt;
  3. If the answer to the first issue is in the affirmative, whether the appellant’s defence was considered and whether the sentence should be set aside on account of the trial court’s failure to consider his plea in mitigation before passing sentence.

Issue a. Whether the evidence adduced by the prosecution was sufficient to prove the charge of sexual assault preferred against the appellant beyond any reasonable doubt

  1. On the first issue, the offence of sexual assault is created by Section 5 of the Sexual Offences Act which provides that:-

“(1)  Any person who unlawfully:

(a) penetrates the genital organs of another person with—

(i) any part of the body of another or that person; or

(ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;

(b)  manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault.”

  1. The Court of Appeal in the case of “John Irungu – Versus -  Republic, [2016] eKLR” which was cited by the learned trial magistrate in his judgment pronounced itself on the essential ingredients of the offence of sexual assault as follows:

“….Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose.”

  1. From the foregoing, it is clear that in order to establish the offence, the prosecution must prove that there was penetration into the genital organs of the victim by any part of the body of the person accused of the offence or any other person or objects manipulated by the accused person for that purpose. The essential elements of the offence therefore are, proof of penetration and positive identification of the assailant.
  2. On penetration the evidence adduced in the Trial Court by the complainant was that the PW 2 told the court that on the day of the incident she went to sleep with her cousin, brother and sister. Her sister woke her up at night asking for water. When she woke up, she saw the Appellant having removed his trouser and hers too and his hand was touching her vagina (touching her private parts). She stated that her bed had a net and could see the accused person very well because the lights were on. His head and hands were inside the net while the other body parts were outside the net. She told the accused to leave her alone but he told her to keep quiet and promised to give her Kshs. 50/- for simsim. The accused left when she called her mother. PW 3 confirmed that the hymen was freshly broken. In my view, PW1’s evidence is to that extent corroborated by PW 3.
  3. On my own analysis of the evidence there was no doubt penetration was confirmed by the findings of the clinical officer that there were bruises on the vagina. The Appellant was known to the complainant as ‘daddy’. The Appellant never gave his defence. The prosecution witnesses had no reason to lie against the appellant. The appellant was convicted on cogent and credible evidence. The evidence adduced by PW 2 also confirmed the identity of the Appellant as the perpetrator of the offence. I am thus satisfied that the trial court properly convicted the appellant and that his alibi evidence did not shake the evidence by the prosecution which was quite overwhelming against him.

Issue b. If the answer to the first issue is in the affirmative, whether the appellant’s defence was considered and whether the sentence should be set aside on account of the trial court’s failure to consider his plea in mitigation before passing sentence

  1. I take note that on ground 5 the Appellant contended that he was convicted and sentence without consideration of his unshaken defence but from the records it is clear that the Appellant was put on his defence he elected not to testify.
  2. On sentence, the appellant stated that the learned trial magistrate did not take into account the time he spent in remand as per section 333(2) of the CPC. Upon perusal of the lower court record, it is noteworthy that, before sentencing the appellant, the court stated as follows,

“…time spent in custody to be considered.”

  1. From the aforesaid, it is clear that the trial court addressed itself to the provisions of section 333 (2) of the Criminal Procedure Code. The court took into account all the relevant factors which it was obliged to consider in assessing sentence. In the result, the appeal ground on sentencing fails.

Conclusion and Disposition

  1. Having found that all the grounds of appeal had failed the appeal against both conviction and sentence be and is hereby dismissed.

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….14th…………DAY OF …………February…………….……., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Mr. Ngiri……………State Counsel;

………………………………………….…Accused person.

    BENJAMIN KOMORA VS The Republic BENJAMIN KOMORA VS The Republic