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JudgmentBIATUS ANTHONY VS The Republic18 min read

BIATUS ANTHONY VS The Republic

High Court at Mombasa High Court · · Wendy Micheni

REPUBIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO. E032 OF 2023

BIATUS ANTHONY……………………..………………………APPELLANT

VERSUS

REPUBLIC…………….…...…………………….…….….….RESPONDENT 

(From Original Conviction and Sentence of Honourable D. Odhiambo, SRM Original Criminal Case (SO) NO. E156 of 2021 at Chief Magistrate Court at Shanzu

Law Court

JUDGMENT

Introduction

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

CHARGE: Defilement contrary to Section 8(1) as read with Section 8(3) of the sexual offences Act NO.3 of 2006. Particulars of the offence were that; on 12th August 2021 at COLORADO area, Bamburi Location in Kisauni Sub-county within Mombasa County, the accused unlawfully and intentionally caused his penis to penetrate the Anus of L.O a child aged 12 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 12th day of August 2021 at COLORADO area,Bamburi Location in Kisauni Sub-county within Mombasa County, the accused unlawfully and intentionally caused his penis to penetrate the Anus of L.O a child aged 12 years.

  1. The Appellant was charged, he denied the charges and the trial court put down the case for hearing. The prosecution called six (6) 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 which defence he never participated, convicted and sentenced twenty (20) years imprisonment. The Appellant filed his memorandum of appeal dated 24th April, 2023 on the following grounds:
  2. THAT the learned trial magistrate court erred in the points of law and fact by relying on the prosecution witness which was full of contradictions and glaring inconsistencies.
  3. THAT the learned trial magistrate court erred in the points of law and fact by failing to observe that, the prosecution side failed to proof its case beyond reasonable doubt.
  4. THAT the learned trial magistrate erred in law and fact by not considering my defence evidence which was not vitiated by the prosecution party.
  5. THAT the learned trial magistrate finally erred in the points of law by failing to exercise discretion in the present case.
  6. For the reasons advanced in his Petition of Appeal, the Appellant sought to have the Conviction was quashed, the sentence set aside and the Appellant be set at liberty.

The Prosecution’s case

  1. The prosecution called six (6) witnesses in support of its case. The complainant testified as PW 1 L.K. the complainant testified that she was 12 years old and a student at Divingiriki School in Standard 4 at the time of her testimony. According to her on 12th  August, 2021 she was at home with her friends Tina and Saumu at night when Bia came to their home; he said he wanted a shit and Tina opened the door for him. When he got into the house, he asked them if they had eaten. The witness, Tina and Saumu got into bed. Bia woke Tina up and told her that he wanted to have sex with her but she refused; he asked Saumu too and she refused.
  2. PW 1 reiterated that the Appellant held a knife on her and he defiled her after removing all her clothes and inserting his penis into her vagina. She explained to the court that she felt pain butt she did not scream. In the morning, they told her mother Sofia who reported the matter to Kisauni Police Station and then proceeded to Makadara for treatment. When cross examined she stated that she was not forced to record her statement. Her testimony was corroborated by PW 2 Saumu Chengo, who told the court that she, Lina and Tina were at home at night preparing to sleep when Bia came into the house and said he wanted to sleep with her and she refused; Bia wanted to rape her. According to PW 2 Bia took a knife and told Lina to keep quiet after which he slept with Lina and Tina; he defiled Lina. When cross examined she stated that Lina told her what had happened in the morning.
  3. PW 3 Tina Chengo testified that Bia told her he wanted to sleep with her; he then told Saumu the same thing but she refused. Bia then held Lina on the throat with a knife threatening to stab her if she screamed and removed her clothes and defiled her by inserting his penis into her vagina. According to PW 3 she witnessed the offence and after he was finished he left. In the morning they told their mothers and they left for the Police station.
  4. PW 4 Millicent Mako, testified that she was a neighbor; she reported a case of defilement of a child. Her mother came to her stating that her husband had defiled a child. When cross examined she stated that she examined the child and found that her private parts were enlarged; she confirmed though that she was not a doctor. She was not aware that the Appellant had issues with his wife. She did not witness the offence.
  5. PW 5 Dr. Julius Maneno Sango, a medical officer from Coast General Hospital told the court that a PRC report form was filed by a Colleague Saida Mwinyi of the Gender Clinic for L. O who  had claimed that she had been defiled by her step father on 12th August, 2021. He indicated that the minor was born on 3rd September, 2010. According to the doctor, the patient had an intact hymen and vagina orifice was open. The victim had vaginal lacerations and had been put on PEP and STI treatment. The tests done were negative. He produced the PRC form as Exhibit 1.
  6. PW 6 Police Constable Fatuma Zani testified that she was the investigating officers of the case; she contacted the mother of the victim on 16th August, 2021 and recorded their statement. She then sent them to the hospital  and issued them with a P3 form. She looked for the Appellant and arrested him. She conducted an age assessment which showed that the Complainant was 12 years at the time the offence was committed which she produced as Exhibit 3.

The Defence case

  1. The Appellant testified that he had two wives; the first wife had a son and she stayed with her parents. He met his 2nd wife while she had two children and they had a child together. His defence was that he had issues with his 2nd Wife after his 1st wife indicated that she wanted to bring their child to live with him. They had an argument and he left their home to stay with his mother. He stayed at his mother’s place and only went back on 2nd July, 2021 when he was arrested and taken to Kiembeni Police Station. According to him his wife stated that his time to get lost had come and that she would never go to court to testify because she knew the allegations were wrong. She told him that all his wives would lose him.
  2. The Appellant stated that he was 25 years old. He used to stay with Ann Chengo in Mwakiringe at his grandmother’s place. They occupied two rooms. The child used to stay in their room and he and Ann in the other room. He did not tell the investigating officer that he shared a room with the children.

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. It is, therefore, the duty of this court in this case to re-evaluate the evidence adduced by the prosecution in support of the charges and by the defence, and to make its conclusion on whether the commission of the offence by the appellant in the main charge of assault, with respect to the complainant, were proved and whether the appellant was responsible.
  2. Having reviewed the trial Record, the grounds of appeal and the parties’ submissions, the main issues for determination are as follows: -
  3. Whether the Appellant has proved the grounds of appeal?

Issue a. Whether the Appellant has proved the grounds of appeal.

  1. The Appellant has contended that the Learned Trial magistrate erred in the points of law and fact by relying on the prosecution witness which was full of contradictions and glaring inconsistencies and failing to observe that, the prosecution side failed to proof its case beyond reasonable doubt.  The Appellant submitted that the proviso to section 124 of the evidence Act makes an exception for the requirements of corroboration of unsworn testimony in criminal proceedings involving sexual offence where the only evidence is that of the alleged victim. The proviso empowers the court to convict an accused person, if for reasons to be recorded, the court is satisfied that the alleged victim is telling the truth. In my considered view, one of the main reasons as to why the truth is the presence of corroborative evidence. Whether the testimony of the alleged victim is given on oath or not, the court must of necessity exercise great caution before convicting an accused person. The question of corroborative evidence becomes paramount. It was his submission that in criminal proceedings, it was the duty of the prosecution to prove its case against the accused beyond reasonable doubt.
  2. The Appellant was charged with defilement under Sections 8(1) and 8(3) of the Sexual Offences Act No. 3 of 2006 which provides that:-

“8(1). A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

8(3). A person who commits an offence of defilement with child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

  1. As provided in Charles Wamukoya Karani – Versus -  Republic Criminal Appeal No.72 of 2013, for the offence of defilement to be established, three ingredients must be proved beyond any reasonable doubt; proof of penetration, complainant’s age and identification of the perpetrator. On the age of the Complainant it was established by the trial court that the complainant as at the time of offence was aged 12 years old as per Exhibit 3. The age of the child was therefore proved by the Respondent.
  2. With respect to the second ingredient, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. In the case of EE – Versus -  Republic (2015) eKLR, the Court stated that:-

“An important ingredient of the offence of defilement is that there must have been penetration. Penetration or act of sexual intercourse has therefore to be proved to sustain a charge of defilement”.

  1. As for penetration the complainant testified that the Appellant went into where they slept (The 2nd and 3rd Prosecution/ Respondent witness) and defiled her. This testimony was however contradicted by that of the PW 2 who stated that she did not witness the occurrence of the offence yet they were allegedly in the same room as PW 1 and PW  who claimed that the defilement occurred. Further the PRC form showed that the hymen of victim was intact and it is only her anus that had lacerations. The Respondent therefore did not proved that there was penetration of the complainant’s genitalia.
  2. On the issue of identification, in her testimony in the Trial Court, the Complainant stated that the Appellant before court was the person who had sexual intercourse with her in the house. The Appellant was well known to her as he was her step - father. As I have stated before in this Judgment that there is contradictory evidence by PW 2 and PW 3 who were allegedly in the room while the Appellant was defiling PW 1. There were glaring discrepancies in the evidence by the Prosecution. PW 1 said she was with Saumu and Tina both who resisted sleeping with the Appellant. Saumu said that the Appellant had sex with Lina and Tina; she stated that she was there and that she did not make advances towards the Appellant.
  3. PW 3 said she refused to sleep with the Appellant. Further another discrepancy is that while PW 1 states that the Appellant inserted his penis into her vagina; the PRC report stated that her hymen was still intact and while PW 3 stated that she witness the offence occur none of them stated that there was any anal penetration yet that was what the PRC form suggested.
  4. In “Erick Onyango Ondeng’ – Versus - Republic [2014] eKLR”, the Court held that:-

“Nor do we think much turns on the alleged contradictions on the time of commission of the offence. The trial court, after hearing all the evidence accepted that the offence was committed at “about 7 pm” in accordance with the evidence of PW2. As noted by the Uganda Court of Appeal in TWEHANGANE ALFRED VS UGANDA, Crim. App. No 139 of 2001, [2003] UGCA, 6 it is not very contradiction that warrants rejection of evidence. As the court put it:

“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

  1. The contradictions  were major and there was not to be ignored by the Trial Court. It is important to note that the law on Sexual Offences is proved by the evidence tendered by the prosecution. I do not find that the Prosecution/ Respondent proved its beyond reasonable doubt therefore I find that the Learned Trial Magistrate Court erred in the points of law and fact by relying on the prosecution witness which was full of contradictions and glaring inconsistencies and failing to observe that, the prosecution side failed to proof its case beyond reasonable doubt.
  2. On Ground three of the Amended Grounds of Appeal on whether the Learned Trial Magistrate erred in law and fact by not considering the defence evidence which was not vitiated by the prosecution party; the trial court did in his own way consider the defence of the Appellant and gave reasons for rejecting it. The Appellant submitted that his defence was received after he was sworn. The matter raised in his defence was all about a conflict which arose between him and his wife after his first wife sought to bring back their child. The prosecution was given an ample time to cross-examine the appellant on his defence and the appellant's side of story was brought into light. The above issue was not only raised in his defence but was once raised during cross-examination of the prosecution witness Millicent Mako in which the end result was left hanging.
  3. The defence raised by the appellant that indeed there was an argument between him and his wife was not to be taken so lightly and being left hanging as stated above, the prosecution was incumbent to inquire into the matter if indeed such argument existed between the two couples as alleged by the appellant. I have reviewed the same defence and I further came to the conclusion that the Appellant raised a defence of an alibi defence in that he claimed to have been at his mother’s house until the day he was allegedly arrested. It is trite law that the defence of alibi must be raised at the earliest stage to enable the prosecution to investigate it. This is because even where the appellant (accused) raises that defence he has no obligation to prove his alibi. In criminal cases the burden of proof does not shift. In this case of “R. – Versus -  Sukha Singh S/o Wazir Singh and others ( 1939) 6 E.A C.A 145” the court held that-;

“if a person accused of anything and his defense is an alibi, he should bring forward that alibi as soon as he can, because firstly if he does not bring it forward until months afterwards, there is naturally a doubt as to whether he has not been preparing it in the internal and secondly if he brings it forward at the earliest possible moment, it will give the prosecution an opportunity of inquiring into the alibi and if they are satisfied as to its genuine, proceedings must stop.”

This remains the position to this day. The Court of Appeal in the case of Kiarie Vs Republic (1984) KLR stated as follows on defence of alibi -;

“An alibi defence raises a specific defence and an accused person who puts an alibi defnce does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduced in the mind of a court a doubt that is not unreasonable”

When the defence of alibi is raised at the defence stage, it should not escape the scrutiny of the court. The prosecution no doubt required adequate notice to investigate the allegation of alibi defence. The governing principle on alibi defence is that it must be disclosed early enough in the proceedings to permit it to be investigated by the police. That determines the weight the court will give to it.

In this case the appellant raised the defence too late in the day. Nevertheless, I have considered this defence and find that the appellant may have spent the night in his house and woke up early in the pretext of going to the mosque. The testimony of P.W 1 is that the appellant said he was rushing to go to the mosque. The defence advanced by the appellant has been dislodged and the fact that he went to the complainant’s house and defiled her is credible. The trial magistrate acted properly in rejecting the defence.”

  1. Further there were discrepancies in the testimonies of the witnesses apparent in the room at the time of the offence. Based on the evidence adduced by the Prosecution/ Respondent the conviction was not safe and the Appellant should have been given a benefit of doubt most especially because it was evidence that this case emanated from a marital feud. Further I find that on the dispute between the Appellant and his wives; the defence by the Appellant was not an afterthought. For this reason I find that the Learned Counsel erred in not considering the defence evidence.
  2. On the final and fourth ground on whether the Learned Trial Magistrate erred in the points of law by failing to exercise discretion in the present case; on this issue the Appellant submitted that the Penal Law under which I was charged (Section 8(3) of the SOA) provides for a sentence for a liability upon conviction to a sentence of not less than 20 years imprisonment. The wording of the law does not connote anything mandatory in the imposition of that prescribed sentence of 20 years. It is in fact a maximum provision allowing the court to depart from the same and impose any lesser and lenient sentence, of course dictated by the circumstances of the case.
  3. On 15th May 2022 which was also after the directions of the Supreme Court, in the case of “Maingi & 5 others – Versus -  Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR)”, Odunga J (as he then was) held that to the extent that the Sexual Offences Act prescribed minimum mandatory 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 of Kenya, 2010. He, however, clarified that it was not unconstitutional to mete out the mandatory sentence if the circumstances of the case warranted such a sentence.
  4. In the case of “Joshua Gichuki Mwangi – Versus -  Republic [2022] eKLR”, the Court of Appeal reiterated the reasoning in the case of “Dismas Wafula Kilwake – Versus -  Republic (Supra)” and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence.
  5. The principle of sentencing is fairness, justice, proportionality and commitment to public safety. The main objectives of sentencing are retribution, incapacitation, deterrence, rehabilitation and reparation. The Sentencing Policy Guidelines in Kenya have added community protection and denunciation as sentencing objectives. The objectives are not mutually exclusive and can overlap.
  6. As could be discerned from his mitigation in the lower court, the Appellant herein told the Trial Court that he prayed for the time he had spent in custody to be considered. He also argued that he was the only male child in their family and he prayed for leniency as the issues were brought by a grudge between him and his ex-wife. Having already decided that the Appellant has succeeded in the first three grounds which automatically varies and dismisses the conviction and the sentence by the Trial Court.
  7. With regard to the alternative counts, there was insufficient and sketchy unreliable evidence to prove that the appellant, where identification and penetration is in doubt the prosecution ought to fail in proving that there was an indecent act committed by the Appellant.

Conclusion and Disposition

  1. In the final analysis, I have come to the finding that the charge defilement and the alternative charge of an indecent act with a child against the Appellant was proved not beyond reasonable doubt.  This appeal is merited and is hereby allowed with the result that the appellant’s conviction by the learned trial magistrate is hereby quashed and the sentence of twenty (20) years imprisonment is set aside. The Appellant be released forthwith unless otherwise lawfully held.

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…………DAY OF ……………………….……., 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;

……………Ms. Maina……………State Counsel;

………………………………………….…Accused person.

    BIATUS ANTHONY VS The Republic BIATUS ANTHONY VS The Republic