Background
1. The Appellant, CALVIN MUDI MUCHALWA, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
2. The Particulars of the offence are that CALVIN MUDI MUCHALWA on diverse dates between the month of February 2020 and March 2020 at Kwa Ng’ombe area in Jomvu Sub-County within Mombasa County intentionally caused his penis to penetrate the vagina of J.A. a child aged 9 years.
3. In the alternative, the Appellant was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. The appellant was found guilty and convicted for the offence defilement and sentenced to serve life imprisonment.
5. The appellant being aggrieved by the conviction and sentence, he preferred the appeal herein on the following amended grounds of appeal filed on 16th September 2022: -
1) That the trial court failed in law and fact by not seeing that my right to fair trial was violated in contravention of Article 49 (1) of the Constitution.
2) That the trial court erred in both law and fact by convicting me on the basis of the very implausible evidence of the complainant, in contravention of Section 124 of the Evidence Act.
3) That the trial court erred in fact by failing to appreciate the existence and effect of the underlying protracted disharmony between our family and that of the complainant.
4) That the trial court failed to acknowledge that the matter was a made-up case intended to unfairly incriminate me.
5) That the trial court also dismissed my defence off hand despite its ability to dislodge the prosecution case.
6) That in the sentence the trial court erred in law and fact by failing to appreciate the current jurisprudence in respect to sentencing of offenders charged under Section 8 (2) of the Sexual Offences Act.
6. The Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
Prosecution’s Case
7. PW1, the Complainant underwent voire dire examination and gave sworn evidence that she was aged 9 years old and that the Accused was known to her as their mothers are friends, they live on the same block and that their doors face each other. She said that the accused called her to his house, removed her panty and defiled her on the chair. That she felt a lot of pain and went back home but she did not tell anyone as she feared her mother would beat her up. That the Accused defiled her three times. That he called her to his house and showed her a video on his phone of people doing bad manners.
8. The Complainant said that the Accused used to threaten her that he would kill her if she told anyone. That she however told her Sunday School teacher called Ephraim who then told her mother. That they then went to the police station in Mwandoni and reported. That she was then taken to the hospital where she was examined and treated. That they were also given some documents by the police. The complainant positively identified the Accused in court.
9. PW2, Ephraini Mugoti, a Sunday School teacher to the Complainant said that the complainant’s mother called and informed him that she needed prayers regarding the complainant as there was a problem. That PW2 went to her house and the Complainant’s mother told him that one Calvin in the plot was threatening the Complainant and that he said he would kill her. That PW2 went with the Complainant to Jomvu where he lived with his wife. That after two weeks, PW2 asked the Complainant why the Accused wanted to kill her and that he asked her this in the evening in the presence of his wife. That the Complainant said she- had something to tell him but he should not tell her mother. That the Complainant said Calvin called her to his house, removed her panty and did bad manners to her. That the Accused has been doing that to her for some time and when she stopped going to his house he started threatening her.
10. PW2 informed court that in July the Complainant said she missed her mother and that she started crying and said she missed the Accused and that she wanted to have intercourse with the Accused. That PW2 called the Complainant’s mother and asked that they meet at Mikindani Police Station. That on 11.8.2020, they went to Mikindani Police Station together with the Complainant and her mother where they were advised to take the child to hospital. That the following day a police officer accompanied them to Port Reitz Hospital where the child was examined. That they were given treatment notes and a PRC Form. That PW2 was also present when they were issued with a P3 Form.
11. PW3, R.A. the mother of the Complainant said that the Complainant was born on 2nd October 2010 and she produced the Clinic Card as ExP5. That on 8th May 2020, the Accused said that the Complainant was a thief and had stolen his brother’s shoes. That PW3 asked what was wrong and the Accused called her a witch. That on 28th May 2020, the Accused said the Complainant had stolen a remote in their house. That when PW3 asked him where the remote was, he called her a prostitute and said that he would rape her. That PW3 went and reported the matter to the Village Elder who referred her to the police and that she went to Mikindani Police Station and reported. That the police advised her that one of them should relocate from the plot but PW3 did not follow up on the case.
12. PW3 said that she spoke to Ephraim who is the Complainant’s Sunday School teacher and informed him that the Complainant had problems in the plot and needed prayers. That the Accused had threatened to kill her. That Ephraim went with his wife to PW3’s house and that PW3 was with her husband. That PW3 informed them what had happened and Ephraim agreed to go with the child to get her out of that environment. PW3 informed court that on 10th August 2020, Ephraim called her and informed her that the Accused was sleeping with her daughter. That they agreed to meet on 11th August 2020 and that the child told him that she used to have sexual intercourse with the Accused. That the child told her mother that the Accused warned her not to tell anyone. That they went to Mikindani Police Station where they were advised to take the child to hospital.
13. PW3 said that she did not accompany them to hospital but later in the evening she went to the police station where she was shown the PRC Form by the OCS which showed that the Complainant had been defiled. She said that the Complainant used to take showers by herself and PW3 never noticed anything. That the child is not free with her as she is harsh. PW3 positively identified the Accused in court and said they were good neighbours and that PW3’s children used to go watch TV in the Accused’s house.
14. PW4, Dr. Rehana Khan from Port Reitz Sub-County Hospital said that she had a P3 Form in respect of the Complainant and that it was filled by Kingoli, a Clinical Offficer, who was away on leave. PW4 produced the said P3 Form. PW4 said that the Complainant went to the facility having been defiled by someone known to her. That the approximate age of the injury was 4 months and the probable weapon was blunt. That examination of the labia majora and minora were normal with no injuries although the hymen was broken at 9 o’clock and there was discharge. PW4 produced the P3 Form as ExP1. That in filling the P3 Form, lab results were used which showed that there was presence of pus cells. The lab results were produced as ExP2. That the PRC Form was filled on 12.8.2020 which was produced as ExP4. The treatment notes were produced as ExP3.
15. PW5, No. 81419 Cpl Peter Makau, the Investigating Officer said that on 11.8.2020, the complainant was taken to the station by her mother and Ephraim. That the Complainant said she had been defiled by the Accused who was their neighbor. That PW5 recorded the Complainant’s statement as well as her mother’s and Ephraim’s. That on 12.8.2020, PW5 took the Complainant to Port Reitz Hospital for medical examination where the P3 and PRC Forms were filled. That the doctor confirmed there was proof of penetration and the Accused was arrested on 18.8.2020. That PW5 interrogated the Accused and recorded his statement and that he denied committing the offence. That PW5 visited the scene and the Complainant showed her the house where the incident took place.
Defence Case
16. The Accused Mudi Calvin Muchalwa gave an unsworn evidence that on 13.8.2020, he was on the road heading home with his wife who was expectant. That he let his wife go home ahead of him and that as he stayed behind to greet people and ask for some jobs, two people stopped and arrested him. That they told him that he will know his offence later and that he was told there was a case of assault reported by a lady. He said that he was in police custody for 4 days and was charged with the offence that he did not know and that he denied.
17. The Accused said that the Complainant is his mother’s neighbor and that the charges levelled against him are as a result of the grudge between him and the Complainant’s mother. That the Accused’s mother used to lose household items and that he started investigations after his brother lost shoes. That the Complainant had been seen with the shoes. That the Accused reported the issue to the Complainant’s mother which did not sit well with her. That she threatened him with dire consequences and that he was arrested and charged herein.
18. This appeal herein was canvassed by way of written submissions.
Appellant’s Written Submissions
19. The Appellant filed written submissions on 18th September 2022 as well as supplementary submissions on 27th February 2023. The Appellant argued that he was arrested on 13th August 2020 and kept in custody until 17th August 2020 when he was arraigned in court and that the delay was not explained at all by the prosecution. The Appellant relied on Article 49 (1) of the Constitution which provides: -
An arrested person has the right: -
(f) To be brought before the court as soon as reasonably possible, but not later than: -
(i) Twenty-four hours after being arrested; or
(ii) It the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.
20. The Appellant submitted that penetration was not proved and that PW3 gave evidence to the effect that upon examination of the Complainant and vide the medical documents on record, injuries noted were 4 months old which is inconsistent with particulars of the charge sheet and evidence of the Complainant. That when the Investigation Officer testified, he did not clearly tell when the alleged offence took place which casts doubt on whether it happened. That there were no injuries consistent with defilement and as per the testimony of PW3, there were no injuries and spermatozoa on the genitalia after tests were conducted.
21. The Appellant relied on the case of P.K.W. v Republic (2012) eKLR cited with approval in the case of David Mwingirwa v Republic (2017) eKLR where the court observed as follows: -
“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse?
16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption…”
22. The Appellant also cited the case of Mercy Chelangat v Republic (2022) eKLR that noted penetration was not proven in the absence of injuries as follows: -
“… from the above, it is clear that the medical evidence does not prove any fact of penetration. This is not unusual as in sexual offences, intercourse and barring any forceful engagement the male sexual organ would not be susceptible to bruises and injury in comparison to the female organs.”
23. On the age of the Complainant, the Appellant submitted that there is no conclusive evidence on record as to the real age of the Complainant as there is marked variation in the documents on record.
24. The Appellant stated that his defence and submissions were not considered by the trial court. That it was stated in the defence that there was a grudge between the Complainant’s mother and the Appellant that she had warned the Appellant of dire consequences which led to his arrest and charges, that the Appellants defence was not challenged by the state through cross examination, that the P3 Form in approximating the age of the injuries were inconsistent with particulars of the Charge sheet, that there was no eye witness, that the Complainant in cross examination admitted that what she told the police and what she said in court were not true, and that she never told her mother that she was defiled.
25. On the sentence, the Appellant submitted that it was excessive under the circumstances and that the trial court ought to have been guided by the Muruatetu case in arriving at its conclusion.
Respondent’s Written Submissions
26. The Respondent submitted that from Section 8 (1) of the Sexual Offences Act, 3 ingredients identified include identification of the perpetrator, penetration and proof that the victim is a child. The Respondent stated that age was proved by way of a clinic card which was produced as an exhibit. That the card shows the child was born on 3rd October 2010, she was 9 years as at the time of the incident and therefore a child within the meaning of Article 260 of the Constitution and Section 2 of the Sexual Offences Act.
27. On penetration, the Respondent argued that Section 2 of the Sexual Offences Act defines an act that causes penetration as an act contemplated under the Sexual Offences Act. That the same section defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. That from the section, it can be adduced the offence is complete once there is partial insertion of one’s genital organs into another’s genital organ, even if the act was incomplete. That the key evidence relied on by the courts in defilement cases in order to prove penetration is the complainant’s own testimony which is usually corroborated by the medical report presented by a medical officer.
28. The Respondent further contended that in this particular case, the complainant testified that the Appellant defiled her several times. That she stated the Appellant penetrated her private parts, the one that she uses for short call using his thing of urinating. On her part, the doctor, PW4, testified that the Victim’s hymen was broken and the medical documents produced as exhibits showed so as was observed in the case of Julius Kipsang Langat v Republic (2020) e KLR (Criminal Appeal No. 41 of 2016). That further, the doctor confirmed that she was not the maker of the said documents but Section 77 of the Evidence Act provides for production of documents by persons other than their makers.
29. On identification of the Appellant as the perpetrator, the Respondent submitted that it was not in doubt that the Complainant knew the Appellant very well as he stated that his mother was a friend of her mother.
30. On the sentence, the Respondent argued that in meting out the sentence, the trial court took into consideration the mitigation offered by the Appellant. The Respondent cited the case of David Mutai v Republic (2021) eKLR (Petition No. 27 of 2019) where the court observed that it is trite law that even an appellate court cannot interfere with the sentencing court’s discretion unless it is established that there was real error on application of the sentencing principles. The Respondent stated that in this case there is no indication that there was any apparent error in the sentencing. That the minor was a child of tender years and the incident is likely to cause her untold trauma especially since the Appellant threatened to harm her in the event that she disclosed what had happened to her. That therefore, the sentence meted out was commensurate with the offence.
Analysis and Determination
31. This being the first appellate court, it 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 appellate court may, depending on the facts and circumstances of the case, come to the same 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.”
32. After considering the grounds of appeal, records of the trial court and the submissions, issues for determination are: -
1. Whether the Appellant’s right to fair trial was violated in contravention of Article 49 (1) of the Constitution
2. Whether the Appellant was convicted on implausible evidence of the complainant, in contravention of Section 124 of the Evidence Act
3. Whether the Appellant’s defence was considered
4. Whether the sentence was harsh and excessive in the circumstances
Whether the Appellant’s right to fair trial was violated in contravention of Article 49 (1) of the Constitution
33. The Appellant alleges that he was arrested on 13th August 2020 and he was arraigned in court on 17th August 2020 in contravention of Article 49 (1) (f) of the Constitution. However, this court notes that 15th and 16th August 2020 were a Saturday and a Sunday which were not ordinary court days.
Whether the Appellant was convicted on implausible evidence of the complainant, in contravention of Section 124 of the Evidence Act
34. Section 124 of the Evidence Act provides as follows: -
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
35. In the case of George Muchika Lumbasi v Republic (2016) eKLR Mwita, J. held as follows: -
“A proper reading of the whole of section 124 of the Evidence Act, shows that corroboration is still required on evidence by minors, but not mandatory in sexual offences as long as the witness was truthful and reasons are recorded. And as the long line of decisions has shown, proof in sexual offences can still be achieved through the victim’s evidence, medical evidence, circumstantial evidence or a combination of any or all of them. And as stated in Mukungu’s case (supra). Corroboration is in effect other evidence to give certainty or lend support to a statement of fact. In sexual cases, corroboration is necessary as a matter of practice, to support the testimony of the complainant.”
36. From the judgement, the Trial Magistrate said she listened keenly to the testimony of the Complainant and observed her demeanor and that she had no doubt that the Complainant was telling the truth as she vividly recalled what happened on the fateful day and identified the perpetrator in court. It is also indicated that the offence was committed during the day in the Appellant’s house and being that he was an immediate neighbor to the Complainant, this court cannot doubt the finding of the Trial Magistrate who had the opportunity to see the Complainant and other prosecution witnesses as well as the Appellant testifying in court.
37. The evidence of the Complainant was corroborated by the medical evidence that she was defiled and she also confided in PW2 that the Appellant had been sexually abusing her.
Whether the Appellant’s defence was considered
38. Although the Appellant gave an unsworn statement which could not be interrogated and verified, the Trial Magistrate considered the Appellants statement and found that he did not state why the Complainant would implicate him as there was no grudge between him and the Complainant.
Whether the sentence was harsh and excessive in the circumstances
39. The appellant was sentenced to serve life imprisonment.
40. Section 8 (2) of the Sexual Offences Act provides: -
A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
41. Up to 7th July 2023, the provisions under Section 8 (2) of the Sexual Offences Act were legal but in Julius Kisau Manyeso v Republic, the Court of Appeal in Malindi Criminal Appeal No. 12 of 2021 declared that the reasoning in Francis Karioko Muruatetu & Others v Republic equally applies to the imposition of a mandatory life sentence namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution and it is also inhuman treatment and violates the right to dignity under Article 28. The court of appeal was persuaded by the reasoning in the European Court of Human Rights in Vinter & Others v The United Kingdom that an indeterminate life sentence without any prospect of release or a possibility of review is a degrading punishment and that it is now a principle in international law that all prisoners including those serving life sentences be offered the possibility of rehabilitation and the prospects of release if that rehabilitation is achieved.
42. In conclusion, this court finds that the appeal on conviction lacks merit and the same is dismissed. The appeal on sentence is partially allowed and the life imprisonment is set aside and substituted therefore with sentence of 25 years imprisonment to run from the date that he was arraigned in court on 4th June 2018 pursuant to Section 333(2) of the Criminal Procedure Code as it appears in the record of 17th August 2020 that he did not secure his release on bond terms granted. 14 days right of appeal explained.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 13th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for the Respondent
Appellant present in person
1. The Appellant, CALVIN MUDI MUCHALWA, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
2. The Particulars of the offence are that CALVIN MUDI MUCHALWA on diverse dates between the month of February 2020 and March 2020 at Kwa Ng’ombe area in Jomvu Sub-County within Mombasa County intentionally caused his penis to penetrate the vagina of J.A. a child aged 9 years.
3. In the alternative, the Appellant was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. The appellant was found guilty and convicted for the offence defilement and sentenced to serve life imprisonment.
5. The appellant being aggrieved by the conviction and sentence, he preferred the appeal herein on the following amended grounds of appeal filed on 16th September 2022: -
1) That the trial court failed in law and fact by not seeing that my right to fair trial was violated in contravention of Article 49 (1) of the Constitution.
2) That the trial court erred in both law and fact by convicting me on the basis of the very implausible evidence of the complainant, in contravention of Section 124 of the Evidence Act.
3) That the trial court erred in fact by failing to appreciate the existence and effect of the underlying protracted disharmony between our family and that of the complainant.
4) That the trial court failed to acknowledge that the matter was a made-up case intended to unfairly incriminate me.
5) That the trial court also dismissed my defence off hand despite its ability to dislodge the prosecution case.
6) That in the sentence the trial court erred in law and fact by failing to appreciate the current jurisprudence in respect to sentencing of offenders charged under Section 8 (2) of the Sexual Offences Act.
6. The Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
Prosecution’s Case
7. PW1, the Complainant underwent voire dire examination and gave sworn evidence that she was aged 9 years old and that the Accused was known to her as their mothers are friends, they live on the same block and that their doors face each other. She said that the accused called her to his house, removed her panty and defiled her on the chair. That she felt a lot of pain and went back home but she did not tell anyone as she feared her mother would beat her up. That the Accused defiled her three times. That he called her to his house and showed her a video on his phone of people doing bad manners.
8. The Complainant said that the Accused used to threaten her that he would kill her if she told anyone. That she however told her Sunday School teacher called Ephraim who then told her mother. That they then went to the police station in Mwandoni and reported. That she was then taken to the hospital where she was examined and treated. That they were also given some documents by the police. The complainant positively identified the Accused in court.
9. PW2, Ephraini Mugoti, a Sunday School teacher to the Complainant said that the complainant’s mother called and informed him that she needed prayers regarding the complainant as there was a problem. That PW2 went to her house and the Complainant’s mother told him that one Calvin in the plot was threatening the Complainant and that he said he would kill her. That PW2 went with the Complainant to Jomvu where he lived with his wife. That after two weeks, PW2 asked the Complainant why the Accused wanted to kill her and that he asked her this in the evening in the presence of his wife. That the Complainant said she- had something to tell him but he should not tell her mother. That the Complainant said Calvin called her to his house, removed her panty and did bad manners to her. That the Accused has been doing that to her for some time and when she stopped going to his house he started threatening her.
10. PW2 informed court that in July the Complainant said she missed her mother and that she started crying and said she missed the Accused and that she wanted to have intercourse with the Accused. That PW2 called the Complainant’s mother and asked that they meet at Mikindani Police Station. That on 11.8.2020, they went to Mikindani Police Station together with the Complainant and her mother where they were advised to take the child to hospital. That the following day a police officer accompanied them to Port Reitz Hospital where the child was examined. That they were given treatment notes and a PRC Form. That PW2 was also present when they were issued with a P3 Form.
11. PW3, R.A. the mother of the Complainant said that the Complainant was born on 2nd October 2010 and she produced the Clinic Card as ExP5. That on 8th May 2020, the Accused said that the Complainant was a thief and had stolen his brother’s shoes. That PW3 asked what was wrong and the Accused called her a witch. That on 28th May 2020, the Accused said the Complainant had stolen a remote in their house. That when PW3 asked him where the remote was, he called her a prostitute and said that he would rape her. That PW3 went and reported the matter to the Village Elder who referred her to the police and that she went to Mikindani Police Station and reported. That the police advised her that one of them should relocate from the plot but PW3 did not follow up on the case.
12. PW3 said that she spoke to Ephraim who is the Complainant’s Sunday School teacher and informed him that the Complainant had problems in the plot and needed prayers. That the Accused had threatened to kill her. That Ephraim went with his wife to PW3’s house and that PW3 was with her husband. That PW3 informed them what had happened and Ephraim agreed to go with the child to get her out of that environment. PW3 informed court that on 10th August 2020, Ephraim called her and informed her that the Accused was sleeping with her daughter. That they agreed to meet on 11th August 2020 and that the child told him that she used to have sexual intercourse with the Accused. That the child told her mother that the Accused warned her not to tell anyone. That they went to Mikindani Police Station where they were advised to take the child to hospital.
13. PW3 said that she did not accompany them to hospital but later in the evening she went to the police station where she was shown the PRC Form by the OCS which showed that the Complainant had been defiled. She said that the Complainant used to take showers by herself and PW3 never noticed anything. That the child is not free with her as she is harsh. PW3 positively identified the Accused in court and said they were good neighbours and that PW3’s children used to go watch TV in the Accused’s house.
14. PW4, Dr. Rehana Khan from Port Reitz Sub-County Hospital said that she had a P3 Form in respect of the Complainant and that it was filled by Kingoli, a Clinical Offficer, who was away on leave. PW4 produced the said P3 Form. PW4 said that the Complainant went to the facility having been defiled by someone known to her. That the approximate age of the injury was 4 months and the probable weapon was blunt. That examination of the labia majora and minora were normal with no injuries although the hymen was broken at 9 o’clock and there was discharge. PW4 produced the P3 Form as ExP1. That in filling the P3 Form, lab results were used which showed that there was presence of pus cells. The lab results were produced as ExP2. That the PRC Form was filled on 12.8.2020 which was produced as ExP4. The treatment notes were produced as ExP3.
15. PW5, No. 81419 Cpl Peter Makau, the Investigating Officer said that on 11.8.2020, the complainant was taken to the station by her mother and Ephraim. That the Complainant said she had been defiled by the Accused who was their neighbor. That PW5 recorded the Complainant’s statement as well as her mother’s and Ephraim’s. That on 12.8.2020, PW5 took the Complainant to Port Reitz Hospital for medical examination where the P3 and PRC Forms were filled. That the doctor confirmed there was proof of penetration and the Accused was arrested on 18.8.2020. That PW5 interrogated the Accused and recorded his statement and that he denied committing the offence. That PW5 visited the scene and the Complainant showed her the house where the incident took place.
Defence Case
16. The Accused Mudi Calvin Muchalwa gave an unsworn evidence that on 13.8.2020, he was on the road heading home with his wife who was expectant. That he let his wife go home ahead of him and that as he stayed behind to greet people and ask for some jobs, two people stopped and arrested him. That they told him that he will know his offence later and that he was told there was a case of assault reported by a lady. He said that he was in police custody for 4 days and was charged with the offence that he did not know and that he denied.
17. The Accused said that the Complainant is his mother’s neighbor and that the charges levelled against him are as a result of the grudge between him and the Complainant’s mother. That the Accused’s mother used to lose household items and that he started investigations after his brother lost shoes. That the Complainant had been seen with the shoes. That the Accused reported the issue to the Complainant’s mother which did not sit well with her. That she threatened him with dire consequences and that he was arrested and charged herein.
18. This appeal herein was canvassed by way of written submissions.
Appellant’s Written Submissions
19. The Appellant filed written submissions on 18th September 2022 as well as supplementary submissions on 27th February 2023. The Appellant argued that he was arrested on 13th August 2020 and kept in custody until 17th August 2020 when he was arraigned in court and that the delay was not explained at all by the prosecution. The Appellant relied on Article 49 (1) of the Constitution which provides: -
An arrested person has the right: -
(f) To be brought before the court as soon as reasonably possible, but not later than: -
(i) Twenty-four hours after being arrested; or
(ii) It the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.
20. The Appellant submitted that penetration was not proved and that PW3 gave evidence to the effect that upon examination of the Complainant and vide the medical documents on record, injuries noted were 4 months old which is inconsistent with particulars of the charge sheet and evidence of the Complainant. That when the Investigation Officer testified, he did not clearly tell when the alleged offence took place which casts doubt on whether it happened. That there were no injuries consistent with defilement and as per the testimony of PW3, there were no injuries and spermatozoa on the genitalia after tests were conducted.
21. The Appellant relied on the case of P.K.W. v Republic (2012) eKLR cited with approval in the case of David Mwingirwa v Republic (2017) eKLR where the court observed as follows: -
“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse?
16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption…”
22. The Appellant also cited the case of Mercy Chelangat v Republic (2022) eKLR that noted penetration was not proven in the absence of injuries as follows: -
“… from the above, it is clear that the medical evidence does not prove any fact of penetration. This is not unusual as in sexual offences, intercourse and barring any forceful engagement the male sexual organ would not be susceptible to bruises and injury in comparison to the female organs.”
23. On the age of the Complainant, the Appellant submitted that there is no conclusive evidence on record as to the real age of the Complainant as there is marked variation in the documents on record.
24. The Appellant stated that his defence and submissions were not considered by the trial court. That it was stated in the defence that there was a grudge between the Complainant’s mother and the Appellant that she had warned the Appellant of dire consequences which led to his arrest and charges, that the Appellants defence was not challenged by the state through cross examination, that the P3 Form in approximating the age of the injuries were inconsistent with particulars of the Charge sheet, that there was no eye witness, that the Complainant in cross examination admitted that what she told the police and what she said in court were not true, and that she never told her mother that she was defiled.
25. On the sentence, the Appellant submitted that it was excessive under the circumstances and that the trial court ought to have been guided by the Muruatetu case in arriving at its conclusion.
Respondent’s Written Submissions
26. The Respondent submitted that from Section 8 (1) of the Sexual Offences Act, 3 ingredients identified include identification of the perpetrator, penetration and proof that the victim is a child. The Respondent stated that age was proved by way of a clinic card which was produced as an exhibit. That the card shows the child was born on 3rd October 2010, she was 9 years as at the time of the incident and therefore a child within the meaning of Article 260 of the Constitution and Section 2 of the Sexual Offences Act.
27. On penetration, the Respondent argued that Section 2 of the Sexual Offences Act defines an act that causes penetration as an act contemplated under the Sexual Offences Act. That the same section defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. That from the section, it can be adduced the offence is complete once there is partial insertion of one’s genital organs into another’s genital organ, even if the act was incomplete. That the key evidence relied on by the courts in defilement cases in order to prove penetration is the complainant’s own testimony which is usually corroborated by the medical report presented by a medical officer.
28. The Respondent further contended that in this particular case, the complainant testified that the Appellant defiled her several times. That she stated the Appellant penetrated her private parts, the one that she uses for short call using his thing of urinating. On her part, the doctor, PW4, testified that the Victim’s hymen was broken and the medical documents produced as exhibits showed so as was observed in the case of Julius Kipsang Langat v Republic (2020) e KLR (Criminal Appeal No. 41 of 2016). That further, the doctor confirmed that she was not the maker of the said documents but Section 77 of the Evidence Act provides for production of documents by persons other than their makers.
29. On identification of the Appellant as the perpetrator, the Respondent submitted that it was not in doubt that the Complainant knew the Appellant very well as he stated that his mother was a friend of her mother.
30. On the sentence, the Respondent argued that in meting out the sentence, the trial court took into consideration the mitigation offered by the Appellant. The Respondent cited the case of David Mutai v Republic (2021) eKLR (Petition No. 27 of 2019) where the court observed that it is trite law that even an appellate court cannot interfere with the sentencing court’s discretion unless it is established that there was real error on application of the sentencing principles. The Respondent stated that in this case there is no indication that there was any apparent error in the sentencing. That the minor was a child of tender years and the incident is likely to cause her untold trauma especially since the Appellant threatened to harm her in the event that she disclosed what had happened to her. That therefore, the sentence meted out was commensurate with the offence.
Analysis and Determination
31. This being the first appellate court, it 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 appellate court may, depending on the facts and circumstances of the case, come to the same 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.”
32. After considering the grounds of appeal, records of the trial court and the submissions, issues for determination are: -
1. Whether the Appellant’s right to fair trial was violated in contravention of Article 49 (1) of the Constitution
2. Whether the Appellant was convicted on implausible evidence of the complainant, in contravention of Section 124 of the Evidence Act
3. Whether the Appellant’s defence was considered
4. Whether the sentence was harsh and excessive in the circumstances
Whether the Appellant’s right to fair trial was violated in contravention of Article 49 (1) of the Constitution
33. The Appellant alleges that he was arrested on 13th August 2020 and he was arraigned in court on 17th August 2020 in contravention of Article 49 (1) (f) of the Constitution. However, this court notes that 15th and 16th August 2020 were a Saturday and a Sunday which were not ordinary court days.
Whether the Appellant was convicted on implausible evidence of the complainant, in contravention of Section 124 of the Evidence Act
34. Section 124 of the Evidence Act provides as follows: -
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
35. In the case of George Muchika Lumbasi v Republic (2016) eKLR Mwita, J. held as follows: -
“A proper reading of the whole of section 124 of the Evidence Act, shows that corroboration is still required on evidence by minors, but not mandatory in sexual offences as long as the witness was truthful and reasons are recorded. And as the long line of decisions has shown, proof in sexual offences can still be achieved through the victim’s evidence, medical evidence, circumstantial evidence or a combination of any or all of them. And as stated in Mukungu’s case (supra). Corroboration is in effect other evidence to give certainty or lend support to a statement of fact. In sexual cases, corroboration is necessary as a matter of practice, to support the testimony of the complainant.”
36. From the judgement, the Trial Magistrate said she listened keenly to the testimony of the Complainant and observed her demeanor and that she had no doubt that the Complainant was telling the truth as she vividly recalled what happened on the fateful day and identified the perpetrator in court. It is also indicated that the offence was committed during the day in the Appellant’s house and being that he was an immediate neighbor to the Complainant, this court cannot doubt the finding of the Trial Magistrate who had the opportunity to see the Complainant and other prosecution witnesses as well as the Appellant testifying in court.
37. The evidence of the Complainant was corroborated by the medical evidence that she was defiled and she also confided in PW2 that the Appellant had been sexually abusing her.
Whether the Appellant’s defence was considered
38. Although the Appellant gave an unsworn statement which could not be interrogated and verified, the Trial Magistrate considered the Appellants statement and found that he did not state why the Complainant would implicate him as there was no grudge between him and the Complainant.
Whether the sentence was harsh and excessive in the circumstances
39. The appellant was sentenced to serve life imprisonment.
40. Section 8 (2) of the Sexual Offences Act provides: -
A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
41. Up to 7th July 2023, the provisions under Section 8 (2) of the Sexual Offences Act were legal but in Julius Kisau Manyeso v Republic, the Court of Appeal in Malindi Criminal Appeal No. 12 of 2021 declared that the reasoning in Francis Karioko Muruatetu & Others v Republic equally applies to the imposition of a mandatory life sentence namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution and it is also inhuman treatment and violates the right to dignity under Article 28. The court of appeal was persuaded by the reasoning in the European Court of Human Rights in Vinter & Others v The United Kingdom that an indeterminate life sentence without any prospect of release or a possibility of review is a degrading punishment and that it is now a principle in international law that all prisoners including those serving life sentences be offered the possibility of rehabilitation and the prospects of release if that rehabilitation is achieved.
42. In conclusion, this court finds that the appeal on conviction lacks merit and the same is dismissed. The appeal on sentence is partially allowed and the life imprisonment is set aside and substituted therefore with sentence of 25 years imprisonment to run from the date that he was arraigned in court on 4th June 2018 pursuant to Section 333(2) of the Criminal Procedure Code as it appears in the record of 17th August 2020 that he did not secure his release on bond terms granted. 14 days right of appeal explained.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 13th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for the Respondent
Appellant present in person