(Being an appeal against the conviction and sentence delivered by Hon. C. Mburu in Kikuyu Cr Case no. S.O. 36 of 2017 on 15th December 2022)
JUDGMENT
1. The appellant herein David Makumi Kariuki was charged with the offence of defilement contrary to section 8 (1)(3) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence being that on 1st July 2017 at Gikambura Village Kikuyu Sub-county within Central region intentionally caused his penis to penetrate the vagina of INW a child aged 14 years. The appellant further faced an alternative charge of committing an indecent act with a child contrary to sections 11 (1) of the Sexual Offences Act No. 3 of 2006. The complainant, date and place of alleged offence are the same as in the main charge.
2. The appellant pleaded not guilty to both the main charge and the alternative. The matter proceeded to hearing with the prosecution calling witnesses. The trial magistrate, having considered the evidence availed convicted the appellant and sentenced him to serve eleven (11) years imprisonment.
3. The appellant filed the petition of appeal dated 28th December 2022 setting out the following grounds:
i. That the trial magistrate erred in law by failing to consider the appellant’s defence of alibi.
ii. That the learned magistrate erred in law by shifting the burden of disproving the answer to a charge to the appellant, which is borne by the respondent in law.
iii. That the learned magistrate erred in law and in fact in failing to find that there were glaring contradictions and inconsistencies by the respondent’s expert witness testimonies at trial which were at variance with the complainant’s testimony.
iv. That the learned trial magistrate erred in law and in fact by failing to find that the evidence adduced by the respondent’s witnesses at trial was at variance with the evidence acquired at the investigation stage.
v. That the learned trial magistrate erred in law and in fact in failing to find and rule that there was no cogent, substantial, credible and direct evidence connecting the appellant to the offence of defilement contrary to section 8(1)(3) of the Sexual Offences Act No. 3 of 2006.
vi. That the learned trial magistrate erred in law and in fact in analysing and/or evaluating the respondent’s evidence separately, forming a considered opinion/impression thereof and then laying the burden of disproving and/or dispelling the pre-mediated impression upon the appellant contrary to the established principle in criminal law, which casts the burden of proof upon the respondent.
vii. That the learned trial magistrate erred in law by convicting the appellant on entirely wrong principles and conclusion without addressing herself on whether or not the ingredients of the offence the appellant was accused of had been proved beyond reasonable doubt.
viii. That the learned trial magistrate erred in law and in fact by sentencing the appellant herein excessively taking into account all circumstances of the case, appellant’s mitigation and the fact the appellant was a first-time offender before sentencing.
4. The appeal was canvassed by way of written submissions.
Appellant’s submissions
5. Counsel for the appellant argued that the prosecution failed to carry out the burden of disproving the alibi evidence which demonstrated that the appellant was in Mombasa doing construction works on the alleged day of the crime. He cited the case of Charles Anjare Mwamusi vs Republic CRA No. 226 of 2002 where the court of Appeal stated: “alibi raises a specific defence and an accused person who puts forward an alibi as an answer to charge preferred against him does not in law thereby assume any burden of proving that answer it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.”
6. Counsel averred that it was the evidence of Dw1 that the appellant arrived in Mombasa on 30th June 2017 a day before the alleged incident and the appellant was at the construction site with other masons on the 1st of July 2017. That the prosecution witnesses differed on the whereabouts of the appellant on the day of the incident. And that Pw3 did not visit the scene as he failed to interrogate the neighbours.
7. Counsel submitted that the trial court erred in convicting the appellant when in its judgment at page 12 it opined the defence of alibi raises doubt but proceeded to convict the appellant. The trial magistrate erred in holding the appellant had not proved that indeed he had travelled to Mombasa by producing the return ticket for 29th August 2017.
8. It was submitted that the trial magistrate erred in holding that the Pw1 was telling the truth whereas she contradicted herself as she had indicated to Pw4 that she had been defiled 5 times by the appellant which contradicted the finding in the PRC form which indicated that it was the first time the minor had sexual intercourse. The case cited was that of John Mutua Munyoki vs Republic criminal appeal no. 11 of 2016 (2017) eKLR where the Court of Appeal observed that: “…Much reliance was placed on the evidence of the complainant despite having been edited by the evidence of the clinical officer…(who) was categorical that he was not in a position to ascertain the act of defilement after examining the complainant. He testified that he conducted vaginal examination and found no tears, no bruises, no hymen and no discharge. In addition, there was no spermatozoa and yeast cells or fungal cells. The complainant had also confirmed to him that she had previously engaged in sexual intercourse and was therefore not a virgin. Accordingly, the lack of hymen could not be attributed to the alleged incident involving the appellant. In a nutshell, there was no evidence of penetration.”
9. Counsel further submitted that Pw4 had contradicted himself. The appellant also faulted the trial magistrate for relying on circumstantial evidence to convict the appellant. According to the appellant, though the evidence of Pw5 proved penetration, it failed to link the appellant to the offence.
10. Counsel states the prosecution evidence was at variance as Pw2 did not record in her statement about seeing the appellant at the scene of the crime, yet in her testimony she told the court that she had seen the accused at the scene of the crime with cobwebs.
11. The court was urged to allow the appeal, quash the conviction, and set aside the sentence.
Respondent’s submissions
12. In opposing the appeal counsel submitted that the appellant was properly convicted after the prosecution properly proved penetration, age and identification of the appellant. That the age of the minor was proved by the birth certificate which established the minor was born on 5th February 2003.
13. Penetration was proved through the medical evidence by Pw4 and Pw5 in the PRC and P3 forms which corroborated the complainant’s evidence that the appellant had caused penetration into her vagina. It was argued that the conviction was safe and the sentence meted was legal.
14. According to counsel the appellant was familiar and known to the complainant and therefore identification was proper. Counsel urged the court to reject the appeal and uphold the conviction and sentence.
Analysis
15. I have considered the Appellant’s grounds of appeal his submissions and the opposing submissions by the state before making my determination. Being a first appeal, I must reconsider and re-evaluate the evidence on record, bearing in mind I did not see or hear the witnesses and reach my own conclusion (See Okeno v R [1972] EA. 32 and Mohamed Rama Alfani & 2 Others v Republic, Criminal Appeal No. 223 of 2002).
16. The evidence adduced at the trial court was as follows:
17. Pw1 the complainant minor was taken through a voir dire examination and found intelligent and understood the seriousness of giving evidence on oath. She testified that on 1st July 2017, while she was going to get milk from the accused house who was their landlord, she found the accused who took the jug and instructed her to wait outside. Shortly the accused came out grabbed her hand and dragged her to the latrine where he threatened her and the family. He ordered her to remove her trouser while the accused removed his trouser and caused his penis to penetrate her vagina.
18. It was her testimony that when she screamed for help the accused ordered her to shut up. When her mother came calling for her she did not answer. Her mother then took the milk from the accused’s wife and when she was leaving she saw the minor coming out of the toilet. Pw1 told the court she had never had sexual intercourse with any other person.
19. In cross-examination she told the court she did not feel pain on this particular day as she had had sexual intercourse with the accused person several times before.
20. Pw2 the complainant’s mother testified that on the date in question, she sent the complainant milk from the accused house but she took too long to return and so she went looking for her. As she got the milk, she inquired from the accused wife who informed her the complainant left the jug and disappeared. That when she was leaving the complainant came out of the toilet with cobwebs and she inquired why she had cobwebs.
21. She testified that she called for a taxi and took the complainant to the police station in Kikuyu where they were referred to Nairobi Women’s Hospital and the complainant was treated.
22. Pw3 - PC Julius Kaimenyi testified that on 1st July 2017 at 3.00 pm while in the office he called the complainant’s mother who recorded a statement following an alleged incident of defilement. He issued the complainant with a p3 form. The suspect was not traced until 30th August 2017. And the accused was arrested when he went to the police station.
23. PW4 - a clinical officer from Nairobi Women’s Hospital gave evidence on behalf of her colleague Gloria Toiywa who had left the facility for further studies. He produced a copy of the PRC form in respect of Pw1 prepared on 1st July 2017. The results were there were no physical injuries, she had a torn ragged hymen which was not bleeding and with no discharge, there was a whitish discharge on her panty. The labia was painful, there was also blood clotted minora. In Pw4’s opinion, a blunt penetrative trauma could cause the torn and ragged hymen. He adduced the Gender Violence Medical Report from Nairobi Women’s Hospital which indicated the complainant was in pain in the external genitalia with no bruising, no lacerations and whitish discharge with a broken hymen with ragged edges. based on the history of peno- vaginal penetration.
24. In cross-examination he testified that the whitish discharge was not tested. that the consistent with the peno vaginal penetration is based on the history that the complainant had reported it was the 5th time.
25. Pw5 – Dr. Kezia testified that in the year 2017 she was working at Wangige level 4 hospital. She adduced the P3 form and Post Rape Care Form filled for the complainant. She stated that on general examination Pw1 did not have obvious injuries but the external genitalia were normal and the hymen was torn and ragged. She made an impression of penetrative sex. In her opinion, the sex was the first time based on the hymen being ragged.
26. In cross-examination she testified that she did not examine the minor but relied on the post-rape care form and that she would not know if the complainant had sex more than once.
27. Upon being placed on his defence appellant gave sworn evidence and called 2 witnesses.
28. Dw1 - the appellant testified that he worked as a mason. He denied defiling the complaint and stated that on 1st July 2017 he had travelled to Mombasa before the alleged date though he could not recall the exact date when he travelled to Mombasa. He testified that the alleged toilet was 5 metres away from the house and was being used by his family and the workers. He stated that this unfortunate issue began when he issued the tenants with a rent increment notice and the complainant’s mother was opposed to the rent increase and requested a refund of deposit
29. In cross-examination he testified that the ticket adduced in court was a return ticket and that he had stayed in Mombasa for 3 weeks and returned on 29th August 2017.
30. Dw2 - the appellant’s wife testified that the appellant had gone to Mombasa a day before the alleged incident. That the complainant’s mother was a tenant in their houses and they bought milk from the accused. She told the court that she had told the complainant’s mother that the accused was not at home and she would not understand why the appellant defiled the minor.
31. Dw3 - Margaret Ireri testified that the appellant travelled to Mombasa on 30th June 2017 and stayed there for 2 months while doing construction work.
Determination
32. The following are the issues for determination:
i. Whether the offence of defilement was proven to the required standard
ii. Whether the defence of alibi was adequately considered
iii. Whether the sentence imposed was appropriate
33. It is trite law that for a charge of defilement to stand the prosecution must prove three elements: age, penetration and identification. Section 8(1) (3) of the Sexual Offences Act provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
34. In the present case it is not in dispute that the complainant was a minor. A birth certificate adduced by Pw2 indicated the minor was born on 5th February 2003. Her age was therefore adequately proved.
35. The second element I will consider is identification/recognition. The prosecution witnesses testified that the minor lived with her mother in the appellant’s rental houses. The appellant in his testimony confirmed this and added that they used to sell milk to them. The appellant testified he knew the complainant.
36. However, the appellant denies being at home on 1st July 2017 when the alleged incident occurred. In his testimony he stated that he was in Mombasa on the fateful date. I will dispense with the ingredients of identification as the appellant was very well known to the victim. Later I will revisit the element of identification in the defence of alibi as raised.
37. The third element is penetration. Penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organ of a person into the genital organs of another person. The element of penetration must be proven beyond reasonable doubt. The proof can be either through evidence or corroboration of the child’s evidence by medical evidence.
38. Pw5 was the medical doctor who filled the P3 form having relied on the Post Rape Care form. She testified that the victim’s genitalia on examination was normal but her hymen was recently torn and ragged. In addition, she made an opinion that there was penetrative sex. i.e. rape.
39. Pw4 was the clinician who produced the PRC form on behalf of a colleague who had filled the same on 1st July 2017. The PRC form indicated there were no front or back physical injuries. The outer genitalia did not have any injuries, the hymen was torn and ragged but not bleeding and with no discharge.
40. From the above, it is clear the medical evidence did conclude there was penetration due to the torn and ragged hymen.
41. In the case of Bassita vs Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration: - “The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
42. In the instant case, this court finds the prosecution proved the element of penetration. I find the trial court did not err in finding that the prosecution had proved the element of penetration.
43. As to whether the defence of alibi was adequately considered, the appellant averred that he raised the defence of alibi at the earliest opportunity but the trial court failed to consider and disprove the defence of alibi but shifted the burden of proof to the him.
44. The former Eastern Africa Court of Appeal in the case of Republic vs Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA, 145 gave the necessary guidance on the defence of alibi as follows: “If a person is accused of anything and his defence 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 in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped.”
45. Whereas this court agrees with the appellant that the defence of alibi ought to be brought at the earliest opportunity, the above case infers that the prosecution ought to inquire on the same and if satisfied to its genuineness the proceedings ought to stop.
46. In the instant appeal the appellant alleged the defence of alibi and called 2 witnesses. He could not tell when he travelled to Mombasa but he told the court he returned on 29th August 2017. In his testimony, he told the trial court he stayed in Mombasa for three weeks, whereas Dw2 and Dw3 informed the trial court the appellant travelled to Mombasa on 30th June 2017 a day before the alleged incident and stayed in Mombasa for 2 months.
47. The appellant produced a return ticket from Mombasa but did not avail a travel ticket to Mombasa to ascertain that indeed he had travelled on 30th June 2017 and could not have been at the scene on 1st July 2017. It is immaterial as to the date when the appellant returned home. The material fact and date relevant to placing the appellant at the place of crime or otherwise is whether the appellant was at his home on 1st July 2017.
48. While Dw2 and Dw3 placed the appellant in Mombasa on the day of the incident, the appellant could not account on which day he travelled to Mombasa but he denied he was at home on 1st July 2017. I do find that the evidence of Dw2 and Dw3 corroborates the evidence of the appellant.
49. The prosecution failed to discount the alibi evidence adduced by the appellant thus creating doubt on the identification of the appellant as the perpetrator, as no person can be at two places at the same time.
50. The trial magistrate dismissed the defence of alibi in that it raised some contradictions in the defence witnesses. It is my finding that the trial court erred in dismissing the appellant’s defence of alibi. The trial court having found that doubts had been cast on the prosecution witness ought to have given the appellant a benefit of the doubt and acquit him of the charges.
51. Having found that the identification of the appellant was not proved beyond reasonable doubt, I will not deal with the appropriateness or otherwise of the sentence imposed.
52. I accordingly allow the appeal, quash the conviction and set aside the sentence meted on the appellant.
53. The appellant be and is hereby set forthwith at liberty unless otherwise lawfully held.
It is so ordered.
JUDGMENT delivered virtually, dated and signed at KIAMBU
This 8th day of December 2023.
……………………………………..
P. MULWA
JUDGE
In the presence of:
Duale – court assistant
Mr. Mumo - for the appellant
Mr. Gacharia - for the respondent
Appellant – present virtually from Nairobi West Prison
JUDGMENT
1. The appellant herein David Makumi Kariuki was charged with the offence of defilement contrary to section 8 (1)(3) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence being that on 1st July 2017 at Gikambura Village Kikuyu Sub-county within Central region intentionally caused his penis to penetrate the vagina of INW a child aged 14 years. The appellant further faced an alternative charge of committing an indecent act with a child contrary to sections 11 (1) of the Sexual Offences Act No. 3 of 2006. The complainant, date and place of alleged offence are the same as in the main charge.
2. The appellant pleaded not guilty to both the main charge and the alternative. The matter proceeded to hearing with the prosecution calling witnesses. The trial magistrate, having considered the evidence availed convicted the appellant and sentenced him to serve eleven (11) years imprisonment.
3. The appellant filed the petition of appeal dated 28th December 2022 setting out the following grounds:
i. That the trial magistrate erred in law by failing to consider the appellant’s defence of alibi.
ii. That the learned magistrate erred in law by shifting the burden of disproving the answer to a charge to the appellant, which is borne by the respondent in law.
iii. That the learned magistrate erred in law and in fact in failing to find that there were glaring contradictions and inconsistencies by the respondent’s expert witness testimonies at trial which were at variance with the complainant’s testimony.
iv. That the learned trial magistrate erred in law and in fact by failing to find that the evidence adduced by the respondent’s witnesses at trial was at variance with the evidence acquired at the investigation stage.
v. That the learned trial magistrate erred in law and in fact in failing to find and rule that there was no cogent, substantial, credible and direct evidence connecting the appellant to the offence of defilement contrary to section 8(1)(3) of the Sexual Offences Act No. 3 of 2006.
vi. That the learned trial magistrate erred in law and in fact in analysing and/or evaluating the respondent’s evidence separately, forming a considered opinion/impression thereof and then laying the burden of disproving and/or dispelling the pre-mediated impression upon the appellant contrary to the established principle in criminal law, which casts the burden of proof upon the respondent.
vii. That the learned trial magistrate erred in law by convicting the appellant on entirely wrong principles and conclusion without addressing herself on whether or not the ingredients of the offence the appellant was accused of had been proved beyond reasonable doubt.
viii. That the learned trial magistrate erred in law and in fact by sentencing the appellant herein excessively taking into account all circumstances of the case, appellant’s mitigation and the fact the appellant was a first-time offender before sentencing.
4. The appeal was canvassed by way of written submissions.
Appellant’s submissions
5. Counsel for the appellant argued that the prosecution failed to carry out the burden of disproving the alibi evidence which demonstrated that the appellant was in Mombasa doing construction works on the alleged day of the crime. He cited the case of Charles Anjare Mwamusi vs Republic CRA No. 226 of 2002 where the court of Appeal stated: “alibi raises a specific defence and an accused person who puts forward an alibi as an answer to charge preferred against him does not in law thereby assume any burden of proving that answer it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.”
6. Counsel averred that it was the evidence of Dw1 that the appellant arrived in Mombasa on 30th June 2017 a day before the alleged incident and the appellant was at the construction site with other masons on the 1st of July 2017. That the prosecution witnesses differed on the whereabouts of the appellant on the day of the incident. And that Pw3 did not visit the scene as he failed to interrogate the neighbours.
7. Counsel submitted that the trial court erred in convicting the appellant when in its judgment at page 12 it opined the defence of alibi raises doubt but proceeded to convict the appellant. The trial magistrate erred in holding the appellant had not proved that indeed he had travelled to Mombasa by producing the return ticket for 29th August 2017.
8. It was submitted that the trial magistrate erred in holding that the Pw1 was telling the truth whereas she contradicted herself as she had indicated to Pw4 that she had been defiled 5 times by the appellant which contradicted the finding in the PRC form which indicated that it was the first time the minor had sexual intercourse. The case cited was that of John Mutua Munyoki vs Republic criminal appeal no. 11 of 2016 (2017) eKLR where the Court of Appeal observed that: “…Much reliance was placed on the evidence of the complainant despite having been edited by the evidence of the clinical officer…(who) was categorical that he was not in a position to ascertain the act of defilement after examining the complainant. He testified that he conducted vaginal examination and found no tears, no bruises, no hymen and no discharge. In addition, there was no spermatozoa and yeast cells or fungal cells. The complainant had also confirmed to him that she had previously engaged in sexual intercourse and was therefore not a virgin. Accordingly, the lack of hymen could not be attributed to the alleged incident involving the appellant. In a nutshell, there was no evidence of penetration.”
9. Counsel further submitted that Pw4 had contradicted himself. The appellant also faulted the trial magistrate for relying on circumstantial evidence to convict the appellant. According to the appellant, though the evidence of Pw5 proved penetration, it failed to link the appellant to the offence.
10. Counsel states the prosecution evidence was at variance as Pw2 did not record in her statement about seeing the appellant at the scene of the crime, yet in her testimony she told the court that she had seen the accused at the scene of the crime with cobwebs.
11. The court was urged to allow the appeal, quash the conviction, and set aside the sentence.
Respondent’s submissions
12. In opposing the appeal counsel submitted that the appellant was properly convicted after the prosecution properly proved penetration, age and identification of the appellant. That the age of the minor was proved by the birth certificate which established the minor was born on 5th February 2003.
13. Penetration was proved through the medical evidence by Pw4 and Pw5 in the PRC and P3 forms which corroborated the complainant’s evidence that the appellant had caused penetration into her vagina. It was argued that the conviction was safe and the sentence meted was legal.
14. According to counsel the appellant was familiar and known to the complainant and therefore identification was proper. Counsel urged the court to reject the appeal and uphold the conviction and sentence.
Analysis
15. I have considered the Appellant’s grounds of appeal his submissions and the opposing submissions by the state before making my determination. Being a first appeal, I must reconsider and re-evaluate the evidence on record, bearing in mind I did not see or hear the witnesses and reach my own conclusion (See Okeno v R [1972] EA. 32 and Mohamed Rama Alfani & 2 Others v Republic, Criminal Appeal No. 223 of 2002).
16. The evidence adduced at the trial court was as follows:
17. Pw1 the complainant minor was taken through a voir dire examination and found intelligent and understood the seriousness of giving evidence on oath. She testified that on 1st July 2017, while she was going to get milk from the accused house who was their landlord, she found the accused who took the jug and instructed her to wait outside. Shortly the accused came out grabbed her hand and dragged her to the latrine where he threatened her and the family. He ordered her to remove her trouser while the accused removed his trouser and caused his penis to penetrate her vagina.
18. It was her testimony that when she screamed for help the accused ordered her to shut up. When her mother came calling for her she did not answer. Her mother then took the milk from the accused’s wife and when she was leaving she saw the minor coming out of the toilet. Pw1 told the court she had never had sexual intercourse with any other person.
19. In cross-examination she told the court she did not feel pain on this particular day as she had had sexual intercourse with the accused person several times before.
20. Pw2 the complainant’s mother testified that on the date in question, she sent the complainant milk from the accused house but she took too long to return and so she went looking for her. As she got the milk, she inquired from the accused wife who informed her the complainant left the jug and disappeared. That when she was leaving the complainant came out of the toilet with cobwebs and she inquired why she had cobwebs.
21. She testified that she called for a taxi and took the complainant to the police station in Kikuyu where they were referred to Nairobi Women’s Hospital and the complainant was treated.
22. Pw3 - PC Julius Kaimenyi testified that on 1st July 2017 at 3.00 pm while in the office he called the complainant’s mother who recorded a statement following an alleged incident of defilement. He issued the complainant with a p3 form. The suspect was not traced until 30th August 2017. And the accused was arrested when he went to the police station.
23. PW4 - a clinical officer from Nairobi Women’s Hospital gave evidence on behalf of her colleague Gloria Toiywa who had left the facility for further studies. He produced a copy of the PRC form in respect of Pw1 prepared on 1st July 2017. The results were there were no physical injuries, she had a torn ragged hymen which was not bleeding and with no discharge, there was a whitish discharge on her panty. The labia was painful, there was also blood clotted minora. In Pw4’s opinion, a blunt penetrative trauma could cause the torn and ragged hymen. He adduced the Gender Violence Medical Report from Nairobi Women’s Hospital which indicated the complainant was in pain in the external genitalia with no bruising, no lacerations and whitish discharge with a broken hymen with ragged edges. based on the history of peno- vaginal penetration.
24. In cross-examination he testified that the whitish discharge was not tested. that the consistent with the peno vaginal penetration is based on the history that the complainant had reported it was the 5th time.
25. Pw5 – Dr. Kezia testified that in the year 2017 she was working at Wangige level 4 hospital. She adduced the P3 form and Post Rape Care Form filled for the complainant. She stated that on general examination Pw1 did not have obvious injuries but the external genitalia were normal and the hymen was torn and ragged. She made an impression of penetrative sex. In her opinion, the sex was the first time based on the hymen being ragged.
26. In cross-examination she testified that she did not examine the minor but relied on the post-rape care form and that she would not know if the complainant had sex more than once.
27. Upon being placed on his defence appellant gave sworn evidence and called 2 witnesses.
28. Dw1 - the appellant testified that he worked as a mason. He denied defiling the complaint and stated that on 1st July 2017 he had travelled to Mombasa before the alleged date though he could not recall the exact date when he travelled to Mombasa. He testified that the alleged toilet was 5 metres away from the house and was being used by his family and the workers. He stated that this unfortunate issue began when he issued the tenants with a rent increment notice and the complainant’s mother was opposed to the rent increase and requested a refund of deposit
29. In cross-examination he testified that the ticket adduced in court was a return ticket and that he had stayed in Mombasa for 3 weeks and returned on 29th August 2017.
30. Dw2 - the appellant’s wife testified that the appellant had gone to Mombasa a day before the alleged incident. That the complainant’s mother was a tenant in their houses and they bought milk from the accused. She told the court that she had told the complainant’s mother that the accused was not at home and she would not understand why the appellant defiled the minor.
31. Dw3 - Margaret Ireri testified that the appellant travelled to Mombasa on 30th June 2017 and stayed there for 2 months while doing construction work.
Determination
32. The following are the issues for determination:
i. Whether the offence of defilement was proven to the required standard
ii. Whether the defence of alibi was adequately considered
iii. Whether the sentence imposed was appropriate
33. It is trite law that for a charge of defilement to stand the prosecution must prove three elements: age, penetration and identification. Section 8(1) (3) of the Sexual Offences Act provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
34. In the present case it is not in dispute that the complainant was a minor. A birth certificate adduced by Pw2 indicated the minor was born on 5th February 2003. Her age was therefore adequately proved.
35. The second element I will consider is identification/recognition. The prosecution witnesses testified that the minor lived with her mother in the appellant’s rental houses. The appellant in his testimony confirmed this and added that they used to sell milk to them. The appellant testified he knew the complainant.
36. However, the appellant denies being at home on 1st July 2017 when the alleged incident occurred. In his testimony he stated that he was in Mombasa on the fateful date. I will dispense with the ingredients of identification as the appellant was very well known to the victim. Later I will revisit the element of identification in the defence of alibi as raised.
37. The third element is penetration. Penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organ of a person into the genital organs of another person. The element of penetration must be proven beyond reasonable doubt. The proof can be either through evidence or corroboration of the child’s evidence by medical evidence.
38. Pw5 was the medical doctor who filled the P3 form having relied on the Post Rape Care form. She testified that the victim’s genitalia on examination was normal but her hymen was recently torn and ragged. In addition, she made an opinion that there was penetrative sex. i.e. rape.
39. Pw4 was the clinician who produced the PRC form on behalf of a colleague who had filled the same on 1st July 2017. The PRC form indicated there were no front or back physical injuries. The outer genitalia did not have any injuries, the hymen was torn and ragged but not bleeding and with no discharge.
40. From the above, it is clear the medical evidence did conclude there was penetration due to the torn and ragged hymen.
41. In the case of Bassita vs Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration: - “The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
42. In the instant case, this court finds the prosecution proved the element of penetration. I find the trial court did not err in finding that the prosecution had proved the element of penetration.
43. As to whether the defence of alibi was adequately considered, the appellant averred that he raised the defence of alibi at the earliest opportunity but the trial court failed to consider and disprove the defence of alibi but shifted the burden of proof to the him.
44. The former Eastern Africa Court of Appeal in the case of Republic vs Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA, 145 gave the necessary guidance on the defence of alibi as follows: “If a person is accused of anything and his defence 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 in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped.”
45. Whereas this court agrees with the appellant that the defence of alibi ought to be brought at the earliest opportunity, the above case infers that the prosecution ought to inquire on the same and if satisfied to its genuineness the proceedings ought to stop.
46. In the instant appeal the appellant alleged the defence of alibi and called 2 witnesses. He could not tell when he travelled to Mombasa but he told the court he returned on 29th August 2017. In his testimony, he told the trial court he stayed in Mombasa for three weeks, whereas Dw2 and Dw3 informed the trial court the appellant travelled to Mombasa on 30th June 2017 a day before the alleged incident and stayed in Mombasa for 2 months.
47. The appellant produced a return ticket from Mombasa but did not avail a travel ticket to Mombasa to ascertain that indeed he had travelled on 30th June 2017 and could not have been at the scene on 1st July 2017. It is immaterial as to the date when the appellant returned home. The material fact and date relevant to placing the appellant at the place of crime or otherwise is whether the appellant was at his home on 1st July 2017.
48. While Dw2 and Dw3 placed the appellant in Mombasa on the day of the incident, the appellant could not account on which day he travelled to Mombasa but he denied he was at home on 1st July 2017. I do find that the evidence of Dw2 and Dw3 corroborates the evidence of the appellant.
49. The prosecution failed to discount the alibi evidence adduced by the appellant thus creating doubt on the identification of the appellant as the perpetrator, as no person can be at two places at the same time.
50. The trial magistrate dismissed the defence of alibi in that it raised some contradictions in the defence witnesses. It is my finding that the trial court erred in dismissing the appellant’s defence of alibi. The trial court having found that doubts had been cast on the prosecution witness ought to have given the appellant a benefit of the doubt and acquit him of the charges.
51. Having found that the identification of the appellant was not proved beyond reasonable doubt, I will not deal with the appropriateness or otherwise of the sentence imposed.
52. I accordingly allow the appeal, quash the conviction and set aside the sentence meted on the appellant.
53. The appellant be and is hereby set forthwith at liberty unless otherwise lawfully held.
It is so ordered.
JUDGMENT delivered virtually, dated and signed at KIAMBU
This 8th day of December 2023.
……………………………………..
P. MULWA
JUDGE
In the presence of:
Duale – court assistant
Mr. Mumo - for the appellant
Mr. Gacharia - for the respondent
Appellant – present virtually from Nairobi West Prison