DENNIS MBARAKA NGUMBAO VS The Republic DENNIS MBARAKA NGUMBAO VS The Republic

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL APPEAL NO. E017 OF 2024

DENNIS MBARAK NGUMBAO ………..…………….………………….…...…APPELLANT

VERSUS

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

(An Appeal arising out of the conviction and sentence of Hon. O. O. Koranje RM delivered on 22.3.23 in Mariakani Criminal Case No. E055 of 2021)

JUDGMENT

The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act (SOA). The particulars of the offence are that on 26.7.21, at Mkwajuni village, Maraikani location, Kaloleni subcounty, within Kilifi County, the Appellant caused his penis to penetrate the vagina and/or anus of C. D. (the Complainant) a child aged 7 years. The Appellant also faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of this offence are that on the same day and in the same place, the Appellant intentionally committed an indecent act by touching the vagina and/or anus of the Complainant. Following a full trial, the Appellant was convicted of the charges and sentenced to 15 years imprisonment.

Being aggrieved with both the conviction and sentence the Appellant filed the appeal herein. His amended grounds of appeal are that the learned Magistrate erred in law and facts by:
failing to appreciate that the Appellant was under the age of 18 years at the time of trial.
shifting the burden of proof to the Appellant.
failing to appreciate the sharp contradictions, inconsistencies and non-corroboration in the prosecution evidence.
convicting the Appellant on unreliable exhibits.
failing to appreciate that the matter was poorly and inadequately investigated.
As a first appellate Court, I have subjected the evidence adduced before the trial magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
The facts of the case according to the prosecution are that the Complainant was 7 years old while the Appellant was 16 years old when the incident took place. The Appellant and the Complainant are cousins and neighbours in Mkwajuni village.
The Complainant told the Court that she is 8 years old and a standard 3 pupil at Mariakani Primary School. On the material day at around 2pm while playing with her friend Sharlotte near their tank, the Appellant pulled her into his house. He and removed her clothes and put his penis into her vagina and anus. He also put his fingers in her vagina. She went home and told her mother Rehema Katana, PW2, who took her to Mariakani Hospital, where she was examined and treated. Thereafter, they went to Mariakani Police Station where the matter was reported.
PW2 stated that the Complainant was born on 15.11.13. She confirmed that on the material date at around 2pm, the Complainant was playing outside the house while she was in the house resting as she was not feeling well. At around 3pm the Complainant got into the house crying. She asked her inquiring a number of times why she was crying, the Complainant told her that the Appellant had pulled her into his house and put his penis into her anus and inserted his fingers in her vagina. She took her to hospital and it was discovered that her vagina had been broken and her anus had blood. A P3 form was issued. The Appellant was then arrested.
In her testimony, PW3, PC Maureen Umazi, the investigating officer stated that the Complainant told her how the Appellant took her hand by and forced her into his house. He removed her clothes and inserted his penis into her anus. After doing this he let her go. She then told her mother what had happened. PW3 stated that she took the child to hospital and the doctor confirmed that she had been defiled. A P3 form was filled. She then arrested the Appellant. She took him for age assessment and he was confirmed to be 16 years old.
Medical evidence was adduced by PW4, Chigulu Mwangolo a Senior Clinician at Malindi Subcounty Hospital. He examined the Complainant on 27.7.21 when she was taken to the hospital. He found that she had normal external genitalia, loose vaginal sphincter and no hymen. She also had a bruise on her anal oryphix and loose anal sphincter muscles indicating she had been sexually abused severally. He confirmed that there was both anal and vaginal penetration. He produced the P3 and Post Rape Care forms which he had filled as well as the treatment notes.
After considering the prosecution case, the trial court found that the Appellant had a case to answer and placed him on his defence.
In his sworn statement, the Appellant stated that on 26.7.21, he and his 2 brothers left home at 7.30 am to take the goats to feed and returned home at 4 pm. Upon his return, his father told him that he was accused of defiling the Complainant. He stated that between his house and their grandmother’s house is a tank where the children play and that if anything happens, it is possible for people to hear. He further said that the relationship between his family and that of the Complainant is not good as their mothers do not get along. He stated that he was arrested while herding goats with his brothers. He denied having committed the offence with which he was charged.
The Appellant’s mother Mishi Kaleche Matano, DW2 testified that her the relationship with her inlaws is not good because when she married her husband, she had 3 children from another relationship. She stated that the Appellant has been accused because the Complainant’s family does not want them there and that the Appellant had previously been falsely accused of stealing Kshs. 5,000/=. She vouched for the Appellant saying that she knew he did not defile the Complainant.
Both the Appellant and Respondent filed their submissions. It is noted that the Respondent’s submissions are on the previous grounds of appeal and not on the amended grounds of appeal.
On the ground that the trial Magistrate failed to consider that he was under the age of 18 years, the Appellant submitted that it was unjust for the trial court top proceed with his prosecution while he was supposed to be tried in the Children’s court. This, he submitted resulted in violation of his rights and a miscarriage of justice. He urged the court to quash both the conviction and sentence for being tries in an inappropriate court.
It is common ground that the Appellants was a child as defined under section 2 of the Children Act which was operational when the offence was committed. Indeed, at the beginning of the trial, the prosecutor informed the trial court that age assessment was conducted and that the Appellant was found to be 16 years old. The trial Magistrate noted the same and directed that the appellant be remanded at the Likoni Children Remand Home in the event he was unable to raise bond.
Section 91(1) of the Children Act stipulates the jurisdiction of the Children’s court which includes the hearing of any charge against a child, other than a charge of murder. Subsection (2) provides that subject to any rules or directions made or issued by the Chief Justice, where under any other written law any matter involving a child is required to be heard by a Court other than a Children’s Court, that other Court shall, for the purposes of that matter, be deemed to be a Children’s Court, and shall be bound by the provisions of this Act.
Section 219(1) of the Act provides:

Subject to any rules or directions made or issued by the Chief Justice, where it appears to a court, other than a Children’s Court, at any stage of the proceedings that a child is charged before it with an offence other than murder and is not charged together with a person or persons of or above the age of eighteen years, the court may, and where within the area of a subordinate court’s jurisdiction there is established a Children’s Court having jurisdiction, the subordinate court shall remit the case to a Children’s Court;

Provided that nothing in this subsection shall be construed as preventing a court, if it considers in the circumstances, including the stage reached in the proceedings, that it is proper so to do, from proceeding with hearing and determination of the charge.

Under the foregoing provision, a court other than a children’s court may remit a matter to the children’s court where it appears to the court that a child is charged before it. The provision does not however apply to a charge of murder or where such child is charged together with adults. The provision is not couched in mandatory terms and is discretionary.
In light of the above provision, the trial court cannot be faulted for proceeding with the trial against the Appellant even after noting that he was a minor. I am also fortified by the holding in JMK1 & another v Republic (Criminal Appeal 552 of 2010) [2011] KECA 22 (KLR) (1 December 2011) (Judgment) where the Court of Appeal stated:

So that, in our view, even where a case is erroneously commenced before a trial court and it transpires at some stage that it was indeed before the wrong court, there is a discretion on the trial court to proceed with the trial. That construction is strengthened by the provisions of section 185 of the Children Act which donates the power to remit cases to Children's Courts.

Further, Section 219(5) provides:

Where, pursuant to the provisions of section 182, a court other than a Children’s court hears a charge against a child, the court shall apply all the provisions of this Act as relate to the safeguards to be accorded a child offender.

The Appellant has not suggested that the trial court did not apply the safeguards to be accorded to a child offender. Indeed, the record shows that the trial court no doubt with this in mind, ensured that a pro bono advocate was appointed to represent the Appellant in the trial.
The Appellant has not demonstrated that he suffered any prejudice for not being tried in a children’s court. Accordingly, the Court finds no impropriety in the trial magistrate proceeding with the trial and determining the case. This ground therefore fails.
Section 8(1) of the SOA provides that a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. Penetration is defined in Section 2 as the partial or complete insertion of the genital organs of a person into the genital organs of another person. The same section provides that "genital organs" includes the whole or part of male or female genital organs and for purposes of this Act includes the anus.
It is now well settled that the key ingredients of the offence of defilement are as set out in the case of George Opondo Olunga v Republic [2016] eKLR. These are proof of the age of the complainant, proof of penetration and proof that the accused was the perpetrator of the offence.
In order to establish that a person is guilty of the offence of defilement, sufficient evidence must be laid before the Court by the prosecution to prove each of the ingredients, to secure a conviction. The burden of proving the offence which lies with the prosecution, must be discharged. Section 107 of the Evidence Act provides as follows on the burden of proof:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
Section 109 goes on to provide:

The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

The Appellant contends that there were discrepancies in the prosecution evidence. He pointed out that the Complainant stated that she was born on 12.11.13 while the birth certificate indicated that she was born on 15.11.13.
The Court has considered the arguments of the Appellant on the apparent discrepancies in the evidence of the age of the Complainant. However, while the same are acknowledged, the Court finds that the difference in the dates given, whether 12.11.13 or 15.11.13, is so insignificant that it cannot render the prosecution evidence unreliable or negate the fact that the Complainant was 7 years old at the time she was defiled.
In this regard, I am guided by the decision in Willis Ochieng Odero vs. Republic [2006] eKLR, where the Court of Appeal held:

As for the contradictions in the prosecution evidence it may be true that such contradictions, particularly with regard to the date indicated on the P3 form as the date of the offence, is different. But that per se is not a ground for quashing the conviction in view of the provisions of section 382 of the Criminal Procedure Code.

From the evidence, I do find that the ingredient of age, namely that the child was below the age of 11 years, was thus established.
The Appellant further challenged the medical evidence. He submitted that the treatment notes dated of 27.7.21 indicated a bloodied anal orifice with loose anal sphincter muscles whereby the labia was intact with no hymen yet the P3 form of even date indicated that no part of the body had injuries. He added that the Complainant had stated in her testimony that the Appellant penetrated both her vagina and anus. He argued that there can be no blood stains without injuries. He thus submitted that from the exhibits presented by the prosecution, proof of penetration was doubtful given that there was no consistency in what was stated and what was written.
The Court has looked at the record. The treatment notes and P3 form indicate a bruised anal orifice and a loose vaginal sphincter muscle. The P3 form also indicates that there were no injuries to the head and neck, thorax and abdomen, upper and lower limbs. PW4 testified that upon examining the Complainant, he found that she had normal external genitalia, loose vaginal sphincter and no hymen. She also had a bruise on her anal oryphix and loose anal sphincter muscles indicating she had been sexually abused severally. He confirmed that there was both anal and vaginal penetration. In light of the above analysis, the Court finds that no contradiction in the medical evidence is detected.
In the judgment, the trial Magistrate found, and rightly so, that penetration was proved as the Complainant’s evidence was corroborated by that of PW4, the treatment notes as well as the PRC and P3 forms.
On identification, it is not in dispute that the Appellant is known to the Complainant. This is a case of recognition. It is trite that recognition is more reliable than identification of a stranger. In the case of Peter Musau Mwanzia v Republic [2008] eKLR, the Court of Appeal had this to say about recognition:

We do agree that for evidence of recognition to be relied upon, the witness claiming to recognise a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for sometime, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident.

The offence is said to have been committed by the Appellant in broad daylight. This Court finds that the Appellant was a person very well known to the Complainant as he was not only a cousin but a neighbor of the Complainant. The evidence of the Complainant, PW2 and indeed the Appellant himself established that he was not a stranger to the Complainant. There was thus no possibility of mistaken identity. The Court therefore finds that the element of identification was proved by the prosecution to the required standard.

After carefully reviewing the evidence, I make a finding that the trial Magistrate arrived at the correct decision and cannot be faulted for returning a verdict of guilty. I too find that the evidence against the Appellant was overwhelming and that the ingredients of the offence of defilement were proved to the required standard.
Section 8(2) of the Sexual Offence Act provides that a person who commits the offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to imprisonment for life. The trial Magistrate sentenced the Appellant to a lenient 15 years imprisonment. I find no reason to interfere with the said sentence.
In the end, and for the stated reasons, the Court finds that the Appeal herein is devoid of merit. Accordingly, both the conviction and sentence are upheld and the Appeal is hereby dismissed.

DATED SIGNED and DELIVERED in MALINDI this 8^th day of November 2024

_____________________

M. THANDE

JUDGE