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JudgmentEZEKIEL MWASARU VS The Republic10 min read

EZEKIEL MWASARU VS The Republic

High Court at Voi High Court · · Asenath Ongeri

REPUBLIC OF tKENYA

IN THE HIGH COURT OF KENYA

AT VOI

CRIMINAL APPEAL NO. E008 OF 2024

EZEKIEL MWASARU...…..............................................................APPELLANT

=VERSUS=

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

(Being an appeal from the judgment and sentence by Hon. C. K. Kithinji (PM) in Voi Sexual Offence Case No. E027 of 2022 delivered on 20th February 2024)

JUDGMENT

  1. The Appellant was convicted with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006 and he was sentenced to fifteen (15) years imprisonment.
  2. The particulars of the charge were that on 28th September 2022 between 1530 hours and 17hours at Birikani area in Voi Sub County within Taita Taveta County, the Appellant intentionally and unlawfully caused his male genital organ (penis) to penetrate into the female genital organ (vagina) of P.W.L a girl aged 16 years.
  3. The prosecution evidence in summary was that PW1 Zipporah Nzilani the grandmother of the complainant went to church at 3p.m on the material day and left the complainant at home.
  4. PW1 said while at church she got a call from her neighbours Wayua that the complainant had been defiled by Mwasaru.
  5. PW1 went home and found Mwasaru had been tied.  She did not know Mwasaru.  She said he had passed her home to ask for work.
  6. PW1 talked to the complainant in sign language since the complainant is deaf and dumb.
  7. PW2 who is an uncle to the complainant said the Appellant went to his home and asked PW1 for a casual job and PW1 told him there was none.  PW2 said the Appellant climbed a tamarind tree and started harvesting tamarind.  The mother of PW2 went to church.
  8. PW2 said he was later called by the grandfather and told someone was making noises in the house.
  9. PW2 went and opened the house and he saw the Appellant on the complainant’s bed.  He arrested the Appellant and tied him up with ropes.
  10. The complainant told the court in sign language that the Appellant went to her home and found her going to fetch water.
  11. He took her to the house and made her to lie down facing downwards on her bed and he had sex with her.  He removed his black trouser and used his penis to penetrate her anus.  He did it twice.  He used a condom.  She said he also put his fingers into her anus.
  12. She screamed and her Uncle went there and threw the man out.  She said she did not know the man before.
  13. The doctor who examined the complainant at Moi Hospital said he examined the complainant on 28th September 2022 at 3:30p.m.
  14. He said she was deaf and dumb.  He said her hymen was broken but not fresh.  She had no bruises or cuts or discharge and there was evidence of habitual sex.
  15. The Appellant said was employed by Bi Hamisi to harvest tamarind from  a tree.  When he took the tamarind to the house there was a dumb daughter who insisted that he takes the tamarind into the house.  She refused to let him go out and started making noise.
  16. The Appellant said he was accused of intending to rape the complainant.  He denied raping her.
  17. The trial court found the Appellant guilty as charged and sentenced him to fifteen (15) years imprisonment.
  18. The Appellant has appealed to this court on the following grounds:-
    1. That the charge sheet as drawn was fatally defective as the offence revealed by the evidence on record was not what is drawn on the charge sheet.
    2. That the learned trial Magistrate erred in law and fact by failing to appreciate that penetration of the Appellant’s genitals into the genitals of PW4 was not proved beyond reasonable doubt.
    3. That the learned trial Magistrate erred in law and fact by failing to appreciate the medical reports adduced contradicted the evidence of PW4 the complainant, and thus could not provide the much needed.
    4. That the sentence imposed was both harsh and excessive since it failed to consider the Appellant’s mitigation and the facts and circumstances unique to the case.
  19. The parties filed submissions as follows:- The appellant submitted that he was convicted of defilement under Section 8(1) as read with Section 8(4) of the Sexual Offences Act and sentenced to fifteen years imprisonment.
  20. Dissatisfied with the decision, he appealled on four key grounds. First, the charge sheet was defective as the evidence adduced during trial did not align with the particulars of the offence. That the complainant testified that the appellant inserted his finger into her anus, which constitutes an indecent act rather than defilement.
  21. That the medical evidence further revealed no injuries to the anus and an old broken hymen, contradicting the charge. This discrepancy prejudiced the appellant, rendering the charge sheet fatally defective under Section 214 of the Criminal Procedure Code.
  22. Second, that the prosecution failed to prove penetration, a critical element of defilement. The complainant’s account only mentioned anal insertion of a finger, which does not meet the legal definition of penetration under the Sexual Offences Act.
  23. That medical evidence confirmed no anal injuries and an old hymen rupture, which alone cannot prove defilement, as established in precedents like Michael Odhiambo v Republic and P.K.W v Republic. The lack of sensory details in the complainant’s testimony further weakened the prosecution’s case, as highlighted in Julius Kioko Kivuva v Republic.
  24. Third, there were material contradictions between the complainant’s testimony and the medical evidence. While the complainant alleged anal penetration, the medical report showed no anal injuries but noted an old hymen rupture, suggesting vaginal activity.
  25. That this inconsistency, as underscored in Philip Nzaka Watu v Republic, creates reasonable doubt about the appellant’s guilt. That the prosecution’s case thus lacked the cogency and credibility required for a conviction beyond reasonable doubt.
  26. Finally, that the sentence imposed was harsh and excessive. Further that the trial court applied a mandatory minimum sentence without considering the appellant’s status as a first offender or the time he spent in remand custody, contrary to Section 333(2) of the Criminal Procedure Code.
  27. That recent jurisprudence, such as Edwin Wachira & Others v Republic and Maingi & Others v DPP, has declared mandatory sentences unconstitutional for depriving courts of discretion. That the appellant’s mitigation, including his dependents and pursuit of education, was overlooked.
  28. Further, that the failure to deduct the one year and six months spent in remand further violated his rights under Article 50 of the Constitution.
  29. In light of these grounds, the appellant prays for the appeal to succeed, his conviction quashed, sentence set aside, and his immediate release.
  30. The appellant’s submissions emphasize that the prosecution’s case was riddled with defects, inconsistencies, and unproven elements, warranting the appellant’s acquittal or, at the very least, a sentence review to align with constitutional principles and sentencing guidelines.
  31. The prosecution submitted that for the offence of defilement one must prove that the complainant is a child, that there was penetration and the person charged was positively identified as the perpetrator of the offence. On the age of the complainant the prosecution argued that her aged was proved sufficiently as her birth certificate was produced and proved that the she was 16 years old at the time of the commission of the offense.
  32. The prosecution further submitted that penetration was proven as complainant testified that when she went to the house to fetch water the accused person pushed her inside the house and locked the door. He then removed her trouser which he used to tie her hands behind her back and inserted penis into her anus while using a condom. It was also her testimony that it was her uncle who found them, helped her and called the police.
  33. That this evidence was corroborated by PW2 Shaban Hamisi, the complainant’s uncle who testified that he heard the complainant screaming and that his grandfather locked the subject house form the outside when it was cleat that the accused was in the house with the complainant. PW1 Zipporah Nzilani testified that when she got home she found the accused tied in her compound.
  34. The prosecution further submitted that the P3 firm. PRC form treatment notes and lab results were produced as proof of the complainant had been defiled. The accused further testified that he was in the compound on the subjected date and that he was found in the house with the minor but it was his contention that it is the complainant who forced him into the house.
  35. The prosecution submitted that with the above they proved its case beyond reasonable doubt and the accused was correctly convicted.
  36. The first appellate court acts as the last court of facts and must ensure a proper re-evaluation of the evidence while correcting any errors in the trial court’s judgment. The first appellate court must re-examine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law. It cannot simply rely on the trial court’s findings but must apply its own mind.
  37. The Court of Appeal in Okeno vs Republic [1972] EA 32 held that:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958] EA 424.”

  1. The issues for determination in this appeal are as follows;
  2. Whether the charge sheet was fatally defective for failing to align with the evidence adduced during trial.
  3. Whether the prosecution proved penetration, a key element of defilement, beyond reasonable doubt.
  4. Whether there were material contradictions between the complainant’s testimony and the medical evidence that created reasonable doubt.
  5. Whether the sentence imposed was harsh and excessive in light of the Appellant’s mitigation and the circumstances of the case.
  6. The Appellant contended that the charge sheet was defective because the evidence presented in court did not match the particulars of the offence.
  7. That the charge sheet alleged vaginal penetration, whereas the complainant testified that the Appellant inserted his penis into her anus and also used his fingers. This discrepancy raises a critical issue, as anal penetration constitutes a different offence under the Sexual Offences Act .
  8. In the case of Yongo v R {1983} KLR 319, the court held that a charge is defective under Section 214 of the Criminal Procedure Code where;

“ It does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses or it does not, for such reasons, accord with the evidence given at the trial or it gives a misdescription of the alleged offence in its particulars.”

  1. Under Section 214 of the Criminal Procedure Code, a charge may be amended at any stage of the trial if the variance does not prejudice the accused. I find that in the current case there was no attempt to amend the charge to align it with the evidence.
  2. In the case of Erick Onyango Ondeng’ v. Republic [2014] eKLR, the court distinguished between vaginal penetration (defilement) and anal penetration (sodomy undersection 162 of the Penal Code).
  3. In the case of JWK v. Republic [2017] eKLR, the High Court ruled that defilement requires penetration of genitalia, while anal penetration falls under sodomy or an indecent act.
  4. Penetration, however slight, is a key element in defilement cases. The complainant testified that the Appellant penetrated her anus with his penis and fingers. However, the medical report indicated no fresh injuries to the anus and noted that the hymen was broken but not recently. This creates doubt as to whether penetration occurred as alleged.
  5. The lack of fresh injuries does not necessarily negate penetration, as medical evidence is not always conclusive. However, the complainant’s testimony must be credible and consistent. Given that she is deaf and dumb, her communication through sign language required careful interpretation. The trial court found her testimony believable, and appellate courts generally defer to the trial court’s assessment of witness credibility. Nevertheless, the absence of corroborative medical evidence weakens the prosecution’s case further.
  6. The complainant’s account of anal penetration was not supported by medical findings, which showed no injuries in that area. The broken hymen suggested prior sexual activity but did not confirm penetration on the material day
  7. In the case of Philip Nzaka Watu v Republic, the court emphasized that contradictions between medical evidence and witness testimony can create reasonable doubt.
  8. Here, the inconsistency raises questions about whether the prosecution proved its case beyond reasonable doubt. While the complainant’s testimony was compelling, the lack of medical corroboration for the alleged anal penetration introduces doubt as to whether the offence occurred as described.
  9. The Appellant was sentenced to 15 years under Section 8(4) of the Sexual Offences Act, which prescribes a minimum of 15 years for defilement of a child aged 16–18.
  10. While the charge sheet defect was not fatal, the inconsistencies between the complainant’s testimony and the medical evidence create reasonable doubt as to whether penetration was proved. The prosecution’s case thus falls short of the standard required for a conviction beyond reasonable doubt.
  11. I find that the conviction herein is not secure. The appellant has been in custody for many years and a retrial would be prejudicial to him.
  12. For these reasons, the appeal succeeds. The conviction is quashed, and the sentence is set aside.
  13. The Appellant shall be released forthwith unless otherwise lawfully held.

Dated, signed and delivered this 2nd Day of May 2025 virtually via MT at Voi High Court.

ASENATH ONGERI

JUDGE

In the presence of:-

Court Assistants: Maina/Millicent

    EZEKIEL MWASARU VS The Republic EZEKIEL MWASARU VS The Republic