FRANCIS NZAMALU VS The Republic FRANCIS NZAMALU VS The Republic

The defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 3^rd June 2022 at around 1800 hrs at Elewani Village, Kima Kiu Location in Mukaa Sub-County, the he intentionally caused his penis to penetrate the vagina of C.M.M, a child aged 14 years.
In the alternative, he was charged with committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on the same day, time and place, he intentionally touched the vagina of CMM, a child aged 14 years with his penis.
The appellant pleaded not guilty, he went through a full trial, was found guilty, and convicted for the defilement and sentenced 20 years’ imprisonment on 28/11/2022.
Aggrieved by that decision, the he filed his appeal on the grounds
That the learned trial magistrate erred in both law and fact by convicting him despite inconsistent, insufficient and contradictory evidence.
That the trial court erred in both law and fact by failing to conduct holistic scrutiny of the whole evidence on record to base its conviction and sentence.
That the learned trial magistrate erred in both law and fact by deflecting his defense.
The prosecution’s case was that on 03/06/2022, the complainant went to do homework at her friend’s house and on her way back at around 6.00pm, the appellant grabbed her, warned her not to scream, took her to his house and defiled her. She managed to flee the next day and returned to her grandmother’s house where she hid under the bed. When her grandmother found her, she narrated her ordeal and was taken to the hospital by her aunt. The appellant was subsequently arrested and prosecuted.
The prosecution called 5 witnesses to wit; the complainant (PW1), the complainant’s aunt (PW2), the complainant’s grandmother (PW3), the Investigating Officer (PW4) and the Clinical Officer (PW5). The exhibits produced were; P3 Form (P.Ex 1), PRC Form (P.Ex 2) and immunization card (P.Ex 3).
The appellant was put on his defence and gave a sworn evidence. He called one witness. He testified as DW1 and his evidence was that on 15/06/2022, he woke up at 7.00am and accompanied his neighbor to work. They worked up to 10am when Muoka Matheka arrived and told him that someone was calling him at the road. He got to the road and police officers from Salama arrested him without giving him a reason. He maintained that he was innocent.
On cross examination, he said that he did not sleep in his house on 03/06/2022 as he was at Ulu area for work which he had been given by his brother. He denied knowing the complainant and said he had not met her before. He didn’t know the complainant’s motive for framing him. PW2 was known to him but they had never disagreed. He said that PW3 was known to him and had framed him for the incident as she had threatened to do some unspecified thing to him.
DW2 was the appellant’s nephew, Dominic Mutuku. He said that the appellant had been framed because of a dispute between his family and that of the complainant. That the appellant was a church going person and the sole bread winner.
On cross examination, he said that he was not aware of a relationship between the appellant and complainant. He agreed that he was not living with the appellant in the same house and that he was not with him the whole day on 03/06/2022. He agreed that he didn’t know everything that the appellant did on that day. He reiterated that there is a land dispute between the two families.
The appeal was canvassed by way of written submissions.
The appellant submitted that the complainant lied by telling her grandmother that she had gone to borrow a book and then testified that she had gone to do homework at her friend’s house. He contended that her evidence is not to be trusted. He relied on Ndung’u Kimani –vs- R (1979) KLR 282 where the court stated that;

“The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he/she is not a straight forward person or raise a suspicion about his/her trustworthiness or do or say something which indicates that he is a person of doubtful integrity and therefore an incredible witness which makes it unsafe to accept his evidence.”

He also relied on Thomas Patrick Gilbert Cholmondely –vs R; Criminal Appeal No. 1160 of 2007 where the court stated that; “The duty of a public prosecutor acting on behalf of the republic is not to ensure conviction at all cost but to be a minister of justice.”
He submitted that the trial magistrate convicted and sentenced him on uncorroborated evidence and relied on Bernard Kebiba –vs- R (2000) eKLR where the Court of Appeal stated;

“The law on corroboration in sexual offences is not in dispute anymore in our courts. There is requirement for corroboration in sexual offence.”

He submitted that where court decides to convict on uncorroborated evidence, it must warn itself of the danger of doing so.
He submitted that PW4 talked of mandazi that were offered to PW1 by the appellant yet PW1 did not testify on such a thing. That there was also the issue of bleeding but no blood stained clothes were established in the P3 form and the clinical officer did not establish any injuries in the complainant’s vagina but the hymen was partially broken. He contended that a broken hymen is not proof of defilement and relied on P. K.W –vs- R [2012] eKLR where the Court of Appeal held that;

“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. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen vs Manuel Vincent Quintanila [1999] AB QB 769.”

He submitted that the police had a duty to produce the complainant’s blood stained innerwear in order to thoroughly hammer their case against him. He cited Joseph Njaramba Karura –vs- R (1982-1988) K.A.R 1165 where the court stated that; “Where there is no identification in the court for a key exhibit, such exhibit remains unidentified and that destroys the judgment.”
He submitted that the omission of the word ‘unlawfully’ in the charge sheet made it hard for him to defend himself and was prejudicial. He contended that both the trial court and prosecution had ample time to amend the charge sheet but they ignored the opportunity. He relied on Rattiram –vs- State of M.P (2012) 4 S.C.C where the Supreme Court of India ruled that a fair and impartial trial has a sacrosanct purpose and a demonstrable object that the accused should not be prejudiced.
He submitted that the age of the complainant was not established. That the complainant testified that she was 13 years, the charge sheet indicates 14 years and trial magistrate concluded that she was 12 years and 10 months.
He submitted that there was a person by the name Daudi who said that the complainant was spotted in his house. He contended that Daudi should have been called as a witness to give light on what happened on 03/06/2022. He submitted that where a plea of not guilty is entered, everything is in issue and the prosecution has to prove the whole of their case.
With regard to the evidence of penetration, the appellant submitted that the clinical officer examined the complainant and did not establish any injuries on her body.
He submitted that some of the witnesses mentioned in the proceedings were not availed by the prosecution and relied on Wendo –vs- R (1953) 20 EA 166 where it was held that the prosecution must make available all witnesses necessary to establish the truth even if the evidence may be inconsistent. He submitted that the law also confers power upon the trial court to summon any witness or evidence that it deems essential for a fair, just and impartial decision to be arrived at as envisaged in sections 144 and 150 of the Criminal Procedure Code (CPC) and section 107 of the Evidence Act.
He submitted that the trial court greatly erred by shifting the burden of proof to him and that he had no obligation to prove his innocence by explaining what led to the perceived grudge between him and PW2. That he also had no obligation to bring witnesses to prove his innocence. He relied on Dorcas Jemutai Sang –vs- R (2018) eKLR where the Court of Appeal stated that;

“In the present case, we are satisfied that both the courts below appeared to or shifted the burden of proving innocence on the appellant. This we say in the light of the quotations we have reproduced above where the learned trial magistrate stated that the appellant; “did not call any witnesses to support her defence” and the learned judge marked that; “it was significant fact that the appellant did not call in any witness at the trial.”

He submitted that his evidence was clear that he was not at home on the material day and relied on Adedeji –vs- State (1971) A II N.L.R 75 where it was held that failure by the police officer to investigate the reliability of alibi would raise reasonable doubt in the mind of a tribunal and lead to the quashing of conviction. He contended that the court has a duty to test the evidence of alibi against the issue adduced by prosecution and in case of doubt; the same should be resolved in favor of the accused.
He submitted that to give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating doubts. A single circumstance creating reasonable doubts in a prudent mind about the guilt of the accused is sufficient. That the accused is entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.
The State, through Prosecution Counsel Victor Kazungu, identified the following as the issues for determination;
Whether there was penetration;
Whether the appellant was properly identified;
Whether there were notable inconsistencies in the testimonies of the witnesses;
Whether the ingredients of defilement have been established;
Whether the sentence meted out to the appellant is safe.
He submitted that penetration was proved by the evidence of PW1, 3 and 5. That in sexual offences cases, the law is that no corroboration is required as long as the complainant’s evidence is believable. He relied inter alia on Joseph Mwangi –vs- R [2015] eKLR where the court held that;

“... The medical evidence by PW1 merely corroborated the fact that PW2 was defiled, and even if it was to be excluded under section 50 of the Evidence Act…the proviso to section 124 of the Evidence Act provides that no corroboration is required in cases where the court believes that the complainant is telling the truth...”

With regard to identification, he submitted that the complainant knew his name and his residence hence no doubt that he is the perpetrator of defilement.
With regard to inconsistencies, he submitted that the testimonies of the witnesses considered together point to the fact that there was penetration of the complainant who is a minor and that the appellant is the perpetrator. He relied inter alia on Twehangane Alfred –vs- Uganda, Crim. App. No. 139 of 2001 (2003) UGCA where it was held that;

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

As to whether the ingredients of defilement were established, he submitted that the trial court directed itself properly in establishing that indeed there was penetration which was perpetrated by the appellant and that he was well known to the complainant.
As to whether the sentence is safe and legal, he submitted that the offence of defilement for a victim between the age of 12 and 15 years attracts a sentence of not less than 20 years’ imprisonment. That the court exercised its discretion by sentencing him to serve 20 years’ imprisonment. He relied inter alia on Benson Nkaramata Sakita –Vs-R (2018) eKLR where the court stated;

“The principles upon which appellate court will act in exercising of its jurisdiction to review sentences are firmly established…The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James v Republic 19 EACA 147, ‘ it is evident that the judge has acted upon some wrong principles or overlooked some material factor. To this, we would also add third criteria, namely that the sentence is manifestly excessive in view of the circumstances of the case”

In conclusion, he submitted that the appellant failed to establish that he deserved the reliefs sought.
this court first court of appeal has the duty to re assess the evidence from the subordinate court and to draw its own conclusions within the limitation of the fact that it never heard or saw the witnesses testify. (Okeno –vs- R (1972) EA 32).
I have carefully considered the grounds of appeal, the rival submissions and the entire record, the issues that arise for determination are:
Whether the charge sheet was defective;
Whether the case was proved beyond reasonable doubt.

Whether the charge sheet was defective

The appellant argued that the omission of the word ‘unlawfully’ in the charge sheet was prejudicial and made it difficult for him to defend himself.
Section 134 CPC provides as follows;

“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

The appellant was convicted for defilement as defined by s.8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. The act of penetration is also defined “penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

Evidently the definition of what is defilement does not require the term unlawful to be used because by itself defilement is unlawful. The use of that term would be superfluous. In addition, the charge as drawn contains particulars which informed the appellant that he was being accused of intentionally causing his penis to penetrate the vagina of a child aged 14 years. There was no irregularity in the charge sheet.

Whether the case was proved beyond reasonable doubt

The ingredients of the offence are; age of the complainant, proof of penetration and positive identification of the assailant.
With regard to age, the appellant argued that the same was not established. The complainant testified that she was 13 years and was born on 16/02/2009. Her grandmother (PW3) testified that the complainant is an orphan and that the complainant’s age is indicated in her Immunization card. The said card (P. Ex 3) indicates that the complainant was born on 01/08/2009. It is now trite that a birth certificate is not the only document that can prove a victim’s age in sexual offence cases. In Richard Wahome Chege –vs- Republic [2014] eKLR, the Court of Appeal held that;

“12. On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant, and the complainant herself.”

The state produced the Immunization card is the better evidence because human recollection can be fallible. In any case, we know our age not because we witnessed it but from information by third parties or reading about it in official documents or getting it assessed by experts. Taking the date of offence (03/06/2022) and computing the age from the date on the Immunization card (01/08/2009), the complainant was approximately 12 years and 10 months. The appellant was charged under section 8(3) of the Sexual Offences Act which covers victims aged between 12 and 15 years. The complainant’s age was sufficiently established.
As to whether the appellant was well identified, the appellant denied any knowledge of the complainant and said that he had never met her before.
The complainant testified that the appellant was known to her and that it was him who grabbed her and took her to his house where he defiled her. The complainant’s aunt (PW2) testified that the appellant comes from their area. She also testified that they looked for the complainant at W’s house where she had gone to do homework and when they did not find her there, they looked for her from the neighbors’ houses including that of the appellant.
The complainant’s grandmother (PW3) testified that she went to the appellant’s house at midnight to look for the complainant after being told that she had been spotted there. The common thread in the prosecution’s case is that the complainant and her grandmother were living in close proximity to the appellant and according to the complainant’s evidence; it was actually a walking distance. The appellant told the court that PW2 was known to him and that he had been framed by PW3. The evidence is clear that these people were known to each other and the denial by the appellant was just that, a mere denial.
As to whether there was penile penetration of the complainant by the appellant, the complainant testified that as she was leaving her friend’s house at 6pm, the appellant grabbed her by the hand and threatened to kill her if she screamed. He took her to his house and locked the door. He then took her to his bed where; “he removed my clothes and removed his trouser. He lay on top of me and had sex with me. He removed his thing that he uses to urinate and put it inside the thing that I use to urinate.”
While that evidence stands there do the circumstances of the offence raise any doubt as to what the complainant was saying? This is in view of the appellant’s statement of defence.
. The appellant argued that the complainant was not a credible witness because her testimony is that she told her grandmother that she was going for a book at her friend W’s house but the grandmother’s testimony is that PW1 told her that she was going to her friend’s house to do homework. On its own, this one does not appear to be a major contradiction as it can be taken to mean that PW1 needed to do homework at her friend’s house because she didn’t have the relevant book.
The appellant also highlighted the issue of mandazi which the IO (PW4) talked about but no mention about it by PW1. PW4’s evidence was that;

“The girl is called C and she told me that on 03/06/2022 she went to do homework at W her friend’s place. She was there until 6pm when W’s uncle Nzamalu the accused person came with mandazi’s. W escorted C and they parted ways. C hand was grabbed forcefully by the accused person and warned not to scream or he would harm her”

According to the above evidence, the appellant went to W’s house with mandazi and then W escorted the complainant. At this point it is not clear as to whether W left the appellant at their house and whether she found him there when she returned after escorting the complainant. On the other hand, the complainant testified that; “At 6pm W escorted me to her gate and as I walked home Nzamalu a person I know grabbed me by the hand and threatened to kill me if I screamed.” Indeed, the complainant did not mention mandazi anywhere in her testimony and did not mention that the appellant had found her at W’s house. Her evidence was that she was ambushed by the appellant as she was walking home.
The Survivor’s account in the PRC form (P.Ex 2) is as follows; ‘she reports her friend’s uncle offered to take her home after she visited to do some homework, while on the way she was forced by her friend’s uncle to go to his house where she was defiled and locked in the house for two nights.’
Further, the complainant’s evidence was that she was grabbed by the appellant on Saturday at around 6pm and stayed at his house that night but she managed to flee the next day when the appellant went to look for food and left the door unlocked. In answering a question from the court, she said; “I left the accused’s home the next day at 12noon thereabouts. I ran home but did not find anyone.” On the other hand, PW4 testified that;

“He took her to his house through the bushes and defiled her. Later on that night, the accused told her to take on a bath but she refused. He gave her food. The next day the accused went to bring her breakfast and then he left her alone for the whole day. He returned in the evening with supper but he forgot to close the door allowing C to escape.”

The evidence by PW4 implies that the complainant was at the accused’s house the whole day on Sunday yet she told the court that she fled at around noon. It is also curious as to how PW4 got know that the appellant returned with supper on Sunday evening yet the person who was feeding her with information had already fled at noon. The account by the I.O is materially different from what the complainant testified in Court yet the I.O was narrating what she had been told by the complainant.
I have also noted the evidence by PW2 and 3 with regard to the time they visited the appellant’s house in search of the complainant. The evidence shows that these two were searching for the complainant together yet in cross-examination, PW2 said; “We did not go to the accused’s house at midnight but at 8pm.” On the other hand, PW3 said; “I was at the accused person’s house at 12 midnight looking for PW1 because I was told that she was spotted there.” The thing about truth is that it does not change no matter how many times it is told. In my view, the contradictions are substantial and they affect the credibility of the complainant and that of PW2, 3 and 4. Witnesses who have witnessed something together should be in a position to give a consistent account. In Philip Nzaka Watu –vs- Republic [2016] eKLR the Court of Appeal had this to say:

“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.

With all the contradictions highlighted above, the appellant’s complaint that some important witnesses were left out cannot be idle. While section 143 of the Evidence Act gives discretion to the prosecution to determine the witnesses to call, failure to call some witnesses can create an impression in the mind of the court that their evidence would have been adverse to their case, the complainant’s friend was an important witness as she would have shed light on what happened after she escorted the complainant. This especially because the I.O describes the appellant to be W’s uncle. Did W see her uncle the appellant that evening at the same time as the complainant was leaving.?
W would also have clarified whether the appellant visited her home with mandazi, whether he left immediately after the complainant, whether he continued to stay after the complainant left and for how long etc. All these are pointers into the 4^th ingredients of the offence, whether the circumstances of the offence add up.
This important because it is envisaged by the Evidence Act s.33. which states

Evidence of surrounding circumstances and impact of sexual offence

Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced in criminal proceedings involving the alleged commission of a sexual offence where such offence is tried in order to prove-

(a) whether a sexual offence is likely to have been committed-

(i) towards or in connection with the person concerned;

(ii) under coercive circumstances referred to in section 43; and

(b) for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned.

Further, PW3 mentioned a person by the name Daudi who apparently told her that the complainant was in the appellant’s house. Daudi was actually a crucial witness as he was the one who allegedly saw the complainant and appellant together on the night of offence. In Bukenya –vs- Uganda (1972) EA, 349; it was held that;

“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.”

With regard to the medical evidence, the Clinical Officer, Eric Kasyamani (PW5) testified that he did not note any injuries on PW1’s body but her hymen was broken. PW1 testified that it was her first time to have sex and she bled up to the next day. Equally, PW3 testified that she saw PW1’s blood stained clothes. Interestingly however, the clothes were not availed for the benefit of court and the PRC form indicates that PW1 threw away her inner wear because it was very bloody. It is trite that a broken hymen is not proof of defilement and the appellant cited P. K.W –vs- R (supra) to that effect. There is also David Mwingirwa –vs- Republic [2017] eKLR where the Court of Appeal affirmed that position expressed in P. K.W –vs- R (supra).
The trial magistrate concluded that there was penetration because PW1’s hymen was broken. That may be so but was the penetration done by the appellant? He also indicated that he found the complainant’s evidence to be candid and credible and that he believed her as he had heard and seen her. It is clear that the trial magistrate did not notice any inconsistency in the prosecution case thus giving credence to the appellant’s complaint that a holistic scrutiny of the whole evidence on record was not conducted. The prosecution Counsel urged this court to ignore the inconsistencies as they are minor but as indicated in the analysis above that is not the case.
The appellant raised an alibi defence by stating that he did not sleep in his house on 03/06/2022 as he was at Ulu area for work which he had been given by his brother. The trial magistrate considered it and dismissed it for being raised late in the day and not being raised during cross examination of the prosecution witnesses. Be that as it may, it is desirable that an alibi defence should be brought up early enough so that the I.O can have adequate time to investigate it and it is trite that the burden of proving falsity, if at all, of an accused’s defence of alibi lies on the prosecution as was held by the Court of Appeal in Victor Mwendwa Mulinge –vs- Republic [2014] eKLR. The court pointed out

In addition, both the trial court as well as the first appellate court did not give any consideration to the appellant’s defence. The first appellate court stated that:

“The appellant was correct in submitting that the learned magistrate did not comment or express her opinion on the said alibi defence.”

But having made that observation, the learned judges fell into the same pit as the trial court because they neither analysed the appellant’s defence nor considered the law regarding the defence of alibi.

It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see KARANJA v REPUBLIC [1983] KLR 501.

The appellant was arrested on 16^th May, 2003 and taken to Shauri Moyo Police Station where his statement was recorded. That statement was not produced before the trial court. Had that been done, the court would have been able to consider whether what the appellant had stated at the earliest opportunity regarding his whereabouts on the material day was in line with his defence of alibi before the court. In KARANJA v REPUBLIC (Supra), this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.

In this case, we do not know whether the appellant in his statement to the police had stated that on the material day and time he was in a college class. This is an issue that ought to have been dealt with by the trial court but that court failed to discharge that duty.

But even assuming that the appellant raised the defence of alibi for the first time while in court, as rightly submitted by Mr. Oguk, pursuant to the provisions of Section 309 of the Criminal Procedure Code the prosecution could have sought leave to adduce further evidence in reply to rebut the appellant’s defence. The section states as follows:

“309. If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.”

The prosecution failed to do so.

Having considered the failure to call W and one Daudi who would have established the presence of the appellant within the areas where the offence was allegedly committed in light of the appellant’s defence, and in view of the foregoing authorizes, I find that the appeal has merit.
The appeal is allowed, the conviction is quashed and the sentence is set aside.
The appellant be set at liberty unless otherwise legally held.