The appellant was charged in Garissa Criminal Sexual Offence Case. No. 031 of 2021 with the offence of Defilement contrary to section 8(1) as read with (4) of the Sexual Offences Act No. 3 of 2006.
The appellant faced an alternative charge of Committing an Indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The appellant was tried convicted and sentenced to serve 35 years imprisonment by the trial court for the charge of defilement on a date that is unclear from the sentencing notes of the trial court.
The appellant appealed to this court on the following grounds;
The Learned Resident Magistrate erred in law and in fact in failing to find and rule that the evidence adduced by the prosecution was insufficient to sustain the conviction and sentence of the Appellant and relying on the same evidence to convict the Appellants herein against the weight of the evidence adduced.
That the Learned Principal Magistrate erred in law and in fact in failing to consider or consider adequately numerous contradictions in the prosecution case whose contradictions created grave doubts in the instant case the benefit whereof ought to have applied to the benefit of the Appellant.
The Learned Resident Magistrate erred in law in failing to analyse, contextualize and appreciate the evidence adduced by the Appellant. The Judgment fails to address the issues holistically and comes out as haphazard.
The learned Resident magistrate erred in Law and in fact in convicting and sentencing the Appellant while the crucial and elements of the offence of Defilement was not proved by the prosecution.
The Trial Court failed to analyze and interrogate the evidence that clearly indicated that the evidence was not watertight and inconsistent with the laid down required standard of proof.
The Learned Resident Magistrate erred in Law by convicting the Appellant on the basis of the evidence that was not corroborated and adduced during the hearing and trial in terms of the following;
a) There was no eye witness to corroborate the evidence of the
Victim.
b) The person who was examined by PW3 was MOHAMED ABDI, this a completely different person and cannot in any way be inferred to
be MOHAMED ABDI BAHSHIR and no evidence have been adduced by the prosecution for the Court to draw such inference. The Court
cannot convict basing assumptions of names;
c) There was no blood flowing that you could see. But there was blood
in touch on torn places.
d) There were history of washing before I examined and defecation
before examination.
e) There were no spermatozoa seen in the next morning, rectal
swab no spermatozoa seen.
f) There was a lot of contradictions in the evidence adduced by the
prosecution.
The Learned Resident Magistrate erred in Law by convicting the Appellant on the basis of the evidence that was not adduced during the hearing and trial and its veracity be tested during the trial.
The Learned Resident Magistrate erred in law and fact in convicting the Appellant on uncorroborated evidence as against the laid down law on evidence. The trial Court only relied on the evidence of the single Witness-PW1 which was full of contradictions and concocted evidence.
That the Learned Resident Magistrate erred in law and in fact in failing to have regard to the defence tendered by the appellant in its totality. He failed to consider the Defence adduced by the Appellant and his witnesses
The Learned Resident Magistrate erred in Law by passing the sentence and convicting the Appellants on the basis of the evidence that was not adduced during the hearing and trial especially on the evidence that the Appellant used the knife.
That the Learned Resident Magistrate erred in law and in fact in failing to consider the Appellant's Submissions.
That the Learned Principal Magistrate erred in law and in fact by his casual treatment of evidence of serious infractions of the Appellants Fundamental Human Rights. That the judgment of the court is gravely irregular and evidently not a judgment of the Trial Magistrate.
That the Learned Resident Magistrate erred in law and infact in failing to have regard to the defence and evidence tendered by the appellant and his witnesses.
That the Learned Resident Magistrate deliberately failed to have full regard to the evidence and on numerous Occasions either misconstrued and misapplied the evidence in order to justify the wrongful decision.
That the Learned Resident Magistrate erred in the discharge of his Responsibilities and failed to accord the Appellant a fair trial and in the course of his Proceedings demonstrated unjustifiable bias and want of partiality which was a breach of his Judicial Function. The Proceedings does not reflect the evidence as adduced at the trial by witnesses especially the evidence of the Victim, the Medical Doctor and the investigating Officer.
That the Learned Resident Magistrate erred in law and in fact in passing the sentence contrary the provisions of the Law and hence converting the sentence onto life Sentence.
The Learned Resident Magistrate erred in law and fact in convicting the Appellant based on the Medical notes and P3 Form showing that the person who was examined was to totally different with the Victim.
That the Learned Resident Magistrate erred in Law and in fact in failing to appreciate that the prosecution did not prove its case beyond reasonable doubt.
That Learned Resident Magistrate erred in law and fact in shifting the burden of proof to the accused persons and failed to give the accused person the accruing benefit of doubt in the case.
That the Learned Resident Magistrate erred in law and fact in his treatment and consideration of the circumstantial evidence and failed to apply the proper treatment of Circumstantial evidence in convicting the Appellant.
The learned Resident magistrate erred in Law and in fact by failing to appreciate that the circumstantial evidence available did not Materially point to the guilt of the Appellant to the exclusion of any other possibility.
That Learned Resident Magistrate erred in law and in fact in convicting the appellant for the offence charged when there was no evidence in support for the same. The Decision of the Court is not supported by the evidence on Record.
That the Learned Resident Magistrate erred in law and in fact in failing to have regard to the fact that the evidence on record clearly exonerated the Appellant herein. He deliberately shut his eyes on the evidence on defence which was exonerating and discredited the prosecution evidence.
That the Learned Resident Magistrate erred in failing to have regard to the fact that the evidence did not disclose any offence that the Appellant herein penetrated the anus of the Victim and hence the offence was not established.
That the Learned Resident Magistrate erred in law and fact in failing to consider the mitigating factors and considered the evidence that was never tendered at the trial.
That the sentence of 35 years is hash and is manifestly excessive in the circumstances and the same is not supported by the evidence on record.
The prosecution in support of its case called six (6) witnesses who testified in support of the charges and the defense called a total of 5 witnesses in answer to the charge.
The appellant has challenged both the conviction and sentence and he has maintained that the case against him was a frame up arising from family disputes and his action against the complainant whom he had sent away from school on account of indiscipline.
The offence of defilement has three key ingredients that the prosecution must prove against the accused person beyond a reasonable doubt and the failure to establish any one of the three would be fatal to the prosecutions case. The three ingredients are ;- the age of the victim, the identity of the perpetrator of the offence and penetration of the victim by the accused person . See John Mutua Munyoki Vs. Republic [2017] eKLR. The three ingredients must be proved by the prosecution beyond any reasonable doubt and the accused person can only be convicted in the strength of the prosecution’s cases and not the weakness of the defense. See Woolmington vs DPP [1935] AC 462 .
The duty of this court as a first appellate court is to re-evaluate the evidence tendered before the lower court and draw independent conclusions from the same remembering that unlike the trial court this court has not had the opportunity to hear and see the witnesses. See Okeno vs Republic [1972] E.A 32 at 36 . The appeal basically takes the form of a rehearing. The role of the first appellate is therefore not to simply confirm the lower court’s findings but should independently examine the evidence and reach its own decision on the matter.
PW1 Mohamed Abdi Bashir was the victim in the matter and at the time of giving evidence he was a form two student at Asalaam Secondary School. He was said to be 18 years of age at the time he testified.
The witness stated that he was a former student at Mwangaza High School where he was enrolled in January 2020 as a form one student.
He went on to state that he came to know of Mwangaza High School through his father who claimed to have a teacher friend in the school.
The witness testified that the accused Hussein Hassan Ali was the Director of Mwangaza High School.
PW1 went on to state he was a day scholar at Mwangaza High School and used to go to school from Monday to Friday and on Saturday he would leave earlier at 3p.m to attend Madrassa at Najah Madrassa in the compound of Jamia Mosque which was far away from his home.
According to PW1, on Wednesday 27 th October ,2021 accompanied by his friend Abdishakur Noor Shaleh they left school as usual at 3.00pm for Madrassa and as they were going to the gate, they found a white new model probox registration number KCY 314Q that was used by the accused parked near the gate in the school compound.
At the time the accused was in his car with a cleaner by the name Brother Baraza as he was famously name known in the school. The witnesses testified that the accused stopped them and asked them where they were going to. They told him they were going for Madrassa. The accused told them to get into the car and told the cleaner to get out and as they drove out, he saw a matatu which was going to Abdishakur’s place and he told Abdishakur to get out of the car so they were left with him in the car.
PW1 went on to state that on their way, the accused mentioned to him that he should persevere that he will give him an A in KCSE examinations for 2023. He went on to testify that they reached home at around 3:45 p.m, the victim alighted and went for Madrassa and finished the Madrassa session at 6p.m where went home to change his clothes and prepare for Maghrib prayers.
PW1 further stated that he went to Abubakar Mosque which shared a fence with his home and on his way back alone to home at around 7p.m he saw the Directors car KCY 31Q packed in front of their house.
According to the witness the director flashed the flashlights and waved at PW1 calling him. The victim stated that he knew the director came to see his father since they were friends but the director told him he had come to see him. He told him wanted to show him the boarding school section of the school and the victim agreed.
PW1, testified that the director kept on repeating the same words he had told him earlier that he should persevere and he will give him an A in the KCSE exams.
According to Pw1 as they were about 70 meters to reach the school gate, the accused diverted the vehicle to the side and drove along the wall of the school compound and stopped at a black gate which had a red and blue paint. The accused went to open the gate and came back and told PW1 to follow him and upon asking why he should get out the accused immediately removed a knife and pointed at the victim through the car window and forced him to get out of the car.
PW1 went further to state that the accused directed him from behind holding a knife to the compound where there was a Manyatta house and two concrete buildings. He was directed to the Manyatta house where he saw a traditional Somali mat laid on the ground.
He went on to state:-
He told me to take off my sweat pant. That day I had a long sleeve shirt and sweat pant and a underwear. He ordered me to take off the sweat pant and underwear. I remember he was wearing a white Kanzu. So, I removed my sweat pant and underwear and he told me to lay on the mat (chest down). So I complied with what he told me. He still had
a knife. Then I saw him lift his Kanzu and he laid on me. He removed
his penis and inserted it in my anus. He made an up and down motion
while his penis was in my anus for about six (6) minutes and I felt a
liquid in my anus which were his sperms/semen. I felt a lot of pain at that time I could not do anything the knife was on my neck and when
he was done he told me to dress up. I dressed up got out of the Manyatta. He unlocked the gate got out of the compound and he locked the compound and we got into his car. He started driving me
back home and about 90 meters from our house he stopped me and
asked me for my phone. I lied and told him I don't have it but he saw it glowing from my pocket and he snatched me, I tried to get it back
but he pointed at me with his knife so I panicked, got scared and got
out of the car. He drove off with my phone. I ran home and I cried” (emphasis mine).
The evidence of PW1 to that point painted a picture of a man who committed the act of defilement whilst wielding a knife and thereafter offered his victim a lift in his car and drove towards the victim’s home after the act. The testimony of Pw1 was not corroborated by any other person thus it was the evidence of a single witness.
The victim’s narration of events raises more questions than answers.
Firstly, the alleged conduct of the appellant would be incompatible with that of a person who had just violently defiled the victim. The witness stated ‘’ He unlocked the gate got out of the compound and he locked the compound and we got into his car. He started driving me
back home and about 90 meters from our house he stopped me and
asked me for my phone. I lied and told him I don't have it but he saw it glowing from my pocket and he snatched me, I tried to get it back but he pointed at me with his knife so I panicked, got scared and got
out of the car. He drove off with my phone. I ran home and I cried”. The victim apparently if he were to be believed got an opportunity after the alleged act of defilement but he quietly boarded the appellants car and only started crying running home after his phone was taken from him by the appellant.
The relevance of the phone becomes even more critical when the court weighs that piece of evidence against the defense of the appellant. The appellant maintained that he sent the victim home over the possession of the phone in school against the rules.
The appellant’s defense was corroborated by his witnesses. The fact of there having been a dispute over the phone is a matter that the court shall revert to later in the course of the judgment as a basis of the motive for the initiation of the criminal complaint.
Secondly, the question that arises is, if indeed the victim Pw1 was defiled and he got an opportunity to dress up as the appellant went about opening and closing the gate, why then did he not run away screaming at that point?
The question is not idle for it goes to the core issue of believability and credibility of the witness. The witness said that the ordeal was painful thus any reasonable person would have taken the immediate action of fleeing the scene at the earliest opportunity.
Pw1 stated that after the incident he boarded the vehicle of the appellant who drove towards their home and he jumped out of the vehicle and ran home after his phone was taken away from him. This court finds the evidence to be very suspect on the issue of defilement and to rely on the same solely to convict the appellant, the learned trial court ought to have proceeded with caution.
The witness was not in this courts view candid on why his phone was taken and why he never escaped from the appellant if at all the defilement had been committed as alleged yet he had the opportunity to do so.
It is not fathomable how a victim of such act would stand and wait for his assailant to open and close the gate and happily ride with him until the point he says his phone was snatched yet he had claimed that the ordeal was painful.
PW1 stated that the incident happened when he was 17 years old and produced a copy of the birth certificate serial number 472744 as PMFI 2. He went on to state that he was a student at Mwangaza High School admission number 678 with which he had his school identity card and produced it as P. Exhibit 3. A 17year old is a person about 1 year shy to adulthood and one would have expected him to behave otherwise in the circumstances if at all he was defiled by the appellant.
Under Section 124 of the Evidence Act, in order for a court to convict on the evidence of the victim alone the court must be satisfied that the victim was telling the truth and it must record reasons for that belief. Pw1 having visited the hospital the same night, if at all the defilement had happened, as alleged by him, and that he had felt some liquid deposited in his anus by the appellant, the evidence of spermatozoa would have been collected the same night.
The complainant according to the appellant claimed in his testimony when the appellant defiled him, he deposited his sperms in his anus. However, Pw3 who gave medical evidence to the effect that a rectal swab was taken of the complainant no spermatozoa was seen or indicated. The evidence of Pw 3 should have created doubt in the mind of the trial court.
The collection of that evidence would have provided a direct link of the appellant to the scene of crime and established the issue of penetration beyond any reasonable doubt.
It is important to note that circumstantial evidence and the medical evidence would be what ordinarily be corroborative evidence in a sexual offence.
The medical intern who was said to have seen the victim the night in question would have given very crucial evidence that would have assisted the court in determining whether indeed there was defilement. The failure to call the witness weakened the prosecution’s case.
See Wanjiru Vs Republic (Criminal Appeal No. 1 of 2019) [2024] KEHC1460 (KLR) where the learned Honorable Judge Held that since the medical evidence had exonerated the appellant, it meant that the medical evidence did not corroborate the complainant’s evidence. In such a scenario the trial court was obliged to treat the complainant’s evidence with caution and record reasons for believing the complainant in line with Section 124 of the Evidence Act.
The failure to call the medical intern who first saw the victim Pw1 can only lead this court to draw one inference that had the intern testified his evidence would have been adverse to the prosecution’s case. See AHM vs Republic (Criminal Appeal E043) of 2021) [2022]KEHC 12773 (KLR) (31 st August 2022 ) where Mativo, J (as he then was) held that the adverse inference will only be made by the court if the evidence by the prosecution is not or is barely adequate .
In the instant case the evidence by the prosecution was insufficient to establish penetration thus the exclusion of the doctor who first saw the complainant was a fatal omission on the part of the prosecution. The benefit of the adverse inference would certainly go to the appellant.
It is important for this court to state that the trial court must in its explanation state as well why it disbelieved the defense of the appellant where medical evidence does not connect the appellant to the offence. The evidence of the Doctor in this case did not implicate the appellant thus there was need for the court to precisely state why the alibi by the appellant was rejected.
The other important issue that the appellant raised in his submissions was the failure by the trial court to address the defense of alibi tenderd by the appellant and corroborated by his witnesses.
In the case of Victor Mwendwa Mulinge v Republic (2014) eKLR, the Court rendered itself thus:-it is trite law that the burden of proving the falsely, if at all, of an accused’s defence of alibi lies on the prosecution.”
In the South African case of S. v Malejo en Andere 1998 (1) SACR 127 (W) 158 c -e , the Court set out five principles with respect to the assessment of alibi in evidence:
-(a)There is no burden of proof on the accused to prove his alibi .
(b)If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt.
(c)An alibi "moet aan die hand van die totaliteit van getuienis en die hof se indrukke van die getuies beoordeel word."
(d)If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable ("betroubaar").
(e)The ultimate test is whether the prosecution has furnished proof beyond a reasonable doubt — and for this purpose a court may take into account the fact that the accused had raised a false alibi .
In the instant case the alibi was not weighed against the prosecution evidence by the trial magistrate thus the court never gave reasons for disbelieving it.
In another persuasive South African case of R v Biya 1952 (4) SA 514 (A) at 521C - D Greenberg JA said:
“If there is evidence of an accused person's presence at a place and at a time which makes it impossible for him to have committed the crime charged, then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime.”
The appellant in the instant case was said to have been in a meeting in the office thus other that the word of the victim Pw1 that he was at the scene, there was no other evidence to dislodge his alibi defense. The absence of any forensic evidence connecting him to the scene made the prosecution’s case even weaker.
In Erick Otieno Meda v Republic Criminal Appeal No 55 of 2015 , the Court of Appeal said that; the comparative decisions cited above are persuasive and espouse good law which the court adopted and came up with the following principles when considering an alibi :-“(a)An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view.
(b)An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.
(c)The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court.
(d)The accused does not need to prove the alibi , but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail. (See Mhlungu v S (AR 300/13) [2014] ZAKZPHC 27 (16 May 2014) ”
In line with this decision ,the credibility of the appellant and his witnesses on the veracity of their evidence in support of the alibi was not disputed or in anyway punctured by the prosecution.
The trial courts duty as well as this court was/is to weigh the defense of alibi against the prosecution case. In Ganzi & 2 others v Republic [2005] 1 KLR 52, this Court stated that where the defence of alibi is raised for the first time in the appellant’s defence and not when he pleaded to the charge, the correct approach is for the trial court to weigh the defence of alibi against the prosecution evidence...” . The trial court did not do so.
The defense of alibi tendered by the appellant in the lower court was not considered by the trial court. The same was not displaced by the prosecution who had the liberty to call rebuttal evidence if at all they considered the same to have come too late in the day. It was not open to the trial court to simply disregard the defense.
The witness Pw1 stated that all that happened at around 7:30p.m and that he informed his mother who called his father and brother.
According to him his mother examined his anus before his father and brother arrived and after 5 minutes his father who was at the Mosque arrived and they went to Garissa General Hospital where they found the counter was busy, they decided to go to Medina Hospital.
At Medina Hospital he stated that they were advised to go back to Garissa General Hospital where they were examined by the doctor after one hour at 9p.m. The name of the doctor who examined him first was not disclosed to the court.
The difference in time between the alleged commission of the offence and the 1 st examination was barely two hours and in this court’s view that time if at all there was deposit of spermatozoa in the anus of the victim, the evidence would have been found by the doctor who first saw PW1.
It is important also for this court to mention that PW1 went further to state that as they were waiting for the results, they went to report the matter at Garissa Police Station.
The fact of immediate report to the police is absolutely important since the police would have immediately proceeded to arrest the appellant if at all he had been mentioned as the offender by the witness Pw1 and escort him to hospital for extraction of DNA sample that would be utilized in the case. The issue of the report having been made that night is important since there was an allegation of the threat to the victim by use of a knife, one wonders why it took the police two days to arrest the appellant.
The arrest of the appellant was not effected that night and no explanation was offered by all the police witnesses why that did not happen if at all it is true that the report was made the same night even before the medical exam results for the complainant could be out.
The victim stated that he was accompanied by his brother and police officer the following day to go fill the P3 form and pick results from the previous night’s examination.
The witness produced the filled P3 form marked as PMFI-1(a) and Treatment Notes as PMFI 1(b).
According to Pw1 it was not until the 29 th October 2021 when the victim was accompanied by two police after recording his statement at Garissa Police Station to Mwangaza High School where they found the Director who was arrested and taken to custody. This was two days after the incident.
The delay in arresting the appellant becomes an important consideration when one considers the allegation of bad blood between the appellant and the victim’s family.
The victim was sent away from school and could possibly have formed the motive to fix the appellant. The issue of the phone having been recovered from the witness PW1 was corroborated by the defense witnesses called by the appellant.
The learned trial court does not appear to have given much thought to this aspect of the defense otherwise it would have arrived at a different finding on the issue of proof beyond a reasonable doubt.
The fact of the victim having been found in his possession of a phone contrary to the school regulations goes to the core of the of the credibility of the complainant. His character was already in question thus everything the victim said ought to have been received with great circumspection.
PW1 went further to state that the offence was not committed at school because the Manyatta house is not in the school compound. He further states that the accused inserted his penis in his anus and there was blood visible in his underwear.
The soiled underwear was not mentioned at all by the police witnesses and if at all it was there, the exclusion of the same from the prosecution evidence further weakened the prosecution’s case.
The appeal record also shows that the P3 form was filled on 28-10-2021 not 27-10-2021 and according to the victim, his father took him to TSC Garissa County to lodge a complaint and that the complaint was lodged by his father. He stated that he did not know how his father got the accused person’s TSC’s number.
The complainant’s revelation of a parallel report to the TSC confirmed that indeed there was concerted effort by Pw1’s father to have the appellant not only prosecuted but also disciplined by his employer TSC.
The move by the father cannot be ignored considering that the appellant was not medically proved to have penetrated the victim.
In this court’s view the move to involve the TSC must have been actuated by a realization on the part of the victim’s father that his case with the police was unlikely to go far. The action of reporting the matter to the TSC after a report had been made to the police smacks of malice on the part of the complainant’s father who was clearly bent on getting back at the appellant for sending his son away from school.
On 22-10-2021 the victim claims to have sneaked with a friend called Hussein from school on a boda boda and the appellant found out and gave them 5 strokes of cane after he had taken them back to school in his car. The victim PW1 stated that he was not aware of any letter summoning his parents dated 27-10-2021 ( marked as DMFI -1 .
The complainant appears from his own testimony to have had a tumultuous time in school due to indiscipline thus he had every reason to frame up the appellant.
At the Manyatta during the incident the complainant stated that he did not make noise since the accused had put a knife on his neck. The conduct of the witness after
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The appellant faced an alternative charge of Committing an Indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The appellant was tried convicted and sentenced to serve 35 years imprisonment by the trial court for the charge of defilement on a date that is unclear from the sentencing notes of the trial court.
The appellant appealed to this court on the following grounds;
The Learned Resident Magistrate erred in law and in fact in failing to find and rule that the evidence adduced by the prosecution was insufficient to sustain the conviction and sentence of the Appellant and relying on the same evidence to convict the Appellants herein against the weight of the evidence adduced.
That the Learned Principal Magistrate erred in law and in fact in failing to consider or consider adequately numerous contradictions in the prosecution case whose contradictions created grave doubts in the instant case the benefit whereof ought to have applied to the benefit of the Appellant.
The Learned Resident Magistrate erred in law in failing to analyse, contextualize and appreciate the evidence adduced by the Appellant. The Judgment fails to address the issues holistically and comes out as haphazard.
The learned Resident magistrate erred in Law and in fact in convicting and sentencing the Appellant while the crucial and elements of the offence of Defilement was not proved by the prosecution.
The Trial Court failed to analyze and interrogate the evidence that clearly indicated that the evidence was not watertight and inconsistent with the laid down required standard of proof.
The Learned Resident Magistrate erred in Law by convicting the Appellant on the basis of the evidence that was not corroborated and adduced during the hearing and trial in terms of the following;
a) There was no eye witness to corroborate the evidence of the
Victim.
b) The person who was examined by PW3 was MOHAMED ABDI, this a completely different person and cannot in any way be inferred to
be MOHAMED ABDI BAHSHIR and no evidence have been adduced by the prosecution for the Court to draw such inference. The Court
cannot convict basing assumptions of names;
c) There was no blood flowing that you could see. But there was blood
in touch on torn places.
d) There were history of washing before I examined and defecation
before examination.
e) There were no spermatozoa seen in the next morning, rectal
swab no spermatozoa seen.
f) There was a lot of contradictions in the evidence adduced by the
prosecution.
The Learned Resident Magistrate erred in Law by convicting the Appellant on the basis of the evidence that was not adduced during the hearing and trial and its veracity be tested during the trial.
The Learned Resident Magistrate erred in law and fact in convicting the Appellant on uncorroborated evidence as against the laid down law on evidence. The trial Court only relied on the evidence of the single Witness-PW1 which was full of contradictions and concocted evidence.
That the Learned Resident Magistrate erred in law and in fact in failing to have regard to the defence tendered by the appellant in its totality. He failed to consider the Defence adduced by the Appellant and his witnesses
The Learned Resident Magistrate erred in Law by passing the sentence and convicting the Appellants on the basis of the evidence that was not adduced during the hearing and trial especially on the evidence that the Appellant used the knife.
That the Learned Resident Magistrate erred in law and in fact in failing to consider the Appellant's Submissions.
That the Learned Principal Magistrate erred in law and in fact by his casual treatment of evidence of serious infractions of the Appellants Fundamental Human Rights. That the judgment of the court is gravely irregular and evidently not a judgment of the Trial Magistrate.
That the Learned Resident Magistrate erred in law and infact in failing to have regard to the defence and evidence tendered by the appellant and his witnesses.
That the Learned Resident Magistrate deliberately failed to have full regard to the evidence and on numerous Occasions either misconstrued and misapplied the evidence in order to justify the wrongful decision.
That the Learned Resident Magistrate erred in the discharge of his Responsibilities and failed to accord the Appellant a fair trial and in the course of his Proceedings demonstrated unjustifiable bias and want of partiality which was a breach of his Judicial Function. The Proceedings does not reflect the evidence as adduced at the trial by witnesses especially the evidence of the Victim, the Medical Doctor and the investigating Officer.
That the Learned Resident Magistrate erred in law and in fact in passing the sentence contrary the provisions of the Law and hence converting the sentence onto life Sentence.
The Learned Resident Magistrate erred in law and fact in convicting the Appellant based on the Medical notes and P3 Form showing that the person who was examined was to totally different with the Victim.
That the Learned Resident Magistrate erred in Law and in fact in failing to appreciate that the prosecution did not prove its case beyond reasonable doubt.
That Learned Resident Magistrate erred in law and fact in shifting the burden of proof to the accused persons and failed to give the accused person the accruing benefit of doubt in the case.
That the Learned Resident Magistrate erred in law and fact in his treatment and consideration of the circumstantial evidence and failed to apply the proper treatment of Circumstantial evidence in convicting the Appellant.
The learned Resident magistrate erred in Law and in fact by failing to appreciate that the circumstantial evidence available did not Materially point to the guilt of the Appellant to the exclusion of any other possibility.
That Learned Resident Magistrate erred in law and in fact in convicting the appellant for the offence charged when there was no evidence in support for the same. The Decision of the Court is not supported by the evidence on Record.
That the Learned Resident Magistrate erred in law and in fact in failing to have regard to the fact that the evidence on record clearly exonerated the Appellant herein. He deliberately shut his eyes on the evidence on defence which was exonerating and discredited the prosecution evidence.
That the Learned Resident Magistrate erred in failing to have regard to the fact that the evidence did not disclose any offence that the Appellant herein penetrated the anus of the Victim and hence the offence was not established.
That the Learned Resident Magistrate erred in law and fact in failing to consider the mitigating factors and considered the evidence that was never tendered at the trial.
That the sentence of 35 years is hash and is manifestly excessive in the circumstances and the same is not supported by the evidence on record.
The prosecution in support of its case called six (6) witnesses who testified in support of the charges and the defense called a total of 5 witnesses in answer to the charge.
The appellant has challenged both the conviction and sentence and he has maintained that the case against him was a frame up arising from family disputes and his action against the complainant whom he had sent away from school on account of indiscipline.
The offence of defilement has three key ingredients that the prosecution must prove against the accused person beyond a reasonable doubt and the failure to establish any one of the three would be fatal to the prosecutions case. The three ingredients are ;- the age of the victim, the identity of the perpetrator of the offence and penetration of the victim by the accused person . See John Mutua Munyoki Vs. Republic [2017] eKLR. The three ingredients must be proved by the prosecution beyond any reasonable doubt and the accused person can only be convicted in the strength of the prosecution’s cases and not the weakness of the defense. See Woolmington vs DPP [1935] AC 462 .
The duty of this court as a first appellate court is to re-evaluate the evidence tendered before the lower court and draw independent conclusions from the same remembering that unlike the trial court this court has not had the opportunity to hear and see the witnesses. See Okeno vs Republic [1972] E.A 32 at 36 . The appeal basically takes the form of a rehearing. The role of the first appellate is therefore not to simply confirm the lower court’s findings but should independently examine the evidence and reach its own decision on the matter.
PW1 Mohamed Abdi Bashir was the victim in the matter and at the time of giving evidence he was a form two student at Asalaam Secondary School. He was said to be 18 years of age at the time he testified.
The witness stated that he was a former student at Mwangaza High School where he was enrolled in January 2020 as a form one student.
He went on to state that he came to know of Mwangaza High School through his father who claimed to have a teacher friend in the school.
The witness testified that the accused Hussein Hassan Ali was the Director of Mwangaza High School.
PW1 went on to state he was a day scholar at Mwangaza High School and used to go to school from Monday to Friday and on Saturday he would leave earlier at 3p.m to attend Madrassa at Najah Madrassa in the compound of Jamia Mosque which was far away from his home.
According to PW1, on Wednesday 27 th October ,2021 accompanied by his friend Abdishakur Noor Shaleh they left school as usual at 3.00pm for Madrassa and as they were going to the gate, they found a white new model probox registration number KCY 314Q that was used by the accused parked near the gate in the school compound.
At the time the accused was in his car with a cleaner by the name Brother Baraza as he was famously name known in the school. The witnesses testified that the accused stopped them and asked them where they were going to. They told him they were going for Madrassa. The accused told them to get into the car and told the cleaner to get out and as they drove out, he saw a matatu which was going to Abdishakur’s place and he told Abdishakur to get out of the car so they were left with him in the car.
PW1 went on to state that on their way, the accused mentioned to him that he should persevere that he will give him an A in KCSE examinations for 2023. He went on to testify that they reached home at around 3:45 p.m, the victim alighted and went for Madrassa and finished the Madrassa session at 6p.m where went home to change his clothes and prepare for Maghrib prayers.
PW1 further stated that he went to Abubakar Mosque which shared a fence with his home and on his way back alone to home at around 7p.m he saw the Directors car KCY 31Q packed in front of their house.
According to the witness the director flashed the flashlights and waved at PW1 calling him. The victim stated that he knew the director came to see his father since they were friends but the director told him he had come to see him. He told him wanted to show him the boarding school section of the school and the victim agreed.
PW1, testified that the director kept on repeating the same words he had told him earlier that he should persevere and he will give him an A in the KCSE exams.
According to Pw1 as they were about 70 meters to reach the school gate, the accused diverted the vehicle to the side and drove along the wall of the school compound and stopped at a black gate which had a red and blue paint. The accused went to open the gate and came back and told PW1 to follow him and upon asking why he should get out the accused immediately removed a knife and pointed at the victim through the car window and forced him to get out of the car.
PW1 went further to state that the accused directed him from behind holding a knife to the compound where there was a Manyatta house and two concrete buildings. He was directed to the Manyatta house where he saw a traditional Somali mat laid on the ground.
He went on to state:-
He told me to take off my sweat pant. That day I had a long sleeve shirt and sweat pant and a underwear. He ordered me to take off the sweat pant and underwear. I remember he was wearing a white Kanzu. So, I removed my sweat pant and underwear and he told me to lay on the mat (chest down). So I complied with what he told me. He still had
a knife. Then I saw him lift his Kanzu and he laid on me. He removed
his penis and inserted it in my anus. He made an up and down motion
while his penis was in my anus for about six (6) minutes and I felt a
liquid in my anus which were his sperms/semen. I felt a lot of pain at that time I could not do anything the knife was on my neck and when
he was done he told me to dress up. I dressed up got out of the Manyatta. He unlocked the gate got out of the compound and he locked the compound and we got into his car. He started driving me
back home and about 90 meters from our house he stopped me and
asked me for my phone. I lied and told him I don't have it but he saw it glowing from my pocket and he snatched me, I tried to get it back
but he pointed at me with his knife so I panicked, got scared and got
out of the car. He drove off with my phone. I ran home and I cried” (emphasis mine).
The evidence of PW1 to that point painted a picture of a man who committed the act of defilement whilst wielding a knife and thereafter offered his victim a lift in his car and drove towards the victim’s home after the act. The testimony of Pw1 was not corroborated by any other person thus it was the evidence of a single witness.
The victim’s narration of events raises more questions than answers.
Firstly, the alleged conduct of the appellant would be incompatible with that of a person who had just violently defiled the victim. The witness stated ‘’ He unlocked the gate got out of the compound and he locked the compound and we got into his car. He started driving me
back home and about 90 meters from our house he stopped me and
asked me for my phone. I lied and told him I don't have it but he saw it glowing from my pocket and he snatched me, I tried to get it back but he pointed at me with his knife so I panicked, got scared and got
out of the car. He drove off with my phone. I ran home and I cried”. The victim apparently if he were to be believed got an opportunity after the alleged act of defilement but he quietly boarded the appellants car and only started crying running home after his phone was taken from him by the appellant.
The relevance of the phone becomes even more critical when the court weighs that piece of evidence against the defense of the appellant. The appellant maintained that he sent the victim home over the possession of the phone in school against the rules.
The appellant’s defense was corroborated by his witnesses. The fact of there having been a dispute over the phone is a matter that the court shall revert to later in the course of the judgment as a basis of the motive for the initiation of the criminal complaint.
Secondly, the question that arises is, if indeed the victim Pw1 was defiled and he got an opportunity to dress up as the appellant went about opening and closing the gate, why then did he not run away screaming at that point?
The question is not idle for it goes to the core issue of believability and credibility of the witness. The witness said that the ordeal was painful thus any reasonable person would have taken the immediate action of fleeing the scene at the earliest opportunity.
Pw1 stated that after the incident he boarded the vehicle of the appellant who drove towards their home and he jumped out of the vehicle and ran home after his phone was taken away from him. This court finds the evidence to be very suspect on the issue of defilement and to rely on the same solely to convict the appellant, the learned trial court ought to have proceeded with caution.
The witness was not in this courts view candid on why his phone was taken and why he never escaped from the appellant if at all the defilement had been committed as alleged yet he had the opportunity to do so.
It is not fathomable how a victim of such act would stand and wait for his assailant to open and close the gate and happily ride with him until the point he says his phone was snatched yet he had claimed that the ordeal was painful.
PW1 stated that the incident happened when he was 17 years old and produced a copy of the birth certificate serial number 472744 as PMFI 2. He went on to state that he was a student at Mwangaza High School admission number 678 with which he had his school identity card and produced it as P. Exhibit 3. A 17year old is a person about 1 year shy to adulthood and one would have expected him to behave otherwise in the circumstances if at all he was defiled by the appellant.
Under Section 124 of the Evidence Act, in order for a court to convict on the evidence of the victim alone the court must be satisfied that the victim was telling the truth and it must record reasons for that belief. Pw1 having visited the hospital the same night, if at all the defilement had happened, as alleged by him, and that he had felt some liquid deposited in his anus by the appellant, the evidence of spermatozoa would have been collected the same night.
The complainant according to the appellant claimed in his testimony when the appellant defiled him, he deposited his sperms in his anus. However, Pw3 who gave medical evidence to the effect that a rectal swab was taken of the complainant no spermatozoa was seen or indicated. The evidence of Pw 3 should have created doubt in the mind of the trial court.
The collection of that evidence would have provided a direct link of the appellant to the scene of crime and established the issue of penetration beyond any reasonable doubt.
It is important to note that circumstantial evidence and the medical evidence would be what ordinarily be corroborative evidence in a sexual offence.
The medical intern who was said to have seen the victim the night in question would have given very crucial evidence that would have assisted the court in determining whether indeed there was defilement. The failure to call the witness weakened the prosecution’s case.
See Wanjiru Vs Republic (Criminal Appeal No. 1 of 2019) [2024] KEHC1460 (KLR) where the learned Honorable Judge Held that since the medical evidence had exonerated the appellant, it meant that the medical evidence did not corroborate the complainant’s evidence. In such a scenario the trial court was obliged to treat the complainant’s evidence with caution and record reasons for believing the complainant in line with Section 124 of the Evidence Act.
The failure to call the medical intern who first saw the victim Pw1 can only lead this court to draw one inference that had the intern testified his evidence would have been adverse to the prosecution’s case. See AHM vs Republic (Criminal Appeal E043) of 2021) [2022]KEHC 12773 (KLR) (31 st August 2022 ) where Mativo, J (as he then was) held that the adverse inference will only be made by the court if the evidence by the prosecution is not or is barely adequate .
In the instant case the evidence by the prosecution was insufficient to establish penetration thus the exclusion of the doctor who first saw the complainant was a fatal omission on the part of the prosecution. The benefit of the adverse inference would certainly go to the appellant.
It is important for this court to state that the trial court must in its explanation state as well why it disbelieved the defense of the appellant where medical evidence does not connect the appellant to the offence. The evidence of the Doctor in this case did not implicate the appellant thus there was need for the court to precisely state why the alibi by the appellant was rejected.
The other important issue that the appellant raised in his submissions was the failure by the trial court to address the defense of alibi tenderd by the appellant and corroborated by his witnesses.
In the case of Victor Mwendwa Mulinge v Republic (2014) eKLR, the Court rendered itself thus:-it is trite law that the burden of proving the falsely, if at all, of an accused’s defence of alibi lies on the prosecution.”
In the South African case of S. v Malejo en Andere 1998 (1) SACR 127 (W) 158 c -e , the Court set out five principles with respect to the assessment of alibi in evidence:
-(a)There is no burden of proof on the accused to prove his alibi .
(b)If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt.
(c)An alibi "moet aan die hand van die totaliteit van getuienis en die hof se indrukke van die getuies beoordeel word."
(d)If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable ("betroubaar").
(e)The ultimate test is whether the prosecution has furnished proof beyond a reasonable doubt — and for this purpose a court may take into account the fact that the accused had raised a false alibi .
In the instant case the alibi was not weighed against the prosecution evidence by the trial magistrate thus the court never gave reasons for disbelieving it.
In another persuasive South African case of R v Biya 1952 (4) SA 514 (A) at 521C - D Greenberg JA said:
“If there is evidence of an accused person's presence at a place and at a time which makes it impossible for him to have committed the crime charged, then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime.”
The appellant in the instant case was said to have been in a meeting in the office thus other that the word of the victim Pw1 that he was at the scene, there was no other evidence to dislodge his alibi defense. The absence of any forensic evidence connecting him to the scene made the prosecution’s case even weaker.
In Erick Otieno Meda v Republic Criminal Appeal No 55 of 2015 , the Court of Appeal said that; the comparative decisions cited above are persuasive and espouse good law which the court adopted and came up with the following principles when considering an alibi :-“(a)An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view.
(b)An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.
(c)The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court.
(d)The accused does not need to prove the alibi , but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail. (See Mhlungu v S (AR 300/13) [2014] ZAKZPHC 27 (16 May 2014) ”
In line with this decision ,the credibility of the appellant and his witnesses on the veracity of their evidence in support of the alibi was not disputed or in anyway punctured by the prosecution.
The trial courts duty as well as this court was/is to weigh the defense of alibi against the prosecution case. In Ganzi & 2 others v Republic [2005] 1 KLR 52, this Court stated that where the defence of alibi is raised for the first time in the appellant’s defence and not when he pleaded to the charge, the correct approach is for the trial court to weigh the defence of alibi against the prosecution evidence...” . The trial court did not do so.
The defense of alibi tendered by the appellant in the lower court was not considered by the trial court. The same was not displaced by the prosecution who had the liberty to call rebuttal evidence if at all they considered the same to have come too late in the day. It was not open to the trial court to simply disregard the defense.
The witness Pw1 stated that all that happened at around 7:30p.m and that he informed his mother who called his father and brother.
According to him his mother examined his anus before his father and brother arrived and after 5 minutes his father who was at the Mosque arrived and they went to Garissa General Hospital where they found the counter was busy, they decided to go to Medina Hospital.
At Medina Hospital he stated that they were advised to go back to Garissa General Hospital where they were examined by the doctor after one hour at 9p.m. The name of the doctor who examined him first was not disclosed to the court.
The difference in time between the alleged commission of the offence and the 1 st examination was barely two hours and in this court’s view that time if at all there was deposit of spermatozoa in the anus of the victim, the evidence would have been found by the doctor who first saw PW1.
It is important also for this court to mention that PW1 went further to state that as they were waiting for the results, they went to report the matter at Garissa Police Station.
The fact of immediate report to the police is absolutely important since the police would have immediately proceeded to arrest the appellant if at all he had been mentioned as the offender by the witness Pw1 and escort him to hospital for extraction of DNA sample that would be utilized in the case. The issue of the report having been made that night is important since there was an allegation of the threat to the victim by use of a knife, one wonders why it took the police two days to arrest the appellant.
The arrest of the appellant was not effected that night and no explanation was offered by all the police witnesses why that did not happen if at all it is true that the report was made the same night even before the medical exam results for the complainant could be out.
The victim stated that he was accompanied by his brother and police officer the following day to go fill the P3 form and pick results from the previous night’s examination.
The witness produced the filled P3 form marked as PMFI-1(a) and Treatment Notes as PMFI 1(b).
According to Pw1 it was not until the 29 th October 2021 when the victim was accompanied by two police after recording his statement at Garissa Police Station to Mwangaza High School where they found the Director who was arrested and taken to custody. This was two days after the incident.
The delay in arresting the appellant becomes an important consideration when one considers the allegation of bad blood between the appellant and the victim’s family.
The victim was sent away from school and could possibly have formed the motive to fix the appellant. The issue of the phone having been recovered from the witness PW1 was corroborated by the defense witnesses called by the appellant.
The learned trial court does not appear to have given much thought to this aspect of the defense otherwise it would have arrived at a different finding on the issue of proof beyond a reasonable doubt.
The fact of the victim having been found in his possession of a phone contrary to the school regulations goes to the core of the of the credibility of the complainant. His character was already in question thus everything the victim said ought to have been received with great circumspection.
PW1 went further to state that the offence was not committed at school because the Manyatta house is not in the school compound. He further states that the accused inserted his penis in his anus and there was blood visible in his underwear.
The soiled underwear was not mentioned at all by the police witnesses and if at all it was there, the exclusion of the same from the prosecution evidence further weakened the prosecution’s case.
The appeal record also shows that the P3 form was filled on 28-10-2021 not 27-10-2021 and according to the victim, his father took him to TSC Garissa County to lodge a complaint and that the complaint was lodged by his father. He stated that he did not know how his father got the accused person’s TSC’s number.
The complainant’s revelation of a parallel report to the TSC confirmed that indeed there was concerted effort by Pw1’s father to have the appellant not only prosecuted but also disciplined by his employer TSC.
The move by the father cannot be ignored considering that the appellant was not medically proved to have penetrated the victim.
In this court’s view the move to involve the TSC must have been actuated by a realization on the part of the victim’s father that his case with the police was unlikely to go far. The action of reporting the matter to the TSC after a report had been made to the police smacks of malice on the part of the complainant’s father who was clearly bent on getting back at the appellant for sending his son away from school.
On 22-10-2021 the victim claims to have sneaked with a friend called Hussein from school on a boda boda and the appellant found out and gave them 5 strokes of cane after he had taken them back to school in his car. The victim PW1 stated that he was not aware of any letter summoning his parents dated 27-10-2021 ( marked as DMFI -1 .
The complainant appears from his own testimony to have had a tumultuous time in school due to indiscipline thus he had every reason to frame up the appellant.
At the Manyatta during the incident the complainant stated that he did not make noise since the accused had put a knife on his neck. The conduct of the witness after
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