JACKSON MVUDI MNYAMWEZI VS The Republic JACKSON MVUDI MNYAMWEZI VS The Republic

(Being an appeal from the conviction and sentence of Hon. D. Wangeci (PM) in Wundanyi Sexual Offence Case No. 801 of 2021 delivered on 25^th March 2024)

The Appellant was sentenced to 15 years imprisonment for the offence of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 which was on alternative charge.
The Appellant was acquitted on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.
The prosecution evidence in brief was that the complainant, a child born on 28^th January 2008 was sent by her mother to the home of one Joseph Kirigha who was their neighbor to collect vegetables on 12^th September 2021.
The complainant (S.M.M) who testified as PW1 met the Appellant at the home of Joseph Kirigha.
The complainant said the Appellant welcomed her into the sitting room of the house where he subjected her to an HIV test by pricking her twice on the right middle finger.
The Appellant then took her to the bedroom where he took off her clothes and defiled her.
The Appellant then called Joseph to bring the vegetables which the complainant took to her home.
The complainant explained to her mother (PW2) what had transpired. The matter was reported at Bura Police Post and the complainant was treated at Mrugha Dispensary.
PW5 Eunice Mandango Mwangima who was a nurse based at Mrugha Dispensary examined the complainant on 13^th January 2021.
PW5 said she did not note any discharge or injuries since the complainant had taken a bath and changed her clothes. The complainant was also examined by Doctor Mwema (PW7) who said that although the hymen of the complainant was not intact, he did not form the opinion that the complainant was engaging in regular sexual intercourse.
The Appellant denied the offence and said he arrived at their home on 13^th September 2021 and found Kirigha at home. The Appellant denied having ever met the complainant and said the complainant’s evidence was based on falsehoods.
The Appellant also said that his brother Mathias Mjomba (DW2) had an altercation with the Assistant Chief during Covid 19 over consumption of food at a funeral and that that was the reason he was charged.
DW2 Mathias Mjomba said he had an altercation with the area Assistant Chief and that the charges against the Appellant were based on that grudge.
The trial court found that the medical evidence did not prove defilement and she acquitted the Appellant on the main count of defilement but she convicted him of the offence of committing indecent act with a child and sentenced him to 15 years imprisonment.
The Appellant has appealed against both sentence and conviction on the following grounds:-
1. That the learned trial Magistrate erred in law and fact by failing to appreciate that the offence was not proved beyond reasonable doubt.
2. That the learned trial Magistrate erred in law and in fact in failing to evaluate the evidence tendered judiciously.
3. That the learned trial Magistrate erred in law and in fact in failing to appreciate that the evidence relied on was hearsay evidence.
4. That the learned trial Magistrate erred in law and in fact by failing to notice the contradictions in witness testimonies.
5. That the sentence imposed is harsh, excessive and unsafe in the entire circumstances.
6. That further grounds shall be adduced at the hearing of this appeal.
7. That the Appellant wishes to be present during the hearing and determination of this appeal.
8. That he prays be supplied with the record of trial proceedings and the judgment to enable him prepare adequately for the hearing of his appeal.
The parties filed written submissions as follows:-The appellant submitted that he was charged with defilement and an alternative count of indecent act.
He was acquitted on the main charge but convicted on the alternative. This, the appellant argues, violates their right to a fair trial under Article 50(2)(b) of the Constitution. The appellant contends that his alibi was disregarded by the court. The defense maintains that the state bore the burden of disproving the alibi.
Furthermore, the appellant submitted that medical evidence did not support penile or object penetration. Given this finding, proceeding with the alternative charge of indecent act was, in their view, inappropriate. The appellant submitted that instead of focusing on disproving the alibi and establishing the elements of the crime, the court improperly took on the role of the prosecutor by deciding to convict at the judgment stage, even though the alibi was not disproven.
The appellant argued that the court failed in its duty to acquit where evidence led it to do so and should not have assumed the prosecutor's role. Regarding the victim's testimony, the appellant points out inconsistencies, as the minor's claim of penile penetration causing pain was contradicted by medical findings.
The appellant further argued that the trial magistrate misdirected herself by "considering" the alternative charge after finding that the main charge of defilement was not proven beyond a reasonable doubt.
Since the primary offense was not established, the appellant submitted that he should have been acquitted. Finally, regarding sentencing, the appellant submitted that the court should have considered all sentencing objectives, including retribution, deterrence, rehabilitation, restorative justice, incapacitation, and denunciation, and said he be acquitted or a lesser sentence be substituted.
The Respondent opposed the appeal and submitted that the appeal against both conviction and sentence should be dismissed. That the prosecution successfully proved the offense of defilement beyond a reasonable doubt by establishing the victim's age through a birth certificate, proving penetration through medical and witness testimony, and securing positive identification of the Appellant by the minor victim who knew him.
That the appellant's alibi was presented late without supporting evidence and contradicted the Appellant's own admission of no prior issues with the complainant.
Further, that minor inconsistencies in witness testimonies are not substantial enough to undermine the prosecution's case when the evidence is considered holistically.
Regarding the sentence, the respondent submitted that the 15-year imprisonment term is within the statutory minimum and the Appellant has not demonstrated that the trial court acted improperly in its imposition, especially considering the lack of remorse shown.
Therefore, the Respondent asked the court to uphold the trial court's decision.
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.
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.”

The issues for determination in this appeal are as follows:-
1. Whether the prosecution proved the case of indecent assault to the required standard.
2. Whether the Appellant was properly identified.
3. Whether the age of the complainant was proved.
4. Whether the sentence meted by the trial court was excessive.
I have carefully considered the evidence presented before the trial court together with submissions by both the Appellant and the Respondent, the first issue for determination is whether the prosecution proved the offense of indecent assault to the required standard of beyond a reasonable doubt.
The trial court acquitted the Appellant on the main charge of defilement, finding that the medical evidence did not conclusively prove penetration. However, it proceeded to convict on the alternative charge of committing an indecent act.
The Appellant submitted that if the main charge was not proven, then the alternative charge, which arose from the same set of facts, should also have failed.
The second issue concerns the identification of the Appellant. The complainant testified that she met the Appellant at the home of Joseph Kirigha.
The third issue is whether the age of the complainant was properly proved. The Respondent submitted that the prosecution established the victim's age through a birth certificate. This piece of evidence was seemingly accepted by the trial court.
Finally, the court must determine whether the sentence of 15 years imprisonment is excessive.
The Appellant submitted that the sentence is harsh and that the trial court failed to consider all sentencing objectives. The Respondent maintains that the sentence is within the statutory minimum and that the Appellant has shown no remorse.
Upon re-evaluating the evidence, particularly the medical findings I find that it did not support penetration, and considering the trial court's acquittal on the main charge of defilement, a serious doubt arises as to whether the elements of the alternative charge of indecent act were proven beyond a reasonable doubt.
The circumstances under which the indecent act occurred and the lack of corroborating medical evidence directly linking the specific indecent act alleged to the Appellant raise concerns.
In light of the above considerations, this court finds that the prosecution did not prove the offense of indecent act with a child beyond a reasonable doubt.
Consequently, the conviction cannot be sustained. The appeal against the conviction is therefore allowed.
As a result, the sentence of 15 years imprisonment is also set aside.
The Appellant to be released forthwith unless he is lawfully held for any other reason.

Dated, signed and delivered this 9^th day of May 2025 virtually via MT at Voi High Court.

ASENATH ONGERI

JUDGE

In the presence of:-

Court Assistant: Maina/Millicent