JAMES MWANGI IRUNGU VS The Republic JAMES MWANGI IRUNGU VS The Republic

The appellant James Mwangi Irungu was charged and convicted with the offence of defilement contrary to section 8(1) as read together with section (8)(3) of the Sexual Offences Act, (Cap. 63A) Laws of Kenya. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The victim F. N. I. was aged 15½ years at the time. The appellant was sentenced to twenty years imprisonment.
The offences were alleged to have been committed between 27/8/2017 and 4/9/2017 at Kairichi village, Gatuya location in Kahuro Sub-County within Murang’a County.
The prosecution called four witnesses at the trial. PW 1, F. N. I., the complainant, PW 2, NMN, the complainant’s mother; PW 3, Joel Onyancha a clinical officer from Muriranja hospital who produced the P3 form completed in respect of the complainant and PW 4, Sgt Walter Ombogo Ibrahim was the investigating officer.
F. N. I., was born on 6/3/2002 and therefore just about 15½ years at the time the offence of defilement for which the appellant was convicted and sentenced is alleged to have been committed against her between 27/8/2017 and 4/9/2017 by James Mwangi Irungu. Mwangi’s age is not explicit from the proceedings but from the evidence tendered he does not seem to be much older than the complainant at the time.
F. N. I. had differences with her mother and left home. She went to her friend Muthoni’s home and being friends with Mwangi, who is Muthoni’s cousin, she eloped with him and started staying together in the mistaken thinking that they would be called husband and wife.
They slept in the same house of Mwangi and bed and engaged in sexual intercourse. They were found together in that room one early morning at around 2.00 a.m. They were both taken into police custody and the appellant was subsequently charged with the offences.
The complainant was taken for medical examination and according to Joel Onyanja, a clinical officer, the complainant’s hymen was found to be broken and that was proof of penetration of the complainant’s female genital organ.
This evidence as tendered by the prosecution witnesses was largely untested in cross-examination as the appellant hardly asked any question after each had testified.
In his defence given under oath, the appellant denied that the complainant was found with him on the date of arrest. He said the evidence given by the prosecution witnesses was not true. He said the complainant was at his grandmother’s house with his cousin Muthoni. He had been out at a funeral overnight and on his way home, he met a group of people who began beating him up that he had kept a girl. The girl was at his grandmother’s house with his cousin.
DW 2, James Maina was a witness for the appellant. He said he knew the complainant F. N. in 2016 and she was his friend. She was married in March, 2017. She also told him that someone was charged in 2017. She asked him for advise and he told her to tell the court that nothing happened. She was forced to testify.
DW 2 said that the complainant was since married and had four children. He said the appellant did not commit the offence and that they had a grudge.
In cross-examination, DW 2 said that he had known the appellant since childhood and they were friends. He however did not know where he slept on the material day and what he did.
On that evidence, the trial magistrate found that the ingredients of the offence of defilement had been proved by the prosecution and convicted the appellant and sentenced him to the minimum term of twenty years imprisonment as prescribed under the law.
The appellant was aggrieved by the decision of the trial court and now appeals against the conviction and sentence on grounds that:
1. the appellant was not accorded a right to a fair trial as provided for under Article 50(2)(g), (h) of the Constitution.
2. Section 200 of the CPC was not complied with.
3. the failure to recall witnesses as pe the request of the appellant greatly affected the defence of the appellant.
4. the elements of the offence of defilement were not proved beyond a reasonable doubt and the appellant’s defence came under section 8(5) of the Sexual Offences Act.
5. the trial magistrate failed to take into account the period the appellant had remained in custody while passing sentence as provided for under section 333(2) of the CPC.
6. the sentence imposed on the appellant was harsh and excessive in view of the Constitutional Court declaration in Machakos (Philip Maingi Maeke v Republic eKLR and other jurisprudence that minimum mandatory sentences are unconstitutional.
The appellant prays that the appeal succeeds the conviction be quashed, sentence set aside and he be set at liberty.
The appeal was disposed of by way of written submissions filed by the appellant in person. He expounded on each of the grounds in a succinct and incisive manner with authorities to back the submissions. In spite of being afforded time to do so, the respondents have not filed submissions either in the physical file or on the e-filing virtual platform as at the time of writing this judgment.
I have carefully considered the amended grounds of appeal as filed, the evidence tendered at the trial and the trial court’s findings thereon and the submissions by learned counsel for the appellant herein. The issue for determination is whether the prosecution proved a case of defilement against the appellant beyond a reasonable doubt as found by the trial court.
As submitted by the appellant, this being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;

“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (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 and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”

The appellant alleges breach of article 50(2)(g) of the Constitution which provides that every accused person has the right to a fair trial, which includes the right to choose, and be represented by an advocate, and to be informed of this right promptly.
I have seen the proceedings before the trial court. There is no indication of any point at which the appellant was informed of his right to legal representation whether at his own expense or at the expense of the State as provided for under that Sub-article.
I agree as urged by the appellant that there was an error of law in the failure by the learned trial magistrate to comply with this constitutional imperative which breached the appellant’s right to a fair trial and that. I am persuaded in this finding by several decisions of the High Court which have dealt with the issue and found that a breach of that constitutional right renders the trial court proceedings a nullity. These are the decisions such as the one cited by the appellant of Kenga Hisa v Republic [2020] eKLR; that of Chacha v Republic (Criminal Appeal E027 of 2022) [2022] KEHC 16370 (KLR) and in Chacha Mwita v Republic [2020] eKLR Criminal Appeal No. 33 of 2019. In the latter case of Chacha Mwita the court ordered a retrial after it found that the appellant’s right under Article 50(2)(g) had been violated. I will be considering the issue of retrial later.
The second ground of appeal is on failure to recall witnesses as requested by the appellant and failure to comply with section 200 CPC.
It is true that the appellant applied for the recall of PW 1, the complainant and this was allowed by the learned trial magistrate M. Wachira, CM on 16/4/2019. M. Wachira, CM had been hearing the case from the beginning. The court then issued summons for PW 1 but she was never to turn up. Several summonses to PW 1 and the mother did not bear any fruits. On one of the occasions when the matter came up on 11/12/2019 the appellant informed the court that he had information that the complainant got married in a nearby village and that was why she could not come back to court. The investigating officer then informed the court that the complainant had run away from home and was staying with her aunt in Othaya and had said she will not attend court again.
At the initial hearing when she testified, the complainant had pleaded with the court to release the appellant stating that she was the one who went to his home. Given those circumstances, could the complainant have been reasonably expected to turn up in court again? I do not think so. The court did the best it could, taking almost a year summoning the complainant to attend court but information received from her was that she would not attend. The appellant himself acknowledged that she could not turn up but wanted the court to make her turn up which the court tried but it was not possible. On 19/2/2020 the appellant informed the court that due to the period he had been in remand custody he was abandoning the prayer for recall of the complainant for further cross-examination.
Therefore, the failure to have the complainant attend for further cross-examination was caused first by then complainant’s adamant refusal to attend and then when the appellant abandoned his application, of course on very understandable grounds of delay in proceeding with the case when he was in custody. Otherwise, the court was determined to have his prayer met when at the previous hearing date, the learned trial magistrate directed the investigating officer to persuade the complainant to attend court. In the circumstances, I find that no prejudice was occasioned to the appellant, who had an opportunity to cross-examine the complainant at the initial hearing.
M. Wachira CM completed hearing of the prosecution case and delivered her ruling where the appellant was found to have a case to answer and was placed on his defence under section 211 CPC.
The record shows that directions on how to proceed with the case were had on 19/1/2021 and the appellant informed the succeeding magistrate that he prayed that the case proceeds from where it had reached. The learned magistrate could not have written that if he had not explained to the appellant his rights that he may demand that any witnesses be re-summoned and reheard as provided for under section 200(3) CPC. I am satisfied that the trial court complied with the law as provided I therefore find no merit in that ground of appeal.
The third ground of appeal is third elements of the offence of defilement were not properly proved.
Sections 8(1) and 8(3) of the Sexual Offences Act under which the appellant is charged with the principal charge provides as follows:

8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

From the above provisions of the law, the ingredients of the offence of defilement which the prosecution must prove beyond a reasonable doubt are as set out in the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 as follows:

“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

The same ingredients are set out in the case of Fappyton Mutuku Ngui v Republic [2012] eKLR cited by the appellant.
At the trial PW 1, the complainant testified. The trial court conducted a voire dire examination of PW 1, at the time of giving evidence, even though this was not necessary as being aged 15½ at the time of the alleged offence she was not a child of tender years (see the case of Maripett Loonkomok v Republic [2016] eKLR). She gave sworn evidence of what had happened between her and the appellant leading to the arrest and prosecution of the appellant. It was simply that she had been staying with the appellant and they engaged in sexual intercourse. In the end she said she wished the appellant to be set free because she was not forced by the appellant to engage in sexual intercourse with him as she was the one who took herself to him. Of course, that was in ignorance of the law that a minor cannot consent to sexual intercourse.
In this case, the age of the complainant was proved by the evidence of the complainant herself, her mother PW 1 and production of her Child Health Card for immunizations (Exh. 1) which shows her date of birth as 6/3/2002, so that at the time of the alleged sexual assault upon her between 27/8/2017 and 4/9/2017 she was just about 15½ years. She was therefore a child.
The trial court correctly evaluated the evidence on the issue of the complainant’s age and arrived at the correct finding that she was a child aged 15½ years at the time the alleged offence was committed.
There is also no dispute that the complainant and the appellant are well known to each other. Nothing therefore turns on the issue of identification of the appellant as the assailant, if at all the final ingredient of penetration is proved.
The final issue to consider is on a charge of defilement whether or not penetration was proved by the prosecution. Under Section 2 of the Sexual Offences Act penetration is defined as follows:

“Penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

The appellant submits that there were contradictions in the prosecution’s case as regards proof of the offence and this should entitle him to an acquittal. He submits that the complainant having testified that she had sex with the appellant yet the medical evidence by PW 3 being that there was no evidence of laceration, bleeding or tears in the complainant’s genitalia then the element of penetration was not proved.
However, the appellant does not seem to have fully appreciated the medical evidence tendered because PW 3 said that the complainant’s hymen was not intact and lack of hymen was proof that there was penetration inside the vagina of the complainant. That evidence was corroboration of the complainant’s evidence that the appellant had engaged in sexual intercourse with her.
Besides, the complainant’s evidence that she was staying with the appellant is corroborated by that of her mother PW 2 who said that when she got information that her daughter was staying with the appellant, she visited the appellant’s home and asked the appellant and his grandmother to let the complainant go back home and go back to school. At first the appellant denied that he was staying with the complainant. Later PW 2 met the appellant and the complainant together, each carrying a water can coming from drawing water. When PW 3 raised the issue with the appellant, he retorted that he could as well relocate with her. They were eventually found in the same house early hours of the morning.
The conduct of the appellant towards the complainant’s mother is corroboration of the complainant’s evidence that the appellant had taken in the complainant as his wife. They were staying together in the same house from which they were found and taken in the early hours of the morning and for that reason the only logical conclusion would be that they were engaging in sexual intercourse as testified by the complainant and therefore there was penetration of the complainant’s genital organ by the appellant.
In any case medical evidence was not necessary to prove penetration for as long as the complainant could be believed. Indeed, in the case of Kassim Ali v Republic [2006] eKLR it was held:

“… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

I have found above that the complainant’s evidence that she had sexual intercourse with the appellant was corroborated by their conduct of close association and staying together in the same house from where they were found at 2.00 a.m. in the morning.
I am therefore satisfied from the evidence on record that the fact of penetration was proved by the prosecution beyond a reasonable doubt. I find no error in the finding of the trial court on that issue.
The appellant invokes the defence of deception by the complainant and reasonable belief by the accused that the complainant was over the age of 18 years at the time as provided for under section 8 (5) of the Sexual Offences Act as follows:-

“It is a defence to a charge under this Section if …

1. It is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence: and
2. The accused reasonably believed that the child was over the age of eighteen years.
3. The belief referred to in subsection 5(b) is to be determined having regard to all circumstances, including any steps the accused person took to ascertain the age of the complainant.”

The appellant never raised the issue of being misled into believing that the complainant was above 18 years during cross-examination. He is raising it now for the first time. It means that it is an afterthought as he tries to cast his net wider for the appeal. The evidence on record is that the appellant well knew the complainant and her mother. The complainant was a friend to the appellant’s cousin Muthoni and if the appellant cared he would have inquired from her the age of the complainant. He knew the complainant before and that she was in primary school at the time. That was a red flag for the appellant to be aware that the complainant was likely a child. It is apparent therefore that the appellant did not take any steps to ascertain the age of the complainant.
The appellant therefore cannot qualify under the defence provided under Section 8 (5) of the Sexual Offences Act.
I am satisfied that the trial court properly evaluated the evidence by the appellant and his witness and came to the conclusion that it could not dislodge the strong evidence tendered by the prosecution witnesses.
The last two grounds of appeal are on sentence, that the learned trial magistrate passed a sentence that was harsh and excessive in view of recent jurisprudence on mandatory minimum sentences and failure to take into account the period the appellant had spent in custody as provided for under section 33(2) CPC. I note that the decisions relied upon by the appellant of Philip Mueke Maingi & 2 others v Republic [2022] eKLR and Mombasa High Court Petition No 97 of 2021 Edwin Wachira & 9 Others v Republic consolidated with Petition No 88 of 2021, 98 of 2021, and 57 of 2021 in which mandatory minimum sentences were declared unconstitutional came after he had been sentenced. The sentence passed by the learned trial magistrate was lawful. All the same, he has the benefit of the decisions now because the High Court in the above cases said that persons convicted and imprisoned under the said offences are free to petition the high court for mitigation and resentencing. Considering the circumstances of this case, where a girl of competent understanding of the ramifications of her actions defied her mother to go and stay with her boyfriend, she is not moved even when the mother meets her with the boyfriend and pleads with her to return home and has the audacity to ask the court to release him in spite of knowing well that he was in court for keeping her, would call for a less severe sentence than that imposed by the trial court.
On the period spent in remand custody prior to conviction, the trial court only noted that it was long but did not refer to section 333(2) CPC. As was held by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, the court should include the period already spent in custody in the sentence that it meted out to the appellant. It was therefore a misdirection by the trial court not to do so.
Returning to the issue of whether or not to order a retrial of the case, it has been held that this normally depends on the circumstances of each case.
In the case of Muiruri vs Republic [2003] KLR 552 the court outlined the factors to be considered when faced with a question of whether or not to order a retrial. The court stated thus;

“Generally, whether a retrial should be ordered or not must depend on the circumstances of the case. It will only be made where the interest of justice require it and if it is unlikely to cause injustice to the appellant. Other factors include illegalities or defects in the original trial, length of time having elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely the prosecution making or not.”

In applying the factors outlined in the above cited authority to the circumstances of this case, the record shows that the appellant was charged with the offence of defilement on 5/9/2017. The trial court rendered its judgment on 26/5/2021. The appellant has been in custody from the time he took plea until now, which is about 5 years and 9 months. It is clear from what transpired when the appellant applied that the complainant be recalled for further cross-examination that she may not be found to testify in this case again because tracing her will pose the same serious challenges as was earlier. That means ordering a retrial will be an exercise in futility and great prejudice will be occasioned to the appellant who may remain in custody, only for the case never to take off. I have also indicated that the circumstances of the offence would call for a lesser sentence than 20 years imprisonment. I believe the appellant has learned his lesson in custody and needs to be given a fresh chance in life.
Considering that the factors outlined above are not in favour of an order for retrial I am satisfied that the order which best lends itself to this court in the circumstances of this case would be to set the appellant at liberty.
As such, I allow the appeal, quash the conviction and set aside the sentence of the appellant by the trial court for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The appellant shall be set at liberty forthwith unless otherwise lawfully held.

Orders accordingly.

Signed, Dated and Delivered at Murang’a this 1^st day of July, 2024.

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