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JudgmentJOHNSON SIDIA MUYOMA VS The Republic11 min read

JOHNSON SIDIA MUYOMA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(From Original Conviction and Sentence of Hon. V. Adet in the Chief Magistrate’s Court at Mombasa, in Sexual Offence Case No. E023 of 2022 on 22nd February, 2023)


Introduction

  1. The Appellant was charged before the Court with the offence of:-

CHARGE: Incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the same being that on diverse dates from 23rd December, 2021 to 2nd February 2022 at Mji Wa Ng’ombe area in Jomvu sub-County within Mombasa County being a male person, caused his penis to penetrate the vagina of AN female person who was to his knowledge his daughter.

ALTERNATIVE COUNT: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act no. 3 of 2006. on diverse dates from 23rd December,2022 at Mji Wa Ng’ombe area in Jomvu Sub-County within Mombasa County, intentionally and unlawfully caused his penis to rub the vagina of AN a girl aged 10 years.

  1. The Appellant was charged, he denied the charges and the trial court put down the case for hearing. The prosecution called four (4) witnesses and at the close of the Respondent’s case, the trial court found the Appellant with a case to answer; put him to his defence, convicted and sentenced forty (40) years imprisonment.
  2. Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:
  3. THAT the learned trial court magistrate erred in law fact by convicting the appellant to serve 40 years imprisonment without considering that crucial documents were not tendered before court.
  4. THAT the learned trial court magistrate erred in law fact by convicting the appellant to serve 40 years imprisonment without considering that the appellant was denied a right to a fair trial pursuant to article 50(2)(p) of the constitution.
  5. THAT the learned trial court magistrate erred in law fact by convicting the appellant to serve 40 years imprisonment without considering that the sentence meted on me was harsh and excessive.
  6. THAT the learned trial court magistrate erred in law fact by convicting the appellant to serve 40 years imprisonment without considering my reasonable defence.
  7. For the reasons advanced in his Petition of Appeal, the Appellant prayed the appeal be allowed, conviction quashed and sentence set aside and the appellant be set at liberty.

The Prosecution/ Respondent’s case

  1. The Respondent called 4 witnessed in support of its case. PW1 AN testified that she was 11 years old and, on the 23rd December, 2021, she was residing with her father the accused person in a single roomed house. And that between 23rd December,2021 to 2nd February, 2022 while she was sleeping in their house, the accused removed her panty and told her that there were evil spirits. And when she woke up she discovered some discharge on her private part and some pain. The pain made her feel uncomfortable when urinating her father had advised her not to tell anyone what was happening. Later her father took her to the hospital, the doctor examined her and she complained of headache. She was given drugs. Her mother by then was staying in a different house. Her mother was shown the drugs and when the mother was washing her and realized that she was feeling some pain in her private part. She then explained to her mother who in turn called a neighbour to come assist her in examine her. They then proceeded to the police station and the hospital.
  2. PW2 MM testified that she was a cousin to PW1 and was staying with PW 1 until the 23rd December, 2021 when she received visitors and requested the accused person who was the father to PW 1 to accommodate her. PW 1 could sleep at the accused person’s house and after some days she volunteered to bathe PW 1 and in the process while trying to reach her private part PW1 felt uneasy, she then called a neighbour who came to examine her and interviewed PW1who explained to her what the accused did to her. They proceeded to the village elder and made a report, who directed them to the chief who recommended that they proceed to the hospital, where the doctor examined her and discovered that there were some bruises on PW1 vagina. According to PW2, she stated that PW 1 date of birth was 26th July, 2011 and that PW 1’s mother died in the year 2016. And that is when she took up the responsibility of taking care of PW1.
  3. PW3 PHYLLIS KEMUNTO, a medical officer at Jomvu modern Health Centre. She examined PW1 who had come for examination she observed that PW1 had injury on her vagina, there were lacerations on the labia minora, hymen was broken.
  4. PW 4 PC ERICK CHERUYIOT, the investigating officer, he recorded the statements of the witnesses and issued a P3 form. And upon the medical documents being issued accused was arrested and charged.

The Appellant’s Defence

  1. The Appellant was placed on his defence and he gave sworn evidence that on the 8th February 2022 he woke up early and went to pick his drugs at Magongo hospital. He was then directed to wait until 3:00pm. At 7pm when he was Mji wa Ng’ombe he saw police officer who arrested him and inquired why she had defiled a child. He was taken to the Police station and later charged

Analysis and Determination

  1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
  2. The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32. In this case the court stated-;

“The duty of the 1st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-

The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

The court of appeal further stated that – “ an appellant on a 1st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.

In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.

  1. In the  case of Gabriel Kamau Njoroge – Versus -  Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”

  1. Having reviewed the trial Record, the grounds of appeal, the three main issues for determination are as follows: -
  2. Whether or not the Prosecution proved its case beyond reasonable doubt;
  3. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant by the Trial Court was lawful and/ or warranted.

Issue a. Whether or not the Prosecution proved its case beyond reasonable doubt

  1. Ground of Appeal Nos (1), (2) and (3) of the Petition of Appeal will be dealt with together under this head as they are related. The main charge as amended was of incest.  Section 20(1) of the Sexual Offences Act that creates the offence provides thus:

“(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:

Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”

  1. On the relationship between the complainant and the Appellant; the Appellant argued that the evidence was marred with contradictions and inconsistencies which created doubt that ought not to have been relied on. Section 22(1) of the Sexual Offences Act provides thus:

“In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.”

  1. Age of the victim in the case of incest becomes important for purposes of sentencing. In the case of “Hillary Nyongesa – Versus - Republic (Eldoret) Criminal Appeal No. 123 of 2009” Mwilu, J. stated thus:

“Age is such a critical aspect in Sexual Offences that it has to be proved conclusively.  Anything else is not good at all.  It will not suffice.  And it becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.”

  1. I do not fault the determination by the trial court that the victim was a child as the birth certificate produced indicated that she was 11 years at the time of incident having been born on 26th July, 2011.
  2. Regarding the issue of penetration, according to the Trial Court, the victim has explained to the court the tendency of the Appellant removing her panties at night and and told her that there were evil spirits. And when she woke up she discovered some discharge on her private part and some pain. The pain made her feel uncomfortable when urinating her father had advised her not to tell anyone what was happening. The doctor confirmed that when examined they noted injuries on her vagina, there were lacerations on the labia minora and her hymen was broken and the PRC form was produced as Exhibit 4. The injuries confirmed penetration. The trial Magistrate considered evidence adduced and believed the child’s evidence as  he recorded his satisfaction of the fact that the Appellant having engaged in acts which caused penetration with the victim on both occasions.  He appreciated the fact of the child having been consistent and honest.
  3. Further was not disputed that the Appellant was the father to the victim. This is well explained by the prosecution witnesses, the accused also does not dispute this fact. The birth certificate produced by the Respondent confirmed without an iota of doubt that the Appellant was the biological father to PW1. I am scarified that the victim underwent the ordeal she described.
  4. Having critically analyzed the evidence on record, this court was satisfied that the Learned Trial Magistrate did not err when he convicted the Appellant on the documents produced and on the evidence of the victim therefore ground 1 fails.

Issue b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant by the Trial Court was lawful and/ or warranted

  1. I take note that the Appellant has contended his right to fair trial was denied pursuant to Article 50(2)(p) of the Constitution; it is important to note that Section 20(1) of the Sexual Offences Act provides that:

“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years.

Provided that, it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable for imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” (emphasis court).

  1. The Trial Court sentenced the Appellant to 40 years imprisonment going by the provisions of Section 20, I find that the Trial Court did not therefore err when in its conviction and sentencing. The sentence was a lesser sentence as stipulated by law. According to the Appellant his defence was not considered when convicting him and sentencing him. According to the Appellant, on the 8th February 2022 he woke up early and went to pick his drugs at Magongo hospital. He was then directed to wait until 3:00pm. At 7pm when he was Mji wa Ng’ombe he saw police officer who arrested him and inquired why he had defiled a child. This defence was merely a denial and did not in any way deter the strong evidence adduced by the Respondent to the required standards.
  2. I hold that the sentence meted out to the Appellant was proper and shall not therefore interfere with it.

Conclusion and Disposition

  1. Having found that all the grounds of appeal had failed I hereby find the Appeal as filed unmerited and hereby dismiss it; I shall not interfere with the conviction and sentence of the Honourable Trial Court.

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…………DAY OF ……………………….……., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Maureen Court Assistant;

……………Mr. Ngiri……………State Counsel;

………………………………………….…Accused person.

    JOHNSON SIDIA MUYOMA VS The Republic JOHNSON SIDIA MUYOMA VS The Republic