JONES MWENDWA VS The Republic JONES MWENDWA VS The Republic

(From the conviction and sentence in Sexual Offence Case No. E015 of 2020 at Voi Law Courts delivered on 22^nd August 2023 by Hon. C. K. Kithinji (PM)

The appellant was convicted of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006, the particulars of which being that on 22^nd December 2020 at 10:00a.m at Maungu area in Voi Sub County within Taita Taveta County intentionally caused his penis to penetrate the female genital organ (vagina) of E.M.M a child aged 15 years.
On conviction, he was sentenced to twenty (20) years imprisonment.
Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal and relied upon the following amended grounds:-
That the learned trial Magistrate erred in law and fact in failing to appreciate that the evidence adduced pointed to a framed up case against the appellant.
The learned Magistrate erred by convicting the appellant yet failed to find that the medical evidence adduced was devoid of belief and could not be used to corroborate the complainant’s evidence.
The learned Magistrate erred in convicting the appellant yet failed to find that the prosecution had not proved its case beyond reasonable doubt.
The sentence imposed was both harsh and excessive since it was applied in mandatory terms as provided by the statute and failed to consider the appellant’s mitigation and the facts and circumstances unique to the case.
The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.
This being a first appeal, I have to remind myself that I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno =Versus= Republic (1972) EA 32.
In proving their case, the prosecution called six (6) witnesses. On his part, the appellant tendered sworn defence testimony and called one witness.
The key element of defilement for which the appellant was convicted are the age of the complainant or victim who should be below 18 years. Secondly, sexual penetration even if partial. Thirdly, the positive identity of the culprit or perpetrator – see Charles Wamukoya Karani =Versus= Republic – Criminal Appeal No. 72 of 2013.
From the evidence on record herein wherein PW1 Elizabeth Muthini Mutunga testified that she was 15 years old, born on 26^th December 2004 and a birth certificate in the name of Elizabeth Muthini produced as an exhibit by PW5 Cpl. Elma Mtua the investigating officer as an exhibit in which the date of birth was entered as 6^th December 2005, I find that the age of the complainant herein was proved beyond reasonable doubt.
I now turn to sexual penetration. The evidence of sexual penetration is that of PW1 the victim who testified that she as sexually penetrated that day. That it was a forceful penetration.
In accordance with the provisal to Section 124 of the Evidence Act (Cap.80), such evidence of a single victim witness of a sexual offence can sustain a conviction without further corroboration provided it is believable and is so believed by a trial court for reasons to be recorded.
In the present case PW3 Faith Walewa Mutunga stated that two girls Judy and Mbithi informed her that Eliza (the complainant) screamed in a house at Maungu. That she proceeded to that house and found Eliza crying outside, and said that she had been raped.
PW4 Miriam Mbithi Kangindo a girl aged 15 years testified that on 21^st December 2020, one day before the date of the incident some children asked her where Eliza was. They went to church and knocked with Judy but did not find anyone.
On further pestering by children they went to the house near the church and, another girl heard the voice of Eliza through a window.
The medical evidence of PW2 Dr. Joto Nyawa was to the effect that the complainant was treated at River Jordan Hospital, but treatment notes were not availed to him but lab results availed showed presence of spermatozoa. He filled the medical examination report (P3 form), but did not medically examine the sexual organs of the complainant.
In my view, sexual penetration was not proved, as the forceful sexual intercourse being recent as the complainant was taken to hospital immediately, the signed medical examination notes should have been availed. Short of that, one cannot say that there was recent sexual intercourse, as the other evidence from the other witnesses, including the complainant is doubtful on sexual intercourse having occurred that day.
The details of what the complainant states in particular are doubtful, as though she said that she was with another girl when she went to the premises where forceful sexual intercourse occurred. There is no evidence on record of her having been escorted to that compound by anybody else.
The evidence of sexual intercourse is thus not believable, as taking into account the totality of evidence of the prosecution witnesses, and the defence of the appellant and DW2 that there was bribery of witnesses, I have to give the benefit of the doubt to the defence, which I hereby do.
With regard to the identity of the culprit also, taking into account the totality of the evidence of the prosecution witnesses, and the defence of the appellant, I find that the prosecution did not prove beyond reasonable doubt that the appellant was the culprit of the alleged sexual intercourse, as in my view no sexual intercourse as alleged occurred.
Having found as above, this appeal will succeed.
Consequently, and for the above reasons, I allow the appeal quash the conviction and set aside the sentence. I order that the appellant be set at liberty forthwith unless otherwise lawfully held.

Dated, signed and delivered this ……. day of June 2024 in open court at Voi.

In the presence of:-

Alfred/Trizah – Court Assistants