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JudgmentJoram Mwanduvi Mwandango VS The Republic5 min read

Joram Mwanduvi Mwandango VS The Republic

High Court at Voi High Court · · George. Dulu


CRIMINAL APPEAL NO. E060 OF 2022 AND E059 OF 2022 (CONSOLIDATED)

(From the conviction and sentence in Sexual Offence Case No. E016 of 2021 at Voi Law Courts delivered on 10th January 2023 by Hon. C. K. Kithinji (PM)

  1. The two appellants were tried in the same trial, but each faced separate charges, but the victim was the same person.
  2. Joram Mwanduvi Mwandango was charged with a main count of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006.  The particulars of the offence were that on diverse dates between April 2021 and 25th March 2022 at Rukanga village in Voi Sub County within Taita Taveta County intentionally caused his penis to penetrate the vagina of H.K.M a child aged 17 years.
  3. In the alternative, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars of which being on the same diverse dates and at the same place intentionally and unlawfully touched the vagina of H.K.M  a child aged 17 years with his penis.
  4. On his part, Jonathan Yeri Maganga was charged with defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006, the particulars of which being that on 23rd April 2022 at about 0400hours at Rukanga village in Voi Sub County within Taita Taveta County intentionally caused his penis to penetrate the vagina of H.K.M a child aged 17 years.
  5. In the alternative he was charged with committing an indecent act with a child, the particulars of which being that on the same date and place intentionally and unlawfully touched the vagina of H.K.M  a child aged 17 years with his penis.
  6. They denied both charges.  After a full trial, they were each convicted on the main count of defilement under Section 8(1) as read with Section 8(4) of the Sexual Offences Act.  Each was sentenced to serve thirteen years imprisonment.
  7. Aggrieved by the conviction and sentence, the appellants have come to this court on appeal No. E060 of 2022 for Joram Mwanduvi Mwandago and E059 of 2022 for Jonathan Yeri Maganga, which appeals were consolidated and heard together.
  8. The appellants relied on the same amended grounds of appeal, which are as follows:-
  9. The trial Magistrate erred in convicting and sentencing them yet failed to find that the conduct of PW1 who was the victim of the offence does not point a picture of someone who was defiled.
  10. The trial Magistrate erred in law and fact by failing to find that penetration was not proved thus the prosecution did not discharge its duty pursuant to Section 107 of the Evidence Act.
  11. The learned trial Magistrate erred in law and fact by failing to adequately analyse the appellant’s defence in addition to their application for conduct of DNA test.
  12. 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.
  13. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by the each of the two appellants, as well as the submissions filed by the Director of Public Prosecutions.
  14. This being a first appellate court, 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.
  15. In proving their case, the prosecution called four (4) witnesses.  On their part, each of the appellants tendered sworn defence testimony.  They also called one witness DW3 Betty Sidi Makanga.
  16. The elements of the offence of defilement for which the appellants were convicted are the age of the complainant who should be below 18 years.  Secondly, the act of sexual penetration even if partial.  Thirdly, the positive identity of the culprit or perpetrator. 
  17. Did the prosecution prove the age of the complainant PW1?  There is her evidence on record that she was 17 years at the time of the incident in April 2021 to March 2022.  The mother PW2 Veronica Mukiti relied on a birth certificate, which was produced in evidence by PW4 Cpl. Esther Mutemi as an exhibit.  In the said birth certificate the date of birth of Hannah Kiai is entered as 15.01.2005.  In my view as at March 2022 the complainant PW1 was 17 years old. Thus the age of PW1 was proved.
  18. Was sexual penetration proved?  The doctor PW3 Dr. Joto confirmed in evidence that the hymen of the complainant was missing and that she was 8 weeks pregnant.  In my view, sexual penetration was proved beyond any reasonable doubt.
  19. I now turn to the identity of the culprit.  From the evidence on record, it was 1st accused person Joram who was a friend of the complainant.  They had oral (personal) conversations on friendship and later telephone conversations and had meetings.  The second accused person Jonathan Yeri Maganga was a friend of 1st accused and the 1st accused left the complainant at the house of 2nd accused where she was found by the mother.  The complainant also stated that on that day, the 2nd accused person Jonathan took advantage of the opportunity and had sex with her, and that she did that willingly.
  20. As for the 1st accused Joram, the complainant gave a long story and evidence of their communication in person and on phone as well as meetings and sexual activities.
  21. In my view, considering the provisal to Section 124 of the Evidence Act (Cap.80), on the weight to be given to evidence of a single sexual offence witness, I find that the evidence of PW1 against Jonathan was unbelievable.  It is very possible that PW1 only implicated Jonathan merely because she was found in his house or with him, where she was obviously left by Joram.  I will thus give the benefit of the doubt to Jonathan and acquit him.
  22. As for Joram, the evidence is abundantly clear.  It was a long lasting relationship between him and PW1 and the sexual activities were several, and there was even an attempt or veiled thought on termination of the resultant pregnancy.  I find that the prosecution proved beyond reasonable doubt that Joram was the culprit.
  23. With regard to sentence, in my view Joram was lucky to have been handed down a sentence below the minimum sentence.  I will not interfere with the sentence.
  24. Consequently and for the above reasons, I allow the appeal of Jonathan Yeri Maganga, and quash his conviction and set aside the sentence.  I uphold the conviction and sentence of Joram Mwanduvi Mwandango.  I order that Jonathan Yeri Maganga be set at liberty unless otherwise lawfully held.

Dated, signed and delivered this 20th day of March 2024 in open court at Voi.


    Joram Mwanduvi Mwandango VS The Republic Joram Mwanduvi Mwandango VS The Republic