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JudgmentJUMA BEMEZA VS The Republic14 min read

JUMA BEMEZA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(From Original Conviction and Sentence of Hon. Nelly Kariuki [PM] in the Chief Magistrate’s Court at Mombasa, in Criminal Case No. SO 109 of 2020 on 13th April, 2023)


Introduction

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

COUNT I: Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. Particulars of the same being that on diverse dates between 1st February and March 1st 2020 at Kajiweni area, within Kisauni sub-county within Mombasa County, the accused person unlawfully and intentionally attempted to cause his penis to penetrate the anus of QZ, a child aged 13 years.

ALTERNATIVE COUNT: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act no. 3 of 2006. Particulars of the same being that on diverse dates between 1st February and March 1st 2020 at Kajiweni area, within Kisauni sub-county within Mombasa County, the accused person unlawfully and intentionally touched the anus of QZ, a child aged 13 years with his penis.

  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 twenty (20) years imprisonment on each count.
  2. Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:
  3. THAT the learned trial magistrate erred in law and fact by finding my conviction and sentence without considering that the expert's report did not prove the case of defilement beyond reasonable doubt.
  4. THAT the learned trial magistrate erred in law and fact by finding my conviction and sentence without humbly considering that the prosecution case was governed by massive contradictions and discrepancies.
  5. THAT the learned trial magistrate erred in law and fact by finding my conviction and sentence without humbly considering that the case was poorly investigated which led to miscarriage of justice.
  6. THAT the learned trial magistrate erred in law and fact by failing to comply with section 329 of the C.P.C as mitigation is part of the trial process.
  7. THAT the learned trial magistrate erred in law and fact by finding my conviction and sentence without humbly considering my defence evidence.
  8. THAT the learned trial magistrate erred in law and fact by finding my conviction and sentence without humbly considering the sentence meted on me the appellant was harsh, excessive, unjust, unconstitutional inhumane and degrading.
  9. For the reasons advanced in his Petition of Appeal, the Appellant prayed the appeal be allowed and conviction and sentence be quashed and the Appellant be set free.

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. I have considered the grounds of appeal, evidence adduced in the lower court and the respective parties’ submissions. I find the following broad issues for determination: -
  2. Whether or not the Prosecution proved its case beyond reasonable doubt;
  3. Whether the Sentence was properly meted.

Elements of offence of defilement

  1. The Appellant was charged with two counts of the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides:-

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

8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”

  1. The specific elements of the offence defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:
  2. Age of the complainant;
  3. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and
  4. Positive identification of the assailant
  5. On these elements; “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”(“Charles Wamukoya Karani – Versus - Republic, Criminal Appeal No. 72 of 2013”).
  6. What does the evidence portend? In a charge of defilement, the age of the victim is important for two reasons:-
  7. defilement is a sexual offence against a child; and
  8. age of the child has been used as an aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence
  9. A child is defined as a person under the age of eighteen years. Is the victim herein a child? 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. The Appellant was convicted and sentenced on the offence of defiling a child aged 13 years old respectively. PW 1 testified that her son was 13 years old at the time of the offence having been born on 3rd February, 2007; she also produced the victims’ birth certificate as evidence.
  2. On this question of age, I am content to cite the case of “Fappyton Mutuku Ngui – Versus -  Republic [2012] eKLR” where it was held:

... That “conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases.

  1. The accused person did not avail any evidence to challenge the complainant's age. On the basis of the evidence adduced, I find that the age of the victim was proved to be 13 years old respectively.

Penetration

  1. Section 2(1) of the Sexual Offences Act defines penetration as:

“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

  1. PW 3 produced the PRC form, Laboratory request form and P3 form as Pex 2, 3 and 4. According to PW 3 on examination of the victim, the witness noticed there was a history of sodomy; the anal area was healed with the multiple lacerations still noted. There was  a whitish discharge in the anal area. The lab results showed that hepatitis B was negative save for the HIV test.
  2. The testimonies of the Complainant was fully corroborated by the evidence of the medical officer PW 3. The above as witness testimonies prove the fact that there was penetration of the children. But by whom? This is the mega question.

Was the appellant the perpetrator?

  1. The Appellant was well known to PW 1 and PW 2. The trial court noted that the it was not disputed even by the Appellant that the complainant was well known to him. In his sworn statement, he admitted that he knew QZ and would pay him Kshs 1500 weekly to assist his mother. However, he denied knowing him in February and March 2020 because his nephew Juma was helping him with the herding as he looked for a job. He alleged that he met QZ in August 2020, assisting his friend with herding livestock. He mentioned one Rashid and Shaban as his witnesses on the alleged date. He claimed that they were with him at the grazing area but relocated from his area. The accused person claims that the tap incident originated from his legal troubles. However, his evidence shows no nexus between the cause of action and the tap incident as claimed. It is noted that there seems to be a disconnect regarding the dates, as the day the complainant’s mother visited him was two weeks before the tap incident. Be that as it may, the accused person could not justify his whereabouts away from the crime scene on the incident date and other mentioned dates as alleged by QZ. Furthermore, he failed to avail his alibis or nephew despite the Court providing adequate opportunities. Again, apart from denying the offence, his defence witness did not offer any evidence to challenge the prosecution’s case. For these reasons, his defence amounts to a mere denial.
  2. It bears repeating that the Appellant was a person known to the complainant. I do not find any element of mistaken identity of the Appellant as the person who penetrated the complainants’ anus. The complainant categorically implicated the Appellant as the perpetrator of the sexual offences committed on their person. The evidence by the prosecution leaves no doubt that the appellant caused penetration of the complainants. The elements of defilement were proved by the prosecution.
  3. The Appellant contended in his appeal that the Trial Court failed to consider the expert’s report did not prove the case of Defilement. Dr Julius Maneno (PW3) produced the P3 form for his colleague Nurse Saida Mwinyi of the Coast General Hospital-Gender Clinic and the P3 form, which he filled. It was observed that QZ had healed lacerations around his anal orifice and a whitish discharge. From the history provided, QZ noted to the medical examiner that the perpetrator had penetrated the victim’s anus several times. Furthermore, QZ was categorical that the accused defiled him six times when they went to herd livestock in the Bakarani area.
  4. Section 48 of the Evidence Act, Cap 80 under which opinion of experts is catered for contemplates that the expert must testify; that section provides as follows:

48.  Opinions of experts

(1)  When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.

(2)  Such persons are called experts.

  1. Expert evidence is evidence given by a person skilled and experienced in some professional or special sphere of knowledge of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements and the like.
  2. Further the Appellant has contended that Respondent’s case was marred by a lot of contradiction and discrepancies. Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favor of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.
  3. In “MW – Versus -  Republic [2019] eKLR”, the court stated that:

“The law as regards the issues of contradictions and discrepancies is very crystal clear. It is trite law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected.”

  1. Similarly, in the case of “Philip Nzaka Watu – Versus - Republic (2016) CR APP 29 of 2015”, the stated as follows:

“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.

However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

  1. The role of this court is to be in the shoes of the Trial Court in evaluating, assessing and reconciling the evidence and to determine whether the said contradictions, discrepancies and/ or inconsistencies are prejudicial to the Appellant. According to Black’s Law Dictionary 2nd Edition, contradiction means: In practice. To disprove. To prove a fact contrary to what has been asserted by a witness. I have gone through the records of Appeal, the proceedings and judgment from the Trial Court and in view and in light of the above cases, the contradictions, discrepancies and the inconsistences alluded to in the case are not prejudicial to the Appellant.
  2. By virtue of this evidence as presented in the Honourable Trial Court and since analyzed by this Court grounds 1, 2 and 5 of the Petition to Appeal by the Appellant fail.

Sentencing

  1. The Trial Court in its judgment found that the prosecution provided evidence beyond reasonable doubt proved all the elements of defilement against the Appellant who was convicted under Section 215 of the Criminal Procedure Code for the offence of defilement Contrary to Section 8 (2) of the Sexual Offences Act No. 3 of 2006 which carries mandatory sentence of life imprisonment.  
  2. In the Court of Appeal case of “Bernard Kimani Gacheru – Versus -  Republic [2002] eKLR” where it was stated as follows: -

“ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

  1. In the present case the Court record shows mitigation was done prior to conviction at Page 47 of the record of Appeal. Similarly, there is no evidence to show that the Appellant was remorseful and/ or asked for forgiveness. I am alive to the fact that the Appellant was convicted for defiling a child of 13 years. In my view, the Trial Court was in order meting out the sentence she did.
  2. It is my finding that the trial court considered all the evidence and reached the correct finding that the appellant had committed the offence as charged and imposed the sentence in accordance to the law. For this reason Ground 3, 4 and 6 fail.
  3. In sum therefore, I find that the conviction was proper. Appeal on conviction therefore lacks merit and is hereby dismissed.

Conclusion and Disposition

  1. Having found that all the grounds of appeal have failed I hereby consequently 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 …27th….…………DAY OF …………March…………….……., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Mr. Ngiri……………State Counsel;

………………………………………….…Accused person.

    JUMA BEMEZA VS The Republic JUMA BEMEZA VS The Republic