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JudgmentKIMANZA CHABOGO NYAMAWI VS The Republic15 min read

KIMANZA CHABOGO NYAMAWI VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(From Original Conviction and Sentence of Hon. Sandra Ogot in the Principal Magistrate’s Court at Msambweni, in Sexual Offence Case No. E044 of 2023 dated 3rd May, 2024)


Introduction

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

CHARGE: Defilement contrary to section 8(1) as read with (4) of the Sexual Offences Act no. 3 of 2006. Particulars of the same being that on diverse dates between 1st June 2023 to 30th June 2023 at Kilimagodo Village, Mweren Location unlawfully and intentionally caused his penis to penetrate the vagina of D.T.R a girl aged 16 years.

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 between 1st June 2023 to 30th June 2023at Kilimagodo Village, Mwereni Location unlawfully and intentionally touched the vagina of D.T.R a girl aged 16 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 five (5) witnesses and at the close of the prosecution’s case, the trial court found the Appellant with a case to answer; put him to his defence, convicted and sentenced ten (10) 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 Magistrate erred in law and fact in coming to a finding that the prosecution had proved its case against the accused beyond reasonable doubt.
  4. THAT the Leaned Trial Magistrate erred in law and fact in proceeding with a trial to convict on a charge that was defective.
  5. THAT the Leaned Trial Magistrate erred in law and fact in allowing evidence that ought not to have been admitted.
  6. THAT the Leaned Trial Magistrate erred in law and fact in dismissing the Appellant's Defence without analysis.
  7. THAT the Leaned Trial Magistrate erred in law and fact in arriving at a conviction against the weight of evidence.
  8. THAT the Leaned Trial Magistrate erred in law and fact in ignoring the inconsistencies and clear falsehoods which rendered the prosecution witnesses unreliable.
  9. THAT the Leaned Trial Magistrate erred in law and fact in using the contradictory evidence as regard the complainant's age in that the charge sheet indicates the age of the complainant to be 16 years whereas her evidence in chief she said she was 17 years. The Doctor also confirmed the age of the Complainant to be 17 years, while the age of the accused at the time of the alleged offence was 22 years of age. This inconsistence should be ruled in favour of the accused.
  10. THAT the Leaned Trial Magistrate erred in law and fact in failing to recognize the Doctor's evidence who observed that on examination, the genitals had no physical injuries and no hymen and there was an old scar. This shows the act was done long time before the accused was charged.
  11. THAT the Leaned Trial Magistrate erred in law and fact in failing to comply with statutory provisions to the prejudice of the Appellant.
  12. THAT the sentence was manifestly excessive and harsh.
  13. For the reasons advanced in his Petition of Appeal, the Appellant prayed to this Honourable Court to set aside the conviction and sentence and to direct that the Appellant be at liberty.

The Prosecution’s case

  1. The prosecution called five (5) witnesses in support of its case.

The complainant testified as PW 1 that on 1st June 2023 the accused sent a child called Julius Kuba to tell her he loves her. She testified that she rejected his advances. She testified that she left home for the shamba and the accused person followed her wanting to know if what she had told Julius was true. She testified that she confirmed to him her assertions that she did not love him. She testified that he then started to touch her everywhere including her breasts, then he took her by the hand and led/dragged her into the nearby bushes and had sex with her. Her testimony is that he removed the biker and panty she had on and then he penetrated her vagina with his penis. She testified that once he was done she left for home and never told anyone.

  1. PW 1 testified that on 30th June 2023 she had been sent to the shops at about 3p.m. and along the way she met with the accused person. Her testimony was that he took the luggage that she had and dragged her to a nearby forest and then proceeded to have sex with her again. She testified that just like before, she returned home and never told anyone. She testified that sometime in July 2023 while fetching water at the local watering hole, she was confronted by the accused's wife who wanted to beat her for being involved with the accused person. That her mother came and stopped that from happening and that her mother told her father and that was when the entire incident came to light.
  2. PW2 Mjeni Chaka,was the complainant's mother. She testified that on 27th July 2023 she was informed by her neighbour that PW2 was being attacked at the watering point She testified that she went there and found PW1 and Kamanza's wife and that she asked Kanganza's wife why she wanted to beat PW1 and she said it was because PW1 had been with her husband, Kamanza. She testified to taking her child home and informing PW1's father as well as her brother in law. That eventually a report was filed the police and PW1 taken to hospital for examination.
  3. PW3 Tsuma Nyanje Ndoro, testified that he was uncle to PW1 as well as the balozi for Nyumba Kumi. He testified that on 26th July, 2023 at about 6.45p.m. while at home, PW1 was brought by PW2 and he was informed of what had happened at the watering hole. He testified that PW1 also informed him of the sex incidents with the accused person. He testified that they eventually went to the police to report on 28th July, 2023. He also confirmed that PW1 was taken to Mwangulu Dispensary to be examined.
  4. PW4 Mwaruru John, a senior registered clinical officer at Mwangulu Dispensary. He testified that he examined the victim on 28th July 2023 when she was brought to the facility. That she was 17 years old at the time. He testified that the genital examination revealed no physical injuries and that she had no hymen. He testified that she had an old scar around her vaginal area. He also testified that examination fingers could enter her vagina with ease.
  5. PW5 Corporal George Wafula of Mwangulu Police Sation and testifying on behalf of the initial Investigating Officer PC Onunga who has since been transferred. He echoed the statement of PW1 as to what happened to her as well as that pf PW2 and PW3 as what they knew and how they ended up at the police station. That they eventually came and reported to the station on 28th July 2023. He testified that he recorded witness statements and that the accused was eventually arrested on 20th August 2023

The Defence case

  1. The appellant gave his sworn defence and told the court that it was said that he had sex with a child which allegations  were false. He recalled very well on 20th August, 2023; he got up in the morning and was home until about 4 pm and then went to Mwangulu there was a soccer match going on and he watched it. Before the end of the match ended two officers surrounded him and took him to Mwangulu Police Station. On arrival they said the person could not attend and he needed to write a statement then taken to Lunga Lunga police station to spend the night. The officers took his statement then took him to Lunga Lunga where he spent the night and the next day he was taken to court. He did not know the charges read to him in court.
  2. When cross examined he stated that he got to know the girl at Mwangulu; he saw her after which he was arrested. He was familiar with her parents before the case. There were underlying issues but had since been resolved between their families. He told the court he was married; he knew nothing of the complainant’s allegation that she and his wife had gotten into an altercation at the water point.

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 and the parties’ submissions, the two main issues for determination are as follows: -
  2. Whether or not the Prosecution proved its case beyond reasonable doubt; and
  3. Whether the Honourable Trial Court considered the Defence by the Appellant.

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

  1. Moving on, it is trite that for the charge of defilement to stand, the Prosecution must prove the age of the victim (must be a minor), that there must be penetration and a clear identification of the perpetrator. This is provided for under Section 8(1) of the Sexual Offences Act No. 3 2006. Having established the ingredients of the charge, the question that this court should therefore determine is whether those ingredients were proved to the required standard.
  2. Proof of age is important in a sexual offense. In Kaingu Kasomo – Versus -  Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that:

“

Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”

  1. In the present appeal, the Appellant’s position is that the age of the Complainant was not proved to the required standard and that the victim gave contradictory statements. I have gone through the records according to the Child Health Card produced by the Prosecution, the victim was born on 5th September, 2006 meaning that at the time of the incident she was 16 years and 9 months. The clinician stated she was 17 and interestingly the mother had no idea.
  2. It is trite law that in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense (see the case of Thomas Mwambu Wenyi – Versus - Republic Criminal Appeal No. 21 of 2015 [2017]). What emerges is that whilst the best evidence of age is the birth certificate followed by age assessment, other evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant. In this case we are not very certain as the mother did not clarify.
  3. As for penetration, 9. PW4 Mwaruru John, a senior registered clinical officer at Mwangulu Dispensary. He testified that he examined the victim on 28th July 2023 when she was brought to the facility. He testified that the genital examination revealed no physical injuries and that she had no hymen. He testified that she had an old scar around her vaginal area. He also testified that examination fingers could enter her vagina with ease.
  4. The offence occurred in June meaning that by the time she had gone to the hospital there should have been some old scarring if the perpetrator of the act had forced himself on her. It is apparent from the above evidence that the medical evidence produced by PW4 did not corroborate the complainant’s evidence on penetration. The doctor testified that everything was normal pertaining to the complainant’s genetalia. Nothing unusual that could have suggested that the complainant was defiled on the material day.
  5. It is however trite law that the absence of medical evidence 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 (see Kassim Ali – Versus -  Republic Cr Appeal No. 84 of 2005 (Mombasa)(unreported).
  6. This is in line with the proviso to section 124 of the Evidence Act which provides that a trial court can convict on the evidence of the victim of a sexual offence alone provided that the trial court believe or be satisfied that the victim is telling the truth and secondly it must record the reasons for such belief. The said section provides;

“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:

Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

  1. Bearing this in mind, Section 124 of the Evidence Act can only be complied with if the “reasons” are “recorded in the proceedings” indicating that the “Court is satisfied that the alleged victim is telling the truth”. I have perused the judgment of the learned magistrate and note that she based the conviction on the fact that it was stated that the Appellant had previously defiled the complainant.
  2. In this case the complainant appeared to state that the accused person  had non consensual sex with her.  That he dragged her to the bushes and forced himself on her on two separate occasions.  She did not report to anyone and she did not seek any medical attention.
  3. From the totality of the evidence, the  complaint came up when the wife to the accused person allegedly confronted and beat up the complainant for having an affair  with the appellant.  This would be suggestive of an on going and most probably long term relationship which had become public and reached the appellant’ s wife.    The complainant also mentioned that the appellant had sent word saying he was interested in a relationship with her but she declined.
  4. The circumstances point to an on going relationship and the evidence of the forced sexual encounter  was not truthful and most probably was to to save  face.
  5.   That it was most  probably a consensual relationship does not   make it lawful as there was the aspect of her capacity as only persons who have  attained the age of majority can give consent. That is what made the issue of the age very critical in this case.
  6. Further any lies would go towards the credibility as there was no medical corroboration.
  7. The trial court did not address on the findings of the doctor on the defilement that was alleged to have been committed before 30th June, 2023 but concentrated on previous allegations that the Appellant had defiled the complainant and relied on that to convict the Appellant.
  8. The correct legal position was stated in the case of Chila – Versus - Republic [1967] E.A 722 thus:

“The Judge should warn … himself of the danger of acting on uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless court is satisfied that there has been no failure of justice.”

  1. It is therefore my findings that since the medical evidence exonerated the Appellant, it means that the medical evidence did not corroborate the complainant’s evidence. In such a scenario, the trial court was obliged to treat the complainant’s evidence in line with section 124 of the Evidence Act and record the reasons for believing that she was telling the truth. This was not done. It therefore follows that penetration was not proved to the required standard.
  2. The court notes that the appellant was not represented during the trial and he has raised this aspect.  I have noted that he was 22 years old and this age difference is also significant.. Without any representation he may not have been able to avail all the defences that are available to him.

Conclusion and Disposition

  1. Having found that penetration was not proved, I see no need to delve into other grounds raised by the Appellant. The upshot is that the Appellant’s appeal succeeds and the conviction is quashed and the sentence set aside to that extent.  I direct that the appellant Kamanza Chagobo Nyamawi be set at liberty unless otherwise lawfully detained.

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…19th………DAY OF ……December………………….……., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

Appellant

    KIMANZA CHABOGO NYAMAWI VS The Republic KIMANZA CHABOGO NYAMAWI VS The Republic