Appeal against the conviction and sentence of 20 years in Sexual Offence Criminal Case No. E015 of 2021 for the Offence of Defilement by CM’S Court at Mombasa before Honourable M. Mutukua CM dated and delivered on 12th June, 2023)
1. The appellant was convicted for the offence of defilement contrary
to Section 8(1) as read with Section 8(2) of the Sexual Offences Act by Hon. M. Mutuku (CM) on 12/6/2023 in CR. Case S.O. 015 of 2021 and was sentenced to serve Life imprisonment in both count 1 & 2, to serve 20 years imprisonment for count 3 and sentences in count 2 & 3 were held in abeyance.
2. The appellant was dissatisfied and he filed an appeal challenging his conviction and sentences . The Appeal was filled on 29/06/2023 and he raised the inconsistencies in the evidence and the harshness of the Sentences.
3. The Respondent supported the conviction and argued that all the ingredients of the offence were proved.
4. The Appeal was argued by way of submissions.
5. The duty of the 1st Appellate court is to analyze the evidence afresh as was held in Okeno – Versus – Republic [172] EA 32, where the East Africa Court of Appeal stated as follows on the duty of the Honourable Court on a first Appeal;
“An Appellant on a first Appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (PANDYA-VERSUS-REPUBLIC [1957] E.A. 336) and to the Appellate Courts own decision on the evidence. The first Appellate Court must itself weigh conflicting evidence and draw its own conclusions. (SHANTILAL M. RUWALA-VERSUS- REPUBLIC [1957] EA 570 It is not the function of a first Appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions. Only then can it decide whether the Magistrate's findings should be supported.
6. The Appellant was charged with 3 counts of Defilement under Section 8(1) as read with Section 8(2) of the Sexual Offences Act.
It 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”.
7. As provided in Charles Wamukoya Karani – Versus - Republic Criminal Appeal No.72 of 2013, for the offence of defilement to be established, three ingredients must be proved beyond any reasonable doubt; proof of penetration, complainant’s age and identification of the perpetrator.
8. On the age of the Complainant it was established by the trial court that the 1st complainant as at the time of offence was aged 11 years old. The mother produced the Birth certificate in proof of the same. PW 2 at the time was aged 10 years which was confirmed by PW-4 her mother.
Penetration and Identification
9. The court notes that the trial court conducted a voire dire examination of the two minors and confirmed that both were intelligent and could be affirmed.
10. PW 1 then testified on 24/03/2021 and stated that
“The accused asked me and asked to wash the utensils. Then he removed my clothes and defiled me. He inserted his penis in my vagina. When we entered the house the accused locked the door with a padlock. The accused put a masking tape on my mouth and tied my hands with a rope….”.
He also tied S and covered S mouth with a masking tape.
“He defiled me by inserting his penis in my vagina….”
11. PW 2 likewise said
“I saw the accused defile PW 1. The accused removed P’s underpants, he put saliva on P’s vagina and then defiled her”.
12. The charge sheet states that the defilement was on two different dates. The 14th and 20th of September 2020 . However , that was not supported by the evidence. But if that was to be the case and if the defilement took place on two different days, this begs the question; These were two girls (11 to13 years), though of tender age, the trial court assessed them as being intelligent.
13. The two girls testified that the accused person tied their hands and legs and covered their mouths with cello tape. That they also felt pain . Now, even if they were scared of reporting the first time would the two of them, again go into the same house after the first ordeal which was so painful? I find that difficult to believe.
14. It is noted that none of the two victims talked of any forceful abduction into the house of the accused person. They said he asked them to go wash dishes for him and they went. That was the first red flag.
15. The next issue is that of the anal penetration. This was first introduced into the court on 12/5/2021 by PW 5, Bakari Beja the village elder. He does not state on which date he was called by Agnes PW 2. He does not say on which date the offence occurred .t he only said he was told there was defilement then says that the accused also penetrated the children in the anus. It was after their evidence that the prosecution applied to amend the charge sheet and the other counts were introduced. This was some 8 months down the line.
16. This delay or discrepancy was explained by the evidence of PW 6, who said the child P (PW 1) developed complications and had to go to hospital. The admission and surgery do show that indeed PW 1 was injured on the anus. I note that the initial treatment notes states that the hymen was intact and there was a minor bruises around the anal area.
17. What is not clear is how and when the offence occurred. As earlier stated the charge sheet talks of two dates the 14th and 20th September 2020 but as earlier pointed out that is not supported by the evidence.
18. Then we note that the report was made on 22/09/2020 at 21.58 hours. PW 1 was examined in hospital on 23/9/2020 at 12.30am. So this report was made at night and action taken that night.
19. This is should be looked at together with the way the complaint was made. PW 1 in her initial evidence stated that she did not tell the mother what had happened and it is PW 2 (S) who told her (PW1’S ) mother. Indeed, S stated that she is the one who told PW 3 what had befallen them.
20. On her part, PW 3 says she went home and found that PW 1 had rope marks on the hands and legs. That she also saw that P’s underwear had a discharge and the child was walking with difficulty. She then probed P who told her that the accused known as Tomato had defiled her.
21. I note PW 3 does not say on what date this conversation happened but the area doesn’t say that he was called on 22/09/2020 at 9.15pm. This tallies with the police report as shown in the P3 of 22/09/2020 at 21.58hours. The same P3 shows that the offence took place on 20/09/2020 at 12.00hrs.
Question- Would the rope marks and the discharge have been visible more than a week later later if the defilement was on 14th some 57 hours late if it was on 20th?
22. The initial treatment notes for p show hymen intact. No discharge. There is no mention of rope marks. Then on the initial P3 the state of clothing is shown as Dry and Clean and on both the upper and lower limbs. It is indicated normal.
23. I must say that sifting this evidence is one of these instances, which the men of old described as a hard nut to crack. On the one side we have what we can see was grievous injury especially to PW 1 that even necessitated corrective surgery. The flow of events is however distorted. As I pointed out the charge sheet is not clear as to when the offence occurred and as the charge sheet mentions two different dates. It not state it was on some unknown or diverse states. It is specific as to the 14th and 20th of September 2020.
24. Then there is the issue of whom the girls told and when.
- Was the issue reported on the 20th or 22nd?
- What happened on 14th 20th or 22nd?
- If it was on 14th or 20th where was the discharge that PW 3 saw and the rope marks?
- These are the issues which were not resolved.
-
25. The other issue noted is that the charge sheet had to be amended and I note that S 204 of CPC was not complied with. The accused person was not told of his right to recall and cross examine the witnesses. PW 3 was recalled and cross examined but I note that when PW 1 was recalled she was not cross examined by the accused person and it was not indicated that he was given a chance and he daclined. That was a grave omission.
26. I am aware that I did not see the demeanor of the witnesses but neither did the trial court that wrote the Judgment as that was Hon. M. Mutuku who only took the evidence of the Doctor and the Defence.
27. In that defence, I note that the accused person raised the issue of some grudges with PW 3 – that is PW’s mother. This was a chang’aa brewing and the grudges. It is PW 3 who reported the issue and who told PW 2’s mother. PW 3’s evidence as to how she got the information contradicts that of PW 1 and PW 2 as none of them said she probed them.
28. Under the circumstances, I am persuaded that this was not a safe conviction as there are lingering doubts. I also note that when the accused was arrested, both the village elder said that the youth created chaos which enabled him to escape. This would show that even the local community were not happy with his arrest which is yet another red flag as ordinarily, the community members bay for the blood of any deal or pre-accused deal molestation.
29. I therefore find that there were too many discrepancies. From the charge sheet, as per the dates , the way the report was made, when it was made, the discrepancies in the evidence , and the amendment of the charge sheet, I find that all the convictions were unsafe.
30. As William Blackstone stated – it is better that 10 guilty persons escape than one innocent person suffer. The appeal on all the convictions and sentences succeeds and the said convictions are Quashed and the sentences set aside and the appellant may be set at liberty if not otherwise lawfully held.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this ………13th ………day of ………March…………………2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
Appellant in person
Ms CHEROP for the state
Bebora court Assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE
1. The appellant was convicted for the offence of defilement contrary
to Section 8(1) as read with Section 8(2) of the Sexual Offences Act by Hon. M. Mutuku (CM) on 12/6/2023 in CR. Case S.O. 015 of 2021 and was sentenced to serve Life imprisonment in both count 1 & 2, to serve 20 years imprisonment for count 3 and sentences in count 2 & 3 were held in abeyance.
2. The appellant was dissatisfied and he filed an appeal challenging his conviction and sentences . The Appeal was filled on 29/06/2023 and he raised the inconsistencies in the evidence and the harshness of the Sentences.
3. The Respondent supported the conviction and argued that all the ingredients of the offence were proved.
4. The Appeal was argued by way of submissions.
5. The duty of the 1st Appellate court is to analyze the evidence afresh as was held in Okeno – Versus – Republic [172] EA 32, where the East Africa Court of Appeal stated as follows on the duty of the Honourable Court on a first Appeal;
“An Appellant on a first Appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (PANDYA-VERSUS-REPUBLIC [1957] E.A. 336) and to the Appellate Courts own decision on the evidence. The first Appellate Court must itself weigh conflicting evidence and draw its own conclusions. (SHANTILAL M. RUWALA-VERSUS- REPUBLIC [1957] EA 570 It is not the function of a first Appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions. Only then can it decide whether the Magistrate's findings should be supported.
6. The Appellant was charged with 3 counts of Defilement under Section 8(1) as read with Section 8(2) of the Sexual Offences Act.
It 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”.
7. As provided in Charles Wamukoya Karani – Versus - Republic Criminal Appeal No.72 of 2013, for the offence of defilement to be established, three ingredients must be proved beyond any reasonable doubt; proof of penetration, complainant’s age and identification of the perpetrator.
8. On the age of the Complainant it was established by the trial court that the 1st complainant as at the time of offence was aged 11 years old. The mother produced the Birth certificate in proof of the same. PW 2 at the time was aged 10 years which was confirmed by PW-4 her mother.
Penetration and Identification
9. The court notes that the trial court conducted a voire dire examination of the two minors and confirmed that both were intelligent and could be affirmed.
10. PW 1 then testified on 24/03/2021 and stated that
“The accused asked me and asked to wash the utensils. Then he removed my clothes and defiled me. He inserted his penis in my vagina. When we entered the house the accused locked the door with a padlock. The accused put a masking tape on my mouth and tied my hands with a rope….”.
He also tied S and covered S mouth with a masking tape.
“He defiled me by inserting his penis in my vagina….”
11. PW 2 likewise said
“I saw the accused defile PW 1. The accused removed P’s underpants, he put saliva on P’s vagina and then defiled her”.
12. The charge sheet states that the defilement was on two different dates. The 14th and 20th of September 2020 . However , that was not supported by the evidence. But if that was to be the case and if the defilement took place on two different days, this begs the question; These were two girls (11 to13 years), though of tender age, the trial court assessed them as being intelligent.
13. The two girls testified that the accused person tied their hands and legs and covered their mouths with cello tape. That they also felt pain . Now, even if they were scared of reporting the first time would the two of them, again go into the same house after the first ordeal which was so painful? I find that difficult to believe.
14. It is noted that none of the two victims talked of any forceful abduction into the house of the accused person. They said he asked them to go wash dishes for him and they went. That was the first red flag.
15. The next issue is that of the anal penetration. This was first introduced into the court on 12/5/2021 by PW 5, Bakari Beja the village elder. He does not state on which date he was called by Agnes PW 2. He does not say on which date the offence occurred .t he only said he was told there was defilement then says that the accused also penetrated the children in the anus. It was after their evidence that the prosecution applied to amend the charge sheet and the other counts were introduced. This was some 8 months down the line.
16. This delay or discrepancy was explained by the evidence of PW 6, who said the child P (PW 1) developed complications and had to go to hospital. The admission and surgery do show that indeed PW 1 was injured on the anus. I note that the initial treatment notes states that the hymen was intact and there was a minor bruises around the anal area.
17. What is not clear is how and when the offence occurred. As earlier stated the charge sheet talks of two dates the 14th and 20th September 2020 but as earlier pointed out that is not supported by the evidence.
18. Then we note that the report was made on 22/09/2020 at 21.58 hours. PW 1 was examined in hospital on 23/9/2020 at 12.30am. So this report was made at night and action taken that night.
19. This is should be looked at together with the way the complaint was made. PW 1 in her initial evidence stated that she did not tell the mother what had happened and it is PW 2 (S) who told her (PW1’S ) mother. Indeed, S stated that she is the one who told PW 3 what had befallen them.
20. On her part, PW 3 says she went home and found that PW 1 had rope marks on the hands and legs. That she also saw that P’s underwear had a discharge and the child was walking with difficulty. She then probed P who told her that the accused known as Tomato had defiled her.
21. I note PW 3 does not say on what date this conversation happened but the area doesn’t say that he was called on 22/09/2020 at 9.15pm. This tallies with the police report as shown in the P3 of 22/09/2020 at 21.58hours. The same P3 shows that the offence took place on 20/09/2020 at 12.00hrs.
Question- Would the rope marks and the discharge have been visible more than a week later later if the defilement was on 14th some 57 hours late if it was on 20th?
22. The initial treatment notes for p show hymen intact. No discharge. There is no mention of rope marks. Then on the initial P3 the state of clothing is shown as Dry and Clean and on both the upper and lower limbs. It is indicated normal.
23. I must say that sifting this evidence is one of these instances, which the men of old described as a hard nut to crack. On the one side we have what we can see was grievous injury especially to PW 1 that even necessitated corrective surgery. The flow of events is however distorted. As I pointed out the charge sheet is not clear as to when the offence occurred and as the charge sheet mentions two different dates. It not state it was on some unknown or diverse states. It is specific as to the 14th and 20th of September 2020.
24. Then there is the issue of whom the girls told and when.
- Was the issue reported on the 20th or 22nd?
- What happened on 14th 20th or 22nd?
- If it was on 14th or 20th where was the discharge that PW 3 saw and the rope marks?
- These are the issues which were not resolved.
-
25. The other issue noted is that the charge sheet had to be amended and I note that S 204 of CPC was not complied with. The accused person was not told of his right to recall and cross examine the witnesses. PW 3 was recalled and cross examined but I note that when PW 1 was recalled she was not cross examined by the accused person and it was not indicated that he was given a chance and he daclined. That was a grave omission.
26. I am aware that I did not see the demeanor of the witnesses but neither did the trial court that wrote the Judgment as that was Hon. M. Mutuku who only took the evidence of the Doctor and the Defence.
27. In that defence, I note that the accused person raised the issue of some grudges with PW 3 – that is PW’s mother. This was a chang’aa brewing and the grudges. It is PW 3 who reported the issue and who told PW 2’s mother. PW 3’s evidence as to how she got the information contradicts that of PW 1 and PW 2 as none of them said she probed them.
28. Under the circumstances, I am persuaded that this was not a safe conviction as there are lingering doubts. I also note that when the accused was arrested, both the village elder said that the youth created chaos which enabled him to escape. This would show that even the local community were not happy with his arrest which is yet another red flag as ordinarily, the community members bay for the blood of any deal or pre-accused deal molestation.
29. I therefore find that there were too many discrepancies. From the charge sheet, as per the dates , the way the report was made, when it was made, the discrepancies in the evidence , and the amendment of the charge sheet, I find that all the convictions were unsafe.
30. As William Blackstone stated – it is better that 10 guilty persons escape than one innocent person suffer. The appeal on all the convictions and sentences succeeds and the said convictions are Quashed and the sentences set aside and the appellant may be set at liberty if not otherwise lawfully held.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this ………13th ………day of ………March…………………2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
Appellant in person
Ms CHEROP for the state
Bebora court Assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE