1. The Appellant was was t charged with the offence of defilement contrary to section 8(1) of the sexual offence act. He pleaded not guilty and the prosecution went on to call a total of six (6) witnesses. At the conclusion of the trial, the Appellant was found guilty on the main count.
2. Having being aggrieved and dissatisfied with the said conviction and sentence to serve twenty-five (25) years imprisonment, he preferred this appeal by lining out four (4) grounds of Appeal. These are:
(I). The Learned Hon. Trial Magistrate erred in both law and fact in convicting the Appellant on the premise of a charge which was in conflict with the evidence on record, which was highly suggestive of an offence of attempted defilement.
(II) The Learned Hon. Trial Magistrate erred in both law and fact in finding that there was a positive identification of the appellant while singularly relying on dock identification and in the absence of the substantiation and corroborative evidence.
(III) The Learned Hon. Trial Magistrate erred in both law and fact in convicting and sentencing the Appellant while appreciating that he was not in his proper state of mind hence not been a party to the proceedings of the 25th January, 2024; hence revisiting an injustice on the Appellant.
(IV) The Learned Hon. Trial Magistrate erred in both law and fact in convicting the Appellant on the premise of a charge which was in conflict with the evidence on record, which was highly suggestive of an offence of attempted defilement.
(v) The Learned Hon. Trial Magistrate erred in both law and fact in finding that the prosecution had proven their case beyond reasonable doubt, while very crucial and material witnesses were left out.
- 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.
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.
AGE
- On the age of the Complainant it was established by the trial court that the complainant as at the time of offence was aged 7 years old. The father produced the child health card which showed the date of birth as 16/11/2012 in proof of the same.
Penetration and Identification
The court notes that the trial court conducted a voire dire examination of the minor and confirmed that the child was intelligent and could testify.
The medical notes show that there were lacerations at the 6 o’clock and 12’ o clock and this is evidence of penetration. So the first two ingredients were proved.
On the 3rd aspect of penetration , the evidence was not so consistent.
The minor said that it was the appellant who took him to the bush and penetrated his anus.
The other key witnesses were pw2 and pw4 who testified that they saw the accused person get into a bush and then they heard the child cry.
The main problem with this evidence was the time lines. The minor said the appellant took him at 2.00pm. PW2 said she first saw the accused with the child at 6.00pm then she heard the noise at 8.00pm. PW4 on her part mentions 6.00 pm then 7.00pm and she says the duration between which she saw the two get into the bush was 5 minutes. All this does not add up.
Further, The appellant was arrested by relatives of the victim where he was subjected to mob injustice. This position is extensively supported by the plea taking proceedings on the 6th March ,2019 (page I of the record), on the 7th March,2019 (page 2 of the records) and on the 8th March, 2019 (page 3 of the records) where the learned prosecutor did observe that the Appellant had visible injuries and the court went on to order for his treatment before plea could be taken, which we must recommend the learned prosecutor and the court.
The said relatives to the victims, who affected the citizen arrest and by extension subjected the Appellant to mob injustice, were crucial prosecution witnesses in explaining the reason as to how/why they were able to isolate and identify the Appellant as the possible perpetrator of the alleged defilement of the victim herein.
PW2 & PW4 limited their evidence to seeing people walking into a bush and running away from the said bush. They were also not present during the arrest.
No identification parade was conducted and I find the dock identification to have been shaky and hence insufficient.
MENTAL INCAPACITY
On the 11/11/2024, the Appellant’s advocate requested that the Appellant, be referred for a second mental assessment pursuant to ground 3 of the appeal.
He was escorted to Port Reitz hospital on 18/12/2024.
The report shows that he was interviewed in the presence of CPL Carlos Munyoki and Inspector Abdalla Komora.
The report shows that Mohamed Abdullahi Abdi is a well-known patient to the Port reitz Hospital team where he has been on treatment for schizophrenia which was diagnosed in January 2024 when he was admitted and started on treatment. He is currently still on treatment and follow up, and is compliant to his medication.
On Examination he was kempt, calm, cooperative but with poor eye contact. He still exhibits selective mutism and disorganized behavior. Cognition and insight is poor.
The doctor’s finding was;
- He suffers from schizophrenia and is still symptomatic despite adequate medication.
- This is a life long illness and his condition is unlikely to change .
- Inpatient management is advised due to severity of condition and poor response to comprehend nature of the crime he committed due to his illness.
The court also called for a social inquiry report and one was prepared by Mutisya Kioko. It is dated 18/2/2025.
The report shows that the applicant was born 21 years ago and raised in Mvita Sub-County.
He is a class 5 drop-out from Likoni Primary School. He did not proceed with his education due to his mental illness.
He has no formal employment.
He has no history of drug, substance or alcohol abuse.
He is a first offender. This is his first conviction and has never again been arraigned before a court of law.
He hails from Majengo Mvita in Mombasa County. The environment is conducive for supervision and rehabilitation. In his residential area/ community, there are no major threats that could endanger his life or influence him to re-offend.
The offender could not communicate well so it was not easy to get his personal thinking about the offence or his life in custody.
As observed during the interview, from a general presentation the appellant portrays serious signs of mental disturbance. He appears shaky disturbed and unkempt with inability to communicate.
During the interview, he could not talk or say anything or respond on being asked any question. The initial interview was postponed since he could not communicate at all. When his name is called out, he responded only by raising up his head and immediately bowing down his head, followed by deep silence and avoidance of making eye contacts. He kept on bending head down and on further calling out his names he swings his head side and side without saying a word as he scratches his head with both his hands. The non-verbal noted points out that he was never interested in any form of communication and couldn’t comprehend what was going on around. A second attempt also turned futile with almost similar outcome.
From the prison facility, the appellant is understood to have signs of mental illness as well. He is reported to be experiencing serious difficulties in communication and inability to stay without a close supervision. He is monitored closely so that he fits in well and so as to adhere to the custody programs as well as to avoid an instance of harm or dangers that he may pose to himself, fellow inmates or staff. As reported, he keeps off other inmates and staff. He likes spending time alone and has minimum social interactions as noted for time he has been in custody. Because of these reasons, he is regarded as a special category inmate and not tasked with routine rehabilitation programs as other inmates since his mental health status is given priority.
During the inquiry his family level was brought on board. Key family members interviewed were his mother, an uncle, and area community representative (Tononoka). To shed more light on the mental health aspect, a family conference held at probation office with the fore mentioned in attendance. Paying close attention to the mental illness, history, treatment and related issues. They explained in-depth and shed more light on it. From then, the appellant was born normal, though they couldn’t tell more about his mental status when he was an infant.
‘It’s until around when in class 5 when things started turning around since as the appellant advanced in his early childhood especially when he began school work, he could not effectively socialize with his family members fellow schoolmates and community in various social dimension interactions.” Sic.
From this point the family began noticing signs and symptoms of mental illness and from this point they began search for medication from various medical facilities.
With several episodes of medical attention, they were eventually referred to psychiatrist attention. They began taking him for closer psychiatrist treatment, and went to various private and public facilities. Some of the medical institutions sought are as follows:
- Coastal Referral and General Hospital
- Afya First Medical Facility
- Mombasa Breeze Hospital
- Potreitz Sub-County Hospital
Observation and Conclusion
The report shows that the appellant is a youthful currently at 21 years of age. He has no valid identification card or birth certificate presented to ascertain his actual age though the mother reports he was born in the 2004 translating that he is currently 21 years old. Basing on this and considering that the offence occurred in the year 2015, he might have been a minor at the time.
He lives with his family in Mvita area of Mombasa County. His father passed away while the appellant was still young and was therefore raised by a single mother. The appellant suffers from mental illness since he was in primary school and has been in and out of hospital seeking for medication and assistance. The appellant due to the illness can’t take care of himself and depends on others for basic need and support. From the prison authorities, it was established that the appellant is still under medication and care. Upon being charged the offence, the family relocated from the area to avoid any possible conflict in vicinity of the victim’s family.
The family has welcomed re- integration and social support mechanism and are ready to continue taking care of him if granted the chance. They plead the court to hear their prayers and give them an opportunity to re-settle the appellant and cater for his treatment and care. They are optimistic that in their safe hands, he will recover with time.
The trial record shows that the appellant was in fact brought from hospital where he had been admitted on the date the judgment was delivered.
The trial court did not make any inquiry save to note that the trial had proceeded on okay.
If they had called for an independent mental evaluation or asked for a social inquiry report the above captured history would have advised the court.
The courts frown on imprisonment of ill persons as was stated in Lucy Wangari Muhia V Republic (2022) eklr .At paragraph 49 the Hon L. J Nzioki stated 49“ I therefore, hold the view that, people with mental issues don’t belong in a correctional facility or detention in prison. They need to get treatment in a mental health hospital, so they can receive care instead of confinement.
50. In fact, sending a mentally ill person to prison accomplishes nothing. Without treatment, a person who has been incarcerated before is likely to end up back in jail again because of the same ailment. The Bureau of Justice Statistics in Canada, reported in 2006 that, almost one-fourth of inmates with mental illness had been incarcerated at least four times.
Similarly in Hassan Hussein Yusuf V Republic (2016) eklr the Hon. Justice Kiarie Waweru stated “A sick person's place is at the hospital and not in prison. I find section 167 of the Criminal Procedure code discriminative to people with mental illness for prescribing their detention to be in prison instead of a health facility and for the detention to be indeterminate. This offends articles 25 and 29 (f) of the Constitution. Article 25 provide as follows:
25. Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited––
(a) freedom from torture and cruel, inhuman or degrading treatment or punishment;
In that case the appeal was allowed and an order on the treatment given.
In this particular case I note that the relatives of the accused person are willing to meet the treatment and rehabilitation costs.
From the above I find that both the conviction and the sentence were not safe. His age was also not ascertained.
Accordingly, the Appeal succeeds both on the conviction and the sentence. I will therefore set the sentence aside and order that he continues with his treatment to ensure that he is treated and not a danger to himself or the society.
Towards that court will place him on probation so that The probation department supervises him for the next 3 years to ensure he is properly re integrated and treated.
It is so ordered
Dated signed and delivered virtually this 14th day of April 2025.
Lady Justice Wendy Kagendo Micheni
In the presence of
The appellant and his advocate MR. Chacha Mwita
MR Ngiri prosecutor
MS Bebora court assistant