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JudgmentMUMO WAMBUA VS The Republic16 min read

MUMO WAMBUA VS The Republic

High Court at Kajiado High Court · · Stella Mutuku

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL APPEAL NO.E022 OF 2023

MUMO WAMBUA …….……………………………………………………………APPELLANT

VERSUS

REPUBLIC………………………………………………………………..………RESPONDENT

JUDGEMENT

  1. The Appellant has filed this Appeal against conviction and sentence of the lower court in Criminal Case No. E071 of 2021. He was charged with defilement of a 17-year-old girl contrary to section 8(4) of the Sexual Offences Act No. 3 0f 2006. The particulars of the offence are that on 10th November, 2021 at Lumbwa in Namanga Sub-County Kajiado County, the accused (Appellant) unlawfully and intentionally caused his penis to penetrate the vagina of ASM a child aged 17 years.
  2. The Appellant faced an alternative count of indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 which charge bears similar particulars as the main count save for stating that he committed an indecent act with a child ASM a child aged 17 years by intentionally touching her vagina.
  3. The Appellant pleaded not guilty, and a full trial proceeded to the conclusion. At the end of the trial the Appellant was found guilty of the main charge and was sentenced to 15 years imprisonment. He has appealed against that conviction and sentence in the Memorandum of Appeal filed on 7th June, 2023 in which he has raised the following grounds:
  4. That the  trial magistrate erred in law and in fact in failing to consider and analyze the evidence as it was adduced by the prosecution’s witnesses both in examination in chief and during cross-examination but instead erroneously twisted the said evidence in her impugned judgement to support a finding of guilt against the Appellant in total violation of the Appellants Right to a fair hearing as guaranteed under Article 50(1) and 50(2) (a) of the Constitution of Kenya 2010.
  5. That the trial magistrate erred in law and in fact by considering evidence was not adduced by the complainant at all during the trial which evidence was alien to the proceedings before the trial court hence reaching an erroneous finding that the Appellant had defiled the complainant.
  6. That the trial magistrate erred in law and in fact by ignoring in totality the glaring contradictions and inconsistencies in material particulars between the complainant’s and PW3’s (complainant’s younger brother’s) viva voce evidence in court and their witness statements recorded with the police which contradictions and inconsistencies raise doubts on the credibility and honesty of those 2 key prosecution’s witnesses.
  7. That the trial magistrate erred in both law and fact in making a finding that there was sufficient proof of penetration in the sense of the Sexual Offences Act when the clinical officer who had examined the complainant within 24 hours of the alleged defilement could not conclude or ascertain in her findings that the complainant had been penetrated or defiled.
  8. That the trial magistrate erred in both law and fact by holding that there was sufficient proof of penetration when the prosecution evidence relied heavily on the Doctor’s finding that hymen was absent despite it being a settled legal principle that absence of hymen is not proof of penetration.
  9. That the trial magistrate erred in both law and fact in making a finding that the Appellant was responsible for penetrating the complainant purely on the basis of evidence of identification when this was purely a case of recognition and without considering the circumstances of the case when  none of complainant’s fellow pupils who had allegedly seen the Appellant and the complainant going to the hill, the alleged scene of crime were called to testify.
  10. That the trial magistrate erred in both law and fact in making a finding that the Appellant was responsible for the penetration when both the Appellant and the complainant had been subjected to medical examinations and their respective medical reports produced by the prosecution as prosecution exhibits PEXH 2 (P3 form) PEXH 3 (post rape care form – PRC Form) and the Appellant’s treatment notes as PEXH 4 respectively, which medical reports do not link the Appellant to the penetration at all.
  11. That the trial magistrate erred in both law and fact in making a finding that the Appellant was responsible for the penetration when the prosecution had not adduced any evidence at all placing the Appellant on the alleged crime scene.
  12. That the trial magistrate erred in both law and fact in making a finding that the prosecution had proven its case beyond any reasonable doubt and in convicting and sentencing the Appellant for the offence of defilement when the injuries noted on the complainants genitals by the clinical officer who examined the complainant barely 24 hours after the alleged commission of the offence, had not been brought within the time the offence was allegedly committed.
  13. That the trial magistrate erred in both law and fact in failing to consider findings of the clinical officer at part 2(a) and (b) of the p3 form regarding the age of the injuries noted on the complainant’s genitalia that she had ‘minor scars along the vaginal wall,’’ which meant that the alleged injuries had completely healed at the time of the medical examination that was done less than 24 hours from the time of the alleged commission of the offence which implies that if at all the complainant had been defiled, the same did not happen on the alleged date.
  14. That the trial magistrate erred in both law and fact by completely failing to consider the evidence adduced by the Appellant in Defence, which evidence shows that the Appellant remained within the school compound after the day scholars were released from school at 4:30pm on the material day and there is no way the Appellant could have been physically in two places at the same time.
  15. That the trial magistrate erred in both law and fact by completely failing to consider the Appellant’s substantive submissions and decided authorities as filed before the trial court which submissions clearly demonstrated that the prosecution had neither established a prima facie case nor proven its case against the Appellant beyond all reasonable doubt with respect to the issue of penetration.
  16. That the trial magistrate erred in both law and fact by failing to critically analyze the evidence presented before her and consider the circumstances hence arriving at an erroneous conviction and sentencing.
  17. That the trial magistrate erred in both law and fact by imposing the mandatory sentence of 15 years upon the Appellant without considering the fact that the Appellant was in shock after pronouncement of the conviction and was unable to say anything in mitigation and the fact that the Appellant’s advocate was unwell and had instructed another counsel to hold her brief and take the judgement and that the counsel holding brief had not interacted with the Appellant hence could not mitigate on his behalf and without even explaining to the Appellant what was meant by the word “mitigation’’ so that the Appellant could at least pray for a lenient sentence.
  18. The Appeal was canvassed through written submissions. The Appellant filed his submissions dated 14th August, 2023. In respect of grounds 1st to 13th ground the Appellant submitted that the prosecution did not prove the element of penetration beyond all reasonable doubt and that there was no proof that the Appellant was responsible for penetrating the complainant. The Appellant relied on his earlier submissions filed at the trial court dated 14th April, 2023.
  19. On ground 14, the Appellant submitted that the trial court sentenced him on the same day and without his advocate; that he was unable to mitigate as he did not understand what mitigation means. He submitted that the trial court should have explained to him the meaning of mitigation and that the sentence of 15 years, which is harsh and excessive. He argued that he is a young man in his early 30’s and has a young wife and a 3-year-old son; that he is the sole bread winner in his family, that he has an old ailing mother and siblings and that he has just secured permanent employment with the Teachers Service Commission on 30th August, 2022.
  20. The Appellant relied on the case of Francis Karioko Muruatetu -v – Republic Supreme Court Petition No 16 of 2015, on the view that the mandatory nature of minimum sentences was no longer tenable. He also relied on Rophas Furaha Ngombo -vs- Republic [2019]eKLR where the Court of Appeal quoted with approval its decision in Dismas Wafula Kilwake -vs- Republic, Criminal Appeal No 129 of 2014 where it held that:

“In principle, we are persuaded that there is no rational reason why the reasoning of the Supreme Court, which holds that the mandatory death sentence is unconstitutional for depriving the courts discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply to the provisions of the Sexual Offences Act, which do exactly the same thing.

  1. The Appellant argued that in the case of Rophas Furaha Ngombo, above, the mandatory sentence of 15 years was set aside and substituted with that of 8 years.
  2. The Respondent filed submissions dated 22nd August, 2023. It was submitted that in a case of defilement, the prosecution must prove penetration occurred, age of the victim and identification of the perpetrator. It was submitted that the complainant identified the Appellant as the person who defiled her; that he followed her and called her to stop so that he could send her and that he pulled her to a bush, lifted up her dress, removed her panty and defiled her.
  3. It was submitted that the complainant’s testimony that she had been defiled by the Appellant was confirmed through the medical report that showed that the complainant’s hymen was broken. It was submitted that section 124 of the Evidence Act, allows a trial court to convict an accused person charged with sexual offence on the evidence of the victim alone if it believes the victim to be truthful.
  4. The Respondent relied on the cases of George Kioji -vs- Republic Cr. App No 270 of 2010 (Nyeri) and Jacob Odhiambo Omumbo – vs- Republic Cr. App No 80 of 2008(Kisumu) and argued that the trial court had the advantage of hearing and seeing the witnesses and that the Prosecution proved the case against the Appellant beyond reasonable doubt. The Respondent urged that the Appeal be dismissed and the conviction and sentence imposed by the trial court should be upheld by this Court.

The evidence

  1. I have considered the evidence of all the prosecution witnesses. The complaint, PW1, testified that she was 17 years old, in class 7 at AIC Canaan Academy in Namanga. She stated that she knew the Appellant as her class teacher who taught Kiswahili. She testified that the Appellant used to give her tuition. It was her case that on the material day she left school and noted that the Appellant was following her. That he called out to her to stop that he wanted to send her. That she was on a footpath and that the Appellant pulled her to a bush. That she pleaded with him to leave her, but he refused. That in the struggle she fell but the Appellant lofted her up and pulled her by the hand. That he insisted on having sex with her. That she told him that she was on her periods. That he lifted her up and inserted his hand into her vagina and told her that she was lying. That the minor tried to stop him to no avail.
  2. She testified that the Appellant lifted her dress and removed her panty and raped her. The complainant arrived home late at 7:00pm prompting her father to ask her why she was late. The matter was brought to the attention of the school leadership the next day. The Deputy Head Teacher, John Sapiti Koki, PW2, called the complaint to find out what had happened. The complainant narrated the story to PW2 leading to a report to the police and the arrest of the Appellant.
  3. The evidence pf the complainant was confirmed by PW 2  who testified that he was the deputy head teacher at the school where PW1 went that is AIC Canaan Academy. He stated that he knew that PW1 used to get tuition classes from the Appellant as he recommended him to PMT (PW4), the father of the complaint. He testified that on the 10th November 2021 he had seen the Appellant tutoring PW1 and that on 12th November 2021, he received a call from PW4, the minor’s father asking him to investigate as his daughter had arrived home late the previous day.  PW2 stated that he called the minor to his office and upon questioning her she started crying and told him that the Appellant had followed her as she went home and raped her. That he called the head teacher and the minor repeated what had happened. That he called the school manager and informed her and that the school director called the area chief. That then they took the minor to the police.
  4. PW4, the minor’s father, testified that PW1 had arrived late after school on 11th November 2021, at 7:00pm. That he called PW2 to investigate this; that he learned the Appellant had raped PW1. He stated that they did not differ with the Appellant on the payment of tuition money. He stated that he had paid the Appellant 3000/- for 6 months and was in arrears of 3000/-. He stated that the Appellant had not informed him that he would discontinue the tuition unless paid in full.
  5. The evidence of PW5, Jane Wanjiku, the Clinical Officer, is that she examined the minor on 11th November 2021 and noted that the vagina (labia majora) was intact, the vaginal wall had lacerations, the hymen was absent and there were minor tears along the vaginal wall. That there was minimal bleeding from the tears. From the speculum examination there was no actual bleeding from the cervix indicating that PW1 was not on her periods. She produced the medical report (P3 form) as exhibit 2 and the PRC Form as exhibit 3 as well as the Lab report as exhibit 4.
  6. The evidence of PW6, 69212 Corporal Honestasia Chepkurugat, who investigated the case is that while in her office, a minor aged 17 years was brought by her father and schoolteachers among them the Appellant. That she narrated the incident. That she arrested the Appellant. That together with the minor and Appellant they visited the scene of crime. That upon vising the scene she noted that it was 1.3 km from the school. She produced the birth certificate of the minor as exhibit 1 and the minor’s blood-stained dress as exhibit 5. 
  7. The Appellant’s evidence is that he was tutoring the minor from May to October 2021; that he had agreed with PW4 that the payment would be 1000/- per month; that the classes were from 4:30pm to 6:00pm; that the relationship with PW4 was good for the first 2 months but that he later stopped paying for the tuition; that as a result he stopped tutoring the minor. He narrated how he spent his time after classes on 10th November 2021 by stating that at 4:30pm when learners were preparing to go home when the minor approached him for tuition and he refused due to the arrears due to him. That he then went to his house about 200 meters from the classroom. That he went to buy eggs and took about 30 minutes. That he paid for the eggs using Mpesa and produced Mpesa statement as Dexh 1. That by the time he was done with his chores  it was 6:50pm and that he went to his friend’s house (teacher Grace) where he stayed for about 45 minutes. He stated that he left for school where he was tutoring other students from 7:00pm to 9:00pm. It was his case that he was arrested the following day and taken to hospital. He stated that his medical report was negative and that he looked at the minor’s report and noted that there was nothing to show penetration. 

Analysis and determination

  1. I have read the entire record of the lower court. I have reminded myself of the duty of this court sitting as the first appellant court to analyze the evidence tendered, re-evaluate the same and arrive at an independent finding, all the time being alive to the fact that I did not have the advantage of observing the witnesses as they testified to gauge their demeaner.
  2. I note that the Appellant raised 14 grounds in his petition of appeal. I have read the grounds of appeal. They are poorly drawn and are repetitive. I have however understood the Appellant to be questioning the insufficiency of the evidence and failure by the prosecution to prove all the ingredients of the offence of defilement. He has also questioned the harshness and severity of the sentence. The Appellant is accusing the trial magistrate of misapprehending the evidence which he terms as contradictory and inconsistent leading to an erroneous finding of guilt.
  3. I have noted that the record of appeal is incomplete. The exhibits are not part of the record of appeal. The Appellant has raised grounds of appeal questioning the evidence relied upon in his conviction by the trial court. He raised issues of sufficient evidence being adduced to confirm penetration as per the clinical officer’s report. I note that for this court to adequately analyze the evidence and administer justice it would need to analyze the exhibits produced by the PW5, being the P3 Form, exhibit 2; PRC Form, Exhibit 3 and Lab Report, Exhibit 4.
  4. The duty of the appellate court to examine the entire record was emphasized in Chwanya v Republic (Criminal Appeal 70 of 2021) [2024] KECA 391 (KLR), where it was held that:

“It must be borne in mind, though, that scrutiny without more is not sufficient. The Court is mandated to undertake a fresh and exhaustive examination and reach its own decision on the evidence on record. In this regard, the Court in Okeno vs. Republic [1972] EA 32 set out the duty of a first appellate court in the following words:

“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. 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 finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

  1. Further in the Supreme Court of India in Ganpat vs. State of Haryana (2010) 12 SCC 59. 4. where the court set out the principles to be borne in mind by a first appellate court while dealing with appeals and stated thus:

“………. It is the duty of a first appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the decision appealed against or the entire proceedings if they are flawed.”

  1. The above notwithstanding, I have taken time to scrutinize all the evidence of the witnesses. I was able to access the trial court file to confirm the evidence on record. The offence of defilement is committed when a person commits an act which causes penetration with a child (see section 8(1) of the Sexual Offences Act). The prosecution must prove beyond reasonable doubt that penetration as defined under section 2 of the Sexual Offences Act to “means the partial or complete insertion of the genital organs of a person into the genital organs of another person” occurred. The prosecution must prove beyond reasonable doubt the identity of the perpetrator and the age of the victim.
  2. Contrary to what is claimed by the Appellant I have considered the evidence tendered by the prosecution, analyzed it and evaluated it. I find that contrary to the claim by the Appellant that the evidence is insufficient to support defilement, the evidence proves the offence of defilement beyond reasonable doubt. PW1 testified to what happened to her. She was examined the following day and found with lacerations and tears on her vagina. Her hymen was torn and clothes had stains of blood. The Clinical Officer ruled out that the stains of blood were from her menses. This evidence, in my view, proves beyond reasonable doubt that penetration as defined under section 2 of the Sexual Offences Act took place.
  3. The Appellant was known to the complainant. He was her teacher and she did not make any mistakes in recognizing him as the perpetrator. Further, there is no doubt that the complainant was a minor. Her age at the time of the offence was 17 years as proved through her birth certificate that was produced in Court. I equally reject the Appellant’s defence that the complainant and her father fabricated evidence against him because of the tuition debt they owed him.
  4. I have read the judgment of the lower court. I find it well reasoned and the evidence properly analyzed and the law applied to the evidence on record to arrive at the conclusion that the Appellant was guilty of the offence of defilement. The Appellant was accorded fair trial contrary to his claims.
  5. Consequently, I find this appeal without merit and the same is dismissed. I also find the sentence meted out within the law. The conviction and the sentence are hereby upheld. Orders shall issue accordingly.

Dated, signed and delivered this 24th day of January 2025.


    MUMO WAMBUA VS The Republic MUMO WAMBUA VS The Republic