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JudgmentMUSYOKA JOSEPH MBUVI VS REPUBLIC10 min read

MUSYOKA JOSEPH MBUVI VS REPUBLIC

High Court at Mombasa High Court · · Wendy Micheni


Being an appeal from the Judgment that was delivered by Honourable Nelly Kariuki on 4th September 2023 in Shanzu Cms’court in S.O number 84 of 2021

  1. The appeal is based on the following grounds; -
    1. That the learned magistrate erred in law and fact by relying on the evidence of Pw1 (complainant) who gave contracting evidence concerning the occurrence of the offence.
    2. That the learned magistrate erred in law and fact by believing fully the evidence of Pw1 a child of tender age without treating the same with caution.
    3. The learned magistrate erred in law and fact by believing the evidence of the prosecution witness evaluating the same  vis a vis the defence  witness  evidence.
    4. That the learned magistrate erred in law and fact by disbelieving the accused person’s evidence and dismissing casually the alibi provide and the defence witnesses who gave evidence of his whereabouts on the 23rd may, 2021.
    5. That the learned magistrate erred in law and fact by shifting the burden of proof  to the Appellant and disbelieving the evidence of the  Appellant and  defence whiteness on  the fact that the arrival time  to the  witnesses house  and the time given by the appellant varied.
    6. That the learned magistrate misdirected herself by  disregarding the defence  of alibi claiming that the same did not shake the prosecution’s case.
    7. That the  learned magistrate misdirected herself by shifting the burden of proof by disregarding the  evidence of the appellant of a pre existing grudge with the complainant’s  father who wanted to  remove the Appellant’s  father from the rented space to put up a mosque.
    8. That the learned magistrate misdirected herself by disregarding the testimonies of the defence  witnesses presented by the Appellant  during his defence.
    9. That the learned magistrate misdirected herself and erred in law and fact by not considering the fact that the complainant’s father had framed the Appellant  for the alleged offence and that there was a preexisting grudge.
    10. That the learned   magistrate erred in law and in fact in dismissing the defence  by claiming that the same was full of contradictions  and  that it had discrepancies leading to the   same being disregarded.
    11. That the learned magistrate erred in law and in fact by treating the identification parade conducted to identify the Appellant as being properly constituted as he ws deliberately put on bright colored  clothes to make his stand out from the rest of the persons.
    12. That the learned magistrate erred in law and fact by misdirecting herself to ignore the enticement of the complainant with a treat to identify the Appellant as the perpetrator. 
    13. That the learned magistrate erred in law and fact by failing to acknowledge that identification parade was not properly required by law.
    14. That the learned magistrate erred in law and fact by shifting the   burden of proof to the Appellant and find that he did not provide any evidence of another man operating a water point in the same area.
    15. That the learned magistrate erred in law and fact by fully believing the evidence of the minor without being satisfied that he was telling the truth.

  1. The circumstances of the case are as follows; -

That on the 23rd day of May 2021 at Shanzu area, in Kisuani Sub County, within Mombasa County he intentionally and unlawfully caused his penis to penetrate the anus of H.O a boy aged 4 years. He was charged with defilement contrary to Section 8 (1) as read with 8(2) of the sexual Offences Act. The appellant was also charged with and alternative charge of committing and indecent act with a minor contrary to Section 11 (1) of the Sexual Offences Act.

  1. The  role of this court being the first appellant court is now settled as was  stated in the  case of Odeno Versus Republic (1977) EALR32 and later  Mark  Oiruri Mose Versus Republic ( 2013) e KLR  among other decisions that this court is duty bound to revisit the evidence tendered before the trail court  afresh, evaluate it analyses it and come to its own conclusion on the matter  but laws bearing in mind that the trial court had  the advantage of  observing the demeanor of the witnesses  and hearing them giving evidence and  give allowance for that.
  2. In the above matter the court held that “an Appellant on first appeal is entitled to expect the evidence as whole to be subject to a fresh and exhaustive examination (Pandya versus Republic 1975) E.A 336 and to the Appellant court’s Own   decision on the evidence. The first appellant court must weigh its conflicting evidence and draw its own conclusions (Shantilal M Ruwala Versus Republic (1957) E.A 570. It is not the function of the Appellate  court to merely scrutinize the evidence to see if there was some  evidence to support the lower  court findings and conclusions. It must make its own findings and draw its own conclusion. Only then can it decides 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 witnesses  (Peter vs Sunday Post 1978) E.A. 424”

Evidence on record

  1. Looking at page 11 of the record of appeal the complainant states that the Appellant took him to his room and laid him down. He covered his mouth and told him not to tell his mother. He removed his clothes and his cloths. He put his dudu in his buttocks. The dudu is used to urinate.
  2. During cross examination the minor stated that when he was taken by the Appellant he was riding a bicycle with Sili and Mkandu.

.

  1. Pw 3, the minor’s mother , in her  evidence at page 23,  stated that when she was washing the minor, she  noted he was flinching and that is when  saw the injury. That upon inquiry he said he got them while riding a bike with his friends.     That  she prodded  further and that is when he told her that “that the man of water in kiswahili ‘ Kijana  wa maji” took him to the shade at the end of the foundation , removed his clothes, lay him down and defiled him. 
  2. We then had the the medical officer producing the report and Pw 4 P.C Irene Karuge the investigator who  at page 28 of the record of appeal, stated that from her interrogation, interview and investigation, she established that the   Appellant took to a the child to a place called foundation where there is a garage and made him to lie downward in a matatu which was there and defiled him.

10. On his part , the appellant insisted he was not at the scene that particular time.  He called 3 witnesses to support his alibi defence.  He also mentioned a pre existing land dispute between the parents.

ANALYSIS

  1. It is noted as a matter of grave concern  that the two minors who were said to have been playing with  Pw1on that material date were not called to give evidence.  This is relevant as there were key contradictions in the prosecution evidence and  the Appellant raised a serious defence   supported by witnesses . In terms of quantity, the evidence evened out and the two minors would have an  given independent version. One must however always bear in mind the evidential burden rests on the state.
  2. The next issue as  raised in the grounds of Appeal, was that there were several contradictions in the prosecution case.  These include;
  3. Place; PW1 and PW3 who are the minor and the mother plus the police officer all gave evidence that was contradictory  as to the scene of crime. One claims that it happened in a room, the other in a garage and the last witness concluded that it happened in a matatu .The child may have lacked the proper vocabulary, but the mother and the investigator should have been certain. 
  4. The other key contradiction     the day. This is to be found at page 11 and 12 of the record of Appeal.. The minor states that it was a Monday and he was in school uniform page 11. Later on he changed his mind and said he was not in school uniform. See page 12 line 11. All the others said it was on a Sunday.                 Which was which?
  5. The  3rd contradiction is the cause of  injury. A clear analysis of PW1’S evidence also shows  that this minor kept changing his story. Initially he told his mother that the injuries were from  riding a bicycle. Then he later on changed his mind and mentioned  mtu wa maji.
  6. The 4thcontradiction is on the Report. At page 11 In his evidence in chief, PW1 said that after he left the Appellant’s house, he went home and reported to the mother what the Appellant had done to him.
  7. This was contrary to what the mother told the court. The mother said she noted the injury  while bathing the child.     She then asked him what had happened and the minor said he was injured by the bicycle as he played with the friends.
  8. These were ALL  red flags that ought to have caught the attention of the trial court.
  9. Bearing the above in mind, the most telling aspect that caught my attention and  the turning point in this Appeal, is the first answer the child gave when being cross examined. This is what he said at page 11 second line . “It is Maira who told me to state what I have stated. She told me yesterday’
  10. Now the court is minded that this was a 5-year-old child who is bound to make some mistakes. The court however noted that surprisingly, the trial court conducted voire dire examination and found ‘that he possessed  adequate   intelligence to acceptance of her (sic) evidence. He understands the duty to speak the truth. As well as the meaning and significance of an oath.  Witnesses to give sworn evidence. This is at page 10 of the record.
  11. This shows that  this was an above average child who impressed the trial court.  Having done so the subsequent contractions in his evidence cannot be wished away.
  12. They must be looked at keenly especially in light of the defence that was raised. The Appellant had an alibi and called 3 witnesses to support his story.       These were the mother, former nanny and a church worker and the story was consistent.  
  13.     He also raised the issue of the grudge or dispute over the parcel of land and the land where he said the Minor’s father wanted the land to construct a mosque.  These issues should have raised some level of doubt.
  14. The position of Mativo J. in JMN v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 279 (KLR) resonates to the present circumstances, he held as follows;

“To me, the defence raised by the appellant and the complainant’s attempt to dissociate herself from the charges, raises reasonable doubts on the prosecution case. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge. See (Duhaime, Lloyd, Legal Definition of Balance of Probabilities, Duhaime’s Criminal Law Dictionary)

This is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right.” (Emphasis mine.)

  1. In any criminal trial, whenever there is any doubt, then the same should considered be in favour of the accused person. Further, the victim must provide vivid details of the sequence of how the ordeal took place.
  2. Reliance is sought in the case of JULIUS KIOKO KIVUVA =VS= REPUBLIC – MACHAKOS HCCRA NO.60 OF 2014 where the court held thus:-

“Evidence of sensory details such as what a victim heard, saw, felt and even smelled, is highly relevant evidence to prove the element of penetration as a victims testimony is the best way to establish this element is most cases. The specificity of this category of evidence, even though it may be traumatic, strengthens the credibility of any witness testimony, and is particularly powerful when the ability to prove a charge rests with the victim’s testimony and credibility as it does in this appeal.”

  1. The above position was similarly reiterated in Justice Odunga’s finding in Raphael Mutunga Mutinda Vs Republic (2019) e KLR.

CONCLUSION

  1. The burden of proof is always upon the prosecution and they ought to have proved , beyond reasonable doubt the 3 elements of defilement as well as disprove the alibi.
  2. The age was proved sufficiently.  However the  evidence of penetration and identity  was wanting. The minor kept changing his story.                                                          Further even though some abrasions were seen on the outer part of the anal zone, it was not proved they were caused by penal penetration.  The boy first said it was caused by a bicycle ride, then later “mtu wa maji” and like we stated, he admitted that someone told him what to say in court.
  3. The evidence of Alibi was ignored by the trial court and was not believed simply because the court thought that they did not know the defence witness   properly without knowing the difference between an uncle and a brother and the number of children that he had.  These should have been construed in the cultural context where a parents’ sibling may be called the parent.
  4. After careful re evaluation of the evidence herein, its obvious there were key contradictions in the evidence adduced by the state and there was a strong Defence.

29.The court therefore finds that the conviction was not safe.  The appeal succeeds against both the conviction and the sentence and they are set aside.

30. The Appellant to be released from custody forthwith unless if otherwise lawfully held.

31. It is so ordered.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF SEPTEMBER 2024.

WENDY KAGENDO

JUDGE

IN THE PRESENCE

THE APPELLANT in person

MS MAINA FOR THE STATE

BEBORA COURT ASSISTANT

    MUSYOKA JOSEPH MBUVI VS REPUBLIC MUSYOKA JOSEPH MBUVI VS REPUBLIC