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JudgmentMUTISYA MUTINDA VS The Republic30 min read

MUTISYA MUTINDA VS The Republic

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CRIMINAL APPEAL NO. E044 OF  2023

MUTISYA MUTINDA................. ………………….......APPELLANT

VERSUS

REPUBLIC.......................................................RESPONDENT

(Being an Appeal from the Judgment of Hon.S.  Kandie (RM) in Mavoko CMC S.O Case. No. E050 of 2022 delivered on 04/5/2023)

JUDGMENT

Introduction;

  1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on 25/3/2022 at Kananie area, in Athi River Sub-County within Machakos County, intentionally and unlawfully caused his penis to penetrate the vagina of M.M (name withheld) a child aged 13 years in violation of Section 8(1) as read with Section 8(4) of the Sexual Offence Act No.3 of 2006.
  2. He was charged in the alternative with the offence of Committing an Indecent Act with a child c/s 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on 25/3/2022 at Kananie area, in Athi River Sub-County within Machakos County, intentionally caused his genital organ namely penis to come into contact with the genital organ of M.M (name withheld) a child aged 13 years with his penis contrary to Section 11(1) of the Sexual Offences Act No.3 of 2006.
  3. The Appellant pleaded not guilty to the main charge and the alternative charge and the matter was set down for hearing. The prosecution called five (5) witnesses in proving its case.
  4. Upon consideration of the evidence, the trial court found the Appellant guilty and convicted him of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act and sentenced him to 20 years in prison on 11th May 2023.

The Appeal

  1. Being aggrieved by the said judgment, the Appellant has through his Counsel Mrs. Florence Mwangangi filed an Amended Petition of Appeal xxx herein challenging both the conviction and sentence.
  2. The appeal is based on three grounds that :-
  3. The learned magistrate erred in law and facts in convicting and sentencing the appellant on the basis of the prosecution evidence which did not support the conviction and sentence.
  4. The learned magistrate erred in law and fact in holding that the appellant had been properly identified the circumstances of the matter notwithstanding.
  5. The learned magistrate erred in law and fact in considering the evidence adduced by the doctor as being sufficient to support a conviction of the appellant for the offense of defilement.
  6. The learned magistrate erred in law and fact in failing to appreciate that the evidence of the complainant was contradictory and not corroborated on material particulars.
  7. The learned magistrate erred in law and fact in believing the evidence of the prosecution witnesses which was riddled with contradictions on material particulars thereby arriving at an erroneous judgment.
  8. The learned magistrate erred in law and fact by failing to give due consideration or at all to the evidence of the appellant.
  9. The learned magistrate erred in law and fact by failing to apply his mind properly on the matter.
  10. On the whole the learned magistrate erred in law and fact by arriving at a decision which was against the weight of the evidence placed before him and the laws applicable.

8.     The appeal was canvassed through written submissions. The Appellant’s submissions are dated 8/11/2024 while the Respondent’s submissions are date 20/01/2025.

Appellant’s Submissions

9.    On whether the Appellant was properly identified in the circumstances of the case, the Appellant submitted that the complainant, PW1, and PW2, among other prosecution witnesses, testified that the incident occurred at night.  However, the prosecution witnesses did not mention what light was available and worse still, the trial Court did not address the issue of the lighting available and the other factors such as the nature of the lighting, its size, is intensity, its position to the Appellant and other factors that Courts are required to consider before making a decision on identification of an accused person at night.

  1. The need for the trial Court to address the ingredients of identification at night became even more critical in the case before the trial Court as the minor categorically stated in her evidence (on 2/3/2023, at page 18 of the trial Court proceedings) that she did not know the Appellant and that she saw him for the first time in Court.

The complainant testified (on page 18 of the judgment) as follows "I have seen him before the Court. I did not recognize him that day. I saw him in Court"(emphasis added).

  1. On this issue of identification of an accused person at night, the Appellant relied on the Court of Appeal decision in Maitanyi v Republic, (1986) KLR stated that an inquiry as to the intensity of light is essential in testing the accuracy of evidence of identification holding that:

“The strange fact is that many witnesses do not properly identify another person even in daylight...It is at least essential to ascertain the nature of light available. What sort of light. its size and its position are important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are unknown because they were not inquired into...”(Emphasis added).

  1. The failure by the trial Court to undertake the said inquiry on the light casts a lot of doubts on the identification of Appellant as the perpetrator as the trial Court did not ensure that the circumstances of purported identification in this case were favourable and free from the possibility of error as it was held in the case of Nicholas Kinetic Mutai v Republic [2020JeKLR.
  2. In the circumstances herein, there was a clear case of mis-identification of the Appellant as can be noted from his evidence that he had a leg injury and was on crutches at the time of the alleged offense and up to-date, and that the evidence of the prosecution witnesses was that the offender was not on crutches and at one point run away.
  3. What the minor did was dock-identification of the Appellant by pointing at him in the dock in Court which the Court in the case of John Mwangi Kamau vs Republic citing with approval the case of Gabriel Kamau Njoroge-vs-Republic (1982-1988) 1KAR 1134, held that:

“...be generally worthless and that the Court should not place much reliance on it unless this has been preceded by a properly conducted parade. A witness should be asked to give the description of the accused and the police should then arrange a fair identification parade....”

  1. The reasons for the worthless nature of dock-identification are reliability concerns, potential “suggestive" identification procedures and credibility of the witness's ability to recognize or accurately identify the accused especially if the witness had a limited opportunity to observe the perpetrator at the time of the crime, for example, in low light, during a stressful situation, or from a distance.

On whether the evidence adduced by the doctor was sufficient to support a conviction of the Appellant for the offence of defilement, the Appellant submitted that the evidence of the doctor, PW2, was not sufficient to support a conviction of the Appellant for the offense of defilement as it did not address each ingredient of the alleged defilement of the minor by the Appellant to the required standard of beyond reasonable doubt as was held in the Court of Appeal in the case of OKK v Republic /2021) eKLR citing with approval the case of John Mutua Muyoki v R /2017/eKLR.

  1. The Doctor testified to the effect inter alia that upon examination of the minor, no physical injuries were noted, the outer genitalia was normal the hymen was broken, whitish discharge was noted and redness on the vagina.
  2. However, there was no evidence from the doctor of the taking of any specimen from the minor, including the alleged whitish discharge, for testing of any presence of spermatozoa or sexually transmitted disease, which could be linked to the Appellant.

In the OKK case, (supra) the Court was emphatic that the lack of hymen was not evidence of penetration, which could be attributed to the alleged incident of defilement involving the Appellant in the case. In the present case, we submit that the evidence of the doctor that a broken hymen and abnormal redness demonstrates penetration of its own was not sufficient to link the Appellant with the offense of defilement.

18. On whether the evidence of the complainant was contradictory and not corroborated on material particulars and whether the evidence of the prosecution witnesses was riddled with contradictions on material particulars, the Appellant submitted that the evidence of the complainant was contradictory and not corroborated on material particulars hence it was unsafe for the trial Court to convict the Appellant on it in that:

a.  On the alleged encounter with the Appellant:

i.  The complainant alleged in her evidence that she left the house of the Appellant after he went to open the door.

ii.  On the other hand, PW2, Elizabeth Wavinya, testified that the Appellant went to get the complainant after they told him they would report to the police.

iii.  Then PW5, Cpl. Seet contradicting the issue more testified that the Appellant pushed the complainant out of the house.

iv.  And then the learned magistrate stated in his judgment that the complainant left running when the Appellant opened the door,

V. Clearly, there are glaring contradictions on this critical aspect of the prosecution witnesses, which is also evident on the part of the trial Court. Ignoring the evidence of the other witnesses, which was not corroborative to the evidence of the complainant.

b. On the matter of the identification of the Appellant:

i.  The complainant testified on 2/3/2023 (on page 18 of the proceedings of the trial Court) as follows:

"I have seen him before the Court. I did not recognize him that day. I saw him in Court" (emphasis added).

ii.    On the contrary, PW2, Elizabeth Wavinya testified (on page 12 of the proceedings of the trial Court) that "She (the complainant) reported that she was defiled by someone known to her..." (Emphasis added).

c. There are also glaring contradiction in the prosecution's evidence on the time of the alleged offense:

  1. The complainant testifies that it happened at around 9 p.m.
  2. PW2 at the first time testifies that it happened at 9p.m but on being recalled stated that it happened around 8p.m.

iii. Then PW4, Regina Kithuma, the mother of the minor, testified that she released her children at 5p.m to 8p.m and on the contrary, the minor stated that they left home at 7p.m.

d. Further inconsistencies on material particulars is to be noted in   the prosecution's evidence in the evidence of the minor (on page 4 of the trial Court proceedings, from the first line) that the Appellant dragged her to his house and covered her mouth telling her that he would kill her if she shouted.

e. However, on that same aspect PW 5, Cpl Seet, the investigating officer testified (on page 18 of the trial Court proceedings) that the minor reported to the police station “...she met a man she did not know...she was threatened if she does not follow him. She went with him to his house and the man defiled her..."(Emphasis added).

19. On the presence of contradictions and inconsistencies in evidence, the Appellant relied on the case of John Mutua Munyoki v Republic [2017] KECA 376 (KLR) where the Court observed:

"...the Court must approach such evidence with a degree of circumspection, particularly in sexual offences that are normally committed in secrecy with hardly any eye witness. Contradictions and inconsistencies therefore matter in deciding whom to believe. The contradictions have to be considered and weighed carefully...”

20.  Similarly, in the case of Paul Gitari v Republic the Court emphasized on the critical need for the Court, where there are contradictions or variances in the prosecution case, to address them then proceeded to hold that the first appellate Court was bound to thoroughly, exhaustively and independently re-evaluate them and resolved in the Appellant's favour.

21. That in the present case, the trial Court ignored the contradictions and discrepancies in the prosecution's evidence and failed to evaluate their veracity even as they went to the root of the prosecution case and that was a misdirection on the part of the trial Court and the contradictions/inconsistencies ought to be resolved in favour of the Appellant herein.

22. On whether due consideration was given to evidence of Appellant, the Appellant further submitted that the learned magistrate erred in law and fact by failing to give due consideration or at all to the evidence of the Appellant. The Appellant denied the offense he was charged with and the evidence of the prosecution.

23.  He testified that he had a medical report, which he relied on that he was on crutches from a prior injury from an accident and that the person said to have been the offender was not on crutches.

The Appellant further testified that the complainant did not know him, that she had been coached on what to say and that there was no independent witness.

24.  While on the aspect of an independent witness, it should be noted that PW4, Regina Kithuma, the mother of the minor (on page 13 of the trial Court proceedings) severally mentioned "a lady" who she claimed to have met and who told her that she had met a man and a girl and who showed her the house to which the girl was taken and she asked “the lady" to go to the house and knock, that the boy said she (sic) had not seen the girl and when she (PW 4) said she will go to the police, the boy went to his house and came with the girl and she (sic) to her to pick the complainant.

The prosecution did not call that "lady" to testify yet her evidence was critical to unravel the actual offender.

25. The trial Court did not consider the above stated factors, which were clearly in favour of the Appellant and for that, the Appeal herein ought to succeed.

The Appellant cited the case of Michael M'maranya v Republic [2008] KECA 83 (KLR) on the issue of placing consideration on defence and its effect where the Court observed that;

“The superior Court did not adequately evaluate the evidence or give adequate consideration to the Appellant's defence. Had the superior Court performed its duty it could have reached the conclusion that the charge of robbery was not established beyond any reasonable doubt. On our own analysis of the evidence, we are of the view that evidence established the offence of assault and not the offence of robbery with violence..." (Emphasis added).

26.  On whether the trial Court applied its mind properly on the matter, whether the evidence of the prosecution supported the conviction and sentence of the Appellant and whether the decision was against the weight of the evidence on record, the Appellant concluded that from the totality of the foregoing one can safely draw an inference that the learned magistrate did not apply his mind properly on the case and that as a result he convicted and sentenced the Appellant on the evidence of the prosecution when the same did not support the conviction and the sentence hence the decision he arrived was against the weight of the evidence placed before him. The result is that the prosecution did prove its case against the Appellant to the required standard of proof beyond reasonable doubt yet the trial Court proceeded to convict and sentence the Appellant.

27. The Appellant relied on the case of Mary Wanjiku Wichita v Republic, Criminal Appeal No 17 of 1998, where the Court held that suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence before a Court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused's freedom and at times life.

28. They also cited the case of John Mutua Munyoki v Republic [2017] KECA 376 (KLR) where the Court also observed that:

“As correctly submitted by the Appellant, in all criminal cases the prosecution has the task of proving its case against an accused person beyond reasonable doubt and it is a burden the prosecution must discharge in relation to each and every ingredient of the particular offence charged...".

29. The Appellant urged this honourable Court to be pleased to allow the Appeal herein and to quash the conviction and sentence of the Appellant in the judgment delivered on 4/5/2023 in Mavoko CMC S.O Case No. E050 of 2022.

Respondent’s Submissions

  1. On identification of the Appellant as the perpetrator, the Respondent submitted that the Appellant was properly identified by the victim PW1 and PW1 indicated that she ran from the Appellant's house. PW2 was present and saw PW1 ran from the Appellant's house. The minor PW1 indicated in her testimony that she met the Appellant that night of the incident and she had not seen him before the incident. In paragraph 8 of the proceedings, she states that she saw him for the first time in Court. PW1 was able to positively identify the Appellant in court as the one who defiled her.
  2. From the proceedings, PW1 stated in pg 4 “I do not know how he was arrested.I had not seen him before the incident. My sister knew him...I saw him at his house. I know him. He is before court" In cross examination she reiterated (page 5)"...the person who defiled me is you.... I do not know your name..." The Appellant's reference to page 18 cannot be read selectively. The Respondent urged this honourable court to look at the evidence and proceedings on record holistically. From page 17-18 the victim PWV1 is recalled for cross-examination and she still does not deviate from identifying the Appellant as the one who defiled her.
  3. The Respondent submitted that the issue of lightening available does not apply in this case. Despite the incident happening at night, the witnesses were able to identify the Appellant. Failure by the trial court to inquire about the lighting on the said date is not fatal to this case.
  4. Referring to paragraph 12 and 13 of the Appellant's submission, they submitted that there was no mis-identification by the victim PW1 neither did she do a dock-identification in this matter. She pointed at the Appellant in court in the course of her testimony to identify the man who she met that fateful night and defiled her. There was no need for a parade in this case as the victim knew her assailant and the witnesses testified that PW1 ran from the Appellant's house and knew where she was and who stayed in that house. This issue of lightening and mis-identification did not come up during the trial nor during cross-examination and thus is an afterthought.

The Respondent urged this honourable court to dismiss this ground of appeal.

  1. As whether the evidence adduced by the doctor was sufficient to support a conviction of the Appellant for the offence of defilement. The Respondent submitted that the prosecution availed sufficient evidence through the doctor to support the ingredient of penetration. PW3 was the doctor who examined PW 1 on 26th March 2022 a day after the incident. Upon examination of PW1's genital, normal outer genitalia, noted abnormal redness, hymen eggs and the hymen had reminence. he testified that PW1 had pain when samples were being taken. On examination PW 3 stated that the outer genitalia were normal, the hymen was broken, whitish discharge was noted and there was redness in the vagina. According to his assessment the abnormal redness noted in PW1's genitalia was consistent with penetration. He then produced the P3 Form as PExt.1(a) and the GVRC Form as PExt.1 (b).

They urged this court to reject this ground of appeal.

  1. As to whether the evidence of the complainant was contradictory and not corroborated on material particulars and whether the evidence of the prosecution witnesses was riddled with contradictions on material particulars, the Respondent submitted on the ingredients of defilement as follows:-
  2. On penetration, the complainant testified as PW1. She testified that on the material day she was on her way to the toilet at the ATG church when the Appellant dragged her into his house. She states the Appellant rapes her. The Appellant removed her clothes a skirt and skin tights and inserted his penis into her vagina. She also testified that she felt pain on her vagina and saw discharge on her vagina but didn't see any blood. She said he did it twice. PW 3 was the doctor who examined PW 1 on 26th March 2022 a day after the incident. Upon examination PW1’s genital, normal outer genitalia he noted abnormal redness, hymen eggs and the hymen had reminance. He testified that PW 1 had pain when samples were being taken. On examination PW 3 stated that the outer genitalia were normal, the hymen was broken, whitish discharge was noted and there was redness in the vagina. According to his assessment the abnormal redness noted in PW1's genitalia was consistent with penetration. he then produced the P3from as PExt.1(a) and the GVRC form as PExt.1 (b). the evidence of PW 3 corroborates PW 1's statement thus proving penetration. the evidence on penetration is thus solid and unshakable.
  3. On age of minority, PW1 stated she was 13 years when she was defiled. When PW 2 testified on 24th October 2022 she stated that PW 1 was 14 years old. the same was reiterated by the mother when she testified as PW 4. PW 1 was born on 3/08/2008 as per the birth certificate PExt.2 produced by PW 5. The incident happened on 25th March 2022. Thus, at the time of the incident PW 1was 13 years 7 months. Thus, it is confirmed and proved that during the incident PW1 was of the age of minority. The evidence to prove age of minority is therefore solid.
  4. On identity of the Appellant as the perpetrator, the Respondent submitted that PW1 in her evidence, testified that she positively identified the Appellant. She points at him while she is giving her testimony and confirms he was the one who defiled her.PW1 positively states she knows him and he is before court. PW2 and PW 4 both testified that when they were looking for the complainant on the night of the incident, they knocked at the Appellant's house and when he opened the complainant came from the house. They also testified that the Appellant began running away when the complainant came from the house.PW4 further testified that PW 1 told her that the Appellant defiled her. The Appellant is positively placed at the scene of the incident by PW2 and PW4 who picked the complainant from his house. The evidence on identification is therefore sufficient and thus the evidence is thus solid.
  5. There is not contradiction as submitted in the Appellant's submission. It is testified the PW1emerged from the Appellant's house after PW2 and PW4 knocked on the door of the house lived in by the Appellant. PW4 even testified that she was informed that PW1 and the Appellant was seen entering that house thus were able to look for her there. PW1 testified she was the Appellant's house and that is where she was defiled and she left.  

The evidence as well was not contradictory. The witnesses testified the events of the day happened around 9:00p.m. The evidence supports this timing as around would mean the various timings I the evening preceding and after 9:00p.m.

  1. In light of the foregoing, it is our submission that the prosecution discharged its burden of proof and that the Appellant was properly convicted of the offence of defilement. The evidence by the prosecution witnesses was credible, consistent, reliable and well corroborated. All ingredients of the offence were established beyond reasonable doubt. We therefore urge this Honourable court to uphold the conviction.
  2. On whether due consideration was given to evidence of Appellant, the Respondent submitted that the Appellant gave sworn evidence where he alleges that the charges are not true. He states that he could not have defiled the complainant as he had injured his legs. He testified that the minor was coached as he had a dispute with PW2 who was his girlfriend. He also stated that when PW1 first testified in court she stated she was 14 years old and when she was re-called for cross examination, she stated she was 15 years old. PW1 first testified on 24th October 2022 she had turned 14 years. She was thus recalled on 2nd March 2023 and she states she is 14 years old. These averments by PW1 in her testimony did not contradict each other. Further, PW1, PW2 and PW4 stated that the Appellant ran away when the complainant came from his house. PW5 stated that when he was arrested, he was well. The witnesses all testified that the Appellant was not on crutches. Thus, the Appellant was well and did defile the complainant. This defence is an afterthought and is not strong enough to rebut the prosecution evidence as against the appellant. it is our submission that the trial court was right in rejecting the same.

Again. the Respondent urged the court to reject this ground of appeal.

  1. In conclusion, the Respondent submitted that the appeal lacks merit and should therefore be dismissed in entirety.

Prosecution’s Case

  1. The prosecution’s case can be summarized as follows:

The minor testified as PW1. She that on 25.3.2022, she was at ATG church. The schools had closed and she went to the toilet. On her way back, she stated that she met the accused who requested to speak to her and she was dragged to his house. It was not far from the church. She stated that the accused covered his mouth and threatened to kill her if she shouts. He then defiled her.

She stated that while she was still at the accused person's house, she heard her mother calling her out and knocking at the accused person's house. The accused person answered the door and her mother inquired if he had seen her. She stated that the accused stated that he had not seen her and locked the door.

She stated that the accused person defiled her twice. After her mother left, the accused opened the door and she left running. She saw her mother outside. She was a few meters from the house. She stated that she informed her mother and she was taken to the police station and later to the hospital where she was treated and discharged.

Elizabeth Wavinya testified as PW2 and stated that she was at the church on 25.3.2022 for evening prayers. She stated that she went outside after the pastors gave the congregation a few minutes off to answer the call of nature. She stated that she saw the accused outside the church when she got back to the church. She stated that the victim took a while to get back to the church and she got worried about her.

She stated that she went out to look for her and even went to her mother's house to check on her, she stated that she did not find her there and they all went out to look for her. She stated that she inquired from neighbours if they had seen her. She stated that they called out the victim's name. the accused person stated that he had not seen her and when she threatened to report the matter to the police, the accused went and got the girl who emerged from the accused person's house and informed her she had been defiled. She stated that the accused did not use protection. She stated that they proceeded to report at the police station and thereafter she was referred to the hospital where she was treated and discharged.

Doctor John Njuguna testified as PW3 and stated that the victim was examined at the facility. That the treating doctor noted that she was not calm, and no physical injury was noted. On examination of the genitalia, she had abnormal redness. The hymen tiggo was noted and she had pain on sample taking. She was not pregnant and no STI or UTI was noted.

Regina Kithoma testified as PW4 and stated that she is the victim's mother. She stated, that the victim is 14 years and had left with her siblings for a church service. She stated that her sister come and informed her she had disappeared and they proceeded to look for her. She stated someone whispered to her that she had seen a young girl going with a man and directed her to the house they entered. She stated that she proceeded to the house and knocked on it. The man came out and stated that she had not seen the girl.

She stated that the girl later emerged and reported that she had been defiled. They proceeded to the police station and they were directed on what to do thereafter until the accused was arrested.

Cpl Seet testified as PW5 and stated that she was the investigating officer in the matter. She stated that the complainant come to the police station in the company of her mother and elder sister. She reported having been defiled by a man she could recognize. She stated that the man pulled her as she was leaving the toilet and defiled her. That her mother came looking for her and the accused came out.

On 08/03/2023, the trial court delivered a ruling on no case to answer and found that a prima facie case had been established against the Appellant sufficiently to require him to make a defence on both charges.

Defence case

  1. The Appellant’s defence hearing proceedings are missing from the trial court’s typed proceedings; however, I have managed to peruse through the hand written original trial court’s record and have been able to re-analyse the defence evidence. DWI, the Appellant stated that he resides at Kenania area and work as a driver. The charges against him are not true. He had a medical report which he wished to rely on. That when the complainant testified and stated that she knew him was not true. She reported that the person who defiled her was okey. The Appellant stated that he had an accident and had been using crutches. No independent witness saw what transpired. At the plot, she confirmed no one saw what happened. The minor had been coached to state what transpired. When the complainant was recalled, she confirmed she saw the Appellant in court for the first time. PW2 testified that she saw someone with the minor but she could not recognize him. She suspected it was the Appellant. PW2 was his girlfriend and they had a dispute. When he got injured in an accident she had a problem with him. The Appellant maintained that he had never had a problem at the village and he was being fixed up by PW2.
  2. PW3, the Investigating Officer stated that she was informed. It was all hearsay. The I.O didn’t conduct proper investigations. The Appellant further testified that he worked with Nyumba Kumi and everyone knew him in Kinanie. He was not able to defile the minor as he had injured his legs. He stated that he is being fixed since he was a driver to a prospective political candidate and he was to get money and has been using crutches since then. He stated the Pw2 was his former girlfriend and was out to revenge on him

Analysis and Determination

  1. This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced and the submissions made in the trial court so as to arrive at its own independent conclusion. In so doing, this court is required to always bear in mind that it neither saw nor heard the witnesses as they testified and must therefore give due allowance in that regard. (See Okeno v Republic (1972) EA 32).
  2. Having carefully and cautiously considered and re-analysed the trial court’s record, the grounds of appeal and the Parties’ rival submissions on the appeal, the issue for determination is whether the Appellant has made a case for this court to interfere with the conviction and sentence imposed by the trial court.
  3. This being a criminal case, the prosecution bore the burden of proving the case beyond any reasonable doubt. I will therefore determine whether the prosecution proved its case beyond reasonable doubt.
  4. It must be appreciated that under Section 107(1) of the Evidence Act, the burden of proof is on the prosecution to establish every element in a criminal charge beyond reasonable doubt. This was well buttressed in the principle in the cases of Woolmington v DPP 1935 AC 462 and Miller v Minister of Pensions 2 ALL 372-273.
  5. Section 8(1) of the Sexual Offences Act provides as follows regarding the offence of defilement:
  6. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”
  7. In determining this offence, the court is required to consider whether the prosecution proved the following ingredients to the required standard:
  8. age of the victim (minor);
  9. proof of penetration; and
  10. the positive identification of the appellant as the perpetrator of the offence.
  11. Age of minority
  12. From the Charge Sheet, the incident herein occurred on 25/3/2022. A Birth Certificate PExbt.2 was produced in evidence showing the Complainant PW1 was born on 03/8/2008. Correctly calculated, the Complainant was aged 14 years and therefore under 18 years. There is no doubt that the Complainant was at the time a minor. This ingredient of age of minority was therefore proved as shown in her Birth Certificate being the best evidence in relation to age of a person.
  13. Proof of penetration
  14. On the ingredient of penetration; Section 2(1) of the Sexual Offences Act defines penetration as:

“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

  1. This court has keenly perused the trial court’s judgement on this ingredient in which the trial court stated that Doctor John Njuguna testified and stated that the victim was examined at their facility. That the treating doctor noted that she was not calm, and no physical injury was noted. On examination of the genitalia, she had abnormal redness, the hymen tiggo was noted and she experienced pain on sample taking. She was not pregnant and did not have STI or UTI. The doctor opined the injuries were consistent with penetration. The minor testified and stated that the accused held her by hand and took her to his house and had unprotected sex with her twice. Her evidence was believable and I do not find any reason to doubt her evidence. Her evidence was not challenged on cross-examination”
  2. I have read the testimony of Doctor John Njuguna PW3. He stated that on examination of the genital, normal outer genitalia, she had abnormal redness, hymen eggs were noted, hymen was broken, whitish discharge was noted, redness in the vagina was noted. The hymen had reminance. She had pain when sample was being taken. She was not found with UTI, No STI, No infection and not pregnant.
  3. PW1 testified that they did not use a condom and that she saw whitish discharge on her vagina. She didn’t see blood. Similarly, the Doctor testified that whitish discharge was noted. PW4 testified that she was advised not to have the girl take birth.
  4. I am struggling to understand some of the terms used by the Doctor such as “hymen eggs were noted”, “hymen had reminance”, “the hymen tiggo was noted” and “whitish discharge was noted” in the absence of a simplified explanation recorded by the trial court.
  5. The above also called for the prosecution to take a step further and request for DNA to be done to establish whether the whitish discharge was semen and whether it was linked to the Appellant. The test would have cleared any doubt as to whether the Appellant penetrated/defiled the complainant in the circumstances of this case.  I can only reluctantly agree that penetration could have occurred.
  6. Identity
  7. Lastly, on the ingredient of identity of the Appellant as the perpetrator, PW1 stated that she had not seen the Appellant before the incident but her sister knew him. The incident happened at 9.00pm. It was kesha. She saw him at his house. She knew him.

    The above testimony by PW1, is contradictory in itself, whereas PW1 states on she did not know the Appellant, she again turns around to state that     she knew him. Which is which?

  1. Again, when the minor was recalled and cross-examined on 2/3/2023, she stated that she did not know the Appellant, she saw him in court for the first time. On re-examination, PW1 stated that she had seen the Appellant before court and that she did not recognize him the day of the incident. She saw him in court.
  2. On the foregoing, the trial magistrate ought to have posed at this juncture and interrogated the minor in depth on the identity of the Appellant as the perpetrator in this case.
  3. This was a case of a single eye witness. It is common sense that sexual offences are generally committed in secrecy hence there would hardly ever be any eye witness save for the victim of the offence. In this case PW1 testified that the incident occurred at 9.00pm.
  4. At the outset, the court must examine the conditions that existed at the time and place the incident occurred and their favourableness or otherwise to positive identification or recognition as alleged by the complainant in this case, as well as the state of mind of the complainant which would determine whether she had capacity to identify the Appellant.
  5. The circumstances in which the alleged identification was done must be considered. In this case, the incident allegedly occurred at night (9.00 p.m) and without proper lighting, which circumstances make identification difficult. There was no description of the intensity of the lighting by which the complainant saw and recognized the Appellant if at all she saw him. PW1 stated that the Appellant covered her mouth and threatened to kill her if she screamed and PW1 feared that the Appellant would kill her. This puts doubt to the state of mind of the complainant which would determine whether she had capacity to identify the Appellant.
  6. There is no where on the trial court’s record that an inquiry as to the nature of the light that was available which assisted the witnesses in recognizing the Appellant. In the case of Paul Etole and Another Versus Republic Court of Appeal Criminal Appeal No. 24 of 2000, where the Court of Appeal stated :-

"It was essential that there should have been an inquiry as to the nature of the light available which assisted the witnesses in making recognition. What sort of light, its size and position vis-a-vis the accused would be relevant. In the absence of any inquiry, evidence of recognition may not be held to be free from error."

  1. In Matianyi Vs Republic (1986) KLR 198, the Court of Appeal, in holding that inquiry as to the intensity of light is essential in testing the accuracy of identification, held:

"The strange fact is that many witnesses do not properly identify another person in daylight .............. It is at least essential to ascertain the nature of light available. What sort of light, its size and its position relative to the suspect, are al important matters helping to test the evidence with the greatest care. It is not careful test if none of these matters are known because they were not inquired into......”

  1. In the case of Toroke Versus Republic Court of Appeal Criminal Appeal No. 204 of 1987 (unreported), the Court of Appeal held:

"It is quite possible for a witness to believe quite generally that he had been attacked by someone he knows yet be mistaken, so the possibility of error is still there whether it be a case of recognition or identification.”

  1. This court therefore is of the opinion that PW1 did not positively identify her assailant during the alleged defilement and holds that the evidence of identification of the Appellant as the Perpetrator was not watertight as to exclude the possibility of mistaken identity or error.
  2. Based on this court’s analysis above, it follows therefore that the trial court misapprehended the evidence and misdirected itself in finding that penetration and identification had been proved without proper scrutiny of the same thus wrongly convicted the Appellant. See the case of Bukenya -vs- Uganda [supra] in which it was held that:-

“it is not the duty of the court to stage manage the case for the prosecution, nor is it the duty of the court to endeavour to make a case where there is none to an accused person. The duty of the court is to hold the scale to see that justice is done according to the law on evidence before it”.

Disposition

67.   In light of my findings hereinabove, I allow the appeal, quash the conviction and set aside the sentence. I order that the Appellant be set at liberty unless otherwise lawfully held.

68.  It is so ordered.

JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 4TH MARCH 2025

        NOEL I. ADAGI

            JUDGE

DELIVERED IN OPEN COURT AT MACHAKOS THIS 4TH  MARCH  2025

In the presence of :

In person................ for Appellant

Ms. Agatha........... for Respondent

Milly Grace................. Court Assistant

    MUTISYA MUTINDA VS The Republic MUTISYA MUTINDA VS The Republic