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JudgmentMWAGETI MWAISAGHA VS The Republic4 min read

MWAGETI MWAISAGHA VS The Republic

High Court at Voi High Court · · George. Dulu


(From the conviction and sentence in Sexual Offence Case No. E032 of 2021 at Voi Law Courts delivered on 3rd November 2022 by Hon. T. N. Sinkiyian (SRM)

  1. The appellant was convicted 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 offence were that on 28th February 2021 at around 1100hours at Kasarani area of Voi Sub County within Taita Taveta County unlawfully caused his male genital organ (penis) to penetrate the female genital organ (vagina) of E. M. a child aged 9 years.
  2. On conviction, he was imprisoned for life.
  3. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal and relied on the following amended grounds of appeal:-
  4. The learned Magistrate erred in law and facts by failing to appreciate that the charge sheet was defective.
  5. The learned magistrate erred in failing to appreciate that the evidence adduced pointed to a time framed up case against the appellant.
  6. The learned Magistrate erred by convicting the appellant yet failed to find that the prosecution had not proved its case beyond reasonable doubt.
  7. The sentence imposed was both harsh and excessive since it was applied in mandatory terms as provided by the statute and failed to consider the appellant’s mitigation and the facts and circumstances unique to the case.
  8. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.
  9. This being a first appellate court, I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno =Versus= Republic (1972) EA 32.
  10. It has to be appreciated also that the burden was on the prosecution (respondent) to prove all the elements of the offence alleged – see Section 107 of the Evidence Act (Cap.80).
  11. In proving their case, the prosecution called five (5) witnesses.  On his part, the appellant tendered unsworn defence testimony and did not call any additional witness.
  12. The critical elements of the offence of defilement are age of the complainant who should be below 18 years; proof of penetration even if partial; and the positive identity of the perpetrator – see Charles Wamukoya Karani =Versus= Republic – Criminal Appeal No. 72 of 2013.
  13. With regard to age, the complainant PW2 Edith Malemba stated in evidence that she did not know her date of birth, but that she was 10 years old at the time of testimony.  She stated that she was a Class 4 Primary School pupil at Mwamunga Primary School.
  14. Her mother PW1 Jackline Mbori Mwadime relied on a birth certificate which was produced as an exhibit by PW5 PC Veronica Makovu the investigating officer.  It was not contested.
  15. In my view, the prosecution proved the age of the complainant, PW1 beyond any reasonable doubt.

  1. With regard to sexual penetration, the evidence on record is that of PW2 the complainant and the evidence of PW3 Dr. Zainab Genzara.  PW1 stated that she was sexually penetrated.  The evidence of PW3 Dr. Zainab Ganzara was to the effect that the hymen of PW2 was broken, and that there were visible lacerations in the vagina of PW2.
  2. In my view, from the evidence on record, the prosecution proved penetration into the vagina of the complainant PW2 beyond reasonable doubt.
  3. Was the penetration caused by the appellant?  In my view, with the evidence on record, the prosecution did not prove beyond any reasonable doubt that the penetration was caused by the appellant.
  4. In this regard, I note that from the evidence on record, there was a clear and known disagreement between the appellant and PW1, who were at the time living as husband and wife, on payment of school fees for PW2, as the appellant was not able to pay school fees for PW2 who was his step daughter.  In my view, that disagreement would easily have given rise to this present complaint against the appellant.
  5. Secondly, though the prosecution called PW4 Catherine Riziki a step sister of PW2 as a witness, she did not describe the incident the way the complainant PW2 described it.  Thus the evidence of PW2 was not believable and could not satisfy the requirements of the provisal to Section 124 of the Evidence Act (Cap.80), regarding uncorroborated evidence of a single sexual offence witness.
  6. Lastly, though PW1 testified that she saw pubic hair in the pant of the complainant PW2, that pant was not produced in evidence nor explanation given about the whereabouts.  Thus the connection of the appellant to the alleged offence or sexual activity with the complainant was not established.
  7. In my view, the above evidence created a reasonable doubt whose benefit should have been given to the appellant, and which I hereby do.  The result is that I find that the prosecution did not prove beyond reasonable doubt that the appellant is the perpetrator.  On that account therefore, the appeal will succeed.
  8. Consequently and for the above reasons, 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.

Dated, signed and delivered this 14th day of May 2024 in open court at Voi.

In the presence of:-

Alfred/Trizah – Court Assistants

Appellant

Mr. Sirima for State

    MWAGETI MWAISAGHA VS The Republic MWAGETI MWAISAGHA VS The Republic