Background
1. MWINYIHAJI MBARAKA MWANEMBE was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars are that MWINYIHAJI MBARAKA MWANEMBE on 22nd December 2019 at around 1700hrs at Munje village, Kingwede-Shirazi location in Msambweni Sub-County within Kwale County, intentionally and unlawfully caused his penis to penetrate the vagina of M.K.B. a child aged 14 years.
3. In the alternative count, the appellant was also charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. The trial magistrate considered the evidence of 5 prosecution witnesses and the sworn evidence of the appellant and convicted the appellant on the main charge of defilement and was sentenced to serve 13 years imprisonment after consideration of the period in remand between 30.12.2019 and 24.11.2021.
5. The appellant was aggrieved by the sentence and he preferred the appeal herein on the following amended grounds filed on 20th June 2023: -
1) That the learned trial court magistrate erred in law and fact by discounting and not considering age and health status.
2) That the learned trial court magistrate erred in law and fact by not considering my defence evidence.
6. The appellant prayed that the appeal be allowed, conviction quashed and the sentence set aside.
Prosecution’s Case
7. PW1, the Complainant was declared a vulnerable witness and gave her evidence through her father who was an intermediary. The Complainant gave sworn testimony and stated that she was 15 years old and that the incident occurred in December 2019. She said that on 22.12.2019 at 5.00 pm, she was coming from home heading to her sister’s place when she saw the Accused at Mshingo who gave her Kshs. 50 and defiled her. That she went home naked and informed her mother about it and that another lady also went and informed her mother that she saw someone defiling her. That they took her to the police and to hospital. The Complainant identified the Accused in court as the perpetrator.
8. PW2, Hashim Sahim Suma said that on 22.12.2019, the Complaiant returned home at 6.00 pm and when PW2 asked where she had been she said she had been at Miembeni with a person called Mwinyi and that with descreptions, PW2 knew him. That the Complaiant went home naked from the bottom, she had no panty and was holding her clothes in one hand and Kshs. 100 in another hand. That the Complainant said Mwinyi gave her the Kshs. 100 and that alimkata meaning he had sex with her. That PW2 took her to Msambweni Police Station where they were referred to Msambweni Hospital. She said that she knew the Accused and that they were neighbours.
9. PW3, Tima Mohamed testified that on 20.12.2019 at around 11.00 am while on the way to visit her neighbour’s sick child, she used a path to head there. That while on the path, PW3 heard a child screaming in the bush and that when she peeped, she saw the Accused and a girl on the ground and that the girl had her back on the ground. That the Accused had unzipped his trouser and that the girl’s legs were held apart by the accused. That the Accused had penetrated the girl and that PW3 asked what the Accused was doing to the girl who was young enough to be his daughter, and that the Accused took off. That PW3 assisted the girl up and took her to her home. That the Complainant’s mother checked her and found mucus-like discharge in her genital area. PW3 said she was related to the Accused and had no grudge with him.
10. PW4, Dr. Ibrahim Hassan Muasya, Medical officer at Msambweni testified on behalf of Dr. Rakhma Salim Mwakaya who was away on study leave. He said that he had worked with her for 2 years and knew her handwriting. PW4 said he had a medical book for the Complainant who was epileptic and on medication. That the Complainant had been taken to hospital on 22.12.2019 at 5.00 pm with a history of defilement and that she was defiled by a person well known to her. That at the time of examination, the Complaiant had washed herself, gone for short and long call, and changed her clothes.
11. PW4 said that on vaginal examination, the external genitalia was normal, there was no discharge but the hymen was not intact and had freshly been broken. That urinalysis was done and it showed that she had UTI and had bled recently. That the doctor filled the P3 Form on 27.12.2019 which had been signed and stamped on the same day. The P3 Form was produced at ExP 4.
12. PW5, No. 113668 PC Humphrey Oduor from Msambweni Police Station and the Investigating Officer herein said that on 24.12.2019 at 5.30 pm, he was in the office when the Complainant was taken to the station by her parents. That the parents informed him that on 12.12.2019 at about 5.00 pm, the Complainant went to a nearby bush to help herself and when she finished the accused whom she knew as Mwinyihaji appeared and gave her Kshs. 100 and said that she wanted to have sex with her. PW5 said that the Complainant did not refuse and that they went back inside the bush and had sex. That a neighbour head noises and when he followed, he found the two having sex, and that the Accused took off and left the complainant.
13. PW5 testified that the girl was assisted by her parents during interrogation and that they were sent to Msambweni Hospital for treatment where the P3 Form was also filled. That on 29.12.2019, the Accused was arrested and charged. PW5 said that the Complainant looked down all the time and that she took 3-5 minutes to answer a question and that. That the complainant’s mum informed PW5 about the deficiencies and that the complainant was taken to Msambweni Hospital for examination where a report dated 9.4.2021 was issued by Dr. Kevin Wamula. That the diagnosis established that the patient had mental retardation with convulsion disorders. That at the time of the incident she was 14 years old and that her clinic card indicated her date of birth as 13.5.2005. PW5 produced the clinic card as ExP1 and the mental report at ExP5.
Defence Case
14. The Accused, Mwinyihaji Mbaraka Mwanembe, gave sworn evidence that on 28.12.2019, a man by the name Kassim Batua went and attacked him in the company of 2 other men. That he later learnt that one of the men was a police officer and that they kept saying the case would be heard in court and not at the Chief’s or the Vice Chairman. That when the Accused got to the Police Station, he was not allowed to write a statement or see the Complainant. That on 29.12.2019, he was taken to court where he found out about the charges.
15. The Accused said that when the Complainant testified, she said that she was given Kshs. 50 and that when she was ordered to identify the assailant by touching, she did not touch the Accused. That on 30.6.2021 when the Complainant was cross examined, she said that she would be given money by different people and that she used part of the money to buy soap and that she gave part to her father who used it to buy household items. That the Complainant said she was playing with other children and left at midday to go home because her mum would beat her if she delayed. The Accused said that they never investigated whether it was menstruation and that DNA was never conducted.
16. Directions were taken on 27th July 2023 that the appeal be canvassed by way of written submissions but as at the time of writing the judgment, only the appellant had filed the submissions on 20th June 2023.
Appellant’s Submissions
17. The appellant made submissions in regard to his age and health status and relied on the holding in the Court of Appeal Case of Ali Abdalla Mwanza v Republic, CA Case No. 259 of 2012 where the learned judges of the Court of Appeal held: -
“… we have taken note of the latest health profile for Kenya compiled by the World Health Organization (WHO) data for 2018, on life expectancy which is indicated as 64.4 for male and 68.9 for the females and total life expectancy average as 66.7… t is also trite that every case of sentencing should strictly be considered on its own circumstances as no one individual should be sent to prison purely to send a message to other would be offenders… In this case it is obvious to us if the appellant were to serve the entire 40 years sentence with the above life expectancy of about 67 years, the sentence would go beyond the life expectancy and in that case it would appear manifestly excessive. We say so because the Judge did not impose a death sentence or even a life sentence. When the Judge imposed a term sentence, to us it would appear, it was meant to be lower than life sentence. It is for the aforesaid reasons that we are of the view that if the trial Judge had taken the above matters into consideration, perhaps she would have considered a lesser term…”
18. He argued that he informed the court that he was 61 years and that sentencing him to 13 years would mean that he serves beyond the life expectancy which is between 64.4 and 67 years. He also relied on the holding in Yusuf Dahar Arog v Republic HCCR App. No. 110 of 2006 in which Ojwang’ J. held that a court should take judicial principles into account such as the ordinary span of a human being, the general circumstances surrounding the commission of the offence, the possibility that the culprit may reform and become law abiding. He also said that punishment of the offender should be applied in a just manner
19. The appellant submitted that he was of poor health and he gave his evidence to his poor health but the trial magistrate ignored the same. The appellant also sought to rely on the decision in Petition No. 128 of 2018, James Kazungu Luganja v Republic where Ogola, J. set aside death sentence and substituted the same with 16 years, 5 of which were to be served on probation.
Analysis and Determination
20. This being the first appellate court, this court is guided by the principles in David Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: -
“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
21. After considering the grounds of appeal, records of trial court and submissions, issues for determination are: -
i. Whether the appellant’s defence was considered
ii. Whether the appellant’s mitigation of age and health were considered
Whether the appellant’s defence was considered
22. The defence by the appellant was that he did not commit the offence and that he was fabricated by the father of the complainant who told the complainant what to say in court and that the complainant’s father used to tease him when they were children. He also said that he knew PW3 and that 5 years prior to the incident, he had refused to set up a tree nursery for her and that is why he may have fabricated him.
23. The trial magistrate at page 8 of the judgment analysed the appellant’s defence and concluded that the offence was committed during the day at 10.00 am and PW3 recognised the appellant while lying on top of the complainant. That PW3 was the appellant’s in-law and there is no way she could have mistaken someone else for the appellant.
24. It is therefore not true that the defence by the appellant was not considered.
Whether the appellant’s mitigation of age and health were considered
25. From the proceedings of the trial court, the trial magistrate considered mitigation but said that the appellant took advantage of the vulnerability of the complainant who was mentally challenged to satisfy his urge and that non-custodial sentence cannot suffice in the circumstances. The trial magistrate therefore exercised her discretion to arrive at the appropriate sentence in the circumstances. She could have exercised her discretion to pass a sentence of more than 20 years but she passed a sentence of 15 years and factored in a period of 2 years when the appellant was in remand custody. The offence herein was committed on 22.12.2019 and the appellant was convicted on 10.6.2022 and sentenced on 6.7.2022. The appellant committed the offence when he was 58 years old and he cannot be punished at his convenience merely because of his age at the expense of a minor who had mental incapacity at the time he was defiling her.
26. In conclusion, the appeal has no merit and is dismissed. 14 days right of appeal explained to the appellant.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 13th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for Respondent
Appellant present in person
1. MWINYIHAJI MBARAKA MWANEMBE was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars are that MWINYIHAJI MBARAKA MWANEMBE on 22nd December 2019 at around 1700hrs at Munje village, Kingwede-Shirazi location in Msambweni Sub-County within Kwale County, intentionally and unlawfully caused his penis to penetrate the vagina of M.K.B. a child aged 14 years.
3. In the alternative count, the appellant was also charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. The trial magistrate considered the evidence of 5 prosecution witnesses and the sworn evidence of the appellant and convicted the appellant on the main charge of defilement and was sentenced to serve 13 years imprisonment after consideration of the period in remand between 30.12.2019 and 24.11.2021.
5. The appellant was aggrieved by the sentence and he preferred the appeal herein on the following amended grounds filed on 20th June 2023: -
1) That the learned trial court magistrate erred in law and fact by discounting and not considering age and health status.
2) That the learned trial court magistrate erred in law and fact by not considering my defence evidence.
6. The appellant prayed that the appeal be allowed, conviction quashed and the sentence set aside.
Prosecution’s Case
7. PW1, the Complainant was declared a vulnerable witness and gave her evidence through her father who was an intermediary. The Complainant gave sworn testimony and stated that she was 15 years old and that the incident occurred in December 2019. She said that on 22.12.2019 at 5.00 pm, she was coming from home heading to her sister’s place when she saw the Accused at Mshingo who gave her Kshs. 50 and defiled her. That she went home naked and informed her mother about it and that another lady also went and informed her mother that she saw someone defiling her. That they took her to the police and to hospital. The Complainant identified the Accused in court as the perpetrator.
8. PW2, Hashim Sahim Suma said that on 22.12.2019, the Complaiant returned home at 6.00 pm and when PW2 asked where she had been she said she had been at Miembeni with a person called Mwinyi and that with descreptions, PW2 knew him. That the Complaiant went home naked from the bottom, she had no panty and was holding her clothes in one hand and Kshs. 100 in another hand. That the Complainant said Mwinyi gave her the Kshs. 100 and that alimkata meaning he had sex with her. That PW2 took her to Msambweni Police Station where they were referred to Msambweni Hospital. She said that she knew the Accused and that they were neighbours.
9. PW3, Tima Mohamed testified that on 20.12.2019 at around 11.00 am while on the way to visit her neighbour’s sick child, she used a path to head there. That while on the path, PW3 heard a child screaming in the bush and that when she peeped, she saw the Accused and a girl on the ground and that the girl had her back on the ground. That the Accused had unzipped his trouser and that the girl’s legs were held apart by the accused. That the Accused had penetrated the girl and that PW3 asked what the Accused was doing to the girl who was young enough to be his daughter, and that the Accused took off. That PW3 assisted the girl up and took her to her home. That the Complainant’s mother checked her and found mucus-like discharge in her genital area. PW3 said she was related to the Accused and had no grudge with him.
10. PW4, Dr. Ibrahim Hassan Muasya, Medical officer at Msambweni testified on behalf of Dr. Rakhma Salim Mwakaya who was away on study leave. He said that he had worked with her for 2 years and knew her handwriting. PW4 said he had a medical book for the Complainant who was epileptic and on medication. That the Complainant had been taken to hospital on 22.12.2019 at 5.00 pm with a history of defilement and that she was defiled by a person well known to her. That at the time of examination, the Complaiant had washed herself, gone for short and long call, and changed her clothes.
11. PW4 said that on vaginal examination, the external genitalia was normal, there was no discharge but the hymen was not intact and had freshly been broken. That urinalysis was done and it showed that she had UTI and had bled recently. That the doctor filled the P3 Form on 27.12.2019 which had been signed and stamped on the same day. The P3 Form was produced at ExP 4.
12. PW5, No. 113668 PC Humphrey Oduor from Msambweni Police Station and the Investigating Officer herein said that on 24.12.2019 at 5.30 pm, he was in the office when the Complainant was taken to the station by her parents. That the parents informed him that on 12.12.2019 at about 5.00 pm, the Complainant went to a nearby bush to help herself and when she finished the accused whom she knew as Mwinyihaji appeared and gave her Kshs. 100 and said that she wanted to have sex with her. PW5 said that the Complainant did not refuse and that they went back inside the bush and had sex. That a neighbour head noises and when he followed, he found the two having sex, and that the Accused took off and left the complainant.
13. PW5 testified that the girl was assisted by her parents during interrogation and that they were sent to Msambweni Hospital for treatment where the P3 Form was also filled. That on 29.12.2019, the Accused was arrested and charged. PW5 said that the Complainant looked down all the time and that she took 3-5 minutes to answer a question and that. That the complainant’s mum informed PW5 about the deficiencies and that the complainant was taken to Msambweni Hospital for examination where a report dated 9.4.2021 was issued by Dr. Kevin Wamula. That the diagnosis established that the patient had mental retardation with convulsion disorders. That at the time of the incident she was 14 years old and that her clinic card indicated her date of birth as 13.5.2005. PW5 produced the clinic card as ExP1 and the mental report at ExP5.
Defence Case
14. The Accused, Mwinyihaji Mbaraka Mwanembe, gave sworn evidence that on 28.12.2019, a man by the name Kassim Batua went and attacked him in the company of 2 other men. That he later learnt that one of the men was a police officer and that they kept saying the case would be heard in court and not at the Chief’s or the Vice Chairman. That when the Accused got to the Police Station, he was not allowed to write a statement or see the Complainant. That on 29.12.2019, he was taken to court where he found out about the charges.
15. The Accused said that when the Complainant testified, she said that she was given Kshs. 50 and that when she was ordered to identify the assailant by touching, she did not touch the Accused. That on 30.6.2021 when the Complainant was cross examined, she said that she would be given money by different people and that she used part of the money to buy soap and that she gave part to her father who used it to buy household items. That the Complainant said she was playing with other children and left at midday to go home because her mum would beat her if she delayed. The Accused said that they never investigated whether it was menstruation and that DNA was never conducted.
16. Directions were taken on 27th July 2023 that the appeal be canvassed by way of written submissions but as at the time of writing the judgment, only the appellant had filed the submissions on 20th June 2023.
Appellant’s Submissions
17. The appellant made submissions in regard to his age and health status and relied on the holding in the Court of Appeal Case of Ali Abdalla Mwanza v Republic, CA Case No. 259 of 2012 where the learned judges of the Court of Appeal held: -
“… we have taken note of the latest health profile for Kenya compiled by the World Health Organization (WHO) data for 2018, on life expectancy which is indicated as 64.4 for male and 68.9 for the females and total life expectancy average as 66.7… t is also trite that every case of sentencing should strictly be considered on its own circumstances as no one individual should be sent to prison purely to send a message to other would be offenders… In this case it is obvious to us if the appellant were to serve the entire 40 years sentence with the above life expectancy of about 67 years, the sentence would go beyond the life expectancy and in that case it would appear manifestly excessive. We say so because the Judge did not impose a death sentence or even a life sentence. When the Judge imposed a term sentence, to us it would appear, it was meant to be lower than life sentence. It is for the aforesaid reasons that we are of the view that if the trial Judge had taken the above matters into consideration, perhaps she would have considered a lesser term…”
18. He argued that he informed the court that he was 61 years and that sentencing him to 13 years would mean that he serves beyond the life expectancy which is between 64.4 and 67 years. He also relied on the holding in Yusuf Dahar Arog v Republic HCCR App. No. 110 of 2006 in which Ojwang’ J. held that a court should take judicial principles into account such as the ordinary span of a human being, the general circumstances surrounding the commission of the offence, the possibility that the culprit may reform and become law abiding. He also said that punishment of the offender should be applied in a just manner
19. The appellant submitted that he was of poor health and he gave his evidence to his poor health but the trial magistrate ignored the same. The appellant also sought to rely on the decision in Petition No. 128 of 2018, James Kazungu Luganja v Republic where Ogola, J. set aside death sentence and substituted the same with 16 years, 5 of which were to be served on probation.
Analysis and Determination
20. This being the first appellate court, this court is guided by the principles in David Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: -
“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
21. After considering the grounds of appeal, records of trial court and submissions, issues for determination are: -
i. Whether the appellant’s defence was considered
ii. Whether the appellant’s mitigation of age and health were considered
Whether the appellant’s defence was considered
22. The defence by the appellant was that he did not commit the offence and that he was fabricated by the father of the complainant who told the complainant what to say in court and that the complainant’s father used to tease him when they were children. He also said that he knew PW3 and that 5 years prior to the incident, he had refused to set up a tree nursery for her and that is why he may have fabricated him.
23. The trial magistrate at page 8 of the judgment analysed the appellant’s defence and concluded that the offence was committed during the day at 10.00 am and PW3 recognised the appellant while lying on top of the complainant. That PW3 was the appellant’s in-law and there is no way she could have mistaken someone else for the appellant.
24. It is therefore not true that the defence by the appellant was not considered.
Whether the appellant’s mitigation of age and health were considered
25. From the proceedings of the trial court, the trial magistrate considered mitigation but said that the appellant took advantage of the vulnerability of the complainant who was mentally challenged to satisfy his urge and that non-custodial sentence cannot suffice in the circumstances. The trial magistrate therefore exercised her discretion to arrive at the appropriate sentence in the circumstances. She could have exercised her discretion to pass a sentence of more than 20 years but she passed a sentence of 15 years and factored in a period of 2 years when the appellant was in remand custody. The offence herein was committed on 22.12.2019 and the appellant was convicted on 10.6.2022 and sentenced on 6.7.2022. The appellant committed the offence when he was 58 years old and he cannot be punished at his convenience merely because of his age at the expense of a minor who had mental incapacity at the time he was defiling her.
26. In conclusion, the appeal has no merit and is dismissed. 14 days right of appeal explained to the appellant.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 13th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for Respondent
Appellant present in person