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JudgmentPaul Mwanyumba Mshai VS The Republic6 min read

Paul Mwanyumba Mshai VS The Republic

High Court at Voi High Court · · George. Dulu


(From the conviction and sentence in Sexual Offence Case No. E003 of 2022 at Wundanyi Law Courts delivered on 25th October 2022 by Hon. D. Wangeci (PM)

  1. The appellant was by the trial court convicted of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 whose particulars were that on 24th February 2022 at Mngama village in Mwachondo Location within Taita Taveta County being a male person caused his penis to penetrate the vagina of Hellen Mshai a female person who was to his knowledge his daughter.
  2. On conviction, he was sentenced to life imprisonment.
  3. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal and relied upon the following amended grounds of appeal:-
  4. The learned trial Magistrate erred in convicting him based on inadmissible evidence and on evidence of identification which was not positive.
  5. The learned Magistrate erred to convict the appellant when the prosecution did not establish the ingredients of incest to the required standards.
  6. The learned Magistrate erred when the prosecution failed to call essential witnesses.
  7. The learned Magistrate erred when the rights of the appellant were violated under Article 50 of the Constitution.
  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 appeal, I am duty bound to consider and evaluate all the evidence on record afresh, and come to my own independent conclusions and inferences – see Okeno =Vs= Republic (1972) EA 32.
  10. I have also to bear in mind that the burden was on the prosecution to prove all the ingredients of the offence of incest on which the appellant was convicted – see Section 107 of the Evidence Act (Cap.80).  As this is a criminal case, the standard of proof was beyond any reasonable doubt.
  11. The appellant having been convicted and sentenced for incest with a child, the main ingredients of the offence are firstly the age of the victim who should be below 18 years of age.  Secondly, the act of sexual penetration even if partial.  Thirdly, the positive identity of the culprit or perpetrator, and fourthly the relationship of the victim and the appellant. 
  12. In proving their case, the prosecution called five (5) witnesses.  On his part, the appellant tendered sworn defence testimony and did not call any additional evidence.
  13. I start with the age of the alleged victim who testified as PW1 Hellen Mshai.  She testified without being sworn due to her tender age, and stated that – she was 6 years old and previously in class two at St. Paul Academy Bura.  She identified her birth notification form.
  14. PW2 Esther Wakesho a teacher at St. Paul’s Academy also testified that – PW1 was a pupil in that school aged 6 years.  Further, the notification of birth of PW1 was produced in evidence as an exhibit, by PW4 PC Damaris Gacheru the investigating officer.
  15. In my view, the prosecution proved beyond any reasonable doubt that PW1 was 6 years old at the time of the alleged incident.
  16. Was sexual penetration proved?  The evidence on this element of sexual penetration is that of PW1 and the medical evidence tendered in court by PW5 Dr. Osborne Mwema.
  17. In my view, from the evidence on record, sexual penetration was not proved beyond any reasonable doubt.  Firstly, the evidence of PW1 was contradictory in that she initially testified that the incident occurred once, but later she stated that it had occurred a number of times.  She also described the incident as an assault on her lips, which was visibly swollen.
  18. Secondly, the medical evidence on record is suspect and contradictory.  To start with, how can a medical examination report (P3 form) be filled and dated on the first day of a patient attends treatment in hospital like happened in this case on 25th February 2022?  In my view, that is not practical in view of the standard practice in this country that the P3 form is a police document, not a hospital document.
  19. The entries in the medical report are also contradictory to the entries in the treatment notes, in which no tears were found in the vaginal orifice.  These treatment notes being the first point of record for a patient and which not point at sexual penetration of such a young girl are more reliable than the entries in the P3 form.  The only matter of concern noted in the treatment notes, which is inscribed in the medical examination report (P3 form), is a missing hymen, and no indication that it occurred recently.  No laceration were seen in the vagina or noted in the treatment notes, thus one cannot infer sexual penetration.
  20. In my view, a missing hymen alone with no sign that it was fresh, does not prove sexual penetration, as scientifically, the hymen can be broken for various other reasons, and in some cases girls are actually born without that light membrane called hymen.
  21. I thus find that the prosecution did not prove beyond any reasonable doubt that there was sexual penetration, on the alleged victim PW1.
  22. Was the appellant the culprit?  Having found that the prosecution did not prove sexual penetration on PW1 beyond any reasonable doubt, I also find that the prosecution did not prove beyond reasonable doubt that the appellant was the culprit.
  23. As for the relationship between the appellant and PW1, the appellant himself agreed that PW1 was his daughter and that the mother had relocated to Watamu, and that he had custody of this female child as well as another male child.  I thus find that the prosecution proved beyond any reasonable doubt that the appellant was the father of PW1.
  24. To conclude, as I have found that sexual penetration on PW1 was not proved, I will have to allow the appeal, quash the conviction and set aside the sentence.
  25. Having stated as above however, in my view, there is ample evidence on record that the appellant assaulted PW1 and injured her lips.  This action constitutes the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code.
  26. Though the appellant was not charged with that offence, the evidence on record is clear and the appellant had the opportunity to defend himself on the issue of assault.  In fact, in explaining the bleeding in the face or lips of PW1, he stated in his sworn defence that it was natural bleeding from the nose, which I find was untrue.
  27. In my view, the evidence on record established beyond any reasonable doubt that the appellant assaulted PW1 causing her actual bodily harm which amounts to the offence of assault causing actual bodily harm.  I will thus convict him of that offence accordingly, as it is a minor offence to a forceful sexual offence.
  28. As the maximum sentence for the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code is 5 years imprisonment, and taking into account the circumstances of this case where a father assaulted and injured his own young defenceless daughter, I will sentence him to four (4) years imprisonment from the date he was initially sentenced by the trial court on 25th October 2022.
  29. Consequently and for the above reasons, I quash the conviction for incest and set aside the life imprisonment sentence imposed.  I however convict the appellant for assault causing actual bodily harm contrary to Section 251 of the Penal Code, and sentence the appellant to four (4) years imprisonment.  The sentence will run from 25th October 2022 when he was sentenced by the trial court.  Right of appeal 14 days explained.

Dated, signed and delivered this 30th day of May 2024 in open court at Voi virtually.

In the presence of:-

Alfred/Trizah – Court Assistants

Appellant in person – virtually

Mr. Sirima for State – virtually

    Paul Mwanyumba Mshai VS The Republic Paul Mwanyumba Mshai VS The Republic