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(Being an Appeal against conviction and sentence in Tawa Magistrates Courts S.O E029 of 2021 delivered on 20 th August, 2024 by Hon. L. K. Mwendwa (SPM)
The Appellant was charged with the offence of Incest contrary to Section 20 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence under the main charge are that: on 11 th April, 2021, at Mbubuni Market, Waia Location in Mbooni East Sub-County within Makueni County, being a male person, caused his penis to penetrate the vagina of CMM , a female child aged 12 years who was, to his knowledge, his granddaughter.
The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence under the alternative charge are that: On 11 th April, 2021, at Mbubuni Market, Waia Location in Mbooni East Sub-County within Makueni County, the appellant intentionally and unlawfully touched the genital organ (vagina) of CMM , a child aged 12 years with his penis.
The Appellant was after trial found guilty on the main count and was thereby sentenced to fifteen (15) years’ imprisonment. Being aggrieved by the conviction and sentence, he preferred the present appeal.
The Petition of Appeal dated 4 th September, 2024, raised 12 grounds for appeal. These grounds argue that the trial Court relied on inconsistent, doubtful, and contradictory evidence, leading to a wrongful conviction. Additionally, the petitioner contends that the prosecution failed to establish the necessary elements to support a conviction on the charges against him. He asserts that the learned magistrate failed to recognise the discrepancies in the prosecution’s evidence, which should have led to his acquittal. Further, he states that insufficient reasons were given for rejecting his defence and that the sentence imposed is harsh.
The Appellant submitted that the learned trial magistrate erred in matters of both law and fact by failing to find that the prosecution’s case was not proved beyond reasonable doubt leading to the Appellant’s improper conviction.
The Appellant prays that his conviction be quashed, that his sentence be set aside, and that he be set at liberty.
The Respondent submitted that the evidence met the threshold of proof and asked the Court to uphold the sentence and conviction.
Determination
I have considered and analyzed the evidence that was tendered in the trial Court by both the Appellant and the prosecution, the grounds of appeal, and the written submissions. The issues for determination are two pronged; Whether the prosecution proved their case to the required threshold, and; Whether the sentence was appropriate.
It is the duty of the first Appellate Court to carefully examine and analyze afresh the evidence presented from the trial Court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Whether the prosecution established its case against the appellant beyond reasonable doubt?
First, it is noteworthy that for the offense of incest to suffice, there must be proof beyond reasonable doubt of either ‘the commission of an indecent act or penetration’. Section 20(1) of the Sexual Offences Act No. 3 of 2006 which is titled “incest by male persons”, provides as follows; “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” (emphasis is mine)
The prosecution was therefore duty-bound to prove that an act of penetration was committed or an indecent act committed, the offender knew that the victim was a relative, and, for purposes of sentencing, the age of the victim is relevant.
The record before me shows clearly that the Complainant was properly subjected to voire dire examination at the end of which the learned Magistrate concluded that she understood the duty of speaking the truth and the nature of an oath and directed her to give sworn evidence.
Lord Denning in Miller v Ministry of Pensions, [1947] 2 ALL ER 372 had this to say about standard of proof- “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
In this instance, having considered the prosecutorial evidence during the trial Court’s proceedings, I agree with the learned trial magistrate that the element of the Complainant’s relationship to the Appellant was established in evidence beyond reasonable doubt. The Appellant is the minor’s paternal grandfather. There is no dispute about the relationship, even in the defence tendered.
On the second element of penetration, the Complainant told the Court that the assailant removed her clothes, his clothes, and inserted his penis into her vagina.
Penetration is defined by Section 2 of the Sexual Offences Act as; “…..the partial or complete insertion of the genital organs of a person into the genital organs of another.”
The Complainant’s treatment notes were not produced. The P3 form was completed 8 days after the incident complained of. The post rape care form was filled out 17 days later. These documents indicate that the findings were an attempted defilement. The investigating officer also indicated that the first report in the Occurrence Book was for attempted defilement.
The Complainant testified that the assailant inserted his penis into her vagina; however, this detail was not included in her initial report to the police. The P3, PRC Form and evidence of PW3 and PW4 show that the impressions made were for attempted defilement.
The defence case is that the case is fabricated. Evidence from PW2 indicated that a separate incident occurred in which a farmhand defiled the complainant.
Furthermore, the Complainant’s mother confirmed that there was a strained relationship between them. Therefore, it is essential to examine the evidence more closely in light of this background.
The provisions of Section 124 of the Evidence Act are informative to the extent that a conviction can rest squarely on the sole testimony of the victim/complainant. However, the evidence in a case must be examined holistically.
With regards to discrepancies and contradictions, in John Mutua Munyoki v Republic [2017] KECA 376 (KLR) the Court of Appeal noted as follows; “How about inconsistencies and contradictions? There were quite a number though the respondent dismissed them as inconsequential. In cases where the court has to prefer the evidence of one person against the other, for instance between the accused and the complainant and that is the only evidence, 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 who to believe. The contradictions have to be considered and weighed carefully.”
The Complainant was residing with her grandparents. No report was made to DW3 (grandmother) and DW2 (her father), despite the Complainant acknowledging that she would see him (DW2) daily.
The discrepancy between the initial police report, the medical examination account, and the evidence presented is a glaring inconsistency. The treatment notes would have assisted in dispelling the doubts raised during cross-examination, but the prosecution did not make an effort to provide them, nor did they explain why they were not provided.
The evidence of strained relations, inconsistencies in the narrative about the offence committed, and the defence tendered on possible malice to fabricate the Complaint ultimately weaken the prosecution’s case and raise doubts that should be considered in favour of the Appellant.
The conviction was not safe on the main charge, nor can the evidence hold on the alternative charge. Accordingly, I quash the conviction and set aside the sentence of the trial Court. The appeal is allowed, and the appellant shall be set free unless otherwise lawfully held.
It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 3 RD day of FEBRUARY, 2025.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant - Beryl
Applicant present
Mr. Kazungu, ODPP
'
(Being an Appeal against conviction and sentence in Tawa Magistrates Courts S.O E029 of 2021 delivered on 20 th August, 2024 by Hon. L. K. Mwendwa (SPM)
The Appellant was charged with the offence of Incest contrary to Section 20 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence under the main charge are that: on 11 th April, 2021, at Mbubuni Market, Waia Location in Mbooni East Sub-County within Makueni County, being a male person, caused his penis to penetrate the vagina of CMM , a female child aged 12 years who was, to his knowledge, his granddaughter.
The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence under the alternative charge are that: On 11 th April, 2021, at Mbubuni Market, Waia Location in Mbooni East Sub-County within Makueni County, the appellant intentionally and unlawfully touched the genital organ (vagina) of CMM , a child aged 12 years with his penis.
The Appellant was after trial found guilty on the main count and was thereby sentenced to fifteen (15) years’ imprisonment. Being aggrieved by the conviction and sentence, he preferred the present appeal.
The Petition of Appeal dated 4 th September, 2024, raised 12 grounds for appeal. These grounds argue that the trial Court relied on inconsistent, doubtful, and contradictory evidence, leading to a wrongful conviction. Additionally, the petitioner contends that the prosecution failed to establish the necessary elements to support a conviction on the charges against him. He asserts that the learned magistrate failed to recognise the discrepancies in the prosecution’s evidence, which should have led to his acquittal. Further, he states that insufficient reasons were given for rejecting his defence and that the sentence imposed is harsh.
The Appellant submitted that the learned trial magistrate erred in matters of both law and fact by failing to find that the prosecution’s case was not proved beyond reasonable doubt leading to the Appellant’s improper conviction.
The Appellant prays that his conviction be quashed, that his sentence be set aside, and that he be set at liberty.
The Respondent submitted that the evidence met the threshold of proof and asked the Court to uphold the sentence and conviction.
Determination
I have considered and analyzed the evidence that was tendered in the trial Court by both the Appellant and the prosecution, the grounds of appeal, and the written submissions. The issues for determination are two pronged; Whether the prosecution proved their case to the required threshold, and; Whether the sentence was appropriate.
It is the duty of the first Appellate Court to carefully examine and analyze afresh the evidence presented from the trial Court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Whether the prosecution established its case against the appellant beyond reasonable doubt?
First, it is noteworthy that for the offense of incest to suffice, there must be proof beyond reasonable doubt of either ‘the commission of an indecent act or penetration’. Section 20(1) of the Sexual Offences Act No. 3 of 2006 which is titled “incest by male persons”, provides as follows; “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” (emphasis is mine)
The prosecution was therefore duty-bound to prove that an act of penetration was committed or an indecent act committed, the offender knew that the victim was a relative, and, for purposes of sentencing, the age of the victim is relevant.
The record before me shows clearly that the Complainant was properly subjected to voire dire examination at the end of which the learned Magistrate concluded that she understood the duty of speaking the truth and the nature of an oath and directed her to give sworn evidence.
Lord Denning in Miller v Ministry of Pensions, [1947] 2 ALL ER 372 had this to say about standard of proof- “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
In this instance, having considered the prosecutorial evidence during the trial Court’s proceedings, I agree with the learned trial magistrate that the element of the Complainant’s relationship to the Appellant was established in evidence beyond reasonable doubt. The Appellant is the minor’s paternal grandfather. There is no dispute about the relationship, even in the defence tendered.
On the second element of penetration, the Complainant told the Court that the assailant removed her clothes, his clothes, and inserted his penis into her vagina.
Penetration is defined by Section 2 of the Sexual Offences Act as; “…..the partial or complete insertion of the genital organs of a person into the genital organs of another.”
The Complainant’s treatment notes were not produced. The P3 form was completed 8 days after the incident complained of. The post rape care form was filled out 17 days later. These documents indicate that the findings were an attempted defilement. The investigating officer also indicated that the first report in the Occurrence Book was for attempted defilement.
The Complainant testified that the assailant inserted his penis into her vagina; however, this detail was not included in her initial report to the police. The P3, PRC Form and evidence of PW3 and PW4 show that the impressions made were for attempted defilement.
The defence case is that the case is fabricated. Evidence from PW2 indicated that a separate incident occurred in which a farmhand defiled the complainant.
Furthermore, the Complainant’s mother confirmed that there was a strained relationship between them. Therefore, it is essential to examine the evidence more closely in light of this background.
The provisions of Section 124 of the Evidence Act are informative to the extent that a conviction can rest squarely on the sole testimony of the victim/complainant. However, the evidence in a case must be examined holistically.
With regards to discrepancies and contradictions, in John Mutua Munyoki v Republic [2017] KECA 376 (KLR) the Court of Appeal noted as follows; “How about inconsistencies and contradictions? There were quite a number though the respondent dismissed them as inconsequential. In cases where the court has to prefer the evidence of one person against the other, for instance between the accused and the complainant and that is the only evidence, 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 who to believe. The contradictions have to be considered and weighed carefully.”
The Complainant was residing with her grandparents. No report was made to DW3 (grandmother) and DW2 (her father), despite the Complainant acknowledging that she would see him (DW2) daily.
The discrepancy between the initial police report, the medical examination account, and the evidence presented is a glaring inconsistency. The treatment notes would have assisted in dispelling the doubts raised during cross-examination, but the prosecution did not make an effort to provide them, nor did they explain why they were not provided.
The evidence of strained relations, inconsistencies in the narrative about the offence committed, and the defence tendered on possible malice to fabricate the Complaint ultimately weaken the prosecution’s case and raise doubts that should be considered in favour of the Appellant.
The conviction was not safe on the main charge, nor can the evidence hold on the alternative charge. Accordingly, I quash the conviction and set aside the sentence of the trial Court. The appeal is allowed, and the appellant shall be set free unless otherwise lawfully held.
It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 3 RD day of FEBRUARY, 2025.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant - Beryl
Applicant present
Mr. Kazungu, ODPP
'