HIGH COURT CRIMINAL APPEAL NO. E081 OF 2023
(FROM THE ORIGINAL CONVICTION AND SENTENCE IN SO NO. 31 OF 2019 CMS MAGISTRATES COURT AT NYERI)
ROBERT NGUGI NJONJO ……………………………………APPELLANT
VERSUS
REPUBLIC………………………………………………..……RESPONDENT
JUDGEMENT
1. The Appellant ROBERT NGUGI NJONJO has filed this Amended
Memorandum of Appeal challenging his conviction and sentence in the
Lower Court.
2. The Respondent, the office of the Director of Public Prosecution
(ODPP) opposed the appeal. The matter was canvassed by way of
written submissions. The Appellant filed submissions dated 21st May
2021 whilst the Respondents relied upon his written submissions filed
on 23rd October 2024.
BACKGROUND
3. This appeal emanates from the trial of the Appellant in the Nyeri Chief
Magistrates Case No. 31 of 2019.
4. In that case the Appellant was charged with the offence of DEFILEMENT
CONTRARY TO SECTION 8 (1) as read with SECTION 8 (3) OF THE
SEXUAL OFFENCES ACT.
5. The Appellant faced an alternative charge of COMMITTING AN
INDECENT ACT WITH A CHILD CONTRARY TO SECTION 11(1) OF
THE SEXUAL OFFENCES ACT.
6. The Appellant entered a plea of ‘Not Guilty’ to both charges. The
prosecution called eight (8) witnesses in support of their case.
7. The complainant CATHERINE NJERI testified as PW2. She told the
court she was aged thirteen (13) years old. That on 28th July 2019
she was at Gamerock when the Appellant whom the child referred to
as her father called her to escort him to pick milk.
8. The child obliged but instead the Appellant led her into a coffee
plantation. He told her to remove her clothes and laid her on the ground.
That the Appellant then climbed on top of the child and defiled her.
9. The child then left crying and reported the incident to fellow villagers. It
was not until 29th July 2019 – that the child reported the incident to
her mother.
10. PW1 SICILY NJOKI NJERU was the complainant’s mother. She
informed the court that her daughter suffered from some mental
challenges. PW1 further informed the court that she had cohabited
with the Appellant for about ten (10) years but that they separated in
the year 2018 and the Appellant married somebody else.
11. PW1 stated that the complainant knew the Appellant as her father
because the Appellant had raised her from a young age.
12. According to PW1 the complainant had initially reported the defilement
to fellow villagers on 28th July 2019. However she stated that the
child did not report the incident to her mother until the night of 29th
July 2019. PW1 then reported to police and he Appellant was arrested.
Upon conclusion of investigations the Appellant was taken to court and
charged.
13. The prosecution closed their case on 11th November 2021. On 15th
December 2021, the Court ruled that a prima facie case had been
established and placed the Appellant on his defence.
14. On 18th January 2022 the Appellant gave a sworn defence in which
he categorically denied having molested and/or defiled the complainant. The Appellant alleged that the charges had been fabricated by the child’s mother as a ploy to have him jailed so that she could take his property.
15. The learned trial Magistrate delivered her judgment on 22nd February
2022, in which she convicted the Appellant on the charge of Defilement
and thereafter sentenced him to serve twenty (20) years
imprisonment.
16. Being aggrieved by his conviction and sentence the Appellant filed this
Amended Memorandum of Appeal which was premised upon the
following grounds;-
“1. That, the learned magistrate erred in law and fact in the
conviction of the appellant to serve a sentence that goes
against the letter and spirit of the current constitution.
2. That, the learned magistrate erred in law and fact in
putting relevance upon inconsistent and contradicted
prosecution evidence.
3. That, the learned magistrate erred in law and fact in
overlooking the fact that some very essential witnesses
were not availed the prosecution in the trial to testify and
be cross-examined.
4. That, the learned magistrate erred in law by ignoring that
the prosecution relied upon a defective charge sheet and
convicted the appellant on the same.
5. That, the learned judge erred in law in affirming the
gross violation of my fundamental rights in a way that
depicted an open bias.”
17. As stated earlier the appeal was opposed.
ANALYSIS AND DETERMINATION
18. I have carefully considered this Memorandum of Appeal, the record of
proceedings before the trial court as well as the written submissions filed
by both parties.
19. This being a first appeal it is the duty of this court to examine the
evidence adduced during the trial and to draw its own conclusion on
the same. In SELLE & ANOTHER -VS- ASSOCIATED MOTOR
BOAT COMPANY LTD & OTHERS [1968] E.A 123 the court held as
follows:-
“An appeal to this court from trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion through it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
20. Likewise in OKENO -VS- REPUBLIC [1972] E.A and MARK OIRUI
MOSE -VS- REPUBLIC [2013] eKLR it was reiterated that a first
appellate court is duty bound to revisit the evidence tendered before
the trial court afresh, evaluate, analyze it and come to its own
independent conclusion giving allowance for the fact that the trial court
had the advantage of observing the demeanour of the witnesses and
hearing them give evidence.
21. As was rightly observed by the learned trial magistrate in her judgement
the offence of Defilement requires proof of the following three critical
elements;-
(i) Proof of age
(ii) Proof that Penetration had occurred.
(iii) Proof that said penetration was committed by the
Accused.
22. The age of the complainant if a case of defilement is a factor of critical
importance. This is because the Sexual Offences Act provides for
mandatory sentences which depend on the age of the victim.
23. In the case of HARISON ALI MWACHONGO -VS- REPUBLIC, the
Court of Appeal held that
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
24. The age of the complainant can be proved in several ways such as
production of a Birth Certificate, Baptism card, Immunization Card etc.
25. In the present case no such document was produced. PW1 the child’s
mother told the court that the child’s birth certificate was with
her biological father. No document such as an immunization card was
produced as proof of the child’s age.
26. However the failure to avail documentary proof of age does not render
the charge of defilement a non-starter. The court is at liberty to accept
oral evidence from the child herself (or himself) or the parent to
determine the age of the child.
27. In the case of EDWIN NYAMBOGO ONSONGO -VS- REPUBLIC
[2016] eKLR the Court of Appeal stated that:-
“……….the question of proof of age has finally been settled by recent decisions of the court to the effect that it can be proved by documents, evidence such as a birth certificate baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victims age, it has to be credible and reliable.” [own emphasis]
28. In this case as stated earlier no documents to prove the child’s age were
tendered as evidence. However the complainant herself told the court
that she was thirteen (13) years old. This corroborated evidence of
her mother PW1 who told the court that her daughter was ’13 years
old.’
29. Additionally the trial magistrate in her judgment relied on the
information contained in the P3 form at Part C where the Doctor who
examined the complainant estimated her age to be about twelve (12)
years old. From the available evidence I am satisfied that it has been
proved that the complainant was aged thirteen years old.
30. The second element requiring proof in a defilement case is the fact of
penetration – i.e proof that penetration had actually occurred. The
complainant told the court that she was defiled on 28th July 2019.
PW1 who was the child’s mother told the court that the child did not
report the incident to her until the following day 29th July 2019.
31. However the mother stated that the child did immediately report the
incident to some neighbours in Gamerock Town. That it was the
same people who advised the mother to ask her daughter what had
happened to her.
32. PW1 named one of these people as ‘Maranga’ a Nyumba
Kumi elder. This person was a critical witness to maintain the chain of
evidence. Despite the fact that being a Nyumba Kumi elder, this person
was easily traceable the prosecution failed to call him as a witness. No
reasons were given why this crucial witness was not called to testify.
33. I am mindful of the fact that the evidence of the victim if believed by
the court is sufficient to prove a case of defilement. However where
there exists corroborative evidence then such a witness ought to be
called.
34. The complainant was examined by a doctor on 30th July 2019 two
days after the alleged defilement. Upon examination the doctor noted
old tears in the hymen as well as vaginal discharge. The doctor did not
note any fresh bruising or tears in the private part of the child. From
the evidence of the doctor it would seem that the penetration occurred
several days or weeks prior to 28th July 2019.
35. The complainant told the court that she was lured into a coffee
plantation, made to lie down and was defiled. PW1 stated that the
child said the perpetrator had hit her on the leg with a stone. No
scratches or bruises were noted on the complainant’s body.
36. The complainant indicated that she had been defiled four times earlier
by the same person. However the prosecution was required to provide
proof that penetration occurred on 28th July 2019. In my view the
prosecution failed to prove the fact that penetration occurred on the
material date.
37. Upon examination the doctor only noted old tears in the hymen and
noted that the genitalia was normal. There was no evidence of any
recent tears and/or bruises in the vagina. No injuries were seen on any
other part of the complainant’s body.
38. Although the doctor noted that the complainant had an infection he did
not attribute this infection to a recent penetration. In the area for age
of injuries on the P3 form the doctor did not indicate any period.
39. The fact that the complainant had accused the appellant of defiling her
on previous occasion cannot be taken to amount to proof that it was
the appellant who defiled her on this particular occasion.
40. Section 124 of the Evidence Act allows a court to convict where the
only evidence in a case of defilement is that of the victim of defilement
if “for reasons to be recorded in the proceedings, the court is
satisfied that the alleged victim is telling the truth.”
41. In her judgment the learned trial magistrate found that the complainant
was a credible witness. The trial court went on to explain the findings
of the doctor as follows
“It was PW2’s further testimony that this particular incident was not her first sexual encounter with the accused person. She testified that he accused had previously defiled her. Probably these previous unreported sexual encounters would be the reason behind the old broken hymen at only 13 years of age.”
42. I find that the trial court misdirected itself. The Appellant was not on
trial for ‘previous’ acts of defilement on the complainant. He was being
accused of having defiled the complainant on a specific date being 28th
July 2019.
43. The medical evidence does not corroborate the trial courts finding that
penetration occurred on that date. In my view the prosecution did not
present a credible case as a crucial witness was not called to testify.
44. I find that it has not been proved beyond reasonable doubt that
the penetration did in fact occur on 28th July 2019. In the absence of
proof of penetration the charge of defilement cannot stand.
45. I have considered whether the evidence on record suffices to prove the
alternative charge of indecent assault. Here again I find that the
evidence falls short. Aside from the complainant’s claim that the
appellant lured her into a coffee plantation, there is no corroborative
evidence to show that she was in any way molested. The only witness
who saw the complainant on the material day was not called to testify.
46. The charge of defilement is a very serious charge which carries very stiff
penalties upon conviction. It behoves the prosecution to adduce
sufficient evidence to prove that charge beyond reasonable doubt. I
find that the legal standard of proof was not met in this case. The
charge of defilement was not proved beyond reasonable doubt.
47. Based on the foregoing this appeal succeeds. The conviction of the
appellant by the trial court is quashed and his sentence is set aside. The
appellant is to be released forthwith unless he is otherwise lawfully held.
Dated in Nyeri this 6th day of December 2024