SAMASON MWANZONGA CHINYEZI VS The Republic SAMASON MWANZONGA CHINYEZI VS The Republic

The Appellant herein was tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence are that on 25.4.19 at Takaye area in Malindi subcounty within Kilifi County, he unlawfully caused his penis to penetrate the vagina of P. N. M. (the Complainant), a girl aged 12 years. Following trial, the Appellant was convicted and sentenced to 13 years imprisonment.
Being aggrieved by the decision of the trial Court, the Appellant filed the Appeal herein. The summarized grounds are that the trial Magistrate erred in law and fact by:
failing to consider great contradictions in the prosecution evidence.
shifting the burden of proof to the Appellant.
convicting the Appellant on a poorly investigated case.
convicting the Appellant on unreliable exhibits.

The appeal is opposed by the Respondent vide written submissions dated 19.4.24.
As a first appellate Court, I am required to subject the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32 and Kariuki Karanja v Republic [1986] KLR 190).
The record shows that in support of its case, the prosecution called 4 witnesses. The Complainant testified that on 25.4.19 at 10am, she had taken a shirt to the Accused for adjustment, as it was too big. She was accompanied by Pendo. The Complainant stated that the while there, the Appellant defiled her in the bathroom behind where he makes clothes. She stated that the Appellant tied her hands and legs with a rope, put her underwear in her mouth, so that she could not scream He then put his private part and put it into her private part and threatened to deal with her if she reported the matter. Pendo who was at the door of the bathroom shouted and the Appellant closed his zip and left. She further stated that one Mama Gideon was there as well as boys who were hunting birds. They came and saved her and took her home. She further stated that she did not tell anyone and that it was Pendo who reported the matter to the Complainant’s sister. She was examined 2 days after the incident at the General Hospital. After she was given the P3 form, she took about a day before she went to be examined. On cross examination, she stated that she had been defiled before by a person known as Elisha.
PW2 Henry Nyale Matole, the father of the Complainant testified that at around 8PM on 26.4.19 Mama Gideon came to his home and told him that she saw the complainant in the bathroom with a man who wanted to have sex with her, but that upon seeing her, he closed his zip and left. He later went to the police station and was given OB number and P3 form. He then took the Complainant to Malindi hospital. When he asked his daughter about the incident, she told him that she and Pendo were going to church when the Appellant called her. He took her to the bathroom, removed her underpants and when she tried to shout, he put the underpants in her mouth. She was saved by some boys.
Medical evidence was adduced by PW3, Moses Rimba, a clinician at Malindi subcounty hospital on behalf of Dr. Ibrahim was held up in other duties. PW3 stated that the Complainant was examined on 28.4.19, which 3 days after the alleged offence took place. Upon examination, the Complainant was found to have no semen but had pus cells in her vagina, indicating an infection and her hymen was broken. He further stated that it is not indicated that the Complainant had injuries elsewhere in her body except the vagina. The conclusion was that there was vaginal penetration. He produced the P3 form, treatment notes, lab request and results as well as the Complainant’s birth certificate.
PW4 No. 96913 Cpl. Mariam Hussein, the investigating officer testified that she received the Complainant and her father who reported to her how the Appellant led her to a bathroom behind his tailor shop and told her they have sex. She recorded their statements and issued a P3 form. She thereafter arrested the Appellant on 27.5.19 and he was charged.
At the close of the prosecution case, the Appellant was found to have a case to answer and was put on his defence.
In his unsworn statement, the Appellant stated that on the material day, a child brought a T-shirt to fix at 10.30 am and left with it. He stayed at work till 5pm when he went home. The following morning at 8am, when he opened his business, PW2 came and asked him whether he had defiled the Complainant as he had been told by Mama Gideon. He denied having done so and told him to go to hospital. At that point PW2 asked him for 10,000/= for fare and to cater for everything. When the Appellant said he did not have money, PW2 told him he was going to look for money but “nitamjua”. After several days, the Appellant was arrested. The Appellant stated that he had quarreled with Mama Gideon over her children for playing with his material and that what he told PW2 was untrue.
Parties filed their written submissions which I have duly considered.
On the ground that there were contradictions the Appellant submitted that the charge sheet stated that the Complainant was 12 years old while the Complainant stated in her testimony that she was 14 years old. Further that the Complainant stated that the Appellant had tied her hands and legs with a rope and slept on her and told her he would deal with her if she reported the incident and that they were in the bathroom. He further submitted that this was contradicted by PW2 who stated that Mama Gideon had seen the Complainant in the bathroom with a man who wanted to have sex with her but on seeing her he closed his zip and left. The Appellant thus contends that Complainant said she was tied but the reporter said she was not tied. Further that it was not defilement but attempted defilement.
The Appellant went on to submit that the Complainant stated that the day before the wedding she went to Eunice’s house to clean and because it got late, she spent the night there. In the morning her sisters told her that she was wanted at home and that no one was to leave until the father returned. On his part, PW2 stated that on the material day, the Complainant was not home and went direct to the wedding and did not come home. The Appellant contended that the accounts of the complainant and PW2 were contradictory.
For the Respondent, it was submitted that the prosecution proved its case to the required standard and that all 3 the ingredients of the offence of defilement namely of age of the victim, penetration and identification of the perpetrator were established. Further that there were no inconsistencies or contradictions in the evidence s alleged by the Appellant.
As I consider the submissions on contradictions, I am guided by the decision in Richard Munene v Republic [2018] eKLR, where the Court of Appeal addressed its mind to contradictions and inconsistencies in the prosecution evidence and stated:

We begin with the submissions that the prosecution evidence was contradictory. In a criminal trial, the accused person enjoys a presumption of innocence because the burden of proving the charges is on the prosecution, and to do so beyond any reasonable doubt. Secondly in an adversarial system the purpose of evidentiary rules is to assist the court in establishing the truth and in the process provide protection to the accused in respect to his right to a fair trial. As they say, the prosecution must present In Richard Munene v Republic [2018] eKLR, the Court of Appeal addressed its mind to contradictions and inconsistencies in prosecution witness and stated:

We begin with the submissions that the prosecution evidence was contradictory. In a criminal trial, the accused person enjoys a presumption of innocence because the burden of proving the charges is on the prosecution, and to do so beyond any reasonable doubt. Secondly in an adversarial system the purpose of evidentiary rules is to assist the court in establishing the truth and in the process provide protection to the accused in respect to his right to a fair trial. As they say, the prosecution must present a watertight case that meets the threshold of beyond reasonable doubt in order to obtain a conviction. Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.

It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.

a conviction. Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.

The law is that an accused person in a criminal trial, enjoys the presumption of innocence. The prosecution bears the burden of proving the guilt of such accused person. In order to secure a conviction, such proof must be beyond reasonable doubt. Where there are contradictions and inconsistencies in the prosecution case that are significant enough to raise doubt in the mind of the trial court, the same must be resolved in favour of the accused person. Where the contradictions or inconsistencies are minor and inconsequential and do not go to the root of the prosecution case, they will not be will be fatal to the prosecution case.
On the age of the Complainant, there is a birth certificate on record indicating that she was born on 5.4.07 making her 12 years old on 25.4.19, the date of the alleged offence. The Complainant testified 2 years later on 10.6.21 when she was 14 years old. In the premises, there is no contradiction regarding her age.
As regards penetration, the record shows that the Complainant stated that the Appellant tied her hands and her legs with a rope and defiled her. She also stated that Pendo was near the bathroom door and witnessed the incident and narrated to the Complainant’s sister what happened. PW2 stated that Mama Gideon told him that she saw the Complainant with a man who wanted to have sex with her but that on seeing her, he closed his zip and went away.
The Court has looked at the medical evidence. The P3 form, treatment notes and lab results produced by PW3 show that upon examination, the Complainant was found to have no semen but had pus cells in her vagina, indicating an infection and her hymen was broken. The conclusion was that there was vaginal penetration. PW3 further stated that that there was no indication that the Complainant had injuries elsewhere in her body. This is rather strange given that she claimed that the Appellant tied her hands and legs with a rope during the incident. Surely there would have been some evidence of bruises in her hands and legs. There is also nothing to indicate that she told her father or the doctor who examined her, that her legs and hands had been tied with rope. Notably, Pendo who the Complainant stated reported the matter to her sister did not indicate that the Complainant’s hands and legs were tied. Similarly, from PW2’s testimony, there is no indication that Mama Gideon told him that the Complainant’s hands and legs were tied. My view is that these are issues that the trial Magistrate ought to have interrogated and would probably have arrived at a different finding.
While the fact of vaginal penetration was confirmed by the medical evidence, the question that begs is whether the Appellant was the assailant. The Court notes that during cross examination, the Complainant stated that this was not the first time that she had been defiled and that one Elisha had done it before. The question that lingers in the mind of the Court is why Pendo, Mama Gideon or the boys who rescued the Complainant, and who were clearly eyewitnesses were not called to testify. A further question that lingers is why the Complainant did not report the incident immediately it happened and why she held on to the P3 form for 2 days after it was issued before going to hospital. I find that the trial court ought to have interrogated this in its analysis of the evidence.
Additionally, the Court notes a further contradiction in the Complainant’s testimony. She stated that she took the shirt to the Appellant for adjustment on 25.4.19. She further stated that “He had already reduced but he told me to go the following day as he had many customers.” She then went on to say that she went to Eunice’s place where she spent the night. And that in the morning her sisters came and told her that she was required at home and they went home. Thereafter Pendo arrived and told the sister that the Complainant had been defiled by the fundi (the Appellant). In his defence, the Appellant admits that the Complainant took the shirt to him at 10.30 am and left with it. What is not clear to the Court from the foregoing is when exactly the offence took place. The Complainant did not clearly state whether she returned to the Appellant’s shop the following day as directed. Again, this narration of events ought to have been interrogated by the trial court in its analysis.
While it is not disputed that there was vaginal penetration, all these factors taken together plant doubt in the Court’s mind as to whether it was the Appellant who was responsible, more so, because the Complainant stated that one Elisha had defiled her before. The inconsistencies, contradictions and gaps in the prosecution evidence are substantial and fundamental to the key issue of identification of the perpetrator, and have created doubt in the mind of this Court. Accordingly, the same must be resolved in the Appellant’s favour and he is entitled to benefit therefrom.
In light of the foregoing, the Court finds that on the ground of inconsistencies in the prosecution case, the Appeal is merited and is hereby allowed. The Appellant’s conviction is quashed and the sentence is hereby set aside. The Appellant is set at liberty unless otherwise lawfully held.

DATED SIGNED and DELIVERED in MALINDI this 20^th day of December 2024