STEPHEN MUTINDA NDIVI VS The Republic STEPHEN MUTINDA NDIVI VS The Republic

The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 20^th November 2021 at unknown time at Kithangathini Sub Location, Kikoko Location, Kilungu Sub-County within Makueni County, the appellant intentionally caused his penis to penetrate the vagina of F.N.M, a child aged 10 years.
In the alternative, he was charged with committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006, that on the same day and place, the appellant intentionally touched the buttocks, breasts and vagina of FNM, a child aged 10 years with his penis.
The appellant pleaded not guilty he was tried found guilty, convicted on the main charge and sentenced to 20 years’ imprisonment.
Aggrieved by that decision, the appellant filed his appeal and initially raised the following grounds;
That the trial court did not consider article 49 of the CPC which protects every person against arbitrary imprisonment.
That the honorable court failed to consider his circumstances and mitigation factors when giving the sentence.
That the trial magistrate appeared biased on the accused person whenever he raised his claims ad issues on the prosecution side.
That the trial magistrate was dishonest, incompetent and negligent when delivering the ruling and judgment.
In his submissions the appellant raised the following grounds;
That the learned trial magistrate erred in law and fact by convicting him without considering that there was no evidence to prove penetration.
That the learned trial magistrate erred in law and fact by shifting the burden of proof to him contrary to the rule of law that the burden always rests on the shoulders of the prosecution.
That the learned trial magistrate erred in law and fact by misapprehending and misdirecting himself on the evidence hence arriving at the wrong conclusion.
That the learned trial magistrate erred in law and fact by upholding the evidence by the prosecution witnesses which was full of lies, contradictory, untenable, unworthy and inconsistent which could not warrant a conviction and sentence.
That the learned trial magistrate erred in law and fact by not applying section 124 of the Evidence Act and maintaining the evidence by prosecution witnesses which was uncorroborated.
That the learned trial magistrate erred in law and fact by dismissing his sworn defence which alleged the possibility of the charges being framed against him.
The prosecution’s case was that on 20/11/2021 at 2pm, the complainant left church and found the appellant digging a ditch at Kitula’s place. He called her inside the ditch, told her to raise her dress and put his urinating thing inside her urinating thing. He gave her 5 macadamia nuts and told her not to tell anyone. She went home and never said anything and it was after being defiled by another person called Kikuvi that she talked about what had happened. On cross examination she told the court that Mutinda got the macadamia nut s from his tree his house; That that there was no road passing by the appellant’s house to the church. That accused defiled her on 20^th and the Kikuvi on 25^th. The appellant was arrested and prosecuted. Kikuvi was also arrested and prosecuted in another file.
The other prosecution witnesses were the complainant’s mother (PW2), whose evidence was that she was told by her father that her daughter had been defiled, That she went home and her told her how the appellant had defiled her on the 20^th November 2021, the complainant’s cousin (PW3) who testified how she had noticed that the child was uncomfortable and upon inquiry told her that she was defiled by Mutinda , the Clinical Officer (PW4) who examined her on 26^th November 2021 and the Investigating Officer (PW5). The exhibits produced were; Age assessment report (P.Ex 1), Treatment Notes (P.Ex 2), PRC Form (P.Ex 3), P3 Form (P.Ex 4) and Accused’s outpatient card (P.Ex 5).
The appellant was found to have a case to answer and was put on his defense. He gave sworn evidence and did not to call any witness. He testified that he was a farmer in Kilungu and that on the material date, he was working at Mavivye. That he had left home on 15/11/2021 and returned on 24/11/2021 only to be arrested very early in the morning on 25/11/2021. That he was not told the reason for his arrest until much later. He said that he first saw the complainant in court and denied committing the offence.
On cross examination, he reiterated that he didn’t know the complainant and that he was in Mavivye on the material date. He said that he wouldn’t know why the complainant lied against him. That they could be feuding because of being next door neighbors. That if someone does not like you, they do not need a reason to frame you. He said that he didn’t have proof that he was in Mavivye on that date and only his wife and children could confirm as they were in Kithangathini.
The parties elected to canvass the appeal through written submissions and appropriate directions were given.
The appellant submitted that the prosecution failed to furnish him with the investigations diary which was and is very vital in this case. He contended that it was hard for him to marshal his defense due to that failure; that the charge sheet was defective for omitting the word ‘unlawfully’ making it difficult for him to defend himself; that the prosecution and trial court had ample time to amend the charge sheet but they gave it a deaf eye; that the prosecution and trial court failed to use section 124 of the CPC as would have been expected.
The appellant argued that a crime refers to the co-existence of actus reus and mens rea and lack of evidence of mens rea proves that he was subjected to a conviction and sentence by only using the power of the court. He contended that the result was prejudice, miscarriage of justice and violation of his Constitutional rights as a citizen.
He took the position that according to recent cases, people use the Sexual Offences Act to settle scores and punish innocent people, and that the evidence adduced by the prosecution witnesses in this case was unrealistic. He relied on Ndung’u Kimani –vs- R (1979) KLR 284 where the court stated that;

“The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he/she is not a straight forward person or raise a suspicion about his/her trustworthiness or do or say something which indicates that he is a person of doubtful integrity and therefore an incredible witness which makes it unsafe to accept his evidence.”

He urged the court to find that PW1 and 2 were untrustworthy as the medical officer testified that there were no blood stained clothes. He contended that sexual intercourse between an adult and a child of the age mentioned could have caused injuries in the genital organs of the child. In addition, that the role of the investigations officer is to unveil the truth but in this case, the blood stained clothes were never availed. He relied on R –vs- H&C (2004) 2AC 134 where Lord Bigham stated;

“Fairness ordinarily requires that any material held as material evidence if not availed into the trial court of law will be a prejudice and a miscarriage of justice in the trial of any case.”

Citing Bukenya –vs- Uganda he argued that the prosecution has a duty to call all the witnesses necessary to establish the truth even though their evidence may be inconsistent. That the court itself had a duty to call any person whose evidence appears essential to the just decision of the case. He added that the proviso to section 124 of the evidence Act and medical evidence must be borne in mind as well as section 143 of the Evidence Act.
The appellant also cited Rattiram –vs- State of M.P (2012) 4 S.C.C where the Supreme Court of India ruled that a fair and impartial trial has a sacrosanct purpose and a demonstrable object that the accused should not be prejudiced.
On the medical evidence he submitted that the clinical officer wrongly concluded that the complainant had been defiled because her hymen was broken. He relied on P. K.W –vs- R [2012] eKLR where the Court of Appeal held that;

“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse?

16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen vs Manuel Vincent Quintanila [1999] AB QB 769.”

He submitted that the complainant was taken for examination on 26/11/2021 but the offence against him is alleged to have been committed on 20/11/2021. Consequently, he contended that the case against him remains a suspicion and relied on Parvin Dhagay –vs- R; CR. APP No. 10 of 1997 where it was held that;

“Suspicion upon suspicion remains that suspicion and cannot and should not form a basis of conviction as happened in this case.”

The appellant urged the court to find that the testimonies of all the prosecution witnesses fell short of the required standard of proof and relied on R –vs- Turnbull & Others (1976)3 ALL ER 549 where the court stated that such evidence must be absolutely water tight to justify a conviction. He contended that the evidence by the prosecution witnesses failed to corroborate each other. He highlighted the evidence of the Investigating Officer (PW5) who testified that she established the two families to be neighbors. He also highlighted the evidence of PW3 who testified that the appellant’s home was not known to her. The appellant submitted that the case was a false allegation against him.
Relying on section 62(2) of the Evidence Act he urged that oral evidence must in all cases be direct evidence. He submitted that the prosecution evidence failed this test. In addition to this, he submitted, the court must establish that there are no other co-existing circumstances which would weaken or destroy the inference of guilt.
He submitted that the trial magistrate erred by finding that the age assessment was conclusive and legal as per the Constitution of our country. He contended that there was no justification for the trial magistrate’s assumption that the complainant was 12 years old.
He submitted that though the complainant was taken to hospital by her mother and grandfather, her grandmother was not availed for cross examination. With regard to the issue of blood stains on the complainant’s panty, he wondered who was to be believed among the complainant, her mother and the medical officer.
He argued that the fact that there was a blood stained panty but it was never brought to court as evidence damaged the judgment. He relied on Joseph Njaramba Karanja v Republic (1982-1988) KAR 1165
He pointed out that the P3 form did not indicate the complainant’s degree of injury hence making the case unproved beyond reasonable doubt.
Relying on Bernard Kebiba –vs- R [2000] eKLR he submitted that the evidence of a minor requires corroboration. He also cited Chica –vs- Republic; E.A 722 45 (sic) for the submission that a Judge should warn himself of the danger of acting on the uncorroborated evidence of the complainant. That if no such warning is given, the conviction will be set aside.
He referred to the trial court’s decision not to consider the alternative count and wondered how penetration occurred if at all an indecent act was not committed.

Submissions by the Respondent

The State, through Prosecution Counsel Victor Kazungu, identified the following as the issues for determination;
Whether there was penetration;
Whether the appellant is the perpetrator;
Whether there were notable inconsistencies in the testimonies of the witnesses;
Whether the ingredients of defilement have been established;
Whether the sentence meted out to the appellant is safe.
He submitted that penetration was proved by the evidence of PW1 and 4. That in sexual offences cases, the law is that no corroboration is required as long as the complainant’s evidence is believable. He relied on the case of Joseph Mwangi –vs- R [2015] eKLR where the court held that;

“..The medical evidence by PW1 merely corroborated the fact that PW2 was defiled, and even if it was to be excluded under section 50 of the Evidence Act…the proviso to section 124 of the Evidence Act provides that no corroboration is required in cases where the court believes that the complainant is telling the truth..”

He also cited the case of G.O.A –vs-R [2018] eKLR where it was held;

“…section 124 of the Evidence Act comes into play. The section is clear that no corroboration is necessary in criminal cases involving a sexual offence. In fact, a court can even convict on the sole evidence of the victim if the court records the reasons for believing the victim and also records that it was satisfied that the victim was telling the truth.”

With regard to identification, he submitted that the complainant was able to identify the appellant by name and also indicated that the appellant is well known to her as he is a friend to her father. He also referred to the evidence of PW2 who testified that the appellant is a neighbor to the complainant’s home.
With regard to inconsistencies, he submitted that the testimonies of the witnesses considered together point to the fact that there was penetration of the complainant who is a minor and that the appellant is the perpetrator. He submitted that the appellant has selected a few sentences and construed them in isolation in a fishing expedition for inconsistencies that do not exist. He relied inter alia on the case of Twehangane Alfred –vs- Uganda, Crim. App. No. 139 of 2001 (2003) UGCA where it was held that;

“...With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case...”

As to whether the ingredients of defilement were established, he submitted that the trial court directed itself properly in establishing that indeed there was penetration which was perpetrated by the appellant and that he was well known to the complainant and identified by name.
As to whether the sentence is safe and legal, he submitted that the complainant was aged 10years at the time offence and that defilement of a victim of 11 years or less attracts a sentence of life imprisonment. That the court exercised its discretion within the purview of the law by sentencing him to serve 20 years’ imprisonment. He relied inter alia on Jacob Ntoiti –vs-R [2021] eKLR where the court stated;

“…The remaining question now is whether the sentence meted out to the appellant was harsh. Section 8(2) of the Sexual Offences Act provides for a mandatory minimum sentence of life imprisonment, where the victim is aged 11 years or less…I find that since the age of the victim was established beyond any shred of doubt, the sentence was within the law…in the end, I find the appeal to be wholly unmerited and the same is hereby dismissed”

Further, he cited S.K.M –vs- R [2021] eKLR for the submission that sentencing is a discretion of the trial court and should not be interfere with unless it is found to be illegal or unsafe.
In conclusion, he submitted that the appellant failed to establish that he deserved the reliefs sought.
It is now settled that the duty of a first appellate Court is to scrutinize the evidence on record, make its own findings and draw its own conclusions giving due allowance to the fact that the trial Court had the advantage of seeing and hearing the witnesses (Okeno –vs- R (1972) EA 32).
Having looked at the grounds of appeal, the rival submissions and the entire record, it is my considered view that the following issues arise for determination;
Whether the charge sheet was defective;
Whether the appellant was furnished with adequate materials for his defence;
Whether the case was proved beyond reasonable doubt.

Analysis & Determination

Whether the charge sheet was defective

The appellant argued that the omission of the word ‘unlawfully’ in the charge sheet was prejudicial and made it difficult for him to defend himself.
Section 134 CPC provides as follows;

“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

The appellant was convicted on the main charge of defilement. Section 8 (1) of the Sexual Offences Act defines Defilement in the following terms; A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. The term defilement by itself is self-contained and does not leave any room for anyone to wonder whether an act of penetration with a child is lawful or unlawful. The charge as drawn per s. 8 (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life speaks for itself The particulars given informed the appellant that he was being accused of intentionally causing his penis to penetrate the vagina of a child aged 10 years intentionally. That again speaks for itself and that ground falls

Whether the appellant was furnished with adequate materials for his defence

According to Article 50(2) (j) of the Constitution of Kenya, an accused person has the right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to it.
On 09/12/2021, the appellant acknowledged receipt of the witness statements. On 01/02/2022, he told court; “I have not been supplied with complainant’s statements. I have the statement of the investigating officer and witness called Ndululu.” The court made an order that he be supplied with all statements and documents that the prosecution intended to rely on. The next hearing date was on 01/03/2022 and the appellant informed court that he was not ready to proceed as he received the statements late. The court indulged him and the hearing was adjourned. On the next hearing date (06/04/2022), the appellant said “I am ready” and the matter proceeded.
In this appeal, he has complained that the prosecution failed to furnish him with the investigations diary thus making it difficult for him to defend himself. Nowhere in the record did the prosecution refer to this document. The requirement of Article 50(2) (j) of the Constitution is that the prosecution is under obligation to supply materials that it will rely on in the prosecution. The right is expressed thus (j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence; I have keenly looked at the record and the investigations diary is not referenced anywhere. Consequently, it is safe to conclude that this was an afterthought and lack of it has not been demonstrated to have prejudiced the appellant in any way.
In Hussein Khalid & 16 Others –vs- Attorney General & 2 Others [2019] eKLR, the Supreme Court of Kenya stated that:

“… Indeed, it is salutary practice for the trial Court to satisfy itself that an accused person has all the reasonable facilities for his defence and the prosecution discloses all documents before commencement of trial. However, an accused person has an obligation to bring it to the attention of the Court that he has not been supplied with the witness statements (or any other prosecution documents) as ordered by the court. This minimum obligation on the accused person triggers the court’s duty to ensure the documents are supplied before commencement of the trial.”

In this case the record shows that the trial court ensured that the witness statements were availed to the appellant and the appellant himself made requests which were allowed by the court. H

Whether the case was proved beyond reasonable doubt

The ingredients of the offence are; age of the complainant, proof of penetration and positive identification of the assailant.
With regard to age, the appellant argued that the same was not established. The complainant testified that she was 10 years and the investigating officer (PW5) produced an age assessment report (P.Exh 1). The report is neither in the record of appeal nor in the trial court file but the record shows that it was produced as P. Ex 1 by the investigation officer. In addition, all the medical records of the complainant indicate that she was 10 years old at the time of examination. In the judgment the learned trial magistrate stated;

“In this particular case, formal proof of age was adduced in the form of the complainant’s age assessment indicating that she was between the age of 10 years and 12 years. Given that her exact age has not been ascertained and the penalty is dependent on the said age, it would be prudent for the court to adopt the higher age of 12 years old and thus the threshold for triggering section 8(3) of the Sexual Offences Act has been met.”

The sentiments by the trial magistrate are an indication that he actually saw the report and safely settled on the higher age of 12 years to the benefit of the appellant. In addition to the report, the trial magistrate observed the victim and I believe he had the capacity to compare the age assessed with the way the victim presented herself. In the Ugandan case of Francis Omuroni –vs- Uganda, Criminal Appeal No. 2 of 2000; it was held that: -

“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”

Consequently, it is my considered view that the complainant’s age was sufficiently established.
As to whether the appellant was well identified, the appellant denied any knowledge of the complainant and said that he saw her for the first time in court.
The complainant testified that; “Mutinda who was digging a ditch at Kitula’s place called me…. He is the one appearing on the laptop screen. He is my father’s friend. His children are Purity and Judy.” The complainant’s mother, Victoria Mbatha (PW2), testified that the appellant was a neighbor to her in-laws and that the complainant was living with the said in-laws. The Complainant’s cousin, Everlyne Makau (PW3), testified that; “I know Mutinda very well since he used to be our worker and he is the one appearing on the computer screen.”
The appellant himself confirmed that the complainant’s father was known to him and was his next door neighbor. This fact was also confirmed by the IO who visited the scene and established that the two families are neighbors. The evidence is therefore clear that the complainant’s family and that of the appellant are known to each other. The complainant mentioned the appellant’s name and those of his children in her evidence. Further, the evidence shows that the complainant encountered the appellant in broad daylight at 2pm. I am satisfied that the appellant was properly identified.
As to whether there was penile penetration of the complainant by the appellant, the complainant testified that after leaving church on Saturday 20/11/2021 at 2pm, the appellant defiled her inside the ditch that he was digging at mama Kitula’s place. She said that; “He inserted the thing he uses to urinate inside my thing.”
The appellant argued that the prosecution evidence was full of lies, inconsistent and contradictory. He took issue with PW3’s evidence for saying that there was a road going to the church from the appellant’s home and at the same time saying that she didn’t know the appellant’s home. The exact evidence by PW3 is as follows; “There is a road going to ACK church from the accused’s home. I do not know the accused person’s home. I only know it is on the other side of the hill and obviously there is a road to the church on that side”.
It is also important to look at what the complainant said with regard to the road; “There is a road near the accused’s house heading to the church…there is no road passing through the accused’s house going to ACK church.” Looking at the evidence of the two witnesses together, it is evident that the road was not passing through the appellant’s home but it was near his home. Further, the evidence of PW3 was such that even if she did not know the appellant’s home, she knew the general direction of his home and also knew that there was a road to the church in that general direction. This is not fatal to the case for the prosecution.
The appellant also complained that the complainant’s evidence was not corroborated. The prosecution’s case was that the complainant was defiled by two people on two different dates. The first one was by the appellant on 20/11/2021 and the second one was by a man called Kikuvi on 25/11/2021. The complainant was examined on 26/11/2021 hence most likely that the observation made by the Clinical Officer (PW4) related to a bit of the first incident and a bit of the second incident. I take judicial notice that the said Kikuvi was convicted by the Kilungu court in MCRC (SOA) E42 of 2021 and has filed HCCRA E098 of 2022 and he has appealed to this court.
Section 124 of the Evidence Act allows courts to base their conviction on the sole evidence of the victim provided they give reasons for believing them. In the judgment, the trial magistrate stated; “I also found the complainant’s evidence was quite candid and credible and having heard and saw her, I believed her.” In my view, the trial magistrate complied with the proviso to section 124 of the Evidence Act.
Further, where the victim is of tender years, corroboration is only required if their evidence is unsworn. In the case of John Otieno Oloo –vs- Republic [2009] eKLR, the Court of Appeal (O’kubasu, Onyango Otieno & Nyamu JJ. A) stated that;

“In short, we are of the view that in law evidence of a child of tender years given on oath after voire dire examination requires no corroboration in law but the Court must warn itself that it should in practice not base a conviction on it without looking and finding corroboration of it. Evidence of a child of tender years not given on oath must in law be corroborated.”

The offence in question was committed in November 2021 hence for purposes of defining a child of tender years, the repealed Children Act, 2001 (Act No. 8 of 2001) is applicable. Section 2 therein defined such a child to mean, ‘a child under the age of ten years’. In our case, the complainant was between 10 and 12 years and the record reveals that she gave sworn evidence after being subjected to a voir dire examination. Consequently, corroboration was not mandatory.
The appellant also complained about the failure to produce the blood stained pant. According to the evidence, PW3 said that she was told about the incident by the complainant on 25/11/2021 and that she saw blood stains on her panty. The appellant committed the offence five days before that and any blood stains on the child’s clothes could not have ben related to that incident. PW3 was not prompted by the blood stains, she said that the child appeared uncomfortable and on being questioned that is when she told them what had happened.
The complaint about failure to avail the complainant’s grandmother as a witness is also hollow because the complainant was taken to the hospital by her mother and grandfather. The mother testified as PW2 hence no need to also call the grandmother. Further PW2 testified that there was no need of calling the complainant’s grandmother as she knew nothing about the incident. In my view and in accordance with the provisions of the Section 143 of the Evidence Act, the witnesses called in this case were sufficient.
The appellant proffered the defence of alibi, stating that he was out of town so to speak and that his family could vouch for him. While he had no obligation to call them having mentioned them it would have been prudent for him to call which ever witness that would have done so. In addition, the defence was an afterthought as nowhere in cross examination of the witnesses did he raise the issue. The child placed him at kwa Kitula on the material day at 2:00pm. The child knows him did not have mistaken him for another person. The court did not at all shift the burden to him. The court had sufficient evidence to find him guilty.
From the foregoing It is my view that the appeal is unmerited.
With respect to the sentence, I note that the trial court did not make any mention of the period the appellant had spent in custody prior to sentence To avoid a miscellaneous application under the proviso to s. 333(2) of the Criminal Procedure Code I will deal with that here.
The conviction is sustained.
The Sentence of 20 years’ imprisonment is upheld to run from 26^th November 2021.
Otherwise the appeal is dismissed.
Right of Appeal 14 days.