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INTRODUCTION
The appellant in this matter was tried and convicted of Counts 1,2,3 and 4 as set out in the Charge Sheet.
The charges are set out herein below;-
COUNT ONE
DEFILEMENT OF A CHILD UNDER SECTION 8 (1) AS READ WITH 8(3) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.
STEPHEN NZUKI MUTISYA: On diverse dates between August 2010 and January 2015 at your residence at Mihango within Utawala area in Nairobi County, unlawfully and intentionally penetrated the anus of MFM, a child aged 17 years with your penis.
COUNT TWO – DEFILEMENT OF A CHILD CONTRARY TO SECTION TO SECTION 8(1) AS READ WITH SECTION 8(3) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006
STEPHEN NZUKI MUTISYA: On diverse dates between the month of March in the year 2014 and 2016 at Scream Children’s home, at Mihango within Utawala area in Nairobi County unlawfully and intentionally penetrated the anus of AA, a child aged 17 years with your penis.
COUNT 3- DEFILEMENT OF A CHILD CONTRARY TO SECTION 8(1) AS READ WITH SECTION 8(3) OF THE SEXUAL OFFENCES ACT 3 OF 2006
STEPHEN NZUKI MUTISYA: On diverse dates in the year 2013 at Scream Africa children’s home, at Mihango within Utawala area in Nairobi County Unlawfully and intentionally penetrated the anus of MMA, a child aged 16 years with your penis.
COUNT 4- INDECENT ACT WITH A CHILD CONTRARY TO SECTION 11(1) OF THE SEXUAL OFFENCES ACT NO.3 OF 2006
STEPHEN NZUKI MUTISYA: On diverse dates in December 2015, at Scream Africa Children’s home, at Mihango area within Utawala area in Nairobi County , committed an indecent act with a child namely FMM by touching the thighs of the said child with his penis and kissing the said child.
The learned Honorable Magistrate upon convicting the appellant proceeded to sentenced him as follows:-
Count 1- 50 years imprisonment
Count 2 – 20 years imprisonment
Count 3 – 20 years imprisonment
Count 4- 10 years imprisonment
In sentencing the trial magistrate remarked thus:-
“The offences were committed on diverse dates and not from part of the same transaction. For this reason, the sentences shall run consecutively.”
The appellant aggrieved by the decision of the learned Honorable Magistrate appealed to this court on the following grounds:-
THAT the Learned Magistrate erred in law by accepting that the Prosecution had proved their case beyond a reasonable doubt whereas the Prosecution had not discharged their burden in law.
THAT the Learned Judge Magistrate erred in law by relying on evidence that was not admissible, and which did not meet the evidentiary thresholds and was unsafe.
THAT the Learned Magistrate erred in law and in fact by failing to find that material documents were not adduced.
THAT the Learned Magistrate erred in law and in fact by failing to find that the Accused persons'' defence was not considered.
THAT the learned Magistrate erred in fact and law by failing to take note of the fact that the chain of circumstantial evidence was broken and could not hold.
THAT the learned Magistrate relied on extraneous facts in reaching her decision instead of relying on the evidence adduced.
THAT the learned magistrate erred in law and in fact by failing to ascertain the ages of the minors.
THAT the learned magistrate erred in law and in fact by purely relying on Medical Evidence that exonerated the Appellant.
THAT the learned trial magistrate erred in law and in fact by failing to consider that most of the prosecution witness relied on hearsay evidence.
THAT the learned magistrate erred in law and in fact by failing to warn herself of the dangers of convicting the appellant on the Appellant on uncorroborated evidence.
THAT the learned magistrate erred in law and in fact by failing to take cognisance of the fact that some of the prosecution witnesses were never employees of the Appellant''s institution and thus could not speak to the facts in question.
THAT the learned trial magistrate erred in law and in fact by convicting the appellants on inept investigations.
THAT the learned trial magistrate erred in law and in fact by failing to consider the doctors report that exonerated the appellants.
THAT the Learned magistrate erred in law and in fact by failing to consider all the evidence tendered before her that exonerated the appellants.
THAT the learned trial magistrate erred in law and in fact by imposing a harsh, excessive and untenable sentence upon the appellant.
ISSUES FOR DETERMINATION
The issues that arise from a reading of the memorandum of appeal are as follows:-
Whether the prosecution proved its case beyond reasonable doubt.
Whether there was medical evidence tendered to support the prosecution ’ s case.
Whether the learned Honorable magistrate considered the appellants defense or exonerating evidence tendered on behalf of the appellant.
Whether the ages of the victims were adequately proved.
Whether the learned Honorable magistrate erred in law by failing to warn herself of the danger of relying on uncorroborated evidence of the victims.
Whether the sentence imposed was harsh and excessive.
INTRODUCTION
The court in determining whether the prosecution proved its case beyond a reasonable doubt, must be satisfied that the three key ingredients of the offenses charged were established to wit;-
Penetration
Age of the victims
Identity of the perpetrator.
The failure by the prosecution to establish any of the elements beyond a reasonable doubt would lead to an acquittal.
The duty of this court sitting as a first appellate is clearly settled in the case of Okeno Vs. Republic [1972] E.A 32 . The duty of the court is to re-evaluate the evidence tendered in the trial court and draw its own conclusions from the evidence as to whether the prosecution had adequately established its case beyond a reasonable doubt for the trial court to have returned a finding of guilty on all the charges. The first appeal is in the nature of a rehearing and conclusions reached by the trial court do not bind the appellate court. The court is however required to bear in its mind the fact that unlike the trial court, this court did not have the benefit of hearing or seeing the witnesses testify.
The evidence is to be subjected to a fresh and exhaustive analysis to establish whether all the ingredients of the offences charged were adequately proved before the court can safely determine whether or not to uphold the conviction.
The parties to this appeal filed written submissions in support of their respective arguments.
The prosecution maintained that the case against the appellant was properly established and that the findings of the trial court are correct in law and should not be disturbed by this court. The prosecution urged the court to find that the conviction was safe and to uphold the sentence.
The appellant on his part argued that the case against him was not proved beyond a reasonable doubt and that in his view, the trial court relied on weak prosecution evidence to convict him while ignoring exculpatory evidence that was on record tendered through multiple defense witnesses which, if properly considered, would have led to an acquittal on all counts.
The court considered the submissions of both parties and went on to undertake a thorough and exhaustive analysis of the evidence tendered by both the prosecution and the defense.
SUMMARY OF EVIDENCE
The complainant in the 1 st Count was identified as MFM. It is important to highlight the fact that when the matter came up for hearing on 27/4/2017, counsel for the accused raised an issue on the Age assessment of the victim.
The trial court noted that there were alterations on dates on the cards bearing the evidence of age that were supplied to the defense.
The two cards that were brought to the attention of the court had age assessments for Andrew Atamba indicated as 16.6-18.5 years and Francis Mwangi 15.5- 16.5 years.
The court noted that there were several alterations and remarked “ there is out right dispute of age, and due to the nature of the offence (defilement) the accused is facing the court therefore is minded to have the two victims undergo a second age assessment report before proceeding with the matter. The same shall have specific age of the two victims. This shall guide the court on how to take the evidence of the two victims at Kenyatta National Hospital. ”
It is important to point out at this stage that, the above quoted portion of the record raises a very pertinent question of the procedure adopted by the court in conducting the trial.
The court having noted that there was a dispute on age, the cure for it was not to order for a second assessment since the duty to prove the element of age of the victim lay with the prosecution in light of the provisions of Section 107 of the Evidence Act Cap 80 of the Laws of Kenya.
The court by ordering a second assessment ventured into the realm of investigations which should ideally never happen because that is tantamount to handing the prosecution an opportunity to patch up its case against the accused which is obviously prejudicial to the accused.
The proof of age is such an important matter in sexual offences cases for it has a very heavy bearing on the sentence that the court eventually hands down to the accused person in the case.
Where the age of the victim is not proved to the satisfaction of the court, that should lead to an acquittal and the court should not go out of its way fishing for evidence.
However, in certain cases the court by applying the apparent age concept of determining age, would be satisfied that the victim falls within any of the age brackets that the law prescribes for the particular categories of defilement. See Francis Omuromi Vs Uganda Court of Appeal Criminal Appeal No. 2 of 2000.
The court in making the order for re-examination of the victims in a bid to get clarity on age, went beyond its call of duty and descended into the arena of investigations completely outside the function of a court of law in a criminal trial.
It is trite law that it is not the function of the court to give the prosecution an opportunity to fill gaps in evidence whenever that is discernible in a criminal proceeding.
The court must remain a neutral arbiter and avoid taking steps that may prejudice the accused person. For instance, a court will not order a retrial where a conviction is quashed and a retrial sought by the prosecution if the making of such an order would provide the prosecution with an opportunity to fill gaps in evidence. By parity of reason, that should put the court on notice that it is not its business to order the collection of evidence to rectify what appears to be obvious alterations on key prosecution documents that are meant to be used to establish a key ingredient of the offense with which an accused person is charged.
The Court of Appeal in the case of Ahmed Sumar vs. R (1964) EALR 483 offered the following guidance while considering the situations when a court may order a retrial:
“...in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficient of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered;......”
The Court of Appeal likewise had the following to say in the case of Samuel Wahini Ngugi v. R (2012) eKLR : -
“The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:
‘It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’’ (emphasis mine).
The court in this case, having noted that there was a gap or defect in the documents presented in a bid to establish age, ought to have noted the alterations in the documents and given the benefit of doubt to the appellant. The action by the court was highly prejudicial to the accused.
This court with tremendous respect to the learned Honorable Magistrate, finds that the order amounted to a clear misdirection and occasioned a failure of justice in the matter. The court must remain a neutral umpire holding each party strictly responsible for their actions and or omissions in discharging their respective legal and evidential burden in line with the provisions of Section 107 and 108 of the Evidence Act.
The issue raised by the appellant on the matter of age therefore has merit in respect of two counts preferred with respect to Pw4 and 5. The issues identified by the trial court regarding the dispute on age should have been resolved in favor of the appellant in respect of the two counts involving PW4 and Pw5.
The immediate question that should have arisen in the mind of the trial court should have been; why would anyone attempt to alter the documents intended to be relied on in establishing the respective ages of the victims. The prosecution should have been called upon to respond to that particular issue during the trial since the liberty of the accused stood at the risk of being taken away on the basis of fabricated evidence.
The first prosecution witness PW1 was Maxwell Muya who according to the record was said to have been approximately 17.5-19.5 years of age testified under oath and stated that he was a student in form 3 at Katelembu Centre of Excellence Boys Highschool in Machakos. He gave his age as 17 years and identified the dental assessment report dated 18 th November 2016 as MFI 1. The witness said he was a street boy and while working in a hotel Adam’s Apek Hotel when he was arrested by Kikuyu Council workers since he was underage. He was taken to Kiambu Children’s remand home and after about 1 he was placed at Scream Africa children’s home, in Utawala, Embakasi, Nairobi County.
He testified that the proprietor of the Children’s home was Stephen Nzuki Mutisya the appellant. He went on to state that on arrival at the children’s home, he was welcomed well and according to him the institution had about 10 rooms and in each bed room they slept about 15 of them.
The witness testified that, while asleep at about 10.00 P.M he was woken up by the appellant and taken to the appellant’s room and therein the proprietor unzipped his trouser and told him he was smelly. He took a bath and went back to his bed and slept. Nothing happened after that.
The prosecution did not however call any other independent witness to corroborate the evidence of the witness that he was woken up by the appellant and taken away by the appellant to be sexually exploited. The failure to do so left the allegation by the witness unsupported by any other independent evidence rendering the prosecution case weak. The boy having stated that the cubicle had 15 boys at the time, the prosecution could have called another witness to corroborate the evidence of pw1.
The same applies to the evidence in respect of all the other counts. Only the complainants in each one of them testified leaving the court with the simple question; if the alleged offenses occurred over a period of over 4 years, why would the investigators not be able to procure the evidence of independent witnesses considering that the scene of crime at all times had other students.
The evidence of DW6 becomes important when analyzing the prosecution’s case because Dw6 was clear that they were conscripted to frame up the appellant. The failure to call other independent witnesses probably was on account of ensuring that the narrative as intended by the masterminds of the scheme alluded to by Dw6 was not distorted.
Pw1 went on to testify that sometimes in 2014 the appellant called him to his room and sodomized him. According to Pw1 the appellant pulled his sweater up kissed him but he could not scream because he needed the appellants help in education. According to him he therefore did not tell anyone about the incident.
The witness however went on to state that sometimes in January, 2015 he could remember that himself and two other boys, Clinton Kinuthia and Isaac Mwaura, who had disclosed to him similar issues, decided to write a letter to Steve about the issue.
According to him they used a bad writing so that the appellant wouldn’t know who it was. In the letter the witness says they told him to stop abusing them and to to find a wife or get a person of his age. In the letter he said that they tried to scare him that they would put the issue on face book. The witness also told the court that when the appellant discovered that they were the ones who did the letter he got furious and beat them up thoroughly.
CREDIBILITY AND BELIEVABILITY OF THE PROSECUTION WITNESSES
The issue that arises from that portion of evidence is, if at all the witness was to be believed, why did they not publicize the matter at the time the alleged abuse happened yet he says they had the option of putting it on facebook? The witness, in this courts view, was not candid in his testimony for reasons that will become obvious in the course of this judgment.
The witness further stated that other boys had earlier on reported similar incidents at Kayole Police Station on sodomy. Ryan Musyoki, Samuel Oluloo, Fedel Otieno, Sylvester Mwema, David Mulwa. The witness did not tell the court why he did not report the incident concerning himself if at all other boys had done so and instead opted to write to the appellant.
The witness further testified that in July 2016 CID officers went to Scream Africa Children’s home to investigate the matter however, Steve organized all kids without relatives to go to his rural home - Machakos.
According to him when the CID came to Dream Africa, they did not find everyone. He however he got to talk to the CID but he was in fear and did not open up.
The evidence of the witness arouses this concern in the mind of the court, why would the witness who had the audacity to write to the suspect not summon courage to inform the police about the alleged incidents yet he says the police had come to investigate similar issues! The witness is simply unbelievable in his testimony against the appellant. He had the opportunity to report the matter but failed to do so citing unexplained fear.
The witness further went on to state that he told an officer - Kelvin from UK about the abuse on him.
The witness having chosen not to tell the police about the incident when he got the first opportunity to do so, the only inference that this court can draw is that the witness cannot have been a victim of abuse and choose to avoid reporting the matter to the police and only share the information with a civilian foreigner who would in any event not be of help to him. The testimony of the witness in this regard lends credence to the defense that the appellant was actually a victim of a frame up.
The testimony raises the question of believability and credibility of the witness in light of the provisions of Section 124 of the Evidence Act. The centrality of the issue of credibility and believability cannot be overemphasized considering that in convicting the appellant, the trial court relied on the testimony of the victims solely and did not consider the defense of the appellant and his witnesses. At page 22 of the Judgment the learned honorable magistrate simply made a fleeting mention of the defense of the appellant in a single sentence.
Notably, Kelvin who allegedly received the first report was not called to testify thus raising the question, whether there was such a person in the first place to whom the matter was reported.
The failure to call Kelvin could only lead this court to drawing a negative inference against the prosecution that had Kelvin been called to testify, his evidence would probably have been adverse to the prosecution’s case.
The witness went on to state that at the time when the police came to the school, he did not record a statement.
He however, went on to claim that after the police left, the appellant called him and told him that he wanted him to stand with him as a witness. According to him the appellant wanted to sue CID officers. He also alleged that the appellant urged him to recant his report and state that what he had said was false.
The evidence of the witness is obviously contradictory in that if he had not told the police anything about the incident, what was this that he was meant to recant if at all the court was to believe him even for a moment? The narrative of Pw1 remains very suspect and smacks of a carefully choreographed narrative by the prosecution witnesses to ensure that they secured a conviction against the appellant at all costs.
The evidence of Pw1 that he intended to leave Scream Africa cannot be ignored as a potential motive of implicating the appellant in the manner he did so that he could have a good basis to leave the institution.
The witness stated;- ‘’ I wanted to leave Scream Africa. I told him I was not ready. Same month I was planning to run away in a way they could not get me. Others would be caught running away, taken back and beaten up.
The place was secure. There was a watchman. He was watching
news. I packed my bag. I went through parking I used the door to exit.
20/6/16 Sunday night, I went and slept in a kibanda.
After my escape, in the morning there was a neighbour Kelvin who
would preach to us. I went to his house told him I had run away.
News was all over about Scream Africa.”
The man Kelvin who Pw1 stated that he met and confided in of the happenings at Scream Africa after escaping from the institution never gave evidence. The omission to call the witness dealt a fatal blow to the prosecution’s case.
He was a material witness in this court’s view since the narrative from Muraya and the children’s officer left a lot in doubt and to an extent confirmed the defense of the appellant that he was a victim of frame up by persons who wanted to wrestle the institution from him.
His exclusion from the prosecution list of witnesses cannot be ignored by this court and the inference that this court draws from that omission is that, had he given evidence, most probably the same would have been adverse to the prosecution’s case thus the failure to call him must have been deliberate on the part of the prosecution.
The Pw1 stated that Mr. Muraya did not help him the first time, but he later took him to the DCIO to report.
The evidence of Pw1 clearly raises the question, what was the help that Pw1 needed because he had contact with the police but never opened up to them on the alleged abuse.
The escape from the institution appears to have been a calculated move by Pw1 to get out of the institution and the witness indicated that there was seriousness in the institution in dealing with issues of indiscipline
The evidence of Pw1 taken together with that of Muraya Pw6 and the Children’s officer Pw7 raises serious questions as to the genuineness of the complaint by Pw1.
CONTRADICTORY EVIDENCE
The Children’s officer Pw7 stated “the boys never disclosed to me what had happened to them. I know the accused and had met him severally. He was the proprietor of Scream Africa Children’s home. I went there. ’’ The witness went on to contradict himself when he said “I met the children and several of them complained of sexual abuse among other things. Sometimes being beaten by the watchman. They alleged that the director (accused) was sexually abusing them. I reported the matter to the police. I first talked to the accused.’’
The witness on the one hand says that the boys never told him what had happened to them and goes ahead to say they complained of sexual abuse. It is therefore obvious to this court that the two versions cannot both be true.
The children officer Pw7 under cross examination further stated ‘’ the director of the school is not known to me…. Pw6 brought the boys to me. They were said to have incited other boys against him. There were other cases against accused and told the them to write what had happened to them. I invite them to write statements so that I get to know why they had been expelled. I did not read the statements.’’
A reading of the evidence of Pw7 reveals that he was very economical with the truth. On the one hand he did not know the director of the school while on the other hand he says he had met and talked to him.
Secondly, if he never read the statements of the boys, how did he know that they were complaining of sexual abuse? Further, one would be minded to ask, what is it that he reported to the police?
Further, Pw7 stated that is that he received the boys on the basis that they were expelled for inciting other students. It is not clear to this court at what stage the issue of expulsion mutated to a complaint of sexual assault nature.
The witness was in my view not truthful at all and by withholding information he failed to assist the court in arriving at the correct finding in law.
The issue of the boys having been expelled cannot be overlooked for it could have been the motive behind the allegations against the appellant.
Pw1 also stated that Lucy Njenga the proprietor of Pehucci Home helped him and he was taken to Kenyatta National Hospital where he was examined and issued with a letter dated 26 th May 2016 which was marked DFI 1. He was later expelled from the school by Mr. Mulinge.
The witness corroborated the evidence of Pw7 that indeed there were expulsions from the institution and the trial court ought to have treated the victim’s evidence with great circumspection considering that other than the evidence of the victims, there was no medical evidence to corroborate the victims claims of sexual abuse. The alleged victims were bitter individuals who could do anything to revenge for their expulsion.
The contradictory nature of the evidence tendered by the witnesses was material and the trial court ought to have given the appellant the benefit of doubt considering the totality of the evidence.
The defense having made a case of frame up through DW6 SAMSON NYAGAH GITAU who testified that they were to frame up the appellant and say that he sodomized them in order for Brigid to take them to a first -class home, the trial court should have proceeded with extreme caution in acting on the uncorroborated evidence of the victims to convict the appellant. See Bassita Hussein Vs Uganda Supreme Criminal Appeal No 35 of 1995 where the court stated;- ‘’the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.’’
The victim’s evidence was not corroborated by medical evidence and the circumstantial evidence was weak considering the long delay in presenting the complaints as well as the other co-existing facts that point to a well- choreographed scheme to frame the appellant involving Mr Muraya and Ms Brigid.
FAILURE TO GIVE REASONS FOR BELIEVING THE VICTIMS AS PER SECTION 124 OF THE EVIDENCE ACT
The learned Honorable Magistrate stated in her judgment that ‘’ looking at the date between when the victims went to hospital and when they were defiled, there was a lapse of a long period of time. Failure to have injuries at the time of the examination does not negate the fact that the minors were defiled. They gave a clear account of the continued sexual abuse by the accused person and I believed them.’’
The trial court did not state the reasons for believing the victims considering that other than their word there was no independent corroborating evidence of the fact of sexual abuse which was made after a long unexplained period of time.
The allegations against the appellant were made against the backdrop of strained relationship between the boys and the appellant. The fact that a court can convict on the basis of the uncorroborated evidence of victims of sexual abuse does not lessen the burden on the prosecution to prove the charges beyond a reasonable doubt.
The trial court should have taken into account the issue of the character of the witness which was self -confessed that he was expelled from school. The witness without doubt had an axe to grind with the school management for expulsion. The children’s officer confirmed as much that the boys were expelled.
The witness went further to stated that: “Mr. Mulinge expelled me after school opened all were in school everyone knew about Steve was in trouble. The ones affected were trying to fight back we knew we had rights. We were speaking out. Teacher Mulinge came to talk he came with police who arrested big boys. Following morning it was said we wanted to burn the school. There was nothing like that.”
“….before Scream I was in remand
“….I know white lady Bridgid she was a supporter of Scream Africa. I have never seen her since I left. I have never gone to her place. I wrote a statement after being
[...truncated]
INTRODUCTION
The appellant in this matter was tried and convicted of Counts 1,2,3 and 4 as set out in the Charge Sheet.
The charges are set out herein below;-
COUNT ONE
DEFILEMENT OF A CHILD UNDER SECTION 8 (1) AS READ WITH 8(3) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.
STEPHEN NZUKI MUTISYA: On diverse dates between August 2010 and January 2015 at your residence at Mihango within Utawala area in Nairobi County, unlawfully and intentionally penetrated the anus of MFM, a child aged 17 years with your penis.
COUNT TWO – DEFILEMENT OF A CHILD CONTRARY TO SECTION TO SECTION 8(1) AS READ WITH SECTION 8(3) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006
STEPHEN NZUKI MUTISYA: On diverse dates between the month of March in the year 2014 and 2016 at Scream Children’s home, at Mihango within Utawala area in Nairobi County unlawfully and intentionally penetrated the anus of AA, a child aged 17 years with your penis.
COUNT 3- DEFILEMENT OF A CHILD CONTRARY TO SECTION 8(1) AS READ WITH SECTION 8(3) OF THE SEXUAL OFFENCES ACT 3 OF 2006
STEPHEN NZUKI MUTISYA: On diverse dates in the year 2013 at Scream Africa children’s home, at Mihango within Utawala area in Nairobi County Unlawfully and intentionally penetrated the anus of MMA, a child aged 16 years with your penis.
COUNT 4- INDECENT ACT WITH A CHILD CONTRARY TO SECTION 11(1) OF THE SEXUAL OFFENCES ACT NO.3 OF 2006
STEPHEN NZUKI MUTISYA: On diverse dates in December 2015, at Scream Africa Children’s home, at Mihango area within Utawala area in Nairobi County , committed an indecent act with a child namely FMM by touching the thighs of the said child with his penis and kissing the said child.
The learned Honorable Magistrate upon convicting the appellant proceeded to sentenced him as follows:-
Count 1- 50 years imprisonment
Count 2 – 20 years imprisonment
Count 3 – 20 years imprisonment
Count 4- 10 years imprisonment
In sentencing the trial magistrate remarked thus:-
“The offences were committed on diverse dates and not from part of the same transaction. For this reason, the sentences shall run consecutively.”
The appellant aggrieved by the decision of the learned Honorable Magistrate appealed to this court on the following grounds:-
THAT the Learned Magistrate erred in law by accepting that the Prosecution had proved their case beyond a reasonable doubt whereas the Prosecution had not discharged their burden in law.
THAT the Learned Judge Magistrate erred in law by relying on evidence that was not admissible, and which did not meet the evidentiary thresholds and was unsafe.
THAT the Learned Magistrate erred in law and in fact by failing to find that material documents were not adduced.
THAT the Learned Magistrate erred in law and in fact by failing to find that the Accused persons'' defence was not considered.
THAT the learned Magistrate erred in fact and law by failing to take note of the fact that the chain of circumstantial evidence was broken and could not hold.
THAT the learned Magistrate relied on extraneous facts in reaching her decision instead of relying on the evidence adduced.
THAT the learned magistrate erred in law and in fact by failing to ascertain the ages of the minors.
THAT the learned magistrate erred in law and in fact by purely relying on Medical Evidence that exonerated the Appellant.
THAT the learned trial magistrate erred in law and in fact by failing to consider that most of the prosecution witness relied on hearsay evidence.
THAT the learned magistrate erred in law and in fact by failing to warn herself of the dangers of convicting the appellant on the Appellant on uncorroborated evidence.
THAT the learned magistrate erred in law and in fact by failing to take cognisance of the fact that some of the prosecution witnesses were never employees of the Appellant''s institution and thus could not speak to the facts in question.
THAT the learned trial magistrate erred in law and in fact by convicting the appellants on inept investigations.
THAT the learned trial magistrate erred in law and in fact by failing to consider the doctors report that exonerated the appellants.
THAT the Learned magistrate erred in law and in fact by failing to consider all the evidence tendered before her that exonerated the appellants.
THAT the learned trial magistrate erred in law and in fact by imposing a harsh, excessive and untenable sentence upon the appellant.
ISSUES FOR DETERMINATION
The issues that arise from a reading of the memorandum of appeal are as follows:-
Whether the prosecution proved its case beyond reasonable doubt.
Whether there was medical evidence tendered to support the prosecution ’ s case.
Whether the learned Honorable magistrate considered the appellants defense or exonerating evidence tendered on behalf of the appellant.
Whether the ages of the victims were adequately proved.
Whether the learned Honorable magistrate erred in law by failing to warn herself of the danger of relying on uncorroborated evidence of the victims.
Whether the sentence imposed was harsh and excessive.
INTRODUCTION
The court in determining whether the prosecution proved its case beyond a reasonable doubt, must be satisfied that the three key ingredients of the offenses charged were established to wit;-
Penetration
Age of the victims
Identity of the perpetrator.
The failure by the prosecution to establish any of the elements beyond a reasonable doubt would lead to an acquittal.
The duty of this court sitting as a first appellate is clearly settled in the case of Okeno Vs. Republic [1972] E.A 32 . The duty of the court is to re-evaluate the evidence tendered in the trial court and draw its own conclusions from the evidence as to whether the prosecution had adequately established its case beyond a reasonable doubt for the trial court to have returned a finding of guilty on all the charges. The first appeal is in the nature of a rehearing and conclusions reached by the trial court do not bind the appellate court. The court is however required to bear in its mind the fact that unlike the trial court, this court did not have the benefit of hearing or seeing the witnesses testify.
The evidence is to be subjected to a fresh and exhaustive analysis to establish whether all the ingredients of the offences charged were adequately proved before the court can safely determine whether or not to uphold the conviction.
The parties to this appeal filed written submissions in support of their respective arguments.
The prosecution maintained that the case against the appellant was properly established and that the findings of the trial court are correct in law and should not be disturbed by this court. The prosecution urged the court to find that the conviction was safe and to uphold the sentence.
The appellant on his part argued that the case against him was not proved beyond a reasonable doubt and that in his view, the trial court relied on weak prosecution evidence to convict him while ignoring exculpatory evidence that was on record tendered through multiple defense witnesses which, if properly considered, would have led to an acquittal on all counts.
The court considered the submissions of both parties and went on to undertake a thorough and exhaustive analysis of the evidence tendered by both the prosecution and the defense.
SUMMARY OF EVIDENCE
The complainant in the 1 st Count was identified as MFM. It is important to highlight the fact that when the matter came up for hearing on 27/4/2017, counsel for the accused raised an issue on the Age assessment of the victim.
The trial court noted that there were alterations on dates on the cards bearing the evidence of age that were supplied to the defense.
The two cards that were brought to the attention of the court had age assessments for Andrew Atamba indicated as 16.6-18.5 years and Francis Mwangi 15.5- 16.5 years.
The court noted that there were several alterations and remarked “ there is out right dispute of age, and due to the nature of the offence (defilement) the accused is facing the court therefore is minded to have the two victims undergo a second age assessment report before proceeding with the matter. The same shall have specific age of the two victims. This shall guide the court on how to take the evidence of the two victims at Kenyatta National Hospital. ”
It is important to point out at this stage that, the above quoted portion of the record raises a very pertinent question of the procedure adopted by the court in conducting the trial.
The court having noted that there was a dispute on age, the cure for it was not to order for a second assessment since the duty to prove the element of age of the victim lay with the prosecution in light of the provisions of Section 107 of the Evidence Act Cap 80 of the Laws of Kenya.
The court by ordering a second assessment ventured into the realm of investigations which should ideally never happen because that is tantamount to handing the prosecution an opportunity to patch up its case against the accused which is obviously prejudicial to the accused.
The proof of age is such an important matter in sexual offences cases for it has a very heavy bearing on the sentence that the court eventually hands down to the accused person in the case.
Where the age of the victim is not proved to the satisfaction of the court, that should lead to an acquittal and the court should not go out of its way fishing for evidence.
However, in certain cases the court by applying the apparent age concept of determining age, would be satisfied that the victim falls within any of the age brackets that the law prescribes for the particular categories of defilement. See Francis Omuromi Vs Uganda Court of Appeal Criminal Appeal No. 2 of 2000.
The court in making the order for re-examination of the victims in a bid to get clarity on age, went beyond its call of duty and descended into the arena of investigations completely outside the function of a court of law in a criminal trial.
It is trite law that it is not the function of the court to give the prosecution an opportunity to fill gaps in evidence whenever that is discernible in a criminal proceeding.
The court must remain a neutral arbiter and avoid taking steps that may prejudice the accused person. For instance, a court will not order a retrial where a conviction is quashed and a retrial sought by the prosecution if the making of such an order would provide the prosecution with an opportunity to fill gaps in evidence. By parity of reason, that should put the court on notice that it is not its business to order the collection of evidence to rectify what appears to be obvious alterations on key prosecution documents that are meant to be used to establish a key ingredient of the offense with which an accused person is charged.
The Court of Appeal in the case of Ahmed Sumar vs. R (1964) EALR 483 offered the following guidance while considering the situations when a court may order a retrial:
“...in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficient of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered;......”
The Court of Appeal likewise had the following to say in the case of Samuel Wahini Ngugi v. R (2012) eKLR : -
“The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:
‘It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’’ (emphasis mine).
The court in this case, having noted that there was a gap or defect in the documents presented in a bid to establish age, ought to have noted the alterations in the documents and given the benefit of doubt to the appellant. The action by the court was highly prejudicial to the accused.
This court with tremendous respect to the learned Honorable Magistrate, finds that the order amounted to a clear misdirection and occasioned a failure of justice in the matter. The court must remain a neutral umpire holding each party strictly responsible for their actions and or omissions in discharging their respective legal and evidential burden in line with the provisions of Section 107 and 108 of the Evidence Act.
The issue raised by the appellant on the matter of age therefore has merit in respect of two counts preferred with respect to Pw4 and 5. The issues identified by the trial court regarding the dispute on age should have been resolved in favor of the appellant in respect of the two counts involving PW4 and Pw5.
The immediate question that should have arisen in the mind of the trial court should have been; why would anyone attempt to alter the documents intended to be relied on in establishing the respective ages of the victims. The prosecution should have been called upon to respond to that particular issue during the trial since the liberty of the accused stood at the risk of being taken away on the basis of fabricated evidence.
The first prosecution witness PW1 was Maxwell Muya who according to the record was said to have been approximately 17.5-19.5 years of age testified under oath and stated that he was a student in form 3 at Katelembu Centre of Excellence Boys Highschool in Machakos. He gave his age as 17 years and identified the dental assessment report dated 18 th November 2016 as MFI 1. The witness said he was a street boy and while working in a hotel Adam’s Apek Hotel when he was arrested by Kikuyu Council workers since he was underage. He was taken to Kiambu Children’s remand home and after about 1 he was placed at Scream Africa children’s home, in Utawala, Embakasi, Nairobi County.
He testified that the proprietor of the Children’s home was Stephen Nzuki Mutisya the appellant. He went on to state that on arrival at the children’s home, he was welcomed well and according to him the institution had about 10 rooms and in each bed room they slept about 15 of them.
The witness testified that, while asleep at about 10.00 P.M he was woken up by the appellant and taken to the appellant’s room and therein the proprietor unzipped his trouser and told him he was smelly. He took a bath and went back to his bed and slept. Nothing happened after that.
The prosecution did not however call any other independent witness to corroborate the evidence of the witness that he was woken up by the appellant and taken away by the appellant to be sexually exploited. The failure to do so left the allegation by the witness unsupported by any other independent evidence rendering the prosecution case weak. The boy having stated that the cubicle had 15 boys at the time, the prosecution could have called another witness to corroborate the evidence of pw1.
The same applies to the evidence in respect of all the other counts. Only the complainants in each one of them testified leaving the court with the simple question; if the alleged offenses occurred over a period of over 4 years, why would the investigators not be able to procure the evidence of independent witnesses considering that the scene of crime at all times had other students.
The evidence of DW6 becomes important when analyzing the prosecution’s case because Dw6 was clear that they were conscripted to frame up the appellant. The failure to call other independent witnesses probably was on account of ensuring that the narrative as intended by the masterminds of the scheme alluded to by Dw6 was not distorted.
Pw1 went on to testify that sometimes in 2014 the appellant called him to his room and sodomized him. According to Pw1 the appellant pulled his sweater up kissed him but he could not scream because he needed the appellants help in education. According to him he therefore did not tell anyone about the incident.
The witness however went on to state that sometimes in January, 2015 he could remember that himself and two other boys, Clinton Kinuthia and Isaac Mwaura, who had disclosed to him similar issues, decided to write a letter to Steve about the issue.
According to him they used a bad writing so that the appellant wouldn’t know who it was. In the letter the witness says they told him to stop abusing them and to to find a wife or get a person of his age. In the letter he said that they tried to scare him that they would put the issue on face book. The witness also told the court that when the appellant discovered that they were the ones who did the letter he got furious and beat them up thoroughly.
CREDIBILITY AND BELIEVABILITY OF THE PROSECUTION WITNESSES
The issue that arises from that portion of evidence is, if at all the witness was to be believed, why did they not publicize the matter at the time the alleged abuse happened yet he says they had the option of putting it on facebook? The witness, in this courts view, was not candid in his testimony for reasons that will become obvious in the course of this judgment.
The witness further stated that other boys had earlier on reported similar incidents at Kayole Police Station on sodomy. Ryan Musyoki, Samuel Oluloo, Fedel Otieno, Sylvester Mwema, David Mulwa. The witness did not tell the court why he did not report the incident concerning himself if at all other boys had done so and instead opted to write to the appellant.
The witness further testified that in July 2016 CID officers went to Scream Africa Children’s home to investigate the matter however, Steve organized all kids without relatives to go to his rural home - Machakos.
According to him when the CID came to Dream Africa, they did not find everyone. He however he got to talk to the CID but he was in fear and did not open up.
The evidence of the witness arouses this concern in the mind of the court, why would the witness who had the audacity to write to the suspect not summon courage to inform the police about the alleged incidents yet he says the police had come to investigate similar issues! The witness is simply unbelievable in his testimony against the appellant. He had the opportunity to report the matter but failed to do so citing unexplained fear.
The witness further went on to state that he told an officer - Kelvin from UK about the abuse on him.
The witness having chosen not to tell the police about the incident when he got the first opportunity to do so, the only inference that this court can draw is that the witness cannot have been a victim of abuse and choose to avoid reporting the matter to the police and only share the information with a civilian foreigner who would in any event not be of help to him. The testimony of the witness in this regard lends credence to the defense that the appellant was actually a victim of a frame up.
The testimony raises the question of believability and credibility of the witness in light of the provisions of Section 124 of the Evidence Act. The centrality of the issue of credibility and believability cannot be overemphasized considering that in convicting the appellant, the trial court relied on the testimony of the victims solely and did not consider the defense of the appellant and his witnesses. At page 22 of the Judgment the learned honorable magistrate simply made a fleeting mention of the defense of the appellant in a single sentence.
Notably, Kelvin who allegedly received the first report was not called to testify thus raising the question, whether there was such a person in the first place to whom the matter was reported.
The failure to call Kelvin could only lead this court to drawing a negative inference against the prosecution that had Kelvin been called to testify, his evidence would probably have been adverse to the prosecution’s case.
The witness went on to state that at the time when the police came to the school, he did not record a statement.
He however, went on to claim that after the police left, the appellant called him and told him that he wanted him to stand with him as a witness. According to him the appellant wanted to sue CID officers. He also alleged that the appellant urged him to recant his report and state that what he had said was false.
The evidence of the witness is obviously contradictory in that if he had not told the police anything about the incident, what was this that he was meant to recant if at all the court was to believe him even for a moment? The narrative of Pw1 remains very suspect and smacks of a carefully choreographed narrative by the prosecution witnesses to ensure that they secured a conviction against the appellant at all costs.
The evidence of Pw1 that he intended to leave Scream Africa cannot be ignored as a potential motive of implicating the appellant in the manner he did so that he could have a good basis to leave the institution.
The witness stated;- ‘’ I wanted to leave Scream Africa. I told him I was not ready. Same month I was planning to run away in a way they could not get me. Others would be caught running away, taken back and beaten up.
The place was secure. There was a watchman. He was watching
news. I packed my bag. I went through parking I used the door to exit.
20/6/16 Sunday night, I went and slept in a kibanda.
After my escape, in the morning there was a neighbour Kelvin who
would preach to us. I went to his house told him I had run away.
News was all over about Scream Africa.”
The man Kelvin who Pw1 stated that he met and confided in of the happenings at Scream Africa after escaping from the institution never gave evidence. The omission to call the witness dealt a fatal blow to the prosecution’s case.
He was a material witness in this court’s view since the narrative from Muraya and the children’s officer left a lot in doubt and to an extent confirmed the defense of the appellant that he was a victim of frame up by persons who wanted to wrestle the institution from him.
His exclusion from the prosecution list of witnesses cannot be ignored by this court and the inference that this court draws from that omission is that, had he given evidence, most probably the same would have been adverse to the prosecution’s case thus the failure to call him must have been deliberate on the part of the prosecution.
The Pw1 stated that Mr. Muraya did not help him the first time, but he later took him to the DCIO to report.
The evidence of Pw1 clearly raises the question, what was the help that Pw1 needed because he had contact with the police but never opened up to them on the alleged abuse.
The escape from the institution appears to have been a calculated move by Pw1 to get out of the institution and the witness indicated that there was seriousness in the institution in dealing with issues of indiscipline
The evidence of Pw1 taken together with that of Muraya Pw6 and the Children’s officer Pw7 raises serious questions as to the genuineness of the complaint by Pw1.
CONTRADICTORY EVIDENCE
The Children’s officer Pw7 stated “the boys never disclosed to me what had happened to them. I know the accused and had met him severally. He was the proprietor of Scream Africa Children’s home. I went there. ’’ The witness went on to contradict himself when he said “I met the children and several of them complained of sexual abuse among other things. Sometimes being beaten by the watchman. They alleged that the director (accused) was sexually abusing them. I reported the matter to the police. I first talked to the accused.’’
The witness on the one hand says that the boys never told him what had happened to them and goes ahead to say they complained of sexual abuse. It is therefore obvious to this court that the two versions cannot both be true.
The children officer Pw7 under cross examination further stated ‘’ the director of the school is not known to me…. Pw6 brought the boys to me. They were said to have incited other boys against him. There were other cases against accused and told the them to write what had happened to them. I invite them to write statements so that I get to know why they had been expelled. I did not read the statements.’’
A reading of the evidence of Pw7 reveals that he was very economical with the truth. On the one hand he did not know the director of the school while on the other hand he says he had met and talked to him.
Secondly, if he never read the statements of the boys, how did he know that they were complaining of sexual abuse? Further, one would be minded to ask, what is it that he reported to the police?
Further, Pw7 stated that is that he received the boys on the basis that they were expelled for inciting other students. It is not clear to this court at what stage the issue of expulsion mutated to a complaint of sexual assault nature.
The witness was in my view not truthful at all and by withholding information he failed to assist the court in arriving at the correct finding in law.
The issue of the boys having been expelled cannot be overlooked for it could have been the motive behind the allegations against the appellant.
Pw1 also stated that Lucy Njenga the proprietor of Pehucci Home helped him and he was taken to Kenyatta National Hospital where he was examined and issued with a letter dated 26 th May 2016 which was marked DFI 1. He was later expelled from the school by Mr. Mulinge.
The witness corroborated the evidence of Pw7 that indeed there were expulsions from the institution and the trial court ought to have treated the victim’s evidence with great circumspection considering that other than the evidence of the victims, there was no medical evidence to corroborate the victims claims of sexual abuse. The alleged victims were bitter individuals who could do anything to revenge for their expulsion.
The contradictory nature of the evidence tendered by the witnesses was material and the trial court ought to have given the appellant the benefit of doubt considering the totality of the evidence.
The defense having made a case of frame up through DW6 SAMSON NYAGAH GITAU who testified that they were to frame up the appellant and say that he sodomized them in order for Brigid to take them to a first -class home, the trial court should have proceeded with extreme caution in acting on the uncorroborated evidence of the victims to convict the appellant. See Bassita Hussein Vs Uganda Supreme Criminal Appeal No 35 of 1995 where the court stated;- ‘’the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.’’
The victim’s evidence was not corroborated by medical evidence and the circumstantial evidence was weak considering the long delay in presenting the complaints as well as the other co-existing facts that point to a well- choreographed scheme to frame the appellant involving Mr Muraya and Ms Brigid.
FAILURE TO GIVE REASONS FOR BELIEVING THE VICTIMS AS PER SECTION 124 OF THE EVIDENCE ACT
The learned Honorable Magistrate stated in her judgment that ‘’ looking at the date between when the victims went to hospital and when they were defiled, there was a lapse of a long period of time. Failure to have injuries at the time of the examination does not negate the fact that the minors were defiled. They gave a clear account of the continued sexual abuse by the accused person and I believed them.’’
The trial court did not state the reasons for believing the victims considering that other than their word there was no independent corroborating evidence of the fact of sexual abuse which was made after a long unexplained period of time.
The allegations against the appellant were made against the backdrop of strained relationship between the boys and the appellant. The fact that a court can convict on the basis of the uncorroborated evidence of victims of sexual abuse does not lessen the burden on the prosecution to prove the charges beyond a reasonable doubt.
The trial court should have taken into account the issue of the character of the witness which was self -confessed that he was expelled from school. The witness without doubt had an axe to grind with the school management for expulsion. The children’s officer confirmed as much that the boys were expelled.
The witness went further to stated that: “Mr. Mulinge expelled me after school opened all were in school everyone knew about Steve was in trouble. The ones affected were trying to fight back we knew we had rights. We were speaking out. Teacher Mulinge came to talk he came with police who arrested big boys. Following morning it was said we wanted to burn the school. There was nothing like that.”
“….before Scream I was in remand
“….I know white lady Bridgid she was a supporter of Scream Africa. I have never seen her since I left. I have never gone to her place. I wrote a statement after being
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