[2023] KEHC 25436 (KLR)

AMM v Republic (Criminal Appeal E013 of 2022) [2023] KEHC 25436 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25436 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E013 of 2022

TM Matheka, J

November 17, 2023

Between

AMM

Appellant

and

Versus Republic

Respondent

(From the original conviction and sentence of Hon. J.N Mwaniki (CM) in Makueni Chief Magistrate’s Court Sexual Offence No. E037 of 2019 delivered on 11th March 2021)

Judgment

1. AMM was charged with the offence of attempted incest contrary to section 20(2) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on the 21st day of September 2019 at around 0930 hrs at [Particulars Withheld] Sub Location within Makueni County, he intentionally attempted to touch the vagina of MM, a child aged 8 years with his penis who was to his knowledge his daughter.

2. 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. The particulars of the offence were that on the same day, time and place, the appellant intentionally touched the vagina of MM, a child aged 8 years with his penis who was to his knowledge his daughter.

3. The appellant pleaded not guilty and after a full trial, the learned trial magistrate convicted him on the main charge and sentenced him to 20 years imprisonment.

The Appeal 4. Aggrieved by that decision, the appellant filed his appeal and raised the following grounds;a.The learned magistrate erred in law and fact by convicting and sentencing him without observing that the charges before court were defective for being at great variance with the evidence on record.b.The learned magistrate erred in law and fact by convicting him without considering that there was no evidence to prove the offence of attempted defilement to the required standard in law.c.The learned magistrate erred in law and fact by failing to apply section 124 of the Evidence Act and failing to appreciate that the prosecution’s evidence was greatly uncorroborated and was full of explicit inconsistencies and marred with contradictions and hence also erred by shifting the burden of proof to the accused and prejudicing him greatly.d.The learned magistrate erred in law and fact in shifting the burden of proof to the appellant and misapprehending and misdirecting himself on the evidence hence arrived at a wrong conclusion.e.The learned magistrate erred in law and fact in failing to address the inconsistencies pervading the entire evidence and resolve the doubts in favor of the appellant before dismissing the defence without giving cogent reasons.

5. The case for the prosecution was that on 21st September 2019 the complainant was at home with her father (appellant) and siblings. Her mother had gone to collect relief food. Their grandmother’s house is a short distance away and while the complainant was there with her siblings, the appellant called her, put her on the bed and inserted his penis between her legs. She reported to her mother and grandmother the same day and was taken to hospital at Kanzokea. The appellant was arrested after two days and prosecuted.

6. The prosecution called 5 witnesses to wit; the Clinical Officer (PW1), the complainant (PW2), the complainant’s mother (PW3), the complainant’s maternal grandmother (PW4) and the investigating officer (PW5) and produced in evidence Immunization booklet for proof of age, (P. Ex 1), P3 form (P. Ex 2) and Treatment notes (P. Ex 3).

7. The appellant gave a sworn statement and called his mother as his witness. He testified that on the material day, he went to work and returned home at 8. 00pm. He later fell out with his wife and she went to her parent’s house. His mother took the children to his wife at her parents’ home. Later on, he heard the radio announcing about a parent who had allegedly defiled his children. On 23rd September 2019, the police officers arrested him from his home. He denied ever defiling his children.

8. On cross examination, he said that he used to live with his four children, his wife and mother BS. That on the material day, his wife went to collect relief food and he left after her. Further, he said that on the material day, he was working for one MK making some dam. He agreed that his other child named MM was a complainant in another incest case in which he was serving 12 years’ imprisonment.

9. Parties elected to canvass the appeal through written submissions and appropriate directions were given. Accordingly, the parties complied and filed their respective submissions.

10. The appellant submitted that the charge sheet was defective because in count one, he was charged for attempting to touch the complainant’s vagina while in count two, he was charged for touching the complainant’s vagina. He contended that the charge sheet did not disclose the offence which he was required to defend himself against. That there was duplicity of charges as the particulars show similar facts yet the charges are different and framed under different sections of the Sexual Offences Act. He relied on the case of Sigilani –vs-R [2004] eKLR 480 where the court held;“The principle of the law governing charge sheets is that an accused person should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence.”

11. He submitted that the fact of him pleading to the charges and cross examining witnesses should not be used to ignore the material omission by the prosecution. That both the prosecution and the court had power to amend the charge sheet and should have done that after realizing that the evidence tendered was at variance with the charges.

12. He submitted that the prosecution evidence was that penile penetration was done to the complainant yet the charge sheet describes an attempt to defile. He contended that the failure by the investigators to establish the correct offence cannot be blamed on him. That he was confused and even though he testified on his defence, he did so out of the knowledge of what was going on at his home and family.

13. He submitted that the prosecution’s evidence about his previous conviction was meant to portray him as a pedophile in order to influence the trial court to convict him in the matter. That his previous conviction was quashed by the High Court which established that it was a frame up. He submitted that there was a miscarriage of justice which was greatly detrimental to him. He relied on the case of Rattiram –vs- State of MP (2012) 4 SCC 516 where the Supreme Court of India held that;“Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favoritism…decidedly there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused.”

14. He submitted that the omission is not curable under section 282 of the Criminal Procedure Code because he was prejudiced by being tried for an offence whose elements lacked the crucial ingredients in terms of the description of his conduct. He contended that the omissions should be blamed on the judicial officer who seemed determined to convict and sentence him without following the law.

15. He submitted that this case raises the question as to whether parliament intended that an accused person should be punished for conduct based on allegations, suspicions, and assumptions and on a crime which was not supported by the witness testimonies.

16. He submitted that his right to a fair trial was infringed as he was not informed of the charge with sufficient detail to answer to it.

17. Relying on section 388 of the Penal Code and Moses Kabue Karuoya –vs-R [2016] eKLR, he submitted that he was charged with an inchoate offence which required the prosecution to prove some overt act on his part as a manifestation of his intention. He also relied, inter alia, on Keteteta –vs-R (1972) E.A 532 where Madan Ag. CJ (as he then was) opined that;“A mere intention to commit an offence which is in fact not committed cannot constitute an attempt to commit it. There must also be an overt act which is immediately and remotely connected with the offence intended to be committed and which manifests the intention to commit the offence. A remotely connected act will not do.”

18. He submitted that evidence must be led which goes beyond the preparatory stages and right to the doorstep of possible commission of the offence. He contended that in his case, there is absolutely no evidence that the incidence took place as alleged as it was a case of vendetta.

19. Relying on Woolmington –vs- DPP AC 462, the appellant submitted that the prosecution bears the burden of proof on every element in a criminal charge beyond reasonable doubt. That in a case like the one under consideration, the court must determine that the victim was truthful or that there was corroboration from other evidence. He contended that none of that was available in this case as the offence disclosed by the evidence on record was a concluded offence.

20. Further, it was his submission that the trial magistrate should have followed the law instead of cooking his own evidence or trying to fill the gaps left by the prosecution case. He contended that the trial magistrate had already made up his mind and was seeking reasons to convict him even though the reasons were not anchored in law or evidence.

21. Relying on section 124 of the Evidence Act, he submitted that the trial magistrate did not give his reasons for believing that the complainant was truthful and as a result, there was a miscarriage of justice and the conviction was unsafe. He relied on David Ochieng Aketch v R [2015] eKLR stating that his case was in pari materia with it.

22. The appellant analyzed the evidence of the complainant and that of her mother and drew out the inconsistencies and contradictions. He pointed out that the complainant told the court that the appellant had sex with her with his penis and penetrated her, that she also told her maternal grandmother that the appellant had defiled her. That she told the court that when the appellant defiled her she told her mother and paternal grandmother about it the same day and they asked the appellant about it. The PW3 her mother told the court that she found the complainant’s blood soaked panties. He submitted that contrary to what the mother to the complainant told the court, the complainant never told the court anything about being sent to fetch a sufuria by the appellant. The PW1 the clinical officer did not find any injuries on the complainant and the complainant told the court that she never bled as a result of the incident. It was his submission that the trial magistrate erred by failing to address the inconsistencies in the entire evidence. That it was a lie for PW3 to state that she found the complainant’s panty with blood stains yet the complainant herself testified that she never bled and the doctor did not mention that he observed blood anywhere. That even the P3 form shows that the hymen was intact. He contended that the inconsistencies are proof that the case was fabricated to force him to accept his wife back.

23. The State, through Prosecution Counsel Margaret Muraguri, submitted that the ingredients of the offence of attempted incest are;a.Whether the appellant was a relative to the victim.b.Whether there was an attempted intentional indecent act or penetration of the victim’s genitalia by the appellant.c.The age of the victim.

24. She submitted that the degree of consanguinity was established as the Appellant is father to the Complainant.

25. As to whether there was an attempt at penetration or indecent act, she submitted that the complainant’s evidence was corroborated by the clinical officer who testified that the complainant was taken to her with a history of attempted defilement by her father. She submitted that the complainant’s evidence about what her father did to her was enough to prove an attempt at penetration. She relied on Criminal Appeal No.80 of 2017 at Kisii; GMB -vs- Republic [2018] eKLR where the court held that in an offence of incest, penetration is not a necessary ingredient but an indecent act as defined under the Act must be proved.

26. As regards the victim’s age, she submitted that the complainant’s mother, PW3, testified that she was born on 27th March 2011 hence 8 years old at the time of offence. That she also produced the complainant’s immunization card.

27. As to whether the charge sheet was defective, she relied on section 382 of the Criminal Procedure Code for the submission that no sentence shall be reversed or altered on appeal on account of an error or omission in a charge unless it has occasioned a failure of justice. That in determining whether the omission has occasioned a failure of justice, the court shall have regard to whether the objection could and should have been raised at an earlier stage in the proceedings. She placed further reliance on D K M –vs- Republic [2018] eKLR where it was held;“The appellant participated in his trial in a manner to suggest he understood the charge. He cross examined the witnesses well which is an indication that he understood the particulars of the charge he faced. Further, the appellant did not at the first instance raise an objection or rather contend that the charge sheet was defective. He in the circumstances cannot be said to have been prejudiced. This ground thereby fails.’’

28. She submitted that the appellant understood the charges he was facing and cross examined the witnesses on the particulars on the charge sheet on attempted incest and an alternative charge of committing an indecent act with a child. That he was aware of the charge and particulars and therefore the issue of attempted incest or indecent act were supported in evidence and the same did not prejudice the appellant in any way.

29. She submitted that Section 20 (2) of the Sexual Offences Act provides for the offence of attempted incest and indicates that it provides for an attempt to commit what is prescribed under subsection one (1) which also includes an indecent act.

30. As regards the identification of the perpetrator, she submitted that the appellant is the complainant’s father hence well known to her. That they lived in the same house and the complainant stated in her evidence that the appellant attempted to defile her on the day when the mother had gone to get some relief food. That her evidence was corroborated by that of PW3 and 4. She relied on the case of Wamunga –vs- Republic (1989) KLR 424 where the Court of Appeal stated as follows regarding the evidence of identification generally:“It is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility of error before it can safely make it the basis of a conviction.”

31. Further, she submitted that the appellant’s witness agreed with the prosecution’s evidence that on the date of the incident, she was home with the appellant and the complainant and that at some point during the month of the incident they had gone for relief food. She contended that the witness did not assist the defense case.

32. In conclusion, she submitted that the trial court exercised its discretion judiciously in arriving at the sentence considering the age of the victim.

Analysis and determination 33. 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. I have considered the evidence, the grounds of appeal, and the l submissions and issues for determination;a.Whether the charge sheet was defective.b.Whether the offence was proved to the required standard.

Whether charge sheet was defective 34. In the main charge, the appellant was charged with the offence of intentionally attempting to touch the vagina of his daughter with his penis. In the alternative, he was charged with intentionally touching the vagina of his daughter with his penis.

35. On the face of it, the charge sheet was confusing because an accused person faced with such charges would wonder whether to defend himself against the attempt to touch or the actual touching. One of the tenets of a fair trial as codified in Article 50 of the Constitution is that an accused person should be informed of the charge with sufficient detail to answer to it. In my view, the charge sheet was ambiguous and does not meet the constitutional threshold. In S –vs- Ndlovu; 2017 (2) SACR 305 (CC), the Constitutional Court of South Africa pointed out that the prosecutor’s failure to draft an accurate charge was unacceptable.

36. In addition to the ambiguity of the charge sheet, the prosecution evidence disclosed the offence of incest and not attempted incest as per the charge sheet. Section 20 of the Sexual Offences Act provides as follows;Incest by male persons(1)Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.(2)If any male person attempts to commit the offence specified in subsection (1), he is guilty of an offence of attempted incest and is liable upon conviction to a term of imprisonment of not less than ten years.

37. The complainant’s evidence (PW2) was as follows;“My father is called M (pointing at the accused person). On 21/09/2019 I was home with my father and other children including M, M and M. I am the oldest. My mother had gone for relief food at [Particulars Withheld]. I entered our house. The accused held me and put me on the bed and drew out his penis from his trouser and inserted it (pointing in between her legs). He had removed my pants and drew my dress up and made me lay on the bed and lay on top of me…. the accused did have sex with me using his penis. He did penetrate me. I told my mother about the incident the same day. She later told my grandmother, both asked my father about the incident.”

38. On her part, the complainant’s mother (PW3) testified as follows;“On 21/09/2019, I went to collect relief food in the company of my mother in law. when we went back, complainant told me the accused had sent her to collect some sufuria from the house and that he followed her, grabbed her and took her to a bed, removed her pantie and his clothes and he defiled her. The accused is complainant’s father. Complainant told me accused inserted the organ he used to urinate into her organ she uses to urinate. My mother in law E was present when complainant told us the issue.”

39. In Peter Ngure Mwangi –vs- Republic [2014] eKLR the Court of Appeal observed that;“A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53, this Court stated in YONGO V R, (1983) eKLR that:“In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:(i)when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,(ii)When for such reason it does not accord with the evidence given at the trial.’

40. In the South African case of S –vs- Hugo 1976 (4) SA 536 (A), the Court held that “the charge should inform the accused of the case the State wants to advance against him.” The court quashed the conviction on the basis that the accused was prejudiced because evidence had been admitted regarding allegations which did not appear on the charge.

41. In this case, the prosecution Counsel argued that the defect is curable under section 382 of the Criminal Procedure Code and that in determining whether the defect caused a failure of justice, this court should consider whether an objection could have been raised at an earlier stage in the proceedings. With utmost respect, the prosecution Counsel seems to have forgotten its obligation under the law, especially where the accused is unrepresented like in this case. Instead of expecting an objection from an unrepresented accused person, the DPP and trial court were best placed, in terms of resources, skills and knowledge, to cure the anomaly by amending the charge sheet. Section 214 (1) of the Criminal Procedure Code provides as follows: -“(1)Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:

42. From the foregoing, it is my considered view that the charge sheet was incurably defective and prejudicial to the appellant.

Whether the offence was proved to the required standard. 43. Section 20(2) of the Sexual Offences Act defines the offence of attempted incest and in the case of GMM –vs- Republic [2019] eKLR the Court held that: -“Under Section 20(2), if the offence is an attempt to commit the offence of Incest, upon conviction the offender is liable to imprisonment for not less than ten years. The ingredients for the said offence – Incest and attempted incest – are;1. Knowledge that the person is a relative.2. Intentional attempt of Penetration or Indecent Act”

44. On the other hand, section 2(1) of the Act defines an indecent Act as an unlawful intentional act which causes;“(a)any contact between any part of the body of a person with genital organs, breasts or buttocks of another but does not include an act that causes penetration.(b)Exposure or display of any pornographic material to any person against his or her will”

45. Further, section 2(1) of the Act defines ‘genital organs’ as including;“The whole or part of female or male genital organs and for purposes of this act includes the anus.”

46. In this case, it is not in dispute that the complainant is the appellant’s daughter. The appellant admitted as much in his defence when he testified; “I know the complainant herein my daughter.”

47. As regards proof of intentional attempt of penetration or indecent act, the complainant’s evidence was that the appellant actually had sex with her by penetrating her genitalia with his penis. The complainant’s mother (PW3) testified about what the complainant had told her and further stated that; “I had found complainant pantie soaked in blood”. From the hand written proceedings the Clinical Officer, Stella Nthambi Muasya (PW1) testified that “I have a P3 form and PRC form for one MM who was 7 years made on 15th October 2019. She had a history of defilement by her father on 21st September 2019. She had normal genitalia with an intact hymen. The patient gave history of attempted defilement through her mother. I have the patient’s treatment card for 4th October 2019 for suspected defilement”

48. Looking at the evidence in total, there are several inconsistencies which cannot be ignored. The complainant’s mother talked about finding the complainant’s pantie soaked in blood yet the complainant’s evidence was that; “I was not injured. I never bled.” Further, the Clinical Officer’s evidence about the complainant’s genitalia being normal with intact hymen supports this position. The PRC form and P3 form were filled on the same day 15th October 2019 and both of them show that the complainant’s external genitalia were normal and her hymen was intact. On the other hand, the treatment note from Kanzokea health center was recorded on 4th October 2019 and it shows that the vaginal orifice was gapping and the hymen was not intact with no visible bruises or lacerations. It is also clear that the evidence of the complainant, PRC form and P3 form does not support the evidence of the complainant’s mother about the complainant’s pantie being soaked in blood.

49. Apart from the evidence adduced being at variance with the charge, it is also inconsistent in a way that does not inspire confidence about the appellant’s guilt and also lends credence to the appellant’s assertion that the case was fabricated due to domestic wrangles. In the case of Philip Nzaka Watu –vs- Republic [2016] CR APP 29 of 2015,the Court had this to say:“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.”

50. There is also the case of David Ojeabuo –vs- Federal Republic of Nigeria {2014} LPELR-22555(CA), where the Court of Appeal of Nigeria stated as follows: -“Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains.”

51. It is evident that the complainant gave history of defilement. The mother told the clinical officer abbot an attempted defilement. In the same breath she said her child’s panty was soaked with blood. The child said she was not injured and she did not bleed while at the same time saying that her father had sex with her with his penis. The record shows that the child used these words in her testimony. This was a child of eight years whose testimony the same court took without her taking the oath. One hospital said the hymen was intact another said it was not. The child had no injuries to her genitalia.

52. These inconsistencies on how the offence happened, on what followed has highlighted above created a lot of doubt about the truthfulness of the witnesses and they should be resolved in favour of the appellant.

53. The appellant asserted that the previous conviction referred to by the prosecution was meant to portray him as a pedophile in order to influence the trial court to convict him in the matter. The case referred to is Makueni CMCR (S.O) Case No. 36 of 2019 in which the appellant was charged with Sexual Assault contrary to section 5(1)(b)(2) of the Sexual Offences Act. The victim was his 3-year-old daughter identified as M.M. He was convicted by the trial Court and sentenced to 12 years’ imprisonment. On appeal to this Court (HCCRA 46 of 2020), the learned Judge (Dulu J) quashed the conviction and stated as follows;“14. From the totality of the evidence on record, in my view, this case was an attempt by PW2 and PW3 to fix the appellant due to a domestic dispute between PW2 and her husband the appellant. I find that PW2 and PW3 are the prime movers of the allegations against the appellant and the evidence of PW4 the complainant was thus, in my view couched evidence meant to implicate and fix the appellant. I also note from the evidence in chief of PW4 the complainant that she said she did not talk of any sexual assault on her but merely said-“I live at kwa daddy. There is nothing I told shosho.”15. Shosho being the grandmother, the above evidence means that the complainant did not tell the grandmother PW3 that she had been assaulted sexually. In my view therefore, the sexual assault narrative did not originally emanate from the complainant PW4 and as such I find that the prosecution did not prove beyond reasonable doubt that the appellant was the culprit. The conviction and sentence of the trial court herein cannot thus be sustained.” 54. Similarly, in this case, it is evident from the evidence of the clinical officer that the child reported through the mother of attempted defilement. It is noteworthy that the record shows that the same child who could not speak for herself to the clinical officer spoke in court and told the court her own version of the story. I am unable to fathom a situation where a mother will put her child in a situation such as this child and her sibling found themselves in: testifying against their father in a situation that does not draw confidence that any offence was committed as alleged. The down side is that the criminal justice system may, by its nature, unleash a child abuser back into society yet the prosecution had the opportunity to have proper investigations conducted, proper evidence placed before the court and the proper person sent to prison.

55. These children are children in need of care and protection by the mere fact that their father was accused of such offences and their mother appears to have stage managed the charges. What is going to happen to them yet I do not see any P&C files mentioned in the SO files in the subordinate court. It is imperative that the ODPP follows upon the issue of the children in this family with proper investigations and appropriate actions lust in case there is abuse and the adults are playing the system.

56. The Criminal Justice system actors have no choice than to begin to take the welfare of such children seriously. The Children Act no. 29 of 2022 calls upon every actor to play their role to safe guard the welfare of the child and the best interests of the child cannot just be considered in word, It must be demonstrated by the actions taken by the Police at the time of arresting the alleged offenders and the courts when they receive the charge sheets. The issue of the welfare of the children is not over.

57. The ODPP to liase with the directorate of children service, the police the local administration to follow upon the issue and file a report with the Deputy Registrar in 60 days in the Protection and Care file to be opened.

58. Otherwise I am of the view that because of the inconsistencies and contradictions, the conviction was not safe.

59. The appeal has merit, the conviction is quashed, the sentence set aside and the appellant be set at liberty unless otherwise legally held.

DELIVERED, SIGNED AND DATED THIS 17TH NOVEMBER, 2023. MUMBUA T MATHEKAJUDGECA MwiwaAppellant – presentFor state - Kazungu