[2017] KEHC 64 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

HCRA No. 67 OF 2017

ISSAC MUSEMBI ALIAS PETER AND THREE OTHERS....APPELLANTS

=VS=

REPUBLIC....................................................................................RESPONDENT

(An Appeal from the conviction and sentence of 20 years imprisonmentby Hon. E. KAGONI(SRM)

at Mombasa law courts in CR. CASE No. 831 of 2016S.O 38 of 2016 on 4/04/2017)

JUDGMENT

1. The four Appellant were each charged with two accounts of defilement contrary to section 8 (1) of sexual offences Act No. 3 of 2006. Each of theAppellant was also charged with two alternative charges of committing an indecent Act with a child Contrary to Section 11(1) of the Sexual offencesAct No. 3 of 2006.

2. The particulars of the counts were all identical and were as follows:-COUNT I: On the diverse dates between January 2015 and April 2016 atTuder area in Mombasa, each of the Appellant was charged separately withintentionally and unlawfully causing his penis to penetrate the vagina ofXX a child aged 10 years old.

COUNT II: At the same material particulars as in count I (above) each of the Appellant was again charged separately with intentionally andunlawfully caused his penis to penetrate ANUS of xx, a child aged 10 yearsold.

3. The four appellant were again charged with two alternative charges to counts I & II (above) in that at the same material particulars as in counts II& II above each of the Appellants intentionally and unlawfully touched theVAGINA (alternative charges to count I) and ANUS (alternative charges forcounts II) of XX, a child aged 10 years old.

4. The prosecution evidence in summary was that the complainant's teacher (PW4) noticed that the complainant was looking sickly and withdrawn.She interrogated the complainant (PW 1) in the presence of other teachersand the complainant opened up and told them that she had been sexuallymolested several times by different men most of whom were neighbours.Matter was reported to the police and the complainant was taken to arescue centre.

5. PW5, the complainant's class teacher noticed that the complainer was absent minded and she was not concentrating in class. The complainanthad also dropped in class-work. When the complainant was interrogated,she gave two names of the people who were amongst the men who hadabused her sexually severally. The names she gave were Peter and Komu.

6. The complainant who testified as PW1 said her mother and her father separated and her mother took her to Mama N. N and herhusband always fought and the complainant's father went and took her.While she was at her father's house, D (the 1st Appellant) who is heruncle went and took her to his house where he undressed her and heinserted his thing into her thing (kitu cha kukojoa). After he finished, hetold her to go and take a bath.

7. The complainant said the following day Komu (2nd Appellant) asked thecomplainant to follow him to his place. A neighbour saw it and told hermother. By the time the mother arrived Komu had had sex with her. Komuopened the door and ran away. The matter was reported to Makupa policestation.

8. The following day the complainant said while on her way to her father's home she met Peter (the 1st Appellant). He convinced her to go with him tohis place. When they got there the 1st Appellant started showing herpornographic pictures. She said the 1st Appellant stays near a video shop inMworoto. The 1st Appellant had sex with her after showing herpornographic pictures and then he asked her to leave. She went to herfather's home.

9. The complainant said the following day while on her way to play with her friends she met M (4th Appellant) who is married to her aunt. Heasked her to accompany him to his place. When they got there, he forcedher to undress and have sex with him. The complainant said she told hermother after 2 days because she had difficulties passing urine. She said itwas her teacher who took her to Makupa Police Station as her parentswere not there. After she recorded her statement she was taken to a rescuecentre.

10. PW3 DR Mohamed Munor who produced the p.3 form filled by Dr. Amal said the complainant had a history of defilement. She had whips marks onthe thighs and abrasions on the vagina and her hymen was broken. The P.3was filled on 11/4/2016. He said the HIV was reactive.

11. The Appellants in their defence evidence denied that they defiled the complainant. The 3rd and 4th Appellant said they had differences with thecomplainant's mother and that she blamed them for her separation withher husband.

12. The trial court found all the Appellant guilty and convicted 1st , 3rd and 4th Appellants and sentenced them to life imprisonment. The 2nd Appellantwas convicted and sentenced to 20 years imprisonment for attempteddefilement.

13. The Appellants have appealed against conviction and sentence on the following grounds. I have consolidated the grounds for the 1st ,3rd and 4thAppellants as follows:-

(i) THAT the learned trial magistrate erred in law and fact in convicting me the appellant without considering that thecharge sheet which was relied upon to convict the appellantswas fatally and incurably defective contrary to section89,134,137, (a) (i) (f), 214, 275(1)and 276(1) of the CPC.

(ii) THAT the learned trial magistrate erred in law and fact in convicting the appellants without considering that the AGE ofthe complaint was not ascertained beyond any reasonable doubtto warrant the conviction thus contravening to section 8(2) ofthe sexual offences Act NO. 3 of 2006.

(iii) THAT the learned trial magistrates erred in law and fact by convicting the appellants without considering that the burdenof proof in the present case was not established beyond anyreasonable doubt contrary to section 36(1) of the sexualoffences Act.

(iv) THAT the learned trial magistrate erred in law and fact in convicting the appellants without considering that theevidence adduced and subsequently put in the committalproceedings were full of invariance's and contradictions thatdid not reconcile nor corroborated to warrant the conviction ofthe appellants thus contravening to section 153 and 154 of theevidence Act.

(v) THAT the learned trial magistrate erred in law and fact in convicting the appellants without considering that the exhibitsmentioned In the present case was not brought in court forexamination i.e. the clothes smeared with semen thuscontravening section 63 of the evidence Act and Article 159

(2) (a) (d) of the constitution.

(vi) THAT the learned trial magistrate erred in law and fact in convicting the appellants without considering that the keywitnesses who were subsequently mentioned in the present casewere never compelled to appear before court to clear the doubtupon the prosecution contrary to section 144 and 150 of theCPC.

(vii) THAT the learned trial magistrate erred in law and fact inconvicting the appellants without giving weight to the alibidefences advanced by the appellants which were credibleenough to be vindicate them thus contravening to section 212as read with section 235 of the C.P.C.

14. The grounds of Appeal for the 2nd Appellant who was sentenced to 20 years imprisonment were as follows:-

(i) THAT the trial court erred in law and fact by convicting and sentencing the 2nd Appellant to 20 years imprisonment byfailing to note that the charge sheet was fatally defective underSection 136 (a) (b) of the CPC which rendered the convictionunsafe.

(ii) THAT the trial court erred in law and fact by convicting and sentencing the 2nd Appellant to 20 years imprisonment byfailing to note that the age of the victim was not proved beforecourt by any document rendering the conviction and sentenceunsafe.

(iii) THAT the trial court erred in law and fact by failing to note that the source of the 2nd Appellant's arrest was not established tohave any connection with this offence in question as thearrester/s was not summoned to testify and clear the doubts ofmy arrest.

(iv) THAT, the hon. learned trial magistrate erred in law and by convicting and sentencing to the 2nd Appellant 20 yearsimprisonment without seeing that section 214 as read withsection 275(2) of the CPC was not complied with.

(v) THAT the trial court erred in law and fact by failing to note that Section 50(1) (2) as read with Section 70 of the Evidence Actwas not complied with.

(vi) THAT the trial court erred in law and fact when upholding the conviction and sentence by failing to note that Section 216 ofthe CPC was not complied with.

(vii) THAT the trial court erred in law and fact by convicting and sentencing the 2nd Appellant to 20 years imprisonmentwithout considering that this was harsh contrary to Article50 (p) of the constitution.

(viii)T HAT the trial court erred in law and fact when upholding the conviction and sentence by failing to take into account thedefence by the 2nd Appellant.

15. The Appellants submitted in writing and I have consolidated their submissions as follows:-

(i) That the charge sheet was fatally defective in that it did not agree with the evidence and the word 'boy' of 'girl' was omitted.Further that the charges were the same yet the complainant wasalleged to have been defiled in 4 different places.

(ii) That no age assessment report or birth certificate was produced in respect of the complainant and therefore the age of thecomplainer was not proved.

(iii) That section 36 of the sexual offences Act was not complied with in that no samples were taken from both parties to besubjected to forensic testing to establish whether the Appellantshad committed a felony or not and therefore the prosecution didnot prove its case to the required standard. That the Doctor whofilled the P.3 was not called.

(iv) That Key witnesses were not called to testify such as the complainant's father and Mama N who was staying withthe complainant before she went to stay with her father.

(v) The Appellants also submitted that their defence evidence was not taken into consideration.

16. The Respondent submitted orally in court as follows:-

(i) That the charge was not defective and in the unlikely event thatit was defective, section 90 (2) and 382 of the C.P.C states thatthe same is not fatal and further that the said issues were notraised before the trial court.

(ii) On the issue that the age of the complainant was not proved, the Respondent submitted that the trial took place one year afterthe incident and that at the time of the offence, the complainantwas 10 years old having been born on 24/06/2015.

(iii) On the ground that section 26 (1) of the sexual offences Act was not complied with, the Respondent submitted that the courtmade an order that the HIV status of the Appellants beestablished. That the report for all the Appellants was negative, while the complainant was HIV positive.

The Respondent submitted that the Appellants were not charged with transmitting HIV to the complainant.

(iv) On the ground that the evidence on record is full of variances,the Respondent submitted that no such variances were broughtout by the Appellants.

(v) On the issue that the Doctor who filled the P3 form did not produce it, the Respondent submitted that a basis was laid forthe production of the P3 by PW3 as the Doctor who filled it wasaway on maternity leave.

(vi) On the ground that the prosecution did not discharge the burden of prove, the law is very clear that in sexual offences,the court can convict on the evidence of a minor alone forreasons to be put on the record. In the current case, theevidence of the complainant was corroborated by that of hermother.

(vii) On the ground that vital witnesses were not called, the Respondent submitted that the prosecution called a total of 6witnesses and their testimony was sufficient to prove the case tothe required standard.

(viii) On the last ground that the defence evidence was not taken into account, the Respondent submitted that the court foundthat the complainant had no reason to begrudge anyone for anyreason.

(ix) Finally, the Respondent submitted that the 2nd Appellant was convicted of an attempt to defile the complainant because heescaped and did not complete the act because the mother of thecomplainant knocked on the door and he ran away.

17. I have considered the evidence adduced before the trial court. This being a first appeal, it is the duty of this court scrutinize, re-evaluate and analyzethe evidence submitted in the lower court and arrive at its ownconclusions making allowance for the fact that it did not have the benefitof seeing the witnesses testify in line with the decision in the case of Okenov. R whereby it was held that "An appellant on a first appeal is entitled toexpect, the evidence as a whole to be submitted to a fresh and exhaustiveexamination and to the appellate court's own decision on the evidence. Thefirst appellate court must itself weigh conflicting evidence and draw itsown conclusions."

18. My findings are as follows:-

(i) The three elements of defilement were proved namelypenetration, identity of the perpetrators and the age of the

complainant.

The court was right in relying on this testimony of thecomplainant order section 124 of the Evidence Act.

(ii) The complainant knew all the Appellants who were her relatives and neighbors. PW2, the Appellant's mothercorroborated the evidence of the complainant. The 1s and 2ndAppellants were neighbors While the 3rd and 4th Appellants wererelatives.PW3, the mother of the complainant stated on page 16 of theproceedings as follows:-

"Accused 4 was a boyfriend to my sister, Accused 3 is my husband's step brother and Accused 2 is a neighbor. Accusedone (1) was mentioned by the child".

(iii) I find that the age of the complainant was proved by the Production of the child health card which shows that thecomplainant was born on 24/06/2005 and therefore she was10 years at the time of the alleged offence in January 2015.

(iv) I also find that the court considered the defence evidence by the Appellants and found that the complainant had no reason tobegrudge anyone for any reason.

At page 10 of the judgment the court stated as follows:-

"This court still believes that the complainant was not dropping names at will to implicate anyone....

She had as PW3 and PW4 told the court, been suffering bothphysically and psychologically because of the repeated acts ofsexual abuse she had undergone".

(v) Finally, on the issue that the complainant was found to be HIV positive while the Appellants were found to be HIV negative, Ifind that the Appellants were not charged with transmission ofHIV.

The HIV status of the complainant does not negate the acts of defilement.

(vi) I accordingly find that the convictions herein are secure and the sentences lawful. I dismiss the Appeal and confirm both theconvictions and sentences.

Dated, Delivered and Signed at Mombasa this 14th day ofNovember 2017 in the presence of the parties.

ASENATH ONGERI

JUDGE.