[2013] KEHC 1508 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO. 26 OF 2013

CONSOLIDATED CRIMINAL CASE NO. WITH 29 OF 2013

JOSEPH FUNDI ..….......................................................1ST APPELLANT

KAREM MUKAMI ……………………………………………………. 2ND APPELLANT

VERSUS

REPUBLIC ......................................................................PROSECUTOR

From original conviction and sentence in Criminal Case No.

of 1934 of 2010 at the Chief Magistrate’s Court at Embu by Hon. P. BIWOTT - PM on 4/6/2013

J U D G M E N T

JOSEPH FUNDIandKAREM MUKAMIthe Appellants herein were charged with the following offences;

COUNT 1

Trafficking for sexual exploitation contrary to section 18(1) (b) as read with section 18(2) of the Sexual Offences Act No. 3 of 2006

The particulars as stated in the charge sheet were as follows;

JOSEPH FUNDI 2. KAREM MUKAMI: On the 12th day of October 2010 at Gichegere village, Gichegeri sub-location within Embu County, jointly intentionally arranged the travel of MN from Kimangaru to Gichegere believing that the said MN would likely be defiled by JOSEPH FUNDI after the journey.

COUNT II

Defilement of a girl contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No.3 of 2006

The particulars as stated in the charge sheet were as follows;

JOSEPH FUNDI: On the 12th day of October 2010 within Embu County, intentionally caused his penis to penetrate the vagina of MN a child aged 13 years.

Alternative Count

Committing an indecent act with a child contrary to section 11(A) of the Sexual Offences Act No.3 of 2006

The particulars as stated in the charge sheet were as follows;

JOSEPH FUNDI: On the 12th day of October 2010 within Embu County, unlawfully and indecently assaulted MN by touching her private parts.

Both Appellants denied the charges and the matter was heard and they were both convicted as follows;

Count 1 – 2nd Appellant was sentenced to fifteen (15) years

imprisonment

Count 2 – 1st Appellant was sentenced to twenty (20) years

imprisonment.

The Appellants being dissatisfied with the Judgment have filed this appeal raising the following grounds;

1st Appellant

The Appellant pleaded not guilty before the trial Magistrate

The learned trial Magistrate erred in law and facts when he failed to consider that the trial consisted of a single witness.

The learned trial Magistrate erred in law and facts when he failed to consider that the Appellant was not examined to clear the doubts.

The learned trial Magistrate erred in law and facts when he relied on an evidence of hearsay in convicting the Appellant.

The learned trial Magistrate erred in law and facts when he failed to consider that vital witness who received the first report was not called to testify.

The learned trial Magistrate erred in both law and fact when he failed to consider that the complainant denied having recorded the statement in police station.

The learned trial Magistrate erred in both points of law and facts when he failed to consider that NO exhibit was found in possession of the Appellant during the arrest.

The learned trial Magistrate rejected the Appellant’s defence on weak reasons and thus violated section 169 (1) of Criminal Procedure Code.

2nd Appellant

The Appellant pleaded not guilty before the trial Magistrate

The learned trial Magistrate erred in law and facts when he failed to consider that alleged complainant was not with Appellant during the alleged offence and have never involved in the said offence as he was charged.

The learned trial Magistrate erred in law and facts when she convicted the Appellant without considering that the evidence testified was inconsistence and uncorroborative.

The learned trial Magistrate erred in law and facts when he failed to consider that there was grudge between Appellant and complainant’s parents as result of family conflicts due to land dispute and Appellant complained in Court and Magistrate ignored.

The learned trial Magistrate erred in law and facts when he convicted the Appellant without considering that there was no eye witness who testified in Court that he witnessed the Appellant’s involvement in the alleged offence as charged.

The learned trial Magistrate erred in both law and fact when he rejected the Appellant’s defence without cogent reasons for convicting Appellant.

The learned trial Magistrate erred in bot points of law and facts when he failed to consider that there were no any written document produced in Court to support that Appellant was residing with complainant during or before the alleged offence happened.

The facts of this case are that PW1 shown as an adult by the learned trial Magistrate at page 20 line 1 accompanied the 2nd Appellant to Gichegere. She was going to collect her shoes which the 2nd Appellant had taken away. They arrived at the 2nd Appellant’s home at 7pm. They had on the way met with the 1st Appellant. Later the 1st Appellant came to the 2nd Appellant’s home. The 2nd Appellant then asked PW1 to go with the 1st Appellant’s to his home and collect alcohol for her. They left and she did not return as the 1st Appellant locked her in the house and removed her trouser and pants and defiled her. She was screaming but he did not stop. A lady came outside inquiring but the man just threatened her. She slept in the house of the 1st Appellant until morning. She sneaked when he went to buy milk. She went to the home of PW2 to whom she explained what had befallen her. PW2 gave her a skirt to wear. She took the girl to the subarea. She was then taken to hospital and the matter reported to the police.

The 1st Appellant in his unsworn defence denied the charges. He explained that he was away on duty when the incident occurred.

The 2nd Appellant denied the charge. She knew the complainant who inquired from her about the 1st Appellant. She admits meeting the 1st Appellant that day and later the complainant and 1st Appellant had supper at her home and they left together.

This is a 1st appeal and this Court is enjoined to re-evaluate the evidence and come to its own conclusion. It should also bear in mind that it did not see nor hear the witnesses. I am guided by the cases of;

OKENO –V- REPUBLIC [1972] EA 32

KINYANJUI & ANOTHER –V- REPUBLIC [2004]2 KLR 364

KIILU & ANOTHER –V- REPUBLIC [2005]1 KLR 174

The Appellants in their written submissions question the medical report and the dates therein. They further argue that the learned trial Magistrate was wrong in relying on the evidence of a single witness. M/s Ingahizu learned State Counsel for the state conceded the appeal on three (3) grounds.

The age of the complainant was not proved.

Defilement was not proved. And a P3 was not produced.

No other offence was proved.

I have considered all the submissions by the Appellants and the State, the grounds of appeal and the evidence on record. The two counts on which the Appellants were convicted are interrelated. Count 1 is actually dependent on count 2. If it is proved that the 1st Appellant defiled PW1 then the Court can look at count 1 to confirm if indeed the 2nd Appellant was involved. I have looked at the grounds raised and they are all about the weight of the evidence. I will therefore consider them together with the submissions by the State. The 1st issue I will deal with is whether PW1’s age was proved. The charge sheet in its particulars shows that as at 12/10/2010 PW1 was aged 13 years. When she appeared before the Court on 17/6/2011 the Prosecution indicated at page 19 that he had one witness aged 14 years. However when the hearing started the Court noted at page 20 line 1;

“PW1 FEMALE ADULT CHRISTIAN SWORN STATES IN KIEMBU/KISWAHILI”

Its either she was aged 14 years or she was an adult. There was no evidence adduced before the Court to confirm the age of PW1 as noted by the learned State Counsel. The offence of defilement under section 8(1) as read with section 8(3) Sexual Offences Act stipulates the sentence pegged on the age of 12-15 years. Age had therefore to be proved. Was defilement proved? PW1 said she had been defiled. She reported to PW2 who took her to the subarea. The medical evidence produced before the Court is so wanting. PW7 who produced these documents was not the one who examined PW1. He just states that the girl was sexually assaulted but there is no evidence to prove that. A perusal of the P3 Form produced EXB3 shows the following under section C;

NORMAL EXTERNAL GENITALIA, NO NOTED REGIONS OF INFLAMMATION OR TEARS. WHITE DISCHARGE

WHITE DISCHARGE SAMPLE FOR HIVS COLLECTED FOR MICROSCOPY AND CULTURE”

This is a girl who is said to have spent the whole night in the 1st Appellant’s house being forcefully defiled. The above results are not a reflection of the complaint by all standards. The examination of PW1 was done on 12/10/2010 after she came from the said home. Is it possible that there could be no tears, bruises inflammation etc? It was the duty of the learned trial Magistrate to make a finding on this aspect based on the evidence adduced. A vaginal discharge per se is not proof of defilement or rape.

All the witnesses from PW2, PW3, PW4 and PW6 all talk about the subarea who did not testify. From the evidence on record PW1 appears to be a child in actual need of care and protection. PW6 says they used to stay with her but no longer do so. So where does she stay? In her defence the 2nd Appellant says she met her and appears to have been being directed by her instead of it being the other way round. All in all it is clear that the offence of Defilement was not established. The basis of the charge in the 1st count was that the 2nd Appellant was getting PW1 for the 1st Appellant to go and have sex with her. Without proof of the defilement then even count 1 cannot stand. I agree with the learned State Counsel that neither Defilement nor any other offence had been proved by the Prosecution. The result is that the appeal is allowed and the convictions are quashed. The sentences are set aside. The Appellants to be set free unless otherwise lawfully held under separate warrants.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 7TH DAY OF NOVEMBER 2013.

H.I. ONG'UDI

J U D G E

In the presence of;

M/s Ing’ahizu for State

Appellant

Njue – C/c