[2022] KEHC 15911 (KLR)

Malila v Republic (Criminal Appeal E088 of 2021) [2022] KEHC 15911 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15911 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E088 of 2021

GMA Dulu, J

December 1, 2022

Between

Joseph Mutinda Malila

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. J .N. Mwaniki in Makueni Chief Magistrate’s Court CMCR (S.O) Case No.E06 of 2020 pronounced on 5th November 2020)

Judgment

1. The appellant was charged in the magistrate’s court with unnatural offence contrary to section 162(a) of the Penal Code. The particulars of offence were that on February 2, 2020 at about 19:00 hours at Kalawa Location in Mbooni East Sub-County within Makueni County intentionally and unlawfully had carnal knowledge of JMM a boy aged 14 years against the order of nature.

2. He pleaded not guilty to the charge. After a full trial, he was convicted of the offence and sentenced to six (6) years imprisonment.

3. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds –1. That the crime was fabricated on him by the complainant.2. That the crime was inspired by the head teacher and Pw1’s mother.3. That the doctor’s medical examination report did not prove any evidence of sodomy.

4. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.

5. This being a first appeal, I have to start by reminding myself that as a first appellate court, I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – seeOkeno v Republic (1972) EA 32.

6. I have evaluated the evidence on record. At the trial, the prosecution called four (4) witnesses. On his part, the appellant tendered sworn defence testimony and did not call any additional witness.

7. I note that the appellant was charged under the Penal Code and not the Sexual Offences Act, though the offence is of a sexual nature. It appears that the prosecution sometimes chooses to charge under the Sexual Offences Act and sometimes under the Penal Code. In my view, there should be uniformity in charging people for similar acts, as the anus is defined as a sexual organ under section 2 of the Sexual Offences Act.

8. That said, it is worth noting that under the Penal Code, the age of the victim does not statutorily determine the severity of the sentence.

9. The elements of the offence of unnatural act under the Penal Code are sexual penetration through an opening other than the reproductive organ. Secondly, the identity of the culprit.

10. With regard to sexual penetration through the anus, the evidence on record is that of Pw1 JMM who testified that he was penetrated through the anus on February 2, 2020 at about 7pm in the bush. He reported the incident to Pw3, his head teacher FM, some days later. He was thereafter medically examined by Pw4 Dr Lugogo on a date not disclosed in the evidence, but a P3 form was signed on February 10, 2020, and the front page of the P3 form indicates that the victim was sent to the hospital by the police on February 7, 2020.

11. The results of the medical evidence were that nothing unusual was found in the victim’s anus, though he insisted that he had difficulty in discharging faeces.

12. In my view, considering the evidence on record both for the prosecution and the defence, the prosecution did not prove beyond reasonable doubt that the victim was sexually penetrated through the anus; firstly due to the delay in reporting the incident, and secondly, due to the fact that the medical evidence revealed nothing unusual, and thirdly because the investigating officer, a crucial witness in the case was not called to testify.

13. In my view therefore, the prosecution did not prove beyond any reasonable doubt that the victim (Pw1) was sexually penetrated through the anus.

14. I now turn to the issue of the culprit of the offence. Again on this element, I find that though the victim and the appellant knew each other well before as neighbours, there being no proof of the alleged sexual assault, the prosecution did not prove that the appellant was the culprit.

15. This court cannot speculate as to the reason for the victim implicating the appellant, and from the evidence on record, and in the absence of the evidence of the investigating officer without any reason, I find that the prosecution did not prove that the appellant was the culprit.

16. For the above reasons, the conviction of the appellant herein cannot stand. The sentence has also to be set aside.

17. Consequently, and for the above reasons, I allow the appeal, quash the conviction and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.

DELIVERED, SIGNED & DATED THIS 1ST DAY OF DECEMBER 2022, IN OPEN COURT AT MAKUENI.…………………………………George DuluJudge