[2022] KEHC 11685 (KLR)

Masinde v Republic (Criminal Appeal 11 of 2020) [2022] KEHC 11685 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11685 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal 11 of 2020

LK Kimaru, J

May 17, 2022

Between

Bernard Magina Masinde

Appellant

and

Republic

Respondent

(From original conviction and sentence in criminal case S O no 153 of 2018 of Chief Magistrate's Court at Kitale delivered on December 18, 2019 by Hon D Wangeci -PM & DK Mtai-SRM)

Judgment

1. The appellant, Bernard Magina Masinde was charged with the offence of attempted defilement contrary to section 9(1) and 9(2) of the Sexual Offences Act. The particulars of the offence were that on September 15, 2018 at [Particulars Withheld] centre, the appellant attempted to cause his penis to penetrate the vagina of EN, a child aged 11 years. He was alternatively charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in the same place, the appellant intentionally touched the vagina of EN a girl aged 11 years with his penis. When the appellant was arraigned before the trial magistrate’s court, he pleaded not guilty to the charge. After full trial, he was convicted of the main charge of attempted defilement. He was sentenced to serve 5 years imprisonment. He was aggrieved by his conviction and sentence. He has filed an appeal to this court.

2. In his petition of appeal, the appellant raised several grounds of appeal challenging his conviction and sentence. He faulted the trial magistrate for convicting him on the basis of uncorroborated, imaginary, self-contradictory and unreliable evidence. He was aggrieved that all witnesses who could have assisted the court to reach the truth were not called by the prosecution to testify in the case. These witnesses included the complainant’s uncle and other children who were said to have been at the scene when the offence is alleged to have been committed. The appellant was aggrieved that the trial court ignored material contradictions between the key witnesses which rendered the evidence adduced not worthy of credit. The appellant pointed out that the circumstances adduced in evidence did not reveal the assertion by the prosecution that the appellant indeed intended to defile the complainant. The appellant complained that the trial court had misapplied the applicable principles and therefore reached the erroneous verdict that the prosecution had established its case to the required standard of proof. The appellant was aggrieved that the trial court has shifted the burden of proof to the appellant thereby reaching the erroneous determination that he had committed the offence. In the premises therefore, the appellant urged the court to allow the appeal, quash the conviction and set aside the sentence that was imposed upon him.

3. During the hearing of the appeal, this court heard the oral submission made by Mr Ngeiywa for the appellant and Mr Omooria for the state. Mr Ngeiywa submitted that the evidence adduced by the prosecution witnesses was riddled with serious contradiction that went to the root of the credibility of the prosecution’s case. In particular he pointed out that the testimony of the complainant and that of her mother and the medical evidence were contradictory. He submitted that the evidence of the complainant and her mother regarding the circumstances in which the complainant is said to have been found inside the appellant’s motor vehicle was so at variance that the only inference that can be drawn is that the evidence was fabricated. Learned counsel submitted that the initial claim by the complainant that she had been sexually assaulted was debunked when the complainant was seen by the doctor immediately after she was taken for medical checkup by the police at Cherengany Sub County Hospital. The complainant testified that the doctor had confirmed that nothing had happened. However, when the complainant was brought to Kitale County Referral hospital, a different medical report was written stating that the complainant had been defiled. Learned Counsel wondered if that was the case, why the appellant was not charged with defilement instead of attempted defilement.

4. Learned counsel for the appellant took issue with the trial court’s definition of “attempt”. He submitted that the trial court has misinterpreted the definition of attempt which was basically the definition of attempted murder and not the definition of attempted assault. In the circumstances, the trial court’s analysis of the evidence went off tangent and led to the erroneous verdict that the prosecution has proved its case to the required standard of proof. He relied on several decisions in support of his submission that the trial court had shifted the burden of proof from the prosecution to the defence. He urged the court to find that the evidence of the prosecution witnesses was incredible and inconsistent to the extent that it could not form a basis for a conviction in respect of the charge that was brought against the appellant.

5. Mr Omooria for the state opposed the appeal. He submitted that the charge of attempted defilement was proved to the required standard. The prosecution established the age of the complainant. The testimony of the complainant as regard to what transpired inside the appellant’s motor vehicle was cogent and was corroborated by the testimony of her mother. Medical evidence adduced supported the charge. The appellant’s defence was found to be untruthful. Mr Omooria submitted that the trial court properly appreciated the law and indeed relied on authorities that proved “intent” and “attempt”. The evidence adduced by the prosecution witnesses was properly corroborated. Sufficient witnesses were called to establish the case. The prosecution had no need to call any other witness. In the premises therefore, the prosecution urged the court to disallow the appeal and uphold the conviction and the sentence of the appellant.

6. This being a first appeal, it’s the duty of this court to reconsider and to re-evaluate the evidence adduced before the trial magistrate’s court so as to reach its own independent determination whether or not to uphold the conviction. In doing so, this court is required to be conscious of the fact that it neither saw nor heard the witnesses as they testified. (See Okeno vs Republic [1972] EA 32) In the present appeal, the issue for determination by this court is whether the prosecution established the appellant’s guilt on the charge of attempted defilement to the required standard of proof beyond any reasonable doubt.

7. For the prosecution to establish the charge of attempted defilement, it must establish the following as per Mativo J in Moses Kabue Karuoya vs Republic [2016] eKLR:“Thus, for there to be an attempt to commit an offence by a person, that person must:-a.Intend to commit the offence;b.Begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve;c.Do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence”.

8. Asike Makhandia J (as he was then) held thus in Abraham Otieno Vs Republic Kisii HCCRA No 53 of 2009:“For an offence of attempted rape to be deemed to have been committed under the section, the prosecution must prove that the culprit acted in such a manner that there was no doubt at all as to what his intention was. The intention must be to rape. It must be shown that he was about to rape the victim but was stopped in tracks and or in the nick of time. The intention to rape must be manifest. Such intention can be manifested for instance by word of mouth or conduct of the culprit. If the culprit proclaims his intention to rape and directs his efforts towards that goal for instance, by holding the victim or pushing her to the ground, undressing her, removing her pants if at all and also unleashing his male genital organ in preparation thereof but for one reason or another something happens which compels him to stop, again that would be good evidence of attempted rape.”

9. In the present appeal, in a bid to prove the charge of attempted defilement, the prosecution called PW1 GNO, the mother of the complainant and EN the complainant (PW2). EN testified that on September 15, 2018 at about 6. 00 pm, she requested her mother PW1 to go to the Catholic Church to see the priest. EN was an alter girl and used to assist the priest to prepare for mass. The complainant testified that when she went to the church, she found the priest (the appellant) in his vehicle. The appellant asked her to sit inside the motor vehicle. He asked her to undress, she refused. He removed her clothes and forcefully slept on her. He pulled down his trousers and inner wear and slept on her. He then did “tabia”. She tried to get out but he held her inside the car. She screamed. She saw her mother and her uncle standing outside the car. She managed to get outside the car. Her mother started screaming. PW1 testified that when she reached the church, “ I saw the leg of my child hanging outside the vehicle and finally saw my child. I screamed. The vehicle’s door was open. When I got close the priest was at the back seat. A crowd gathered around. I ran to the police station and reported and the priest was sitted at the back seat.” PW1 testified that when the complainant was questioned, the complained told them that the appellant had told her to remove her panty and he lay on her. From PW1’s evidence, it was clear that the complainant was fully clothed when she arrived at the church.

10. PW4 PC John Mwende then based at Kipsaina police post, testified that on September 15, 2018 at about 8. 00 pm he had a scream emanating from the direction of the church. The person that was screaming was PW1. She requested the police to go and see what the appellant had done to her daughter. When he arrived at the scene, the complainant told her that the appellant had removed her clothes and had had sex with her. He escorted the appellant and the complainant to Kachibora police station. He checked the vehicle to establish whether there was any evidence to support the complainant’s claim. He found nothing. PW5 CPL Joseph Ngaira of Cherengany police station testified that on the material night of September 15, 2018, he was on duty at Cherengany police station when he was informed that the Appellant had defiled the complainant. The complainant was taken to Cherengany sub county hospital where she was medically examined. The medical officers found nothing to suggest that the complainant had been defiled.

11. The complainant was later taken to Kitale County Referral Hospital on the following day. It is there that the clinical officer observed that the complainant had bruises on her private parts but her hymen though torn, was old looking. There was no spermatozoa seen. This evidence is consistent with the fact that the complainant may have had a previous sexual experience other than what she alleged occurred the previous day.

12. When the appellant was put on his defence, he denied sexually assaulting the complainant. While conceding that he had spoken with the complainant while inside his car, he denied that he requested her to remove her clothes or that he had taken the complainant’s cloth off. He stated that the reason why he spoke to the complainant was because he was concerned of her health having previously noted that she had a chest infection. She had given her mother kshs 3000/- to take her to hospital. Unfortunately he confirmed from the complainant that the mother did not do as she had promised. The complainant then alighted from the motor vehicle. It was then that the mother arrived at the church and started screaming that he had defiled the complainant. PW1 was accompanied by the complainant’s father. He locked himself in the car until the police arrived and took him to the police station. He denied the assertion by the complainant and her mother that he had defiled the complainant.

13. On re-evaluation of this evidence, this court notes certain inconsistences in the evidence of the complainant and her mother. Whereas the complainant testified that her mother found her while inside the car, the mother testified that she found the complainant’s legs hanging out of the appellant’s motor vehicle. Another inconsistency is the claim by the complainant that she screamed when the appellant attempted to remove her clothes. The witnesses at the scene including her mother did not testify that they heard the complainant scream. The complainant testified that the appellant removed her clothes and also removed his clothes before having sexual intercourse with her. When PW1 arrived at the scene, both the appellant and the complainant were fully clothed. At what point did both the appellant and the complainant wear back their clothes if the complainant’s story is to be believed? From the testimony of the complainant and PW1, it was clear that the events described by PW1 and PW2 occurred more or less contemporaneously. The police officer who took the complainant to the hospital about an hour after the alleged defilement, received a report from the medical officers at Cherengany sub county hospital that on medically examining the complainant, they saw nothing remarkable. There was no evidence that the complainant had been defiled. The subsequent medical report prepared at Kitale County Referral Hospital proved that the complainant had had a previous sexual experience noting that although her hymen was broken, it was not fresh. There was no evidence of spermatozoa although the complainant had been examined at the hospital within 24 hours.

14. Further, this court wondered why, if the medical report had indeed indicated that the complainant had been defiled, why wasn’t the appellant charged with defilement instead of attempted defilement? There were critical witnesses who were mentioned by the witnesses who should have been called to support the prosecution’s case. PW1 mentioned that she was with one Tobias and one Brian when they found the appellant at the vehicle with the complainant. These were crucial witnesses who should have corroborated PW1’s testimony as regard to the circumstances that transpired on the material day. This court also observed that in the circumstances where the complainant’s mother was shouting “rape”, it can be inferred that the complainant embellished her story to conform to what the mother had said.

15. Taking into consideration the totality of the evidence adduced by the prosecution witnesses and that adduced by the appellant in his defence, this court is not convinced that the prosecution established its case on the charge brought against the appellant to the required standard of proof beyond any reasonable doubt. There are many gaps in the prosecution’s case that leads this court to conclude that reasonable doubt has been raised that the events narrated by the complainant may not have occurred.The upshot of the above reasons is that the appellant’s appeal is hereby allowed. His conviction is quashed. The custodial sentence imposed upon him is set aside. He is acquitted of the charge. He is ordered set at liberty forthwith and released from prison unless otherwise lawful held. It is so ordered.

DATED AT KITALE THIS 17TH DAY OF MAY 2022. L KIMARUJUDGE