[2023] KECA 1560 (KLR)

Mbuvi v Republic (Criminal Appeal 43 of 2021) [2023] KECA 1560 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KECA 1560 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Criminal Appeal 43 of 2021

MSA Makhandia, AK Murgor & S ole Kantai, JJA

December 8, 2023

Between

Ezekiel Sammy Mbuvi

Appellant

and

Republic

Respondent

(An appeal from the Judgment of the High Court of Kenya at Machakos (Mutende, J.) dated 12th February, 2015 in HCCRA No 78 of 2011 Criminal Appeal 78 of 2011 )

Judgment

1. The appellant, Ezekiel Sammy Mbuvi, was charged before the Chief Magistrates Court, Machakos, with the offence of defilement contrary to section 8(3) of the Sexual Offences Act it being alleged in the charge sheet that on 31st day of August, 2009 at the place and time named in the charge sheet he defiled “DMM”, a girl aged 12 years by unlawfully and intentionally penetrating the genital organ of the said girl. He was charged in the alterative with the offence of indecent act with a child contrary to section 11(1) of the said Act it being alleged that on the said day and place he indecently assaulted the said girl by touching her vagina using his penis.

2. The facts that were established and accepted by both courts below were that on August 31, 2009 “DMM” (PW1) was at home lying in bed when at 4. 00 p.m. she heard her younger brother ushering in a person who had knocked on the door. That person was the appellant, a person she knew before because he worked in the neighbourhood. The appellant entered the house, undressed himself, picked her from the bed, removed her clothes, placed her on the floor and defiled her. She felt pain but could not scream as the appellant had covered her mouth using his hand. While she was being defiled two women, Jane and Carol, came to the compound wanting to buy vegetables. When the appellant saw them he dressed up quickly and ran away. She dressed up and when questioned by the 2 women what she had been doing with the appellant:“... I told them that accused had defiled me ...”

3. When the women left the appellant came back to the home, confronted “DMM” on what she had reported to Jane and Carol. He held her by the hand, forced her onto a handcart which was in the compound and he defiled her again. She informed her auntie the next day and was taken to Machakos General Hospital where she was examined by Dr Edwin Mwachama (PW5) who found healing bruises from the vagina and the hymen had been penetrated. The doctor produced P3 Form into evidence.

4. Carol (PW4) confirmed that she went to “DMM’s” home on August 31, 2009 to buy vegetables when she found the appellant caressing DMM and was touching her breasts. The appellant ran away on seeing her and her colleague.

5. PMS (PW3), a pupil at a local school, testified that on the material day he also went to DMM’s home to buy vegetables. He could hear voices from the handcart and when he approached the handcart he found:“... Accused was lying on top of PW1 as PW1 laid facing up. Then accused and PW1 didn’t have clothes ... I ran away and went home ..."He knew both DMM and the appellant before as they all resided in the same neighbourhood.

6. There was also the testimony of IMM (PW2) who had employed the appellant’s father as a worker at her Konza farm. She received information through a telephone call on September 3, 2009 that DMM had been defiled. She travelled home and found the appellant grazing cattle at her farm, something she did not approve. The appellant removed the cattle from the farm. When she questioned DMM the latter confirmed to her that the appellant had defiled her on August 31, 2009. It is she who took DMM to Machakos General hospital for examination. She testified that DMM was born on November 26, 1997. She led police to arrest the appellant who worked in the farm next to hers.

7. The investigations officer PC Grace Otieno (PW6) of Machakos Police Station testified that a case of defilement had been reported. She received DMM and upon interrogation she established that the appellant had defiled her twice on August 31, 2009. Witness statements were taken and the appellant was arrested and charged. This witness produced DMM’s health card into evidence to prove her age.

8. Put on his defence, the trial court being satisfied that the appellant had a case to answer, the appellant in an unsworn statement stated that on September 2, 2009 he went to the Konza farm where he allocated duties to workers. He gave some bulls to DMM’s father to use for tilling land. Later that day an elder from the area destroyed his farm boundary threatening that the appellant would not be allowed to put up any structure at the farm. According to him PW2 was bitter with him for grazing cattle in her farm and had threatened that he would be jailed. On a later date PW2 went to the farm with her driver who beat up the appellant and stole Ksh.10,000 from him. He denied committing the offence.

9. The trial court was satisfied that the case for the prosecution had been proved to the required standard and the appellant was convicted on the main charge and sentenced to serve 20 years imprisonment. A first appeal to the High Court of Kenya at Kitui was dismissed in a judgment delivered by Mutende, J on February 12, 2015.

10. The appellant is dissatisfied with those findings and has filed this second appeal through homemade memorandum of appeal where 7 grounds of appeal are set out. It is said that the trial magistrate erred in law and facts by relying on a defective charge sheet contrary to section 214(1) of the Criminal Procedure Code; that the trial Judge erred in law and fact by admitting“... shoddy investigations that was not sufficiently presented by prosecution side ...;that the trial Judge erred in law by convicting the appellant on fabricated evidence; that the trial Judge accepted testimony of coached witnesses; that the Judge erred by holding that the case had been proved to the required standard; that the Judge erred by overlooking that there was a grudge between the appellant and PW2 involving a land dispute and, finally, that the Judge erred in law and fact by failing to observe:“... the medical evidence which was unsatisfactory as it was gathered after the lapse of time required by the law to support defilement ...”.

11. Our mandate in a second appeal like this one is circumscribed by section 361(1) (a) Criminal Procedure Code to consider only issues of law if we find that there are any raised in the appeal. It was held by this Court on that mandate in the case of Stephen M'Irungi &another v Republic [1982-88] 1 KAR 360:“Where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed finding of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law."

12. When the appeal came up for hearing before us the appellant appeared in person from Kitengela prison while learned counsel Mr Muriithi appeared for office of Director of Public Prosecutions. Both sides had filed written submissions. The appellant complained that the date the offence was committed was different in charge sheet from the evidence recorded. He pleaded that he was a family man and should be allowed to rejoin his family.

13. We have perused and considered written submissions.

14. In terms of our mandate the only issue of law we can find from Memorandum of Appeal and submissions is whether the case by the prosecution was proved to the required standard to warrant conviction of the appellant.

15. DMM testified that she was lying in bed when the appellant entered the house, put her on the floor and defiled her. As this was going on, Carol accompanied by one Jane, who had come to the home to buy vegetables found them in the act. There is evidence that the appellant, who was well known as a neighbor by DMM and Carol, ran away. When the two women left the compound the appellant came back and proceeded to defile DMM a second time and this time they were found (in the handcart) by PW3, a young boy who after noticing the strange act of the appellant and DMM naked in the handcart ran away. There was medical evidence by Dr Mwachama that DMM had been defiled. The age of the victim was proved as required in law. The appellant’s defence that there was a grudge between him and PW2 involving a land dispute did not shake the strong case made by the prosecution that he had defiled DMM. We agree with the High Court that the case by the prosecution was proved beyond reasonable doubt and the appellant was properly convicted. There is no merit in this appeal which we dismiss accordingly.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER, 2023. ASIKE-MAKHANDIA............................JUDGE OF APPEALA.K. MURGOR............................JUDGE OF APPEALS. OLE KANTAI............................JUDGE OF APPEALI certify that this is a true a copy of the originalDEPUTY REGISTRAR