[2022] KEHC 12513 (KLR)

Michubu v Republic (Criminal Appeal E175 of 2021) [2022] KEHC 12513 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12513 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E175 of 2021

TW Cherere, J

May 19, 2022

Between

Samwel Mutethia Michubu

Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence in Criminal Case S O No E029 of 2021 in the Principal Magistrate’s Court at Tigania by Hon P M Wechuli (SRM) on October 07, 2021)

Judgment

Background 1Samwel Mutethia Michubu (appellant) was charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act no 3 of 2006 (the Act). The offence was allegedly committed on May 05, 2021 against GN a child aged 12 years.

2Appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act no 3 of 2006. It was alleged that on the same day and place, he intentionally caused his penis to touch the vagina of GN a girl aged 13 years.

3In count II, appellant was charged with creating disturbance in a manner likely to cause a breach of the peace contrary to section 95(1)(b) of the Penal Code in that he threatened to kill GN on May 05, 2021.

4The prosecution called six (6) witnesses in support of the charges. PW1 the complainant in her sworn testimony after voire dire stated that she was 13 years old and in class 7. She recalled that on May 05, 2021 at about 07. 00 pm she was coming from the home of met appellant, a neighbour whom she referred to as Mutethia and one Brandon and appellant dragged her into a maize plantation where he defiled her after threatening to kill her with a machete. That he then took her to a certain church where she slept on the benches and in the night, appellant defiled her again. That she returned home the following day but did not report the matter to anyone until June 25, 2021 when she reported the matter to her sister Florence.

5PW3 Alex Mukaria testified that on May 06, 2021 he met the complainant’s mother at her hotel who told her that the complainant had not slept at home and asked him to search for her. He found the complainant seated beside a farm and when he questioned her she started crying and told him that the accused had raped her, when she got home she informed her sister Philomena.

6PW2 Dennis Muthomi M’Nabea a clinical officer examined Complainant on June 27, 2021 and found that her hymen was perforated and she had pus cells which suggestive of penetration and infection respectively. He produced the P3 form as PEX1, treatment notes as PEX2 and Lab PPC as PEX3.

7PW6 PC Kipchumba Elijah on June 26, 2021 received a report of defilement from complainant who was accompanied by her sister and referred complainant to hospital where she was examined and a P3 form was filled. He tendered complainant’s birth certificate as PEX4 which discloses she was born on June 11, 2008. Appellant was arrested on June 27, 2021 by PW4 Titus Kaberia and PW5 Andrew Kinyua and was subsequently charged.

8Appellant in his sworn defence denied the offence. He stated that he went to complainant’s mother’s hotel and paid for food before eating. That her mother demanded more money after he had eaten and when he was unable to pay, he was beaten up, splashed with water and threatened with dire consequences which turned up to be this charges.

9After considering both the prosecution and defence cases, the learned trial magistrate found the prosecution case proved and on November 19, 2021, convicted and sentenced to serve 20 years’ imprisonment in the 1st count and to one-month imprisonment in the 2nd count.

Appeal 10Dissatisfied with both the conviction and sentence, appellant lodged the instant appeal mainly on grounds that the prosecution case was not proved beyond any reasonable doubt and that his defence as not given due consideration.

Analysis and determination 11This being a first appeal, the court is expected to analyze and evaluated afresh all the evidence adduced before the lower court and draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno v Republic [1972] EA 32, Pandya v Republic [1957] EA 336and Kiilu & Another v Republic [2005]1 KLR 174.

12The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant (See C W K v Republic [2015] eKLR).

Age of complainant 13The appellant was found guilty of committing an offence contrary to Section 8(1) as read with section 8(2) of the Sexual Offences Act. The provisions stipulate:1A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.2A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

14It is trite that the age of a minor is a critical component of a defilement charge and that it is an element which must be proved by the prosecution beyond reasonable doubt. (See Kaingu Kasomo vs Republic Criminal Appeal no 504 of 2010).

15Proof of the age of a victim of defilement is crucial because the prescribed sentence is dependent on the age of victim. (See Hadson Ali Mwachongo vs Republic Criminal Appeal no 65 of 2015 [2016] eKLR & Alfayo Gombe Okello v Republic Cr App no 203 of 2009[2010] eKLR).

16That complainant was 12 years old when the offence was allegedly committed was established by her birth certificate PEX4 which discloses she was born on June 11, 2008.

Penetration 17Section 2 of the Act defines penetration to entail: -“partial or complete insertion of a genital organ of a person into the genital organ of another person.”

18The P3 form PEXH. 1. reveals that complainant had a perforated hymen and she had pus cells which was suggestive of penetration and infection respectively and I find that the trial magistrate correctly found that penetration was proved.

Identity of the assailant 19Appellant and complainant were neighbors and appellant was therefore no stranger to the complainant. Complainant was the only witness to the incident.

20In the case of Stephen Nguli Mulili v Republic [2014] eKLR the Court of Appeal had this to say regarding reliance on section 124 of the Evidence Act to convict:“as a general rule of evidence embodied in section 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section makes an exception in sexual offences and provides as follows:“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” (emphasis added).

21The trial court in this case convicted the accused based on the evidence of the complainant. I must acknowledge that it is the trial court that had the privilege to see and hear the witnesses while giving their evidence. It also conducted voire dire examination on the complainant. This court has not had the same privilege.

22The critical question to ask is whether the complainant was indeed truthful. Complainant stated that she did not report the matter to any of her relatives until over a month later on June 25, 2021 when she informed her sister Florence. PW3 on the hand stated that he was present when complainant reported the matter to her sister Philomena on May,2021 which was a day after the incident. Neither Florence nor Philomena testified to explain why the complainant’s complaint against appellant who was their neighbor was not reported to the police immediately it happened. That the matter was not reported because complainant had been threatened is doubtful in view of the evidence by PW3 that he was present when the matter was reported to complainant’s sister on May 06, 2021.

23Further to the foregoing, PW3 stated that he was sent to look for complainant by her mother on May 06, 2021 and when he met her, she informed him that appellant had defiled her. It was only normal to expect that he too must have informed complainant’s mother what complainant told her. His admission to cross-examination by the appellant that he did not inform complainant’s mother what complainant had told her should have created a doubt in the mind of the court.

24Additionally, PW3 stated that the matter was on May 06, 2021 discussed by one Brandon at complainant’s mother’s hotel and there is no evidence that Brandon who is said to be an eye witness informed complainant’s mother of what he witnessed nor was he called as a witness.

25Moreover, appellant raised the defence of alibi that he was not at the scene of crime which evidence was neither controverted nor given due consideration.

26The burden of proof in criminal cases is always on the prosecution. In Elizabeth Waithiegeni Gatimu v Republic[2015] eKLR , Mativo J expressed himself as hereunder:“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

27From the evidence on record, I find that Brandon that would have tied loose ends by placing appellant at the scene of crime was not called to testify. Failure to call crucial witnesses who are known, without explanation for that failure, tilts the case in favour of an accused person in a criminal case (See Bukenya v Uganda [1972] EA 549, at page 550).

28Consequently, I find that had the trial court given due consideration to the appellant’s defence of alibi instead of dismissing it, it might have arrived at a different conclusion and given appellant the benefit of doubt.

29In the end, I find that this appeal has merit and it is allowed. The conviction is quashed, the sentences set aside and it is ordered that appellant be set at liberty unless otherwise lawfully held.

DELIVERED AT MERU THIS 19th DAY OF May 2022WAMAE T WCHEREREJUDGEAppearancesCourt assistant - KinotiAppellant - Present in personFor the state - Ms Mwaniki (PPC)