[2024] KEHC 2713 (KLR)

Migwa v Republic (Criminal Appeal E046 of 2023) [2024] KEHC 2713 (KLR) (13 March 2024) (Judgment)

Neutral citation: [2024] KEHC 2713 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Appeal E046 of 2023

DKN Magare, J

March 13, 2024

Between

Jacob Maina Migwa

Appellant

and

Republic

Respondent

(appeal against the original conviction and sentence dated 30th September, 2021 at Mukurweini Magistrates Court S.O. No. 19 of 2020 by the Hon. D. K. Matutu, PM)

Judgment

1. This is an appeal against the original conviction and sentence dated 30th September, 2021 at Mukurweini Magistrates Court S.O. No. 19 of 2020 by the Hon. D. K. Matutu, PM. The Appellant was charged on 9/9/2020 with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The charge sheet read as doth: -“On the 29th day of August, 2020 at around 0400hrs in Nyeri County, he intentionally caused his penis to penetrate the vagina of E.W.M. a child aged 13 years. He also faced an alternative count wherein he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. ”

2. He had been arrested on 4/09/2020. He was released on bond of Ksh.100,000/=. After several false starts, the matter proceeded before the Hounurable Dennis Matutu, PM.

3. The minor stated that she was born on 10/3/2007. She continued that the Appellant came to their home where he had worked for 2 years. Her mother requested the minor to roast maize and she refused as she did not want to light fire. The mother beat the minor and as a result she ran to an open field. The appellant asked her to go to the appellant’s house. she went there and slept. At 4. 00 am he opened the door from outside, entered the room, removed her skirt and black tight skin. He removed the minor’s clothes and had sex with her using a condom.

4. The Assailant told the minor not to tell anyone. He sent the minor to go for clothes which she went for when the mother was away. The minor went and fetched clothes and came back. She assured the Appellant that she had not been seen.

5. The mother went to the home and picked her. She did not say anything till three days later at the police station. The minor did not know where her dad was.

6. The Appellant entered a plea of not guilty. The matter proceeded and he was put on his defence. He continued to deny the offence. He was of the view that he was framed.

7. The mother, PW2, testified that she beat the minor after she refused to roast maize. The minor ran away. The following day, she was told that the minor had come and left with clothes. She straight away went to the Accused, without prompting, I may say, and did not find the child. Err she found the child in the kitchen. The minor told her mother that the Appellant, whom she was referring to as Guka, was in the kitchen. She took the minor and left.

8. She said that she went to the police to confirm what had happened. They took the minor to hospital and was examined and found to have been defiled.

9. PW3 gave evidence on how the minor was treated at Mukurweini sub-county hospital on 4/9/2020. The hymen was not freshly broken, there were pus cells, where she was put on treatment. The report she gave was that the child was called and forced into the house. She stated that the hymen was not freshly broken. She produced the documents.

10. PW4 stated that the mother reported her daughter missing on 28/8/2020. This fact was missing from the evidence of PW2. On 4/9/2020, it was reported that the girl was found and taken to Mukurweini police station and thereafter examined by the doctor.

11. The Appellant was found with a case to answer. He testified that on 28/8/2020 he was at home. He came to learn of the defilement when it was reported and he was remanded. His witnesses stated that on the said date, 28/8/2020 they were working. He was preparing a kiln for charcoal burning.

12. The court after hearing the evidence, found the Accused guilty and sentenced him to 20 years imprisonment. The court found that identification was not challenged. He stated that medical evidence by PW3 makes a finding for defilement.

13. The Appellant filed Appeal and set forth the following Grounds of Appeal: -a.That the learned trial magistrate erred in both law and fact in failing to consider that there was disagreement between the Appellant and the complainant’s mother whereby he got into a relationship with her which led to framing him in this case.b.That the learned trial magistrate erred in law and fact by failing to consider that prosecution failed to call crucial witnesses to testify and also being cross-examined by the accused person as provided by the law under Section 163 of the Evidence Act, i.e. John Kariajahi.c.That the learned trial magistrate again erred in both law and fact by failing to consider that the medical examination and the evidence were not done to the required standard as required by the law in Sexual Offences cases.d.That the learned trial magistrate further erred in law and fact by failing to consider that the prosecution’s evidence was fully contradicted and had inconsistencies and critical elements in defilement were not proved to the required standard in law occasioning a serious miscarriage of justice.e.That the trial magistrate erred in law and fact in not considering that the whole prosecution case was riddled with material discrepancies which were capable of unsettling the verdict hence a prejudice.f.That the trial magistrate erred in law and fact by rejecting the Appellant’s evidence without considering that the same was not challenged by the prosecution side contrary to section 169 of the CPC.

Submissions 14. The Appellant filed submissions on 18/1/2024. He raised the issue of bad faith on part of the complainant’s mother, whom he says was the engine behind the alleged offence. He relied on the case of Eliud Waweru –vs- Republic [2019] eKLR.

15. He stated that suspicion alone cannot be a basis for conviction, Sawe –vs- Republic [2003] eKLR. He stated that critical elements of the offence were not proved. He relied on the case of, Francis Ndungu Tweni versus –vs- Republic. Fappyton Mutuku Ngui v Republic [2012] eKLR, where the court stated as follows:

16. He was questioning the identity of the perpetrator. He also relied on the case of Geoffrey Nguka –vs- Republic (1983] ER 106.

17. The prosecution on the other hand relied on the case of Njoroge –vs- Republic [1987] KLR and Okello –vs- Republic. They said there was evidence of penetration. They supported the charge.

Analysis 18. The appeal is in respect of both conviction and sentence. I gave directions this morning for judgment at noon. The duty of the court in respect of criminal Appeals is fairly settled. The duty arises from the burden of proof on parties and the fact that the court did not hear the witnesses.

19. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

20. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

21. In the Case of Okeno Vs. Republic [1972] EA 32, the then Court of Appeal for Eastern Africa, was succinct that in first appeal, it is the duty of this court to re-evaluate the evidence before the trial court and to arrive at its own conclusion whether or not to support the conviction while bearing in mind that the trial court had the advantage of seeing the witnesses.

22. The said duty had also been dealt with earlier by the former Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336, where they posited that: -“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

23. In a case of Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal held as hereunder: -“It has been said over and over again that the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyse it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that. The well known case of Okeno vs Republic (1977) EA 32 which sets out that principle has been referred to in several decisions of this Court and of the High Court. In our view, it does not appear that the learned Judge was alive to those legal requirements or if he was, then he did not apparently put them into practice.”

24. In the case of SA v Republic [2021] eKLR, Justice Grace L. Nzioka stated as doth: -“18. Having considered the entire appeal, I note that, the appellant has raised the following grounds of appeal namely; the charge sheet was defective, evidence was contradictory, crucial witnesses were not called, the trial was unfair and his plausible defence was dismissed. In addressing these issues, I am well guided by the laid down principles that, as the first appellate court, this court should, reconsider the evidence adduced in the trial court, evaluate it itself and draw its own conclusions, bearing in mind that it has neither seen nor heard the witnesses and make due allowance in this respect.

19. The role of the first appellant has been summarized in several decisions inter alia; K. Anbazhagan v. State of Karnataka and Others, Criminal Appeal No. 637 of 2015, Selle & Another v Associated Motor Boat Co. Ltd. & Others (1968) EA 123 and Okeno vs. Republic (1972) EA 32, as follows: -“The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge”

25. In the decision of Alexander Ongasia & 8 others v Republic [1993] eKLR the Court of Appeal held that:-“…...........it is not enough; indeed there is no need, to loudly announce in the judgment that the evidence has been re-evaluated. Such re-evaluation must be apparent on the face of the record and if that is done, then there is no occasion to announce it.........but it is clear to us that he broadly agreed with the conclusions reached by the trial magistrate and he also found as a fact that the evidence against the appellants was overwhelming. We think he was right in his general conclusions and in the circumstances of this case, his failure to analyze in detail the evidence before the trial court did not occasion any failure of justice to any of the appellants.”

26. In the case of Erick Onyango Ondeng’ v Republic [2014] eKLR, the Court of Appeal cited Twehangane Alfred v Uganda, (Crim. App. No 139 of 2001, [2003] UGCA, 6, in which the Court of Appeal of Uganda stated:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

27. According to Phipson on the Law of Evidence, the term ‘burden of proof’ has two distinct meanings:“1. Obligation on a party to convince the tribunal on a fact; here we are talking of the obligation of a party to persuade a tribunal to come into one’s way of thinking. The persuasion would be to get the tribunal to believe whatever proposition the party is making. That proposition of fact has to be a fact in issue. One that will be critical to the party with the obligation. The penalty that one suffers if they fail to proof their burden of proof is that they will fail, they will not get whatever judgment they require and if the plaintiff they will not sustain a conviction or claim and if defendant no relief. There will be a burden to persuade on each fact and maybe the matter that you failed to persuade on is not critical to the whole matter so you can still win.

2. The obligation to adduce sufficient evidence of a particular fact. The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter. This is the evidential burden of proof. The person that will have the legal burden of proof will almost always have the burden of adducing evidence.”

28. What is it then did the prosecution have a duty to proof? They had a duty to discharge the burden of proof on the prosecution. It is a duty that cannot be delegated. In the case of Richard Munene v Republic [2018] eKLR, the Court of Appeal held as doth: -“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.

29. The court of Appeal in Richard Munene v Republic [supra], continued as follows:“We repeat what, in our view is elementary principle of criminal law that, although the prosecution must avail all witness necessary to establish the truth and whose evidence appear essential to the just decision of the case, no particular number of witnesses is required for the proof of any fact; and that the prosecution is not obliged to call a superfluity of witnesses. See Section 143 of Evidence Act and Bukenya & Others V Uganda [1972] EA 549.

30. The foregoing is a restatement of section 143 of the Criminal Procedure Code and as rightly pointed out by the prosecution in Ngugi v Republic (Criminal Appeal 128 of 2019) [2022] KECA 26 (KLR) (4 February 2022) (Judgment), where the court held as doth;“As it has constantly been stated, the prosecution need not call a plethora of witnesses to prove a fact. Indeed section 143 of the Evidence Act reiterates this fact. That in the absence of a provision of the law, no particular number of witnesses is required to prove a fact. In Donald Majiwa Achilwa & 2 Others Vs. Republic [2009] eKLR, this Court stated as follows: -“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses ’evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution.”

31. Having satisfied myself of what is required of the court, I wish to proceed to the next aspect, the ingredients of the main charge for the Appellant, defilement. This is a statutory age connected offence whose punishment diminished with the age of the victim and fizzles out at the age of 18 and transits to a different offence known as rape.

32. In the case of Nicodemus Mutuku Kioko v Republic [2022] eKLR, Justice G. V. Odunga, as he then was stated as doth: -“62. It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.

33. In the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 it was held that:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

34. The foregoing thus settles the elements of the crime of defilement as doth: -a.proof of the age of the complainant,b.proof of penetration andc.proof that the appellant was the perpetrator of the offence.

35. In this case the burden of proof is on the prosecution. It is anchored in the constitutional imperatives of presumption of innocence and the right against self-incrimination. The burden of proof is always on the prosecution and it never shifts to the defence. In Republic v Silas Magongo Onzere alias Fredrick Namema [2017] eKLR, the court, Justice R. Nyakundi, stated as doth: -“As to what constitutes the burden of proof beyond reasonable doubt the case of Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373 provides as follows in a passage alluded to me considered the greatest jurist of our time Lord Denning:“That degree is well settled. It needs not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.”

36. In our criminal justice system there is no duty on the accused to prove anything on the allegations of a criminal nature filed by the state in a court of law.

37. In the case of Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR) (Election Petitions) (20 September 2017) (Judgment) (with dissent- JB Ojwang & NS Ndungu, SCJJ) , the Supreme Court stated as doth: -“The common law concept of burden of proof (onus probandi) is a question of law which can be described as the duty which lies on one or the other of the parties either to establish a case or to establish the facts upon a particular issue. Black‘s Law Dictionary, defines the concept as [a] party‘s duty to prove a disputed assertion or charge….[and] includes both the burden of persuasion and the burden of production. With that definition, the next issue is: who has the burden of proof ...Obligation on a party to convince the tribunal on a fact; here we are talking of the obligation of a party to persuade a tribunal to come into one’s way of thinking. The persuasion would be to get the tribunal to believe whatever proposition the party is making. That proposition of fact has to be a fact in issue. One that will be critical to the party with the obligation. The penalty that one suffers if they fail to proof their burden of proof is that they will fail, they will not get whatever judgment they require and if the plaintiff they will not sustain a conviction or claim and if defendant no relief. There will be a burden to persuade on each fact and maybe the matter that you failed to persuade on is not critical to the whole matter so you can still win. 2. The obligation to adduce sufficient evidence of a particular fact. The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter. This is the evidential burden of proof. The person that will have the legal burden of proof will almost always have the burden of adducing evidence.”

38. In Peter Wafula Juma & 2 others v Republic [2014] eKLR, the court, Justice F. Gikonyo, stated as hereunder: -“Nonetheless, the subject on shifting the burden of proof becomes more complicated when one realizes that the expression ‘’Burden of proof’’ entails; ‘legal burden of proof’ and ‘evidential burden’. The two should not be confused, and I will write something to elucidate on what each entails later. Of instant benefit to this appeal is that, after a long raging debate, dating back to the late part of 1700, on whether or not legal burden of proof could shift under any circumstances, it is now a well settled principle of law that, the legal burden of proof in criminal matters never leaves the prosecution’s backyard. Viscount Sankey L.C in the case of H.L. (E)* woolmington V DPP [1935] A.C 462 pp 481 in a subtle and masterly fashion stated the law on legal burden of proof in criminal matters, that;“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’

39. In the evidence the minor’s minority was not in doubt. The question was whether she was defiled and by whom. She stated that the Appellant did not threaten the Minor. He reportedly gave the minor refuge, not in his house, but the mother’ house. The minor slept till 4 pm when the Appellant opened the door from outside.

40. I am wondering how come the door was not locked, in a house where someone is hiding from her own mother.

41. He stated that he saw the Appellant using a torch. However, she was gagged while all these was happening. He only recognized the Appellant by voice. Strangely in the morning she sneaked out to get her clothes. Why will anyone, sneak back into a house she has been forcefully defiled. It could be a different case, if it is a case where the minor is agreeing to sex, though she has no capacity to consent.

42. Secondly, it cannot be true that in the midst of slumber at 4 pm, someone could effortlessly enter the house. The voice recognition can be wrong. In any case what is needed is cogent evidence how the voice was recognized. In the case of Wamunga vs. Republic [1989] KLR 424 the Court held that:“It is trite law where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility or effort before it can safely make it the basis of a conviction.”

43. The court did not interrogate the question of voice recognition. It did not warn itself the dangers that lurk in such a recognition in the case of George Mwaura Kinyita v Republic [2020] eKLR the Court of Appeal (Okwengu, Warsame & Murgor, JJ.A) had this to say: -“17. There are concurrent findings of the learned Magistrate and the superior court to the effect that the evidence of PW2, the victim of the attack and the only substantive witness, identifying the appellant by walking style and by his voice was adequate to support a conviction. In Mbelle vs. Republic (1984) KLR 626 this Court held:“In dealing with evidence of identification by voice, the court should ensure that: a) The voice was that of the accused. b) The witness was familiar with the voice and recognized it. c) The conditions obtaining at the time it was made were such that there was no mistake in testifying to what was said and who had said it.”

18. Further, this Court in Vura Mwachi Rumbi vs. Republic [2016] eKLR stated:“In the case of Choge v R [1985] KLR 1, this Court held that evidence of voice identification is receivable and admissible and it can, depending on the circumstances, carry as much weight as visual identification. In receiving such evidence, however, care and caution should be exercised to ensure that the witness was familiar with the appellant’s voice and recognized it and that the conditions obtaining at the time the recognition made were such that there was no mistake in testifying to that which was said and who had said it...”In Karani vs. Republic [1985] KLR 290 this Court held that:“Identification by voice nearly always amounts to identification by recognition. Yet here as in any other cases care has to be taken to ensure that the voice was that of the appellant, that the complainant was familiar with the voice and that he recognized it and that there were conditions in existence favouring safe identification.”

19. Therefore, where the prosecution relies on identification the court needs to satisfy itself on the circumstances of that identification. We believe that neither the trial court nor the first appellate court was sensitive to the need to adequately satisfy themselves on the recognition evidence. In Peter Kifue Kiilu & Another vs. Republic [2005] eKLR, this court citing Abdalla bin Wendo and Another vs. Republic [1953], 20 EACA.166 stated:“Subject to certain well known exceptions, it is trite law that a fact may be proved by testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error”.

44. The minor who was reportedly gagged at night and went back to the same house with her clothes to find water being boiled. The other evidence they gave was the minor was dragged. However the child went with her clothes and retuned to where she was accommodated. She did not tell her mother what happened.

45. She also gave evidence that she had not had sex with anyone before. Unfortunately, the hymen was long broken and not fresh. Something was not adding, why carry your clothes to the assailant’s home. There were no bruises. The hymen was not freshly broken according to PW3.

46. The mother testified that she is the one that beat her and she ran away. The story of the Appellant dragging the accused cannot be true. It is a fact that she sought refuge at the Appellant’s home or some other place. There was no evidence of sexual assault. There was no evidence of penetration. No bruises.

47. It is not the kind of finding you expect for someone who has never had sex. It is true that lack of spermatozoa alone is not evidence of non-defilement. The court indicated rather erroneously that the mother chastised the child. The mother actually abused and battered her child who was forced to seek refuge in the home of their former worker. She beat the child for refusing to roast maize.

48. It cannot be that this Appellant was the monster that he was painted to be. At this rate the battering by the mother is treated with kid gloves, there may never be a place for offering refuge for battered children. The mother became a monster to her own child. She was forced to seek refuge. The court was clearly wrong and misapprehended the facts. He stated that the father and mother searched for this minor. The minor testified that the father left when she was in class 1. The mother was lying.

49. There was nothing on the form to show defilement. All medical evidence pointed that there was no penetration. I do not believe that a 13 year old can be defiled forcefully, without any lubrication and suffer no bruise or inflammation.

50. I also find that, if there was anything going on which the state failed to prove. The identity of the assailant was brought to doubt. Whereas everyone else appears certain that it is the Appellant, the Appellant stated that it was due to the voice that he recognized the assailant. To compound the misery, the child who had been defiled, sneaked home to pick clothes. The only activity done by the accused was to warm water for her to bathe. The story of defilement is definitely fabricated.

51. In the circumstances, I find that the conviction is unsafe. I set the same aside and set the Appellant free unless otherwise lawfully held. It is not necessary to go into sentence in view of the finding on conviction.

Orders 1. I make the following orders: -a.The appeal is hereby allowed. The conviction and sentence meted out on 30/9/2021 is set aside and in lieu thereof the Appellant Jacob Maina Migwa is set free forthwith.b.I dismiss the Prosecution’s case in Mukurweini S.O. No. 19 of 2020. c.This file is closed.

DELIVERED, DATED AND SIGNED AT NYERI ON THIS 13TH DAY OF MARCH, 2024. JUDGMENT DELIVERED PHYSICALLY AND THROUGH MICROSOFT TEAMS ONLINE PLATFORm.KIZITO MAGAREJUDGEIn the presence of: -The Appellant in personM/s Ms. Kaniu for the RespondentCourt Assistant - BrianM.D. KIZITO, J.