[2022] KEHC 15433 (KLR)

Mokungu v Republic (Criminal Appeal E004 of 2021) [2022] KEHC 15433 (KLR) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15433 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E004 of 2021

GV Odunga, J

October 18, 2022

Between

Maveline Mokungu

Appellant

and

Republic

Respondent

(Being an appeal against the judgement of Hon B Kasavuli (PM) delivered on 27. 01. 2021 in Mavoko SPM’s Court Criminal Case No 709 of 2015)

Judgment

1. The appellant herein, Maveline Mokongu, was charged in count 1 with the offence of assault causing actual bodily harm contrary to section 250 as read with section 251 of the Penal Code. The particulars were that on the 6th Day of October, at Katani-Mlolongo Township in Athi River Sub-County within Machakos County, wilfully and unlawfully assaulted RN thereby occasioning her actual bodily harm. In count II, the appellant faced the offence of economic exploitation of a child contrary to section 10(1) as read with section 20 of the Children Act, No 8 of 2001. The particulars were that on the 6th day of October, 2015 at Katani Area in Athi River Subcounty, she wilfully and unlawfully engaged RN, a child aged 12 years in a hazardous work namely hose help which was harmful to her physical and mental development.

2. The prosecution called 5 witness in support of its case.

3. After voir dire examination, PW1, the complainant, testified that she was staying in Nyamira with her father after her mother had been arrested for brewing illicit brew. However, her father abandoned her and her two siblings in the plot where they were staying. She was then taken by a neighbour who placed her in a Nairobi bound vehicle. By then, the appellant believed that she was being taken to school. Upon her arrival in Nairobi she was picked by the appellant’s husband and taken to Katani where she found the appellant and her 16 year old brother who told her that she would be carrying out household chores and she would be paid Kshs 500/-.

4. According to the complainant the appellant had three children. She however stated that she was not being paid for what she was doing and she was not attending school. She said that she had worked for a month when on October 6, 2015, the appellant called her at night and told her that she had lost some money. The complainant denied having taken the money. The appellant and her husband then started caning her with a piece of firewood and the appellant tied her hands with a wire till blood started oozing from her head before they left her. According to her, while the appellant was caning her using the firewood, the appellant’s husband was using the wire to cane her. The complainant then ran away and spent the night at the gate.

5. In the morning she was found by some Catholic nuns who took her to their residence and stitched her head at their clinic. However, she was returned to the appellant’s house by the village elder where the appellant insisted that she had stolen her money. The following day, she was collected by the Children’s Officer. Together with the appellant they were taken to Mlolongo Police Station where she explained to them what had transpired after which she was taken to Athi River Health Centre where she was examined and the P3 form filled in for her. According to her, she had sustained head and chest injuries since the appellant’s husband stepped on her chest while beating her. From there, she was taken to Bondeni Children Home.

6. In cross-examination, the complainant admitted that the appellant’s brother, George, gave her some money but she did not know that whether it was the appellant’s and returned it to him. She stated that when the appellant asked for the money, she told her that her brother had the money but te appellant refused to believe and instead started beating her. It was her evidence that when she was in Nyamira, she was going to school in standard 2.

7. PW2, Elijah Mumo Musembi, an administration police inspector testified that on October 6, 2015, he was called by the Assistant County Commissioner, Mose, PW4, who informed of the complainant’s case. In the company of the said Commissioner, the Children Officer, one Faith and the area Chief and the police driver, they proceeded to the appellant’s house where they found the complainant washing clothes. They requested her to call the owner of the house whom they were informed was asleep and was not feeling well. The complainant however woke her up and they conducted preliminary examination of the complainant who told them that she was hit on the head by the appellant and was treated at the Mission Clinic. They proceeded to the clinic where they requested for the records and returned to Mlolongo Police Station. According to their information the complainant had been taken to the clinic while bleeding on the head on October 6, 2015.

8. It was his evidence that the complainant’s wound was still fresh. It was his evidence that the area chief was area of the incident. He stated that they visited the appellant’s house a few days after the incident on October 14, 2015. He stated that there was huge heap of dirty clothes that the complainant was washing. According to the information given to them by the complainant, the appellant was her employer.

9. PW3, Winfred Musembi, a clinical officer at Athi River Health Centre, testified on behalf of Maureen Maitha who examined the complainant on October 14, 2015. According to the report, the complainant sustained a cut wound on the scalp and was iniatially treated at St Francis, Katani. On examination, she had a cut wound on the scalp and had visible stitches that were 4 days old. According to the medical opinion, a sharp object was used in inflicting the injury which was classified as harm.

10. The witness admitted that a piece of wood is not a sharp object.

11. PW4, Reuben Mose, the Assistant County Commissioner on October 13, 2015 received a call from the Deputy County Commissioner, Athi River regarding a complaint that the appellant had assaulted a girl aged 12 years. On October 14, 2015, he visited the area in the company of Faith Kamau, the Sub County Children Officer and PW2. Upon their arrival they found the complainant who was washing clothes and who informed them that the appellant was still sleeping. When the appellant appeared, the sought to know why the complainant was not in school as well as the assault issue. The appellant responded that though she had brought the complainant to enrol her in school, she did not do so due to teachers’ strike. However, the complainant confirmed that she was assaulted on October 6, 2015 at 8pm. They then proceeded to the Hospital where the complainant was treated and saw the medical report. According to the witness, the complainant had visible scar on her head. The complainant informed them that the Sister gave her clothes but the appellant chased her away with the clothes that night and she spent the night at the Hospital and after returning the clothes to the hospital she returned home the following day.

12. PW5, the investigations officer, Cpl Elizabeth Mbithi testified that on October 14, 2015, she was on duty at Mlolongo Police Station when the complainant and the appellant in the company of PW4, PW2 and the Children Officer went to her office. They made a report that the appellant had assaulted the complainant whom she was using as a house maid. She booked the report and issued the complainant with a P3 Form that was filed in. After interrogating the appellant they took the complainant to Bondeni Children Home and charged the appellant with the offence in question. According to the witness there was no teachers’’ strike and yet the complainant was at home when the other pupils were going to school.

13. Upon being placed on her defence, the appellant testified that on September 14, 2015, Mr Makori, a police officer, together with Madam Faith the Children Officer went to her house and informed her that they had gone to arrest her because she had a small child who was not going to school. According to them the child was the complainant aged 12 years. The appellant stated that the complainant was not her child but when she travelled home in Nyamira, she learnt that the complainant was suffering in the village and upon her return to Nairobi, she sent her fare to join her since the complainant only had her mother who had been jailed for selling illicit brew. She stated that the complainant had other three siblings including a 19 year old brother. The complainant joined her in September, 2015 and her intention was to take care of her like her child and to take her to school since she was not going to school at home.

14. On the day of her arrest, the appellant stated that the complainant was not in school since there was a teachers’ strike which ended on 4th October, a Sunday. The appellant stated that she was to do shopping first before taking the Complainant to school on Monday but on that day, she realised that her Kshs 8,000/- was missing in the house. Upon asking the complainant for money, the complainant disappeared from the house. On October 6, 2015, the Chief told her that he had found the complainant outside, injured on the head and the appellant went and took her in after receiving treatment. That day, the appellant was not feeling well and her husband was away in Mombasa.

15. It was the appellant’s evidence that on October 5, 2022, her husband was not at home so he could not have beaten the complainant. The appellant denied that the complainant was washing clothes when the Chief arrived. She denied caning the complainant. The appellant stated that she was also living with the complainant’s brother and that when she asked, the complainant how she got injured, the complainant did not tell her.

16. The appellant disclosed that she had 3 children, the first born being 9 years while the second born was 8 years and she is the one who was doing household chores since she had no house girl. She stated that the complainant came in September, 2015 and ran away on October 15, 2015. According to her there was a strike for one month and though she was to seek for her admission at a primary school, she had not done so.

17. The appellant stated that the complainant could wash utensils and play with the other children. She however admitted that it was not normal for the complainant to run away from home. Thought she looked for the complainant from 7-9pm, she did not tell or ask anybody about the complainant’s whereabouts. She however confirmed that she lost Kshs 8,000/- which she had kept in unused bathroom. She denied that her brother, George was living with her in the same house though he was in the same compound. Because she was not in the house the whole day, she could not tell if her brother, George went into the house. According to the appellant, the complainant told her that she took the money and gave it to George. She however denied that she hit the complainant but admitted that the complainant had head injuries. Though it was her evidence that her husband travelled that day, she had no evidence of that. The appellant stated that she found the complainant in a hospital but she had not been treated but she had no evidence that she paid for her treatment. She however denied forbidding the complainant to wear the clothes given to her by the Sisters and denied that she hired the complainant as her maid and that she exploited her vulnerability.

18. After hearing the evidence, the learned trial magistrate found the evidence of the complainant as to how she sustained her injuries to be truthful and found that it was not necessary to call the appellant’s husband as a witness. Since the incident happened at night the court found that it would be farfetched for the court to assume that the complainant injured herself or that some other person or thing was responsible for her injuries. The court further found that there was no evidence of bad blood between the complainant and the appellant that could have motivated the complainant to fabricate the case against the appellant. She therefore found that the appellant assaulted the complainant and convicted her accordingly. The court further found, on the evidence that even after assaulting the complainant engaged exposed her to very unfriendly conditions as a child while shielding her own children. According to the trial court there was enough evidence on record to prove the second count against the appellant and she was convicted accordingly. The learned trial magistrate proceeded to sentence the appellant to one year in jail in respect of count I and in respect of count II she fined her Kshs 30,000. 00 and in default to serve 6 months in jail, both sentences running consecutively.

19. In this appeal, it is submitted that the only injury that was detected upon examination was sharp injury to the head caused by a sharp object. It was submitted that the complainant left the appellant’s house on October 6, 2015 and the P3 form was filled in on October 14, 2015. It was noted that according to the complainant, she was assaulted by firewood and not a sharp object hence the description of the item used was inconsistent with the injury. It was submitted that the P3 form estimated the age of injury as 4 days old which means that they must have been caused on 10th or October 11, 2015 long after the complainant had left the appellant’s premises.

20. Since the evidence was that the complainant was assaulted by the appellant’s husband, it was submitted that there was no reason why he was not charged

21. According to the appellant, there was no evidence of exploitation adduced by the complainant. To the appellant the short stay of less than 30 days was insufficient to prove exploitation. It was further submitted that the prosecution did not adduce any evidence showing that hazardous work was given to the complainant since the alleged clothes being washed by the complainant were not exhibited.

Determination 22. In this case the prosecution’s case is that in September, 2015, the complainant, aged 12 years was put in a vehicle in Nyamira to travel to Nairobi where she was to join the appellant’s family. Upon arrival in Nairobi, she was picked up by the appellant’s husband and they proceeded to Katani. According to the appellant, in her mind she was being taken to continue with her studies since bother parents were unable to do so. However, upon her arrival at the appellant’s house she was treated as a househelp save that she was not being paid.

23. The trouble started on October 6, 2015, when the appellant alleged that her money had been taken from where she had kept it. When the complainant denied knowledge of the same, both the appellant and her husband descended on her with beatings using a piece of firewood and a wire as a result of which she bled. She however managed to escape and run to the gate where she spent the night. She was picked up by some nuns who took her to their hospital where she was treated. She was then picked up by the village elder who returned her to the appellant’s house. Upon receipt of the information of the incident, PW2 and PW4 in the company of the Children Officer went to the appellant’s house where they found the complainant washing a heap of clothes while the appellant was asleep since she was feeling unwell. They then took the appellant to the police station where after interrogation the police decided to charge her with the present offence having received the P3 form from the medical facility where the complainant was treated.

24. In response to the charge, the appellant while admitting that she caused the complainant to be taken to Nairobi from Nyamira, testified that she did so because she wanted to facilitate the complainant in continuing with her education. However, since the schools were closed due to teachers’ strike, by the time of the incident, the complainant had not joined any school. She admitted that her money got lost but denied having beaten the complainant. She however admitted that the complainant was injured.

25. This is a first appeal and the court’s duty in such appeals was restated in Okeno vs Republic [1972] EA 32 as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala vs R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958] EA 424. ”

26. According to the charge sheet, the appellant was charged in count I with the offence of assault causing actual bodily harm contrary to section 250 as read with section 251 of the Penal Code. The two sections provide as follows:"250. Any person who unlawfully assaults another is guilty of a misdemeanour and, if the assault is not committed in circumstances for which a greater punishment is provided in this Code, is liable to imprisonment for one year.251. Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years."

27. The side note to section 250 “common assault” while the one for section 251 is “assault causing actual bodily harm” It is clear that the two section constitute two distinct offences as clearly shown by the different sentences imposed by them. The question that arises is whether it was proper to charge the appellant with two offences in the same count. Section 134 of the Criminal Procedure Code requires in mandatory terms that every charge should be precise and abundantly clear to the appellant. It provides that:“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

28. InAmos -v- DPP[1988] RTR 198 DC, it was held that:"[Uncertainty in the mind of the accused person is the] "vice at which the rule against duplicity is aimed and to counter a true risk that there may be confusion in the presenting and meeting of charges which are mixed up and uncertain".

29. In this case the learned trial magistrate in his judgement failed to realise that the two sections constituted two different offences with different sentences. Upon conviction, the learned trial magistrate did not specify the provision under which the appellant was convicted. It is therefore unclear whether the conviction and sentence was in respect of section 250 or 251 of the Penal Code. Section 169(2) of the Criminal Procedure Code provides that:In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted, and the punishment to which he is sentenced.

30. The importance of this section becomes clear in the present case where the charge sheet was clearly duplex. On that ground alone I would allow the appeal, set aside the conviction and set aside the sentence in count I.

31. However, for completion of the record, from the evidence of the complainant she was assaulted using firewood and a wire. The medical report however states that the weapon used was sharp object. Clearly firewood, unless a split one cannot be a sharp object. The evidence was that the wire was used in tying the complainant’s hand rather than the head. Accordingly, I agree that there were material inconsistencies regarding the evidence on record and the benefit of that would obviously inure to the appellant.

32. On the second count, it is not in doubt that the complaint was 12 years old. Whereas the appellant contended that her intention was to facilitate her in her studies, the actions of the appellant did no portray his alleged noble intentions. There was no evidence that she made any effort to enrol the complainant in school. While she said that the schools were closed due to the teachers’ strike, there was no indication that when PW2, PW3 and the Children Officer visited her house, her children were present. In fact, according to her own evidence she was all alone with the complainant.

33. According to PW2 and PW4, when they visited the appellant’s house, they found the complainant washing a heap of clothes while the appellant was asleep. While it may well be true that the appellant was unwell, that was not a reason to subject the complainant, a child aged 12 years, who was admittedly injured to the agony of washing clothes. By doing so the appellant clearly violated the complainant’s rights and was rightfully charged under section 10(1) as read with section 20 of the Children Act. I therefore have no reason to interfere with her conviction and sentence thereon.

34. Consequently, this appeal partly succeeds. I allow the same in respect of count I, set aside the appellant’s conviction thereon and quash her sentence therein. I however dismiss the appeal in respect of count II in its entirety.

35. It is so ordered.

G V ODUNGAJUDGEJUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 18TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: