[2022] KEHC 10527 (KLR)

Muendo v Republic (Criminal Appeal E029 of 2021) [2022] KEHC 10527 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10527 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E029 of 2021

GMA Dulu, J

June 14, 2022

Between

Morris Muendo

Appellant

and

Republic

Respondent

((Being an appeal from the original judgment of Hon. E. Muiru in Kilungu Principal Magistrate’s Court PM (S.O) Case No.52 of 2020 pronounced on 10th March 2021))

Judgment

1. The appellant was charged in the magistrate’s court with defilement contrary to section 8(1) (3) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on September 30, 2020 at Mukaa Sub-County in Makueni County unlawfully and intentionally committed an act which caused penetration of his genital organ to genital organ of FMM (name withheld) a child aged 13 years.

2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, the particulars of which being that on the same date and at the same place unlawfully and intentionally committed an indecent act with FMM a child aged 13 years by touching her genital organs.

3. He denied both the counts. After a full trial, he was convicted on the main count of defilement and sentenced to 20 years imprisonment.

4. Dissatisfied with the conviction and sentence of the trial court, the appellant has come to this court on appeal, relying on two grounds of appeal -1. That penetration was not proved.2. That the magistrate erred by relying on shoddy investigations and a plan by a cartel of people to victimize him.

5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by the appellant and those filed by the Director of Public Prosecutions.

6. This being a first appeal, I have to begin by reminding myself that I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno v Republic [1972] E A 32.

7. In proving their case, the prosecution called three (3) witnesses. Pw1 was the alleged victim who described how the incident occurred. She said that she did not know her age, but was a class seven (7) pupil. She said however, that she was born in February 2007.

8. Pw2 was Cpl John Kilatoa the Investigating Officer from Salama Police Station whose evidence was that on September 30, 2020at 9:00pm, while travelling back to station in the police vehicle, they were informed about a person who had entered a house with a young girl; and they proceeded there, knocked the door and the appellant came out, and on entering the house, they found the alleged victim on the bed. They thus conducted investigations and charged the appellant in court.

9. Pw3 was Jackson Nzivoi a Clinical Officer from Sultan Hamud Sub-County hospitals who produced P3 forms and medical documents signed on October 1, 2020 by Eric Kasiamani another Clinical Officer, in relation to the victim and the appellant. The medical reports showed that there were traces of spermatozoa in the vagina of the alleged victim, and that she was pregnant, and had urinary infection. The appellant also had urinary infection.

10. When put on his defence, the appellant tendered sworn defence testimony. It was his defence that he was arrested with the victim on the road while negotiating on transport charges before transporting the alleged victim home on a motor cycle.

11. This being a case of defilement, the age, penetration and the identity of the victim, had to be proved by the prosecution beyond reasonable doubt.

12. From the evidence on record, in my view, the age of the alleged victim was not proved beyond any reasonable doubt. This is because; the alleged victim said that she did not know her age. Though later she said that she was born in February 2007, she did not rely on any documents, which indicates to me that the mention of February 2007 must have been prompted by suggestive questions by the prosecutor. In addition, though Pw3 Cpl. John Kilatoa produced a birth certificate, Pw1 (the victim) did not mention anything to do with a birth certificate, and Pw3 did not also say how he came to be in possession of that document. To add to that, I have seen and perused the copy of birth certificate produced as an exhibit, and it is not a document that can be read to get the particulars therein as the typing is curiously very faint.

13. Thus I find that the age of the alleged victim was not proved by the prosecution beyond reasonable doubt.

14. With regard to penetration, in my view, penetration was proved beyond any reasonable doubt, both through the evidence of Pw1 the alleged victim and the medical evidence of Pw2 confirming the presence of spermatozoa.

15. The identity of the culprit was also established or proved by the prosecution beyond any reasonable doubt, as there was no doubt from the evidence of the prosecution and the defence on record, that Pw1 and the appellant were actually found together that night at 9:00pm. However, because I have already found that the age of the alleged victim was not proved, the appeal will succeed.

16. Consequently and for the above reasons, I allow the appeal, quash the conviction and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.

DELIVERED, SIGNED & DATED THIS 14TH DAY OF JUNE 2022, IN OPEN COURT AT MAKUENI..............................GEORGE DULUJUDGE