[2023] KEHC 24921 (KLR)

Mugambi v Republic (Criminal Appeal E032 of 2022) [2023] KEHC 24921 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24921 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E032 of 2022

KW Kiarie, J

November 7, 2023

Between

Patrick Mugambi

Appellant

and

Republic

Respondent

(From the original conviction and sentence in S.O. Case No. E033 of 2022 of the Senior Principal Magistrate’s Court at Kilifi by Hon. S.D. Sitati– Resident Magistrate)

Judgment

1. Patrick Mugambi, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No. 3 of 2006.

2. The particulars of the offence are that on diverse dates between February 2020 and March 2021 in Kilifi South Sub County within Kilifi County, intentionally and unlawfully caused his penis to penetrate the vagina of AS, a child aged 15 years.

3. The appellant was sentenced to twenty (20) years’ imprisonment. He was aggrieved and filed this appeal against both conviction and sentence. He raised grounds of appeal as follows:a.That the learned trial court magistrate erred in law fact by convicting the appellant without sufficient evidence.b.That the learned trial court magistrate erred in law fact by failing to consider that the appellant was denied a right to a fair trial as provided for under Article 50(2) (p) of theConstitution.c.That the learned trial court erred in law by not considering the appellant’s defence.d.That the learned trial court erred in law by not considering one year that the appellant spent in custody during the trial.e.That the learned trial court magistrate erred in law and fact by sentencing the appellant to 20 years imprisonment, a sentence that was harsh and excessive.

4. The appeal was opposed by the state through Ms. Alice Ochola, learned counsel. She contended:a.That the prosecution proved their case to the required standards; andb.That the sentence was neither excessive nor harsh.

5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic[1972] EA 32.

6. Although the appellant contended that he was not accorded a fair trial, it was not demonstrated in what manner his rights were breached. A perusal of the record did not yield any such an instance.

7. The period of the alleged offence in the particulars of the charge is not supported by the evidence on record. The disappearance of the complainant from their house was discovered at 2 a.m. on the 22nd day of April 2021. There was therefore no evidence that between February 2020 and March 2021, the complainant had had sexual intercourse.

8. Section 8(1) of the Sexual Offences Act defines defilement in the following terms:A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.An offence of defilement, therefore, is established against an accused person when the prosecution has proved the following ingredients:a.That there was penetration of the complainant’s genitalia;b.That the accused was the perpetrator; andc.The age of the complainant was below eighteen years.These ingredients were restated in Fappyton Mutuku Ngui vs. Republic [2012] eKLR as follows:Going by this definition of defilement, I agree with Mr. Mwenda on the issues which the court needs to determine. 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.These are the ingredients that the prosecution must prove against an accused person.

9. The prosecution gave two versions of the age of the complainant. The complainant and her mother testified that she was 17 years old. The medical record and the police gave her age as 15 years. There was no attempt to reconcile these two sets of evidence of her age. The prosecution did not, therefore, discharge its onus to prove that she was 15 years old.

10. AS (PW1) testified that on the 22nd day of March 2021, she met the appellant when she had been sent to buy vegetables. She took the vegetables home and returned to the appellant. They proceeded to the house of the appellant and had sex. She returned to their home the next morning after spending the night with the appellant. Her grandmother confronted her and called her (complainant’s) mother who was away at her place of work. After her mother had beaten her, she disclosed that she had had sex with the appellant.

11. The complainant’s version was contradicted by that of her mother. PW2 said that she was informed of the incident on the 22nd day of April 2021 and that when the complainant volunteered the name of the culprit, she did not punish her. It is worth noting that the evidence of KK (PW1) the complainant’s grandmother, is to the effect that she discovered that the complainant was not in the house in April 2021 but did not give a date. We can only assume from the testimony of PW2, that this was on the 20th day of April 2021. She testified that when she was informed of the incident on the 22nd day of April 2021, she was told that it had happened two days prior.

12. The proviso to section 124 of the Evidence Act states: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.

13. The learned trial magistrate ought to have recorded why she believed the complainant, despite the glaring contradictions in the prosecution witnesses’ evidence, that of the complainant included. She shifted the burden to the appellant by indicating that he did not shake the allegation of defilement. He had no duty to do so. The onus to prove that the appellant defiled the complainant was on the prosecution.

14. When Bernard Oduor Otieno examined the complainant on the 6th day of April 2021, he did not find any injuries on her genitalia. This evidence introduced further contradictions as to when the defilement may have occurred. The only positive finding he made was that the hymen was broken. The Court of Appeal in the case of P. K.W vs. Republic [2012] eKLR observed as follows:“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified" Is hymen only ruptured by sexual intercourse.16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen vs Manuel Vincent Quintanila [1999] AB QB 769. ”

15. Given the many contradictions, it was unsafe for the learned trial magistrate to believe that the complainant was truthful as to who the culprit was.

16. The Court of Appeal in the case of Ndungu Kimanyi vs. Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.

17. It was not safe to convict on the evidence on record.

18. From the foregoing analysis of the evidence on record, I find that the prosecution did not prove their case against the appellant to the required standards. I accordingly allow the appeal. The conviction is hereby quashed and the sentence set aside. The appellant is set at liberty unless if, otherwise, lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 7TH DAY OF NOVEMBER, 2023. KIARIE WAWERU KIARIEJUDGE