[2022] KEHC 13824 (KLR)

Muia v Republic (Criminal Appeal E054 of 2021) [2022] KEHC 13824 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13824 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E054 of 2021

GMA Dulu, J

October 6, 2022

Between

Albanus Mutinda Muia

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. Otieno J in Makueni Chief Magistrate’s Court Criminal Case No.E009 of 2021 pronounced on 2nd June 2021)

Judgment

1. The appellant was charged in the magistrate’s court with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The particulars of offence were that on 14th March 2021 at [particulars withheld] Location in Makueni Sub-County of Makueni County unlawfully and intentionally caused his penis to penetrate the vagina of DMK (name withheld) a child aged 6 years, 11 months.

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 intentionally and unlawfully touched the vagina of DMK with his penis a child aged 6 years, 11 months.

3. He denied both charges. After a full trial, he was convicted of the main count of defilement and sentenced to 30 years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal through counsel C.M Muthiani advocate, relying on the following grounds –1)The learned trial magistrate erred in law and fact by holding that the ingredient of penetration was reasonably proved against the weight of the evidence by the prosecution.

2)The learned magistrate erred in holding that the appellant was sufficiently identified by the complainant as the perpetrator against the weight of the evidence tendered in court.

3)The sentence meted against the appellant was excessive in the circumstances of the case.

4)The magistrate erred by failing to take into account and carefully scrutinizing the defence offered by the appellant.

5)The trial magistrate erred by failing to take into account the mitigating factors by the appellant.

6)The trial magistrate ignored and /or disregarded the evidence of the defence witness.

7)The trial magistrate convicted the appellant against the weight of the evidence of the prosecution.

5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the written submission filed by the appellant, and the submissionsfiled by the Director of Public Prosecutions. I note that both sides cited decided case authorities in submissions.

6. This being a first appeal, 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, in which legal reasoning in the earlier case of Pandya v R [1957] E.A 336 was followed.

7. In proving their case, the prosecution called six (6) witnesses. In his defence, the appellant tendered sworn defence testimony and called one witness Dw2 Justina Mbithe.

8. The elements of the offence of defilement are; first the age of the victim who should be below 18 years. Secondly, sexual penetration even if it is partial. Thirdly, the identity of the culprit. Being a criminal case, the prosecution was required to prove every element of the offence beyond any reasonable doubt. The appellant had no burden of proving his innocence, but could raise a doubt to the prosecution allegations.

9. With regard to the element of age of the victim Pw5 DM, she tendered evidence not on oath, though she was cross-examined. She did not state her age or date of birth. She said that she was in Grade I at [particulars withheld] Primary School. Her mother Pw4 DSK on her part, testified that the victim was aged 7 years at the time of testimony in court. The father of the victim Pw2 JKM also stated that the victim was born on 28-03-2014 and relied on a birth certificate which was produced in court as exhibit by Pw6 PC Betty Mumo, the Investigating Officer.

10. In my view, the prosecution proved beyond any reasonable doubt that the victim was aged 6 years and 11 months at the time of the alleged offence.

11. With regard to the second element of penetration, the evidence of sexual penetration is that of the victim Pw5, who stated that she was sexually penetrated. The evidence on record is that she told her father that same evening about the sexual penetration, after she had developed signs of illness and was asked what the matter was with her. The medical evidence from Pw1 Stella Ndambi Muasya, a Clinical Officer was that the victim had a perforated hymen and fresh blood stains from the vagina. A P3 form and other medical treatment documents were produced in court by this witness as exhibits.

12. With the evidence on record, in my view, the prosecution proved beyond any reasonable doubt that the victim was sexually penetrated.

13. With regard to the third element of the identity of the culprit, the evidence on record on this element is that of the victim Pw5 alone, as nobody else witnessed the incident.

14. Such evidence of a single victim witness of a sexual offence can sustain a conviction if it is believable and is so believed by the trial court, for reasons to be recorded in the proceedings. This legal position is codified under the provisal to section 124 of the Evidence Act (Cap.80).

15. In the present case, the incident occurred in broad daylight. The victim knew the appellant before. In his defence, the appellant stated that he was implicated by the mother of the victim, as she had solicited a love affair from him, which he declined. The evidence on record is however that the victim did not disclose the incident to the mother, but to the father Pw2. I thus find this contention by the appellant to be false.

16. The appellant also raised a defence of alibi, that he was not at the scene. I am aware that an accused person has no burden to prove a defence of alibi – see Leonard Aniseth v R [1957] E.A 566.

17. In my view, the alibi defence of the appellant herein, is displaced by the clear and candid evidence on record of Pw5 the victim, who gave a detailed account of what had happened that day, and was not shaken in cross-examination.

18. Thus just like the trial magistrate, I come to the conclusion that the victim herein Pw5 was saying the truth. I thus find that the prosecution proved beyond any reasonable doubt that the appellant was the culprit. I will uphold the conviction.

19. As for sentence, I note that the magistrate took into account the mitigation and aggravating factors in the present case in sentencing. The magistrate also considered the period that the appellant had been held in custody during trial.

20. In my view, due to the young age of the victim, and the other circumstances and reports tendered to court in this case, the magistrate was correct in assessing sentence. Thus the sentence being lawful and the magistrate having considered relevant factors. I find that the sentence is not excessive. I will thus also uphold the sentence.

21. Consequently, I find no merits in the appeal. I dismiss the appeal and uphold both the conviction and sentence.Right of appeal explained.

DELIVERED, SIGNED & DATED THIS 6TH DAY OF OCTOBER 2022, IN OPEN COURT AT MAKUENI.………………………………….GEORGE DULUJUDGE