[2022] KEHC 13579 (KLR)

Muindi v Republic (Criminal Revision Application E014 of 2021) [2022] KEHC 13579 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13579 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Revision Application E014 of 2021

GMA Dulu, J

October 5, 2022

Between

Onesmus Mulinge Muindi

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.54 of 2020 pronounced on 13th October 2021)

Judgment

1. The appellant was charged in the magistrate’s court with attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act No 3 of 2006. The particulars of offence were that on October 3, 2020 at [particulars withheld] Village in Kwale Location within Makueni County, intentionally attempted to cause his penis to penetrate the vagina of EM (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 offence were that on the same date and at the same place intentionally touched the vagina of EM a child aged 13 years with his penis.

3. He denied both charges. After a full trial, he was convicted on the main count of attempted defilement and sentenced to 10 years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal through counsel Muia VM & company on the following grounds –1. That the learned magistrate erred in law and fact by convicting the appellant when the prosecution did not prove their case beyond reasonable doubt as required by the law thereby occasioning the appellant miscarriage of justice.2. That the learned trial magistrate erred in law and in fact in convicting the appellant while the essential ingredients of the offence of attempted defilement had not been proved by the prosecution as required by the law.3. That the learned trial magistrate erred in law and in fact by convicting the appellant while the evidence by the complainant was inconsistent and contradictory.4. That the learned trial magistrate erred in law and fact in failing to consider that the accused had given sworn evidence in his defence which defence raised doubts in the prosecution case and that the said doubts ought to have been exercised in favour of the appellant.5. That the learned trial magistrate erred in law and in fact in finding that there was an attempt to penetrate the complainant’s genitals while the complainant’s evidence did not state or prove such an attempt. The complainant in her evidence in cross-examination stated that her pants were not removed and that the accused did not insert anything in her.6. That the learned trial magistrate erred in law and fact in finding that the complainant’s evidence was corroborated by the evidence of Pw3 while the said witness did not witness commissioning of the offence.7. That the learned trial magistrate erred in law and in fact by basing her judgment on inconsistent incredible and contradictory evidence of prosecution witnesses.8. That the learned magistrate erred in law and fact by convicting the appellant without clear, uncontroverted and admissible evidence presented to the court.9. That the learned magistrate erred in law by passing an excessive sentence against the appellant in the circumstances.

5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by the counsel for the appellant as well as the submissions filed by the Director of Public Prosecutions. I note that the appellant’s counsel relied on a number of decided court cases.

6. This being a first appeal, I have to state that as a first appellate court, I am duty bound to evaluate all the evidence on record afresh, and come to my own independent conclusions and inferences, but bear in mind that I did not have the opportunity to see witnesses testify in order to determine their demeanor – see Okeno –vs- Republic (1972) EA 32.

7. In proving their case, the prosecution called five (5) witnesses. On his part, the appellant tendered sworn defence testimony and did not call any additional witnesses.

8. This being a case of attempted defilement, the prosecution was required to prove the three elements of the offence – first that the victim was below 18 years, secondly, that there was an act to cause sexual penetration which was not successful, and thirdly, the identity of the culprit. This position regarding the elements of the offence is restated in the case of John Wanyoike –vs- R (2019) eKLR cited by counsel. All the three elements of the offence were to be proved by the prosecution beyond any reasonable doubt, as this is a criminal case. See William Kiprotich –vs- R (2021) eKRcited by appellant’s counsel and the English case of Woolmighton –vs- DPP (1936) AC.

9. With regard to the element of the age of the victim, it was the evidence of Pw1 EM the victim that she was born on September 23, 2007. A birth certificate was relied upon and was produced as an exhibit by Pw3 CK the victim’s grandfather. It was not challenged by the defence. I find that the prosecution proved beyond any reasonable doubt that the victim herein Pw1 was aged 13 at the time of the alleged incident, thus below 18 years of age.

10. Was there an attempt to effect sexual penetration on the victim? The grandfather of the victim Pw3 CK testified that he was woken up by a scream of the victim. The evidence is that victim Pw1, though initially reluctant to tell her grandfather or her aunt Pw2 CMK what happened, later on persuasion, disclosed that the appellant had already removed her skin tight trouser and laid on her, when the grandfather Pw3 interrupted the events.

11. What in law constitutes an 'attempt' to commit an offence is defined under section 388 of the Penal Code as follows –388(1) When a person intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intentions to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

12. The victim’s reluctance to disclose what happened, and then going to the home of her auntie (Pw2) instead of going back to her grandfather’s house, where she ordinarily sleeps, shows an inclination of a witness who was unwilling to disclose the whole truth about what happened.

13. In my view, from the evidence of the victim on record in which Pw1 stated, that she was given Kshs 150/= by the culprit to have sex, and the culprit almost having undressed her, there was a consensual arrangement between the victim and the culprit to engage in a sexual act, but which was interrupted by the grandfather (Pw3). The result of her accepting the sexual act, was the unusual conduct of the victim migrating to her aunt’s house, and showing reluctance in saying what had happened.

14. That consensual act however, cannot be a legal defence to the culprit as, so long as the victim was below 18 years, it would still be an offence for the culprit to attempt a sexual act with her, as the victim herein did not have capacity to consent to sexual activity. Thus the attempt to defile the victim was proved beyond reasonable doubt. Thus the prosecution proved the second element of the offence.

15. The third and last element of the offence, is the identity of the culprit. As for the culprit, the prosecution evidence in my view is clear. The appellant was the culprit. He was in that home that night and there was no possibility of mistaken identity as he was known to both the victim and Pw3.

16. It is clear from he evidence of both the victim (Pw1) and grandfather was that he visited that house that night, and the appellant said as much in his defence. The only difference in his defence is that he left immediately after arrival at that home.

17. On the other hand, according to both the victim Pw1, and her grandfather Pw3, the appellant was to sleep there, and used the opportunity to commit the offence.

18. I note that, from the evidence of Pw1 the victim, which is believable, the culprit took advantage of the opportunity, approached her and enticed her with Kshs 150/= to engage in sex with her, and was only interrupted by the grandfather (Pw3), who suddenly appeared cut short the attempt of the appellant to sexually penetrate her.

19. In my view therefore, the prosecution proved beyond any reasonable doubt that the appellant was the culprit. I will thus uphold the conviction.

20. With regard to sentence, the sentence imposed by the trial court was a lawful minimum sentence. I will thus also uphold the sentence.

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

DELIVERED, SIGNED & DATED THIS 5TH DAY OF OCTOBER 2022, IN OPEN COURT AT MAKUENI.………………………………….GEORGE DULUJUDGE