[2022] KEHC 9829 (KLR)

Mulenje v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 9829 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9829 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Appeal E017 of 2021

RB Ngetich, J

July 14, 2022

Between

Harrison Mulenje

Appellant

and

Republic

Respondent

(From the original conviction and sentence by C.N. Mugo (C.M) in Limuru Criminal Case No. 660 of 2016 on 25th February 2021. )

Judgment

1. The appellant was convicted of the offence of Defilement Contrary to Section 8 (1) as read with Sub-section 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the August 7, 2016 at Ngarariga location of Limuru Sub-County within Kiambu County, unlawfully and intentionally caused his penis to penetrate the vagina of MN a child of 16 years old.

2. The alternative charge is the offence of Committing an Indecent Act with a Child Contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.

3. The appellant pleaded not guilty to the main and alternative charge and the case proceeded to trial. At the trial, the prosecution called three (3) witnesses and the appellant, upon being put in his defence gave sworn testimony. The learned trial magistrate was persuaded that a case had been made beyond a reasonable doubt on the main charge and convicted the appellant. She proceeded to sentence the appellant to ten (10) years imprisonment.

4. The appellant was aggrieved by both the conviction and the sentence and filed the instant appeal citing the following amended grounds:a.That the honourable Magistrate erred in fact and in law by failing to consider the appellant’s defence. The trial magistrate ignored the appellant's alibi.b.That the honourable Magistrate erred in law and in fact by failing to accord the appellant his right to be heard.c.That the learned Magistrate misapplied herself in the interpretation of evidence of law in respect of the facts in issue.d.That the honourable Magistrate erred in fact and law by convicting the appellant against the weight of the evidence on record.e.That the honourable Magistrate erred in law and fact by finding the appellant guilty as the case was not proven beyond a reasonable doubt.

5. Directions were taken to canvass the appeal by way of written submissions. Only the appellant has filed his submission.

Submissions 6. The appellant submitted that the court failed to probe further and establish the whereabouts of the appellant at the material time of the occurrence of the incident during the trial when he indicated he was not at the scene at the time.

7. The appellant further submitted that the court failed to exhaustively ensure that the appellant issues a defence addressing the issues to be determined, as the appellant was unrepresented and failed to scrutinize the P3 form and the medical report mentioned by the prosecution and the medical report was never tabled in court.

8. It was submitted the trial court erred in convicting the appellant despite the inconsistencies of the prosecution witnesses. According to the appellant, the evidence of Pw1 contradicted the evidence of Pw2 on whether Pw1 took a bath or wash her clothes before or after reporting the matter to the police station and was not clarified by Pw3 the Investigating Officer;and submitted that such inconsistencies cannot be ignored as they create a lack of credibility for the witness.

9. The appellant further submitted that the prosecution failed to prove the case beyond a reasonable doubt. The prosecution failed to avail a medical report leaving doubt in the mind and the allegations by Pw1 cannot be proved to be true. It was submitted that the failure to conduct a DNA on the appellant and Pw1 raised doubts about the prosecution case and cited Section 36 of the Sexual Offences Act and the case of Eric Kipkoech Kemei vs Republic (2020) eKLR. Where the court held that reasonable doubts were presented by the cracks in the complainant's narrative and the failure to conduct DNA tests where necessary.

10. In conclusion, the counsel for the appellant submits the allegation of penetration was not proven to the required standard by the prosecution and thus the alternative count lacks merit and urged this court to allow the appeal and quash the conviction and set aside the sentence.

Analysis and Determination 11. This being the first appellate court, I am required to re-evaluate and analyse evidence adduced before the trial court. This I do with the knowledge that unlike the trial court, I got the opportunity to take evidence first hand and observe demeanor of witness and for that I give due allowance. This position was held in the case of Okeno vs. Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the junction of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; 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 V Sunday Post 1978) E.A. 424. ”

12. This being a defilement case three ingredients have to be proveda.the age of the victimb.penetrationc.identification or recognition of the offender

(i) Age of victim 13. The age of the complainant has not been disputed, the prosecution adduced a copy of the complainant's birth certificate. The complainant was born on August 4, 2001. She was 16 years at the time of the commission of the incident and was therefore a minor.

(ii) Identification 14. The appellant and the complainant knew each other before the occurrence of the offence. They shared a common friend named Alex who was a neighbour of the complainant. Pw1 and Pw2 positively identified the appellant as the perpetrator. The time of the commission of the act was in broad daylight and the complainant testified the appellant talked to her before he pulled the complainant into his house and raped her. In any case, this was a case of recognition and not identification. In the case of Anjononi & Others Vs Republic [1989] KLR in which the court held;''Recognition is more satisfactory, more assuring and more reliable than the identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another.”

(iii) Prove of Penetration 15. On the third issue of proof of unlawful penetration, the only available evidence before the trial court was that of the complainant. The complainant testified that she was coming from church when she reached the appellant's home which is along the road, the appellant called her to inquire about Alex who was their common friend. She moved closer to where the appellant was and the appellant pulled her to his house and removed her clothes and had carnal knowledge of her from 1. 00 pm to 4. 00 pm.

16. The trial court noted the P3 form was not produced as the doctor was summoned numerous times to attend court but failed to. The trial court cited the court of appeal case of Kassim Ali Vs- Republic, Mombasa Criminal Appeal No.84 of 2005 where it stated that:“(The) absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or circumstantial evidence.”

17. The trial Magistrate convicted the appellant on the testimony of the complainant, as per the above court of appeal finding.

18. I note that there are decisions from the court of appeal to the effect that medical evidence is not the only evidence to prove penetration. I do agree that where there is overwhelming evidence to corroborate the complainants evidence, a court can convict without medical evidence. That however, will be decided depending on circumstances of each case and in my view where medical examination was not done or cannot be availed.

19. I however note that in this case,the complainant was examined by a doctor but the medical report was not produced because the prosecution was denied adjournment after being granted several adjournments.

20. In my view though the complainant said accused pulled her to the house and defiled her during the day in the absence of any other person at the scene at the time, it would have been appropriate to produce the medical report to confirm that the complainant was indeed defiled. The availability of medical report would have erased any doubt.

21. In view of the fact that the complainant was examined by a doctor as per evidence adduced, I am of the view that the prosecution should have been given opportunity to produce the medical report; I am inclined to quash the conviction, set aside sentence imposed and order reopening of prosecution case to allow prosecution adduce medical evidence.

22. Final Orders:-1. Conviction is quashed and sentence is set aside.2. I hereby order reopening of prosecution case to allow medical evidence to be adduced.3. Matter to be mentioned before the Magistrate incharge of Limuru Court for directions on hearing. Mention on July 28, 2022in Limuru.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 14 TH DAY OF JULY, 2022. ......................................RACHEL NGETICHJUDGEIn the Presence of:-Kinyua – Court AssistantMs. Grace for AppellantAppellant – Present