[2022] KEHC 10525 (KLR)

Muli v Republic (Criminal Appeal E027 of 2021) [2022] KEHC 10525 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10525 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E027 of 2021

GMA Dulu, J

June 14, 2022

Between

Simon Kalani Muli

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. C.A Mayamba in Kilungu Principal Magistrate’s Court PM (S.O) Case No.40 of 2020 pronounced on 25th November 2020)

Judgment

1. The appellant was charged in the magistrate’s court with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between the month of April 2020 at [Particulars Withheld] Village, Sultan Hamud Sub-Location in Mukaa Sub-County within Makueni County intentionally caused his penis to penetrate the vagina of JMM (name withheld) a child aged 15 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 between the same diverse dates and at the same place, intentionally touched the vagina of JMM a child aged 15 years with his penis.

3. He denied both charges. After a full trial, he was convicted on the main count of defilement and sentenced to 15 years imprisonment.

4. Dissatisfied with the conviction and sentence of the trial court, the appellant has come to this court on appeal relying on six grounds as follows:-1. The trial magistrate erred by convicting and sentencing the appellant without comprehensively evaluating the case to realize that it was a fabricated case to implicate the appellant which emanated from a grudge between the Assistant Chief (Pw5) and the mother of the complainant (Pw3) and also the embarrassment of the complainant’s (Pw2) mysterious pregnancy.2. The learned magistrate erred in fact and in law by convicting and sentencing him without considering that there was no cogent evidence to prove this offence of defilement by the appellant to the required standard in law of beyond reasonable doubt.3. The learned trial magistrate erred by failing to observe that the trial was conducted in contravention of section 19 of the Oaths and Statutory Declarations Act concerning the reception and admissibility of the evidence of a child of tender age, Article 4 of the Constitution and section 2 of the Sexual Offences Act.4. The learned magistrate erred in shifting the burden of proof to the appellant, misapprehending and misdirecting himself on the evidence hence arriving at a wrong conclusion, by failing to observe that the prosecution evidence was untenable, unworthy, contradictory, inconsistent, and full of lies, which required him to resolve the glaring doubts in favour of the appellant.5. The learned trial magistrate erred by convicting and sentencing the appellant without regard to his rights, including the exposure of all the prosecution evidence which was intended to be brought against him as laid down in Article 50(2)(j) of the Constitution.6. The learned trial magistrate erred by dismissing his genuine and sworn defence of alibi alleging possibility of being framed due to the existing grudges without giving cogent reasons as provided in section 169 of the Criminal Procedure Code.

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 remind myself that I am required to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno –vs- Republic [1972] E.A 32.

7. I note that the appellant has raised technical grounds of appeal, as well as substantive grounds of appeal. I will start with the technical grounds.

8. The appellant has complained that he was not supplied with information or evidence by the prosecution before trial. Having perused the proceedings, I see nowhere that the appellant asked for supply of prosecution evidence and was denied the same. He also participated fully in the trial and cross examined witnesses at length. I find no merits in this ground of appeal and dismiss the same.

9. The appellant also claims that voire dire examination on the complainant Pw2, was not done, and thus there was contravention of the law. It is of note that voire dire examination of witnesses is required only on children of tender years and as defined under the Sexual Offences Act, these are children below 10 years. Courts have however applied the old principle of 14 years, and in the present case, the complainant was 15 years old.

10. The complainant being above 14 years, there was no legal requirement for conducting voire dire examination. Even if there was such legal requirement to conduct voire dire examination, in my view, failure of a court to do so per se does not invalidate or make criminal proceedings irregular. I dismiss that ground.

11. I now turn to the substantive grounds of appeal. In proving their case, the prosecution called five witnesses. Pw1 was Eric Kasiamani a Clinical Officer who produced a P3 medical examination form in respect of the complainant JMM, prepared by another Clinical Officer Frank Musau. According to his evidence the complainant said that she had been defiled by five (5) men, her hymen was broken and she was pregnant. No DNA test was conducted to ascertain paternity of the pregnancy.

12. Pw2 was the complainant who said that the appellant asked her for sexual intercourse and they had such intercourse in the farm, and that a farm worker informed the mother (Pw3) VN about the incident.

13. Pw3, the mother of the complainant, stated that she was told on phone by the Assistant Chief that her daughter (the complainant) was being taken advantage of sexually by some people.

14. Pw4 was Cpl Agnes Talai Leperes, the Investigating Officer who received the incident report, and took the complainant to hospital and charged the appellant in court.

15. Pw5 was Stephen Kanyulu the Assistant Chief whose evidence was that he received a report from the mother of the complainant that the complainant was pregnant.

16. When put on his defence, the appellant tendered sworn defence testimony, stating that in July 2020 he went to the mother of the complainant who introduced him to a broker for selling his cow. However, they later disagreed on money payments and he was thus implicated in this case.

17. The prosecution was required to prove first that the complainant was 15 years. I have seen the birth certificate for JMM .The date of birth is indicated as 9th January 2005. This has not been challenged. I find that the prosecution proved beyond any reasonable doubt that the complainant was 15 years old.

18. On penetration, the complainant Pw2 said that she was penetrated sexually. The medical evidence of Pw1 was that hymen was broken and the complainant was pregnant. I find that the prosecution proved beyond any reasonable doubt the complainant was penetrated sexually.

19. With regard to the identity of the culprit, it is apparent from the evidence on record that the complainant (Pw2), her mother (Pw3) and the appellant knew each other well. However, the person who is said to have informed Pw2 about the incident that occurred in the farm, did not attend court to testify. He would have been an independent witness. No reason was given for failure by the prosecution to call this crucial witness. In addition to this, the complainant Pw2 stated that she had gone through five (5) sexual partners, and none of the said partners was mentioned by name.

20. In my view, though the provisal to section 124 of the Evidence Act (Cap. 80) states that the evidence of a single sexual offences victim witness can sustain a conviction without corroboration, I find it difficult to believe the truthfulness of the complainant’s evidence herein. In the absence of the evidence of the person who reported the incident to her mother, and the fact that there are five (5) other sexual culprits, known only to the complainant, in my view, the appellant might just have been an easy target for mention to divert attention to an innocent by stander, merely because he is near there or near the subject family at the time of discovery of the pregnancy of the complainant.

21. Taking into account the prosecution evidence and the sworn defence of the appellant on record, in my view, the prosecution failed to prove beyond reasonable doubt that the appellant was the culprit. On that account, I will allow the appeal.

22. Consequently, 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 14THDAY OF JUNE 2022, IN OPEN COURT AT MAKUENI.………………………………….George DuluJudge