[2023] KEHC 25083 (KLR)

Mulwa v Republic (Criminal Appeal E096 of 2022) [2023] KEHC 25083 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25083 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E096 of 2022

TM Matheka, J

November 10, 2023

Between

Paul Mutisya Mulwa

Appellant

and

Versus- Republic

Respondent

(From the original conviction and sentence of Hon. E. Kemei (RM) in Makueni Resident Magistrate’s Court Criminal Case No. E003 of 2022 delivered on 6th July 2022)

Judgment

1. The appellant Paul Mutisya Mulwa was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 11th day of January 2022 at unknown time at [Particulars Withheld] Village, Mbukoni Sub-Location in Mbooni East Sub-County within Makueni County, the appellant intentionally and unlawfully did an act that caused penetration with his genital organ (penis) to that genital organ (vagina) of MK, a girl aged 13 years.

2. In the alternative he was charged of Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on the same day and place, the he intentionally and unlawfully committed an indecent act by touching the private part (vagina) of MK, a girl aged 13 years.

3. The appellant pleaded not guilty.

4. The case for the prosecution was that; the minor victim is a special needs child who has cerebral palsy and under the care of her grandmother, for the reason that her own mother suffers from epilepsy and is a person living with disability. At the material time she was attending … Special School. The appellant had been assigned the duty of ferrying her to school by motorbike.

5. That on 11th January 2021 the appellant picked the minor from her grandmother’s house and instead of taking her to school directly, he took her to his house, defiled her, washed her and then took her to school. At the school, the deputy head teacher noticed that the minor was upset and enquired what the problem was. The minor said that she had been raped by the appellant. The deputy head teacher informed the head teacher and the matron whereupon the complainant was taken to Kako dispensary and they were advised to take the victim to the police station. She was then taken to Makueni County Referral Hospital where she was treated and then to Kalawa Health Centre the following day where she was examined.

6. The prosecution called 7 witnesses to wit; the complainant (PW1), Prior to her testimony the prosecution made an application under s. 33 of the Sexual Offences Act for the complainant to be declared a vulnerable witness and for an intermediary to be appointed for her. The application was allowed and the Complainant’s kindergarten teacher was allowed to assist her to testify. The record shows that the learned trail magistrate was very much alive to the role of the court vis a via a vulnerable witness; the Clinical Officer (PW2), the complainant’s grandmother (PW3), the deputy head teacher (PW4), the school matron (PW5), the investigating officer (PW6) and the complainant’s guardian (PW7). The prosecution produced in evidence; White flowered and pink pantie (P. Ex 1), Blouse and maroon dress (P. Ex 2), Milking Jelly (P. Ex 3), Brown Plastic Basin (P. Ex 4), P3 Form (P. Ex 5), PRC Form(P. Ex 6), Laboratory Request & Results (P. Ex 7a-e), Treatment Book (P. Ex 8), Medical Documents (P. Ex 9), Certificate of Birth (P. Ex 10) and Age Assessment Report (P. Ex 4).

7. The appellant was found to have a case to answer and he elected to give sworn evidence and called two witnesses. His case was that the charges were fabricated as there was a grudge between him and PW7. He said that on the material day, he picked the minor from home and delivered her to school. That he took about 30 minutes to cover the 15km distance. That he passed by Kalawa to fix his bike and encountered a broken bridge at Thwake river but they were helped by some people to cross.

8. He denied that the minor was wearing a maroon school uniform dress and said that she had civilian clothing. He also said that he did not see the minor crying. He denied defiling the minor and said that his wife and child were home at the material time. That his brother Kitui was also tilling the land about 12-10 meters from his (appellant’s) house. That he had an affair with the minor’s teacher (PW7) since 2016 and had loaned her Kshs 20,000/= but she had repaid Kshs 5,000/= only. That his wife and her husband found out about the affair and they had a forgiveness meeting. That when he demanded his money PW7 told him that he would kneel before her and respect her one day. DW2 was the appellant’s his wife and DW3 his brother. His child’s treatment card was produced as D. Ex 1

9. After the full trial, the learned trial magistrate found him guilty and convicted him on the main charge and sentenced him to 10 years’ imprisonment.

10. Aggrieved by that decision, the appellant filed a petition of appeal on 13 grounds as follows;a.That the learned trial magistrate erred in law and fact by holding that the ingredient of penetration was satisfactorily proved against the weight of the defence tendered by the appellant and his witnesses.b.That the learned trial magistrate erred in law and fact in holding that the appellant was the perpetrator of the heinous act of defilement yet there existed glaring discrepancies on how the act was committed as testified by PW1, the complainant.c.That the learned trial magistrate erred in law and fact by totally disregarding the evidence tendered by the appellant and his witnesses which was a miscarriage of justiced.That the learned trial magistrate convicted the appellant of the offence of defilement yet during cross examination, PW5, the school matron who examined the complainant first testified that she did not see any blood or blood stains on the victims clothing or genitalia contrary to the evidence of PW2-the clinician.e.That the learned trial magistrate in totality disregarded the submissions filed by the defence thus convicting the appellant.f.That the learned trial magistrate failed to take into consideration the fact that the appellant all through during the trial he had agreed that he had been framed by the guardian of the victim PW7 after their love affairs went sour and this was demonstrated by the fact that the victim was first seen and treated at Makueni County Referral Hospital and the P3 form was issued at Kalawa Health Centre yet the said clinician did not examine or treat the victim.g.That the Trial Magistrate did not take into account the fact that the birth certificate produced in court to prove the age of the Complainant might have been doctored to suit this case, since the victim comes from Mbooni East yet the same was issued at Kibwezi an area the victim has never stayed, yet the Honorable Magistrate disregarded all these glaring discrepancies.h.The Learned Trial Magistrate failed to take into account the fact that no blood stained Exhibit was ever produced in Court contrary to the evidence of the Clinician hence resulting into a miscarriage of Justice by convicting the Appellant for an offence he has never committed.i.That the Learned Trial Magistrate disregarded D. Exh 1 produced in Court as Defence Exhibit to prove that it was impossible for the Appellant to have defiled the victim from his house yet the Appellants child was at home.j.The Learned trial Magistrate failed to take into account the fact that it was impracticable for one to defile a Minor and at the same time take her to school even meet the School Deputy Principal in presence of the Victim.k.The Learned trial Magistrate misconstrued the evidence tendered by most of the Prosecution witnesses resulting to an injustice on the part of the Appellant, more so on how the alleged defilement happened.l.The Learned trial Magistrate failed to take cognizance of the fact that, the Complainant was examined and treated on the same day of the alleged defilement yet the doctors at Makueni County Referral Hospital did not notice any spermatozoa on the victims genitalia which evidence the trial magistrate ignored in convicting the Appellant.m.That the trial Magistrate convicted the Appellant against the weight of the Prosecution evidence which was doubtful.

11. Directions were given that the appeal be canvassed through written submissions. Accordingly, the parties complied and filed their respective submissions.

12. In his submissions the appellant identified the following as the issues for determination;a.Whether the offence of defilement was proven to the required standard thereby warranting a conviction.b.Whether the sentence is judicious.

13. On whether the offence of defilement was proven to the required standard thereby warranting a conviction the appellant relied on section 8(1) of the Sexual Offences Act No.3 of 2006 for the submission that the ingredients of the offence must be proved conclusively for a conviction to ensue. With regard to the age of the victim, he has relied on Edwin Nyambogo Onsongo-vs-R [2016] eKLR where the Court of Appeal stated;“…the question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the Child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”

14. He submits that the birth certificate produced by the prosecution in this case seemed to have been procured from Kibwezi District Civil Registry yet the victim and her mother were residents of Mbooni East District hence their birth certificate ought to have come from Mbooni East or Makueni Civil Registry. He contends that there are doubts as to the authenticity of the birth certificate as it seemed to be a document tailored to suit the circumstances of the allegations leveled against him. He submits that the evidence of the birth certificate is unreliable and incredible.

15. He submits that the trial court erred in law and fact by failing to take into account his contention and defence to the effect that the Birth Certificate was fabricated by the victim and her guardian (PW7), with the intention of implicating him. That the burden of proof in criminal matters entirely rests on the Prosecution and as such, the Court ought to have placed the burden on the Prosecution to explain how and why the said birth certificate was processed at Kibwezi District Civil Registry.

16. As regards penetration, he submits that the evidence of the victim and medical examination ought to be watertight in establishing that it really occurred. That all the evidence in this case was circumstantial and the requirement in law is that such evidence must point irresistibly to the accused in order to justify the inference of guilt. That the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.

17. He submits that the prosecution relied on the blood like stains on complainant’s school dress as evidence that she was defiled yet the blood stains were never subjected to any sort of forensic examination to ascertain whether it was human or animal blood or whether it actually originated from the victim through DNA profiling. That his position was that there existed no blood stains on the victim’s dress or under pant. That the Matron (PW5) who examined the victim first never saw any blood stains anywhere. Further, he submits that no spermatozoa were seen on high vaginal swab hence nothing to link him to the offence. That even the evidence of the complainant’s guardian was that the complainant’s panty did not have semen.

18. It is also his submission that a broken hymen is not an indication of defilement. He relies on the case of P.K.W-vs-R [2012] eKLR where the Court of Appeal held that,“Scientific and medical evidence has proved that some girls are born without hymen and that it can be broken by other factors other than sexual intercourse. For instance, insertion into vagina of any object capable of tearing it like the use of tampons, masturbation injury and medical examination can also rupture the hymen.”

19. There is the possibility, he contends, that the stains of blood at the Labia Majora might have been as a result of monthly menstrual flow, since the victim was thirteen (13) years old hence at puberty stage. Further, he submits that the evidence of PW5 on cross- examination was that she did not see any blood like stains on the complainant’s genitalia or on her school clothing contrary to the evidence of the Clinician-PW2.

20. He submits that according to the evidence, the complainant was taken to Makueni County Referral Hospital (MCRH) for examination even before PW2 got to attend to her but PW2 was the one attached at Kalawa Dispensary and was the one who filled the P3 and PRC form. He contends that there was no mention in the Prosecution’s evidence that PW2 was at MCRH where medical tests were conducted on the complainant as well as the laboratory tests.

21. He submits that these discrepancies cast doubt on the credibility of the medical reports presented before this court. Further, he submits that PW2 could not tell the colour of the complainant’s panty yet claimed to have examined it and established that it had blood stains. He relies on Daniel Kisilu-vs-R [2015] eKLR, where the held that;“the Clinician who treated the Complainant should have been the one to tender evidence as to the contents of the treatment notes, since the same were not included in the P3 form and that the same cannot just dumped in court together with the P3 form.”

22. He submits that the statement of PW7 was an afterthought as it makes no sense that she took over three months to record it with the police yet she is near to the victim.

23. With regard to identification, he submits that the prosecution did not tender any forensic evidence linking him with the offence hence identifying him as the perpetrator and informing the trial court’s conclusion that he was the perpetrator. That it is astonishing how one would defile a child and carry her to school to an extent of going to talk with the Deputy Head teacher in presence of the minor victim. He wonders why the doctors did not order for his arrest and examination in order to establish that he had actually defiled the minor. He also wonders how possible it was for him to defile the minor yet his wife and children were in the homestead.

24. He submits that the trial magistrate shifted the burden of proof to him when she said that D. Ex 1 could not establish that the named child belonged to him.

25. On whether the sentence is judicious, he submits that the trial court erred by convicting him against the weight of the evidence and that the sentence should be quashed as it was not judicious.

26. The Respondent, the State, through Prosecution Counsel Vincent Maina, has relied on Moses Mwarimbo Dau –vs- Republic [2018] eKLR for the submission that the elements which the prosecution must prove in a charge of defilement are;a.Was the victim a child?b.Was there penetration?c.Was the penetration by appellant?

27. With regard to age, he submits that the birth certificate produced shows that the minor was born on 25th August 2007 hence she was 14 years old at the time of the incident. That the assertions of the appellant regarding the birth certificate are misleading as the same indicates the place of birth as Mbukoni where the victim came from and its contents were unchallenged even in cross examination.

28. With regard to penetration, he submits that the evidence of PW1, 2, 3 and 5 established beyond reasonable doubt that the minor had been defiled. That the assertions by the appellant about the P3 form being filled at Kalawa instead of Makueni Referral Hospital are misleading as PW2 was categorical that he examined her on 12th January 22 and found the hymen torn. That the minor was examined by two clinicians in a span of 24 hours and both of them found that she had been defiled. Further, he submits that the qualifications of the witness to fill and produce the documents before court were unchallenged by the appellant.

29. As to whether the appellant was the culprit, he submits that he was a person well known to the minor as he used to ferry her to school with his motor bike. He submits that there was no margin of error as to the identity of the assailant and the trial magistrate applied her mind to the defence and found it wanting. That the same was a mere denial and was not supported by any independent and reliable witness or documentary evidence.

30. With regard to the notice of enhancement, he submits that the sentence was too lenient and prejudicial to the victim in view of the following aggravating facts;a.The victim was 14 years old at the time of commission of offence.b.The minor was a special needs child with a paralyzed hand and could not speak properly.c.The appellant was a person in a position of authority over the minor.

31. Consequently, he submits that the trial court erred in principle by failing to take into account the said factors as well as physical and psychological effects on the special needs minor which are long lasting. He prays for enhancement of the sentence as provided for in section 354 of the Criminal Procedure Code

32. It is now settled that the duty of a first appellate Court is to scrutinize the evidence on record, make its own findings and draw its own conclusions giving due allowance to the fact that the trial Court had the advantage of seeing and hearing the witnesses.

33. Having looked at the grounds of appeal, the rival submissions and the entire record, it is my considered view that the following issues arise for determination;a.Whether the age of the complainant was provedb.Whether there were discrepancies in the prosecution casec.Whether the offence of defilement was proved to the required standard.d.Whether the sentence is judicious.

Whether the age of the complainant was proved 34. The appellant has argued that the birth certificate (P. Ex 10) was unreliable and incredible as it was procured from Kibwezi District Civil Registry instead of Mbooni East District or Makueni Civil Registry. A simple search on the internet shows that Mbukoni is an area in Ivingoni/Zambani Ward, Kibwezi East Sub-County in Makueni County. Accordingly, this argument does not hold much sway. In any event the issue is whether the age of the complainant was established.

35. Rule 4 of the Sexual Offences Rules, 2014 provides that: -“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar documents.”

36. It is trite that a birth certificate is only one of the ways of proving age in a Sexual Offence case. Section 26(4) of the Births and Deaths Registration Act provides;A certified copy of any entry in any register or return purporting to be sealed or stamped with the seal of the Principal Registrar shall be received as evidence of the dates and facts therein contained without any or other proof of such entry

37. Evidently there was other evidence that the comapinant was a child, the P3 and the PRC and the other witnesses who testified. Hence even if te court was to find that the certif9cate of birth was not authentic there was sufficient evidence that the complainant was a child at the material time.

38. The issue of the authenticity of the certificate of birth was not raised at the hearing in the subordinate court and the manner in which it would affect the case for the appellant. I have no reason to find that there was something wrong with the certificate of birth. Counsel for te appellant even sought time to study it when it was supplied and no issue was raised.

Whether there were inconsistencies in the prosecution case. 39. According to the appellant, there was an inconsistency in observation of the blood stains by PW2 and PW5. That while PW5 was the first one to observe the complainant, she did not see any blood stains yet PW2 testified that there were blood stains in the complainant’s dress. PW2 testified as follows;“There was blood stain on posterior part of dress…labia minora had blood stains secondary to friction…. I indicated that there was not physical bleeding but there was presence of blood stains. I saw blood stains. They were on the lateral side of labia minora.”

40. On her part, PW5 testified as follows;“I asked to get on the bed and checked her private parts. She had whitish stuff on her vagina. It was watery…I am the one who checked the minor. She had dirt on her private part.”

41. After reevaluating the above evidence, I do not find this was an inconsistency. It appears that PW5 was more concerned about the minor’s genitalia hence she could have missed the stains on the dress. It is also noteworthy that the color of the dress was maroon hence possible to camouflage the stains. Further, PW2 is a trained medic with expertise to make observations which could be missed by a lay person.

42. The appellant also complained about the fact that the P3 and PRC forms were filled by PW2 yet the prosecution evidence did not mention that he was at MCRH where the lab tests were conducted. Having looked at the evidence on record, it is clear that the minor was attended to at MCRH and Kalawa Health Centre. PW2 testified that; “ I am not the first person who saw the victim. I was not chosen by anyone to fill the form. I did not refer the victim back to MCRH……I saw blood stains. They were on the lateral side of labia minora. The hymen was freshly broken with evidence of tenderness on touch. ” On re-examination, he stated; “I examined the patient.”

43. It is therefore clear that PW2 examined the minor physically at Kalawa Health Centre where he worked and it was therefore unnecessary for him to be at MCRH where lab tests were conducted. Having examined the victim, it was only proper for him to fill the P3 form and PRC form and there is no contradiction as alleged by the appellant.

44. The upshot is that I did not find any contradiction in the prosecution’s case and if at all there is, the same is minor would not amount to prejudice to the appellant. As noted by the Uganda Court of Appeal in Twehangane Alfred –vs- Uganda, Crim. App. No 139 of 2001, [2003] UGCA 6, it is not every contradiction that warrants rejection of evidence. As the court put it:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

Whether the offence of defilement was proved to the required standard 45. The ingredients of the offence are; age of the complainant, proof of penetration and positive identification of the assailant.

46. With regard to the complainant’s age, have established that the birth certificate was produced seamlessly by the Investigating officer (PW6) without any objection from the appellant’ counsel. Be that as it may, it is trite that a birth certificate is not the only way of proving age in sexual offence cases. In the Court of Appeal case of Francis Omuroni –vs- Uganda; Criminal Appeal No. 2 of 2000; it was held that:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”

47. In this case the age assessment report produced as P. Ex 11 shows that the victim was 13 years old. The investigating officer explained that the age assessment was done because the birth certificate had not been traced. I have also noted the appellant’s argument that the stains of blood on the Labia Majora might have been as a result of monthly menstrual flow, since the victim was thirteen (13) years old hence at puberty stage. This is an acknowledgement from the appellant that indeed the victim was 13 years old. Consequently, it is my considered view that the victim’s age was established sufficiently.

48. With regard to penetration, the complainant testified that the appellant used to ferry her to school and on the material day, he took her to a bed in his house, removed her panty, applied oil on her vaginal area and inserted his penis in her vagina. She used the Kikamba words “a nginda” meaning he defiled her. Considering that the complainant was a child of special needs and her evidence was unsworn, there was need for corroboration and my view is that the same was achieved through the evidence of PW2-Clinical Officer.

49. The P3 form and PRC form were properly filled by PW2 as he was one of the people that examined the complainant. His evidence was that upon examination of the complainant, all other aspects apart from genitalia were normal. That there were lacerations and the hymen was freshly perforated. The labia minora had blood stains secondary to friction and the probable cause of injury was penile penetration.

50. The appellant argued that since there were no spermatozoa observed on high vaginal swab, there was nothing to link him to the offence. It is now well established that the law does not require presence of spermatozoa to prove penetration. In the case of Mark Ouiruri –vs- Republic (2013) eKLR, the Court of expressed itself as follows:“… and the effect that the medical examination was carried out on her on 16th November 2008, five days after the event, and that during that time she must have taken a bath and no spermatozoa could be found. In any event, the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and the penetration need not be deep inside the girl’s organ….”

51. Consequently, I have reevaluated the complainant’s evidence and despite being a special needs child, it is my view that her evidence was consistent, believable and sufficiently corroborated by the medical and other evidence. Penetration was therefore proved to the required standard and the trial magistrate did not err by finding as much.

52. As to whether the appellant was properly identified, the evidence is clear that he was well known to the complainant as he used to ferry her to school. He was also known to PW 3, 4, 5 and 7.

53. The appellant submitted that the charges were fabricated at the instance of PW7 because there was a grudge between them. He said that they had a love affair and PW7 threatened him with dire consequences. That PW7 also owed him a debt of Kshs 15,000/= which she had refused to repay. The evidence shows that the minor’s teachers discovered that something was amiss after being dropped to school by the appellant. They decided to take action and in the process, PW7 was notified as she was the minor’s guardian. The chronology of events is not consistent with a frame up organized by PW7.

54. As for the argument that the appellant’s child was at home hence impossible for the defilement to be done in his presence, I have not seen D. Ex 1 on record but the trial magistrate had this to say about it;“The defence has told the court that it would be impossible for the accused person to have been at home at the alleged time owing to the fact that his wife and child were at home and thus would have seen him……The treatment note from Kalawa Health Centre does not give any indication of the time the accused person’s child is said to have been treated neither does it bear an official stamp. It is also impossible for this court to ascertain that the said Ndunge Paul is indeed the accused person’s child and that he missed school on this particular day. A note from the school confirming this position, which is easily available, would have buttressed this explanation.”

55. I echo the sentiments by the trial magistrate that indeed, such a treatment note was not persuasive in light of the overwhelming prosecution evidence. The upshot is that the defence did not create any doubt in the mind of the court with respect to the consistent and overwhelming evidence by the prosecution.

56. As for the sentence, the prosecution filed and served a notice of enhancement on grounds that there were aggravating circumstances in this case. It is noteworthy that the victim is a special needs child, the appellant was a person she and her family trusted as he had been her ride for four years to school. For him to turn against her and commit such an act against her was heinous. These are aggravating circumstances that ought to have upped the sentence.

57. While the sentence is the discretion of the trial court in this case the court was in error for failing to take into consideration the vulnerability of the victim vis a vis the relations ship between the appellant and herself. Section 8(3) of the Sexual Offences Act provides for a minimum sentence of 20 years where the victim is aged between 12 and 15 years. On appeal s. 354 of the Criminal Procedure enables the court in the following terms:(3)The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may(a)In an appeal from a conviction—(i)Reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction; or(ii)Alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or(iii)with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;(b)In an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence;

58. In the Circumstances I find that the sentence meted to the appellant was not sufficient.

59. In the upshot I find that this is a case that calls for the enhancement of the sentence. The conviction is upheld and the sentence of 10 years imprisonment is set aside and substituted with the sentence of 20 years’ imprisonment to run from the date the sentence was meted in the subordinate court.

60. Ultimately the appeal is without merit and the same is dismissed.

DATED SIGNED AND DELIVERED THIS 10TH DAY OF NOVEMBER, 2023. MUMBUA T MATHEKAJUDGERight of appeal 14 days.CA MwiwaAppellantFor the StateMuthiani for appellant