[2022] KEHC 13821 (KLR)

Mumbo v Republic (Criminal Appeal E028 of 2021) [2022] KEHC 13821 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13821 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E028 of 2021

RPV Wendoh, J

October 6, 2022

Between

Joseph Ongeri Mumbo

Appellant

and

Republic

Respondent

Judgment

1. The Appellant Joseph Ongeri Mumbo was convicted by the Hon H Maritim Resident Magistrate, Migori for the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Sexual Offences Act. The particulars of the charge are that on 31/10/2020 at Winyo Sub Location in Nyatike Sub County, Migori County, intentionally caused his penis to penetrate the vagina of JSO a child with mental disability aged ten (10) years.

2. In the alternative, he faced a charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.

3. No finding was made on the alternative charge.

4. Upon conviction on the main charge, the appellant was sentenced to serve twenty-five (25) years imprisonment.

5. Being dissatisfied with the whole judgment, the appellant filed this appeal based on the following grounds:-1. That the ingredients of the offence of defilement were not proved to the required standard;2. That the court failed to address the contradictions in the evidence;3. That the court failed to consider that crucial witnesses were not called;4. That the court shifted the burden of proof on the appellant;5. That the court failed to consider the appellant’s, defence and mitigation and therefore passed a harsh sentence.

6. The appellant therefore prays that the conviction be quashed and sentence set aside. The court directed that the appeal be canvassed by way of written submissions and the appellant filed his submissions on Jun 18, 2022 while the Respondent filed theirs on June 29, 2022.

7. It was the appellants submission that there was no medical evidence to prove that the complainant was defiled and that it was a ploy by the prosecution to fix him without evidence.

8. Of Penetration – It was submitted that the clinical officer PW1 did not determine the age of the minor and he found that the tear on the hymen was not fresh and that she may have been involved in sexual acts before; that therefore, penetration was not proved. Lastly, that the allegation that he admitted the offence was not supported in law.

9. In reply Mr Omooria, Senior Assistant Director of Prosecution, the prosecution counsel argued that the three ingredients that must be proved in a charge of defilement, are penetration, age and identity of the perpetrator were duly proved by the testimonies of PW1, PW2 and PW3. Counsel submitted that the appellant did not point to any of the alleged contradictions in the testimonies.

10. This being the first appeal, it is expected of this court to examine all the evidence on record exhaustively, analyze it, and arrive at its, own determinations. The court has to of course take into consideration the fact that it neither saw nor heard the witnesses testify. This court is guided by the decision inOkeno v Republic(1972) EA 32.

11. The evidence that was tendered before the trial court was a follows:- PW1, Wycliffe Okoth Santora, Clinical Officer, on 1/11/2021, examined the complainant whose age he assessed to be ten (10) years. He found that she was deaf and dumb, her external labia manora and majora where normal. There were bruises on the wall of the vagina , hymen was torn, there were epithelial cells but the vaginal discharge was not examined for spermatozoa. He attributed the bruises to forced penetration due to unprepared partner.

12. PW2 JRO, the complainant’s grandmother recalled that on October 31, 2020, she was at home with the complainant, preparing casava when the complainant disappeared. She went in search of the complainant and so did her husband PW5 SOB. She entered the appellants gate and saw the complainant standing at the door step of the appellant’s house; that one Mary Akinyi, the daughter in law of the appellant informed her that she had seen the complainant come out of the appellant’s house. PW2 on receiving the complainant, asked what had happened to her and she grabbed her hand and placed it over her skirt. PW2 felt that the skirt was wet, checked the complainant’s private parts and found had blood and urine of a male (semen). She started asking who did that to the child. Her husband arrived, saw the complainant’s state. The appellant was found bathing behind his house, was questioned and admitted having committed the act. PW5 went to report to Bernard Okeyo Nyitambe who in turn called Nyumba Kumi elder Dick Adek and they proceeded to the appellant’s home, questioned him. He admitted and arrested him and took him to the police station where the child was taken to hospital.

13. PW6 PC (W)Veronica Njambi of Macalder Police Station was the investigation officer in this matter. She recorded the report of defilement from PW2, took the accused to hospital, recorded statements. PW6 also rearrested the appellant from the Chief.

14. After close of prosecution case, the accused testified on Oath in his defence DW1 and he called his son Stephen Joseph Ongeri as a witness (DW2).

15. According to the appellant, he never committed the offence; that he knew the child who is also his grandchild; that they are neighbours. He denied having seen the complainant on the material date. He remembered that when at home, his daughter in law gave her water to bath. It was between 6:00pm to 8:00pm and was arrested at 8:00pm by the Chief; that he was alone in the house because his wife who is a business lady was away. He said that he has had along standing land dispute with the complainant’s grandfather which was known to the Chief.

16. DW2 Stephen Joseph Ongeri recalled that on October 31, 2020, he was at home till 3:00pm, that the father had gone to graze cattle and found him home; that he went to get cassava, came back took a birth; that they ate and everyone went to bed but after a while, he was woken up by his sister in law and informed that the Chief had come to arrest the appellant. He also stated that the appellant had land dispute with complainants family.

17. As regards, the allegation that crucial witnesses were not called, counsel argued that whereas one Mary Akinyi informed PW2 about which house PW3 had been, however there was sufficient evidence to prove the offence.

18. Counsel also submitted that the court did consider the appellant’s defence his age before sentence was passed; that under Section 8(2) Sexual Offences Act the appellant was liable to life imprisonment but the court only handed him twenty five (25) years imprisonment.

19. I have duly considered the grounds of appeal the rival submissions and evidence on record.

20. On the ground that the evidence was contradictory, the appellant never submitted. On the said contradictions nor did he point out any. That ground fails.

21. To prove an offence of defilement the prosecution has the duty to prove beyond any doubt the following elements: -1. The age of the complainant;2. Proof of penetration;3. Proof of the perpetrator’s identity.

22. It was the appellant’s submission that the prosecution did not prove that the complainant (PW3) was deaf and dumb. The complainant appeared before the court as PW3. The court examined her and established that she could only communicate through her grandmother PW2. PW1, the Clinical officer who examined PW3 also confirmed that she was both deaf and dumb and could only communicate through an intermediary, her grandmother. This court is satisfied that the complainant was dumb and deaf.

23. PW2, the grandmother of the complainant testified that she was ten (10) years old. PW1 the clinical officer who examined her was also of the view that she is about ten (10) years old. He observed that the complainant had not yet developed pubic hair or armpit hair. Breasts were not well developed and hence the approximation. In the case of Francis Omuroni v Uganda Criminal Appeal No 2 of 2000 the court held:-

24. 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...”

25. I am satisfied that the complainant’s age was established to be about ten (10) years even in absence of a birth certificate or notification, given the evidence of he guardian and PW1. .

26. Of Penetration: It is defined under Section 2 of the Sexual Offences Act as “partial or complete insertion of the genital organs of a persons into the genital organs of another person”

27. PW2 testified that upon finding the complainant, she observed her and found blood and semen (male urine) in the complainant’s biker. PW1 on examining the complainant on the next day, on November 1, 2020, found her to have a whitish discharge with a foul smell, epithelial cells and bruises to the vaginal wall and the hymen was missing. According to him, it seemed that the complainant had been involved in sexual activity before . The court correctly found that penetration was proved by the bruising of the vaginal wall . PW1 said that penetration it was caused by forced penetration due to unprepared partner. Though the trial court found that there was penetration and indeed there was, the question is whether it was by the genital organ of another. This is because bruises can be caused by anything forced into the vagina. PW1 said that he did not test the vaginal discharge to determine whether it contained spermatozoa. I find that penetration as defined under Section 2 of Sexual Offences Act was not proved.

28. Whether the appellant caused the injuries to the complainant; PW2 after looking for the child, found her in the appellants’ home. Although the one who allegedly informed PW2 where the child was, was not called as a witness, yet the child was actually found in the appellant’s home. PW2 stated that at the time the child was found only the appellant and his daughter in law were in the said home but it cannot be confirmed that nobody else was in the house because PW2 did not check the houses.

29. The complainant was called as PW3. The court noted that she can testify through sign language. However, the court did not allow her to testify using sign language. Mary Akinyi the daughter in law of the appellant and who allegedly informed PW2 that the complainant had just come out of the appellants house was never called as a witness. Though related to the appellant, and may not have come to testify against the father in law, the prosecution should have explained Mary Akinyi’s absence. In Bukenya & Another v Uganda (1972) EA 549 the court stated as follows:-i)The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.ii)That court has the right and duty to call witnesses whose evidence appears essential to the just decision of the case.iii)Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses … though the intermediary (PW2).

30. It was a grave error on the part of the trial court not to take the evidence of PW3 through the intermediary. Since the complainant could communicate through the grandmother, the prosecutor should have led evidence through the grandmother as an intermediary to the complainant. The complainant did not identify the appellant as the perpetrator. There was no need for the court to look for circumstantial evidence when there was direct evidence from the complainant through the intermediary.

31. I have earlier found that penetration was not proved though PW3 had injuries to her genitalia. I also find that the appellant has not been identified as the perpetrator because PW3 did not testify to how she got injuries to the genitalia or who inflicted them.

32. The appellant complained that crucial witnesses were not called.

33. In this case, the evidence is barely enough to found a conviction and it was prudent for the prosecution to call the evidence of Mary Akinyi. There is no explanation given why she was not called. The only conclusion that this court can draw is that her evidence may have tended to be adverse to the prosecution case.

34. The appellant also complained that the trial court shifted the burden of proof to the appellant.

35. The trial court relied on the evidence of PW2, PW4, PW5 and PW6 to find that the appellant admitted to them that he defiled the child. However, those are not witnesses qualified to take a confession from the appellant. The law on confessions under Section 25’A’ of the Evidence Act is very clear as to who can take a confession from on accused person. A confession can be taken by a police officer of the rank of inspector and above who is not the investigation officer, or a magistrate or judge. The evidence of PW1, PW4, PW4 and PW6 was hearsay.

36. In the end, I am of the considered view that the prosecution bungled its own case by not allowing PW3 to testify through her grandmother, PW2, and the trial court did not help but also erred in failing to give directions on how the evidence of an intermediary should be received. As a result, I find that the prosecution did not prove their case to the required standard of beyond reasonable doubt. Even if there was strong evidence against the appellant, it was not placed before this court. I find that the conviction was made in error and it is hereby quashed. The accused is set at liberty forthwith unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 6TH DAY OF OCTOBER, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Muluma for the ODPPAppellant present in person.Nyauke Court Assistant