[2022] KEHC 10117 (KLR)

Muoki v Republic (Criminal Appeal E028 of 2021) [2022] KEHC 10117 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10117 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E028 of 2021

GMA Dulu, J

May 18, 2022

Between

Samuel Muoki

Appellant

and

Republic

Respondent

(Being appeals from the original judgment of Hon. E.M Muiru (P.M) in Kilungu Principal Magistrate’s Court PMCR Case S.O) No. 55 of 2020 pronounced on 10th day of March, 2021)

Judgment

1. The appellant was charged in the magistrates’ court with defilement contrary to section 8(1) (4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that between 27th September 2020 and 9th October 2020 in Mukaa Sub-County within Makueni County unlawfully and intentionally committed an act which caused penetration of his genital organ to the genital organ of RW (name withheld) a child aged 17 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 dates and at the same place unlawfully and intentionally committed an indecent act with RW a child aged 17 years by touching her genital organ.

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, the appellant has come to this court on appeal on the following grounds –1)That the charge was defective.2)That the charge was not read and explained in language he understood.3)That there were contradictions in the prosecution evidence.4)That the medical evidence did not implicate him as a culprit – as he was not found with candidiasis.5)That his defence was not considered.6)Sentence is harsh.

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 start by reminding myself that as a first appellate court, I am duty bound to consider the evidence on record afresh and come to my own independent conclusions and inferences. See Okeno –vs- Republic (1972) E.A 32.

7. In proving their case, the prosecution called four (4) witnesses. Pw1 was the alleged victim. It was her testimony that she was RWD a form 3 student and became friends with the appellant in September 2020. That she formed a habit of going to spend nights with the appellant at his home without informing her parents. Because her father wanted to chase her away, she went and lived with the appellant from 01/10/2020 until 09/10/2020 when the police came for them. According to her they had sexual intercourse with the appellant Samuel Muoki on several occasions. On age, she relied on her birth certificate in which her date of birth was recorded as 20/04/2003. She also stated that both families’ parents had agreed that the two marry after she finished school.

8. Pw2 was DM the father of the alleged victim. It was his evidence that in September 2020, he became aware that the alleged victim had a relationship with the appellant. He noted that the alleged victim persistently went to spend nights at the appellant’s house. Though he cautioned her against it, she did not stop the habit, and thus he reported the matter to the police.

9. Pw3 was Eric Kasiamani a Clinical Officer at Kilungu Sub-County hospital whose evidence was that he filled the medical examination report (P3 form) on the alleged victim. On examination, the victim’s hymen was broken, she was pregnant and infected with candidiasis. He produced the P3 form, treatment notes and Post Rape Care (PRC) forms as exhibits. He stated however, that the appellant did not have candidiasis infection.

10. Pw4 was PC Esther Mutisya of Maiyani Police Post, the Investigating Officer, who received a report on 29/09/2020 that a girl had gone missing. It was her evidence that, on 05/10/2020 they went out to look for the suspect Samuel Muoki but did not trace him. On 09/10/2020, they again went to the suspect’s house and found the victim but did not find him. Later that day, they found the appellant in the bush with the alleged victim, arrested and charged him.

11. When put on his defence, the appellant tendered sworn defence testimony. He stated that he had a contract to supply DM, the father of the alleged victim, with water. He supplied water worth Kshs.14,000/= and then had a meeting with the parents of the alleged victim attended by the alleged victim, where he was paid Kshs.8,500/= and where it was agreed that he would marry the alleged victim after she completed school. It was his defence that he took a goat to the father of the alleged victim according to Kamba customary law. According to him, the alleged victim then started coming at his house and, on 07/10/2020, she came at night with her clothes crying, and said that her father had chased her away from home. It was his evidence that he later learnt that the alleged victim was pregnant and they thus disagreed. However, he was arrested and charged with an offence he did not commit, as he did not sleep with her.

12. The prosecution was required to prove all the ingredients of the offence of defilement beyond any reasonable doubt. The elements of the offence of defilement are first the age of the victim, secondly, penetration of a sexual nature, and thirdly the identity of the culprit.

13. The appellant has raised a technical point on appeal on the charge, saying that it was defective. I note that the section cited in the charge is described as 8(1) (4), instead of section 8(1) as read with section 8(4) of the Sexual Offences Act. This was a defect on the charge but it was not fatal as the appellant was not prejudiced in any way by the defect. It is thus a curable defect under 382 of the Criminal Procedure Code.

14. The appellant has raised the issue of language claiming that the charge was not read to him in Kiswahili language. I note that the trial court record clearly shows that on 12/10/2020 when the charge was read the language used in court was English/Kiswahili. Thus though the record does not show specifically that the charge was read in Kiswahili, it is clear from the totality of the record that the language used in court was English and Kiswahili. In any case, the appellant pleaded not guilty, thus it cannot be said that he was prejudiced. I find no basis for saying that Kiswahili was not used to explain the charge.

15. I now turn to the elements of the offence. With regard to the age of the alleged victim, the birth certificate relied upon was clear. The alleged victim having been born in April 2003, she was 17 years and some months in September and October 2020. As such, the prosecution proved beyond any reasonable doubt that the alleged victim was 17 years old at the time of the offence.

16. With regard to penetration, the evidence of Pw1 the alleged victim was clear and in addition, the medical evidence was also clear that her hymen was missing. There was also pregnancy. The appellant himself admits being friend to the alleged victim, and also admitted that she spent nights at his home, and that there was even a proposal to marry between them. In my view, the prosecution proved beyond any reasonable doubt that sexual penetration on the alleged victim did occur.

17. With regard to the last element of the identity of the culprit, again in my view, the evidence of Pw1, Pw2 DM and the appellant himself is clear that the alleged victim spent nights with the appellant. Pw4 PC Esther Mutisya the Investigating Officer also found the alleged victim in the house of the appellant, and also the arrest of the appellant in the bush was effected when the alleged victim had joined the appellant in the bush. I thus have no hesitation in finding that the prosecution proved beyond reasonable doubt that the appellant was the culprit. In my view, the allegation in the defence of the appellant that the father of the alleged victim defiled her was an attempt to divert the court’s attention in this serious matter, as it is clear even from the appellant’s own story, that the whole issue was about the alleged victim forming habit of going to sleep at the appellant’s house, thus the matter was reported to the police.

18. Having said as above, I am of the view that this is a case where the provisions of section 8(5) of the Sexual Offences Act apply. That section provides a statutory defence. As it is, the alleged victim who is below 18 years by just a few months, behaved like an adult and even agreed to marry the appellant. That conduct could mislead anybody who was not aware of the exact date of her birth. The parents of the victim also were involved in the relationship between the alleged victim and the appellant. The alleged victim further chose on her own motion, to go to the appellant’s house severally and sleep overnight, and eventually shifted there with all her clothes. Taking into account the fact that, there is no evidence on record that the appellant knew the actual date of birth of the alleged victim, in my view, the defence under section 8 (5)of the Sexual Offences Act applies in this case, because both the alleged victim and her parents portrayed her as an adult. The mere evidence that the alleged victim was in Form 3 in my view, did not confirm that she was below 18 years as people can be in school beyond 18. I will thus allow the appeal only on that account.

19. The appellant has appealed against sentence. However, the sentence imposed by the trial court herein is the minimum sentence provided by law. If I upheld the conviction, I would also have to upheld the sentence. However, having found that the statutory defence under section 8(5) of the Sexual Offences Act applies herein, the sentence will also be set aside consequent upon quashing the conviction.

20. Consequently and for the above reasons, 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 18TH DAY OF MAY, 2022, IN OPEN COURT AT MAKUENI...........................GEORGE DULUJUDGE