[2022] KEHC 14772 (KLR)

Murithi v Republic (Criminal Appeal E014 of 2021) [2022] KEHC 14772 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14772 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Appeal E014 of 2021

LW Gitari, J

October 12, 2022

Between

Samuel Murithi

Appellant

and

Republic

Respondent

Judgment

1. By a petition of appeal dated and filed on August 18, 2021, the appellant herein is challenging the decision delivered on August 5, 2021 by the learned Senior Resident Magistrate Marimanti in sexual offences caseNo E001 of 2020. He seeks the setting aside of the said decision on grounds set out in the aforesaid petition of appeal as well as the supplementary petition of appeal dated February 21, 2022.

2. The appeal is premised on the grounds that:a.The learned trial magistrate erred in law and fact in basing his judgment on remote and irrelevant matters.b.The learned trial magistrate erred in law in misinterpreting the Sexual Offences Act and the applicable law and which prejudiced the appellant.c.The learned trial magistrate erred in law and fact in failing to consider and in rubbishing the appellant’s defence.d.The learned trial magistrate erred in law and fact in failing to properly analyze the evidence on record and which prejudiced the appellant.e.The learned trial magistrate erred in law and fact in rendering a judgment and passing a sentence that was unlawful and against the weight of the evidence.f.The honourable trial magistrate erred in law and in fact in failing to explain to the appellant who was unrepresented that he had a right to either submit orally or file written submissions.g.The honourable trial magistrate erred in law and in fact in proceeding to convict the appellant without placing him on defence.h.The honourable trial magistrate erred in law and in fact in overlooking material contradictions in the evidence of the prosecution witnesses that rendered the prosecution’s case doubtful.i.The honourable trial magistrate erred in law and in fact in failing to rule on a crucial application made by the respondent and in lieu proceeding to hear and determine the case in a prejudicial and procedural manner which occasioned injustice.

3. The case against the appellant was one of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act, 2006 (hereinafter referred to as the “Act”). He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Act.

4. On the main charge, it was alleged that on December 12, 2019 in Tharaka South sub-county within Tharaka Nithi county, the appellant intentionally caused his penis to penetrate the vagina of VK, a child aged 15 years.

5. On the alternative charge, the particulars were that on December 12, 2019 in Tharaka South sub-county within Tharaka Nithi county, the appellant intentionally touched the vagina of VK, a child aged 15 years, with his penis.

6. The appellant denied the charges and the matter proceeded to full trial. At the conclusion of the trial, the trial magistrate convicted the appellant in the main charge and sentenced him to twenty (20) years imprisonment.

7. The appeal was disposed of by way of written submissions.

Appellant’s Submissions 8. The appellant filed his written submissions through his counsel on record on May 18, 2022. It was his submission that the lower court erred in not ruling on the respondent’s application of November 19, 2020 to stand down the complainant (PW1) for becoming a hostile witness. The appellant states that instead, the court allowed the complainant to take the witness box on May 19, 2021, and this time, the complainant gave a different story from what she had first stated. According to the appellant, the trial court ought to have concluded that after applying to stand down the complainant, the prosecution must have embarked on intimidating, coercing, and coaching the complaint on how to implicate the appellant hence the different narrative that the complaint gave six months later. The appellant thus submitted that the trial court erred in not finding that the complainant’s evidence was not only inconsistent, not credible, and contradictory but also doubtful.

9. The appellant further submitted that the investigations carried out in this case were shoddy as there was no evidence that the investigating officer visited the scene. in addition, it was the appellant’s submission that the trial court was not told the source of light that enabled PW2 to identify the appellant at 2 a.m.

10. The appellant also submitted that the trial court erred in not placing him on his defence. According to him, a ruling stating that “a prima facie case had been established” did not carry the same meaning and connotation as “accused put to his defence”. In addition, the appellant submitted that the trial magistrate did not evaluate the appellant’s defence and only went on to state in its judgment that “… simply say the accused has no defence at all”.

11. The appellant thus submitted that the proceedings before the trial court was conducted in a casual manner leading to an unfair, unsafe and prejudicial conviction. He thus urged this court to allow the appeal by finding that his conviction and sentence were unsafe.

Respondent’s Submissions 12. The respondent filed its written submissions on May 16, 2022. It was its submission that the appellant was convicted on the strength of the complainant’s evidence which was supported by the medical evidence.

13. This being a first appeal, this court is bound by the principles set out in the case of David Njuguna Wairimu v Republic [2010] eKLR where the Court of Appeal stated:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

14. Similarly, inKiilu & another v Republic [2005]1 KLR 174, the Court of Appeal stated thus:“1. An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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.2. It is not the function 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; 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.”

15. Based on the above authorities, it follows that the duty of this court in this appeal is to re-evaluate the evidence tendered before the trial court and come up with its own independent finding. Below therefore is a summary of the respective case of the parties.

Prosecution’s Case 16. PW1 was the complainant, VK. She testified that she had met a boy and they formed a boyfriend-girlfriend relationship. She further testified that on the material day, she invited the said boy to her home, and they had sex for the first time. She stated that her mother (PW2) was away at that time. After that, the complainant and the appellant were caught and arrested and PW1 was seen at the hospital.

17. PW2 was SK, PW2’s mother. She testified that on the material night at about 1. 00 a.m, she heard commotion in her daughter’s house. She then she discovered that she had been locked inside. She looked through the window and saw the appellant leaving PW1’s house. She shouted at him and alleged that she had warned him before. Her son opened the house for her and they took PW1 to the police.PW2 stated that the appellant was fond of seducing PW1. On cross examination, PW2 stated that she did not know what time the appellant came to her compound and that at about 2. 00 a.m, she saw him through cracks in the door. She stated that she had on several occasions found the appellant having sex with her daughter, even in the bush, and that she had sent the area chief and husband.

18. PW3 was Lilian Wahu, a clinical officer at Marimanti Level 4 Hospital. She produced as evidence a P3 form (P.Exhibit 1) that was filed by her colleagues who was on transfer. She stated that she was conversant with his handwriting and signature. She testified upon examination of the complainant, the hymen was broken but not freshly. The virginal wall was reddish. She had a whitish virginal discharge and spermatozoa was seen.

19. PW4 was PC Emmaculate Kilonzi, the investigating officer. She stated that on the material night at around 2. 00 a.m., she was called by the OCS over the material case. They went to PW2’s home where they found PW1 locked in the house. They booked the matter and referred her for treatment and collection of medical evidence. She then issued the P3 form and recorded the statements of witnesses. It was further testimony that she established that PW1 was a minot and had had sex with the appellant, a man who she knew, and whom they arrested. PW4 also learnt that the PW1 and the appellant had had sex severally as boyfriend and girlfriend.

20. This marked the close of the prosecution’s case and the trial court ruled that a prima facie case had been established.

Defence’s Case 21. In his defence, the appellant testified as DW1. He denied committing the offence and alleged that he was being framed. He maintained thatPW1 was not candid because she changed her testimony. She did not mention the appellant the first time she testified but only mentioned him the second time. The appellant also alleged that PW1 was not a student as she had painted her hair and never came to court in school uniform. He questioned PW2’s failure to report him if at all she had known for a long time that the appellant was PW1’s lover as she alleged. He further contended that PW2 was demanding money from him.

22. DW2 was Chabari Muruma, the appellant’s father. He stated that the appellant was being framed. He questioned why people did not scream when they realized that appellant had entered PW2’s home. On cross-examination, he stated that the appellant was at home and that he arrived before DW2 slept. He stated that the appellant did not tell him when he left and that the following morning, he saw the appellant coming from his house. On interrogation by the trial court, DW2 stated that they had never tried to reconcile the matter and that PW2 has never asked for money. He stated that they do not see each other.I have considered the grounds of appeal, the submissions and the proceedings before the trial court.

Issues of Determination 23. From the grounds of the appeal raised by the appellant and the respective submissions by the parties, it is my view that the main issues for determination are:a.Whether the conviction of the appellant was safe.b.Whether the sentence meted against the appellant was lawful.

Whether the Appellant’s Conviction Was Safe 24. Sections 8(1) of the Act provides as follows:“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”

25. The ingredients of the offence of defilement were highlighted in the case of Charles Wamukoya Karani v Republic, criminal appeal No 72 of 2013 which stated as follows:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

26. For the prosecution to have secured a safe conviction, it ought to have proved the following ingredients beyond any reasonable doubt that there was penetration of PW1’s genitalia; that PW1 is a minor; and that the offence was committed by the appellant.

27. The complainant’s age is not in dispute. The prosecution produced in evidence the complainant’s birth certificate serial No 6xxxx2 which proved that the complainant was slightly above 15 years on the material date as she was born on July 10, 2004.

28. The next element that needed to be proved was penetration. “Penetration” is defined under section 2 of the Act as:“the partial or complete insertion of the genital organs of a person into the genital organs of another person”.

29. In this regard, the Court of Appeal in the case of John Mutua Munyoki v Republic[2017] eKLR, held that:“Under the Sexual Offences Act the main elements of the offence of defilement are as follows:(i)The victim must be a minor, and(ii)There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice.Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt.”

30. The key evidence that the courts rely on in defilement cases to prove penetration is the complainant’s own testimony which is usually corroborated by the medical report presented by a medical officer. In this case, the complainant testified that she had sexual intercourse with the appellant on the material day at about 1. 00 a.m. The clinical officer, PW4, testified that the examination conducted on PW1 showed that she had previously engaged in sexual intercourse. This is evident from the P3 form on record which notes that the complaint’s hymen was broken but not freshly. It was furtherPW3’s testimony that PW1’s vaginal wall was reddish, and that the whitish discharge seen was spermatozoa. She thus formed the opinion that there was penetration. From both the evidence of PW1 and PW3 as well as the P3 form, it is my view that there was penetration and the same was proved to the requisite standard of any reasonable doubt.

31. On identification of the perpetrator, the appellant has attacked the prosecution’s evidence on two fronts. First, that the evidence of PW1 was contradictory and secondly, that PW2’s ability to identify the appellant was doubtful given that the offence took place at around 2. 00 a.m.

32. From the proceedings, it is clear that the appellant was not a stranger to the complainant. The complainant stated that she met a boy and formed a girlfriend-boyfriend relationship with him. She further stated that on the material day, she invited the boy to her home, and they had sex.

33. On November 19, 2020, the complainant told the court that the boy she had sex with on the material day was one Kevin Murithi. She denied that it was the appellant who defied her stating that it is her mother who had an issue with the appellant. At this point, the prosecution counsel prayed for the complainant to be stood down for being hostile and so that the counsel could guide her on the consequence of lying on oath. The appellant did not object.

34. In Daniel Odhiambo Koyo v Republic (Court of Appeal) [2011] eKLR the court stated as follows in respect of refractory or hostile witnesses:“The law on such witnesses is clear. The probative value of his evidence is negligible. It may be relied upon in clear cases to support the prosecution or defence case……… There is a thin line between a hostile and refractory witness. Both are people who display reluctance in giving evidence as required of them. Normally a court will take a perverse view of the credibility of the hostile or refractory witness in view of his shift in position regarding his statement to the police regarding the case against the accused or is reluctance to testify.”

35. In Maghenda v Republic [1986] KLR 255 at P 257, the same court remarked as follows regarding the evidence of a hostile witness:“The evidence of a hostile witness must be evaluated, in particular if it tends to favour the accused though it may not necessarily be acted upon by the court.”

36. In this case, the complainant testified again on May 19, 2021, and stated that it was the appellant with whom she had sexual intercourse with on the material day. The trial magistrate did not analyse this evidence of the complainant who had recanted her statement to the police. It is important to look at the proceedings of November 19, 2020. It went as follows:-“Prosecution counsel I pray to stand down PW1. She is hostile. I need to guide her on effects of lying on oath. I will take directions.”See page 9 of the record line 11-14. The trial magistrate did not give a ruling on that application. He fixed the matter for mention on several occasions until May 19, 2021 when the complainant took to the stand and proceeded to give a totally different story in which she implicated the appellant. I am inclined to agree with the appellant’s submission that upon being stood down the complainant was intimidated, coerced and coached to implicate the appellant. As stated by the Court of Appeal in the case of Daniel Odhiambo v Republic (supra). The court will take a perverse view of the credibility of the hostile and refractory witness in view of his shift in position regarding the case against the appellant. This being a sexual offence which is dependent on the testimony of the complainant to convict, the trial magistrate had a duty to give reasons as to why he believed the complainant.It should not escape the attention of the trial magistrate that the victim was a minor and the only witness to the fact. Section 124 of the Evidence Act provides:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (cap 15), where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”The emphasis is on the requirement that the trial court shall record the reasons why it was satisfied that the alleged victim was telling the truth. The trial magistrate erred in relying on the testimony of the complainant without giving reasons as to why he was satisfied that she truthful despite the fact that she was a hostile and refractory witness. The trial magistrate erred in stating in his Judgment that the victim had mentioned the relationship to her mother which was not supported by the evidence. The learned trial magistrate erred by failing to take into consideration that the witness was hostile and refractory as this went to her credibility and the probative value of her testimony.Section 161 of the Evidence ActGives the court discretion to allow cross-examination of a hostile witness by the party who called him or her. The trial court acted on this evidence as if the witness was not hostile or refractory. No evidence was presented before the trial magistrate to prove that the witness was hostile as the said statement of the complainant was not presented to the trial magistrate. The trial magistrate ought to have treated the evidence with caution. A conviction cannot be based solely on the evidence of a hostile witness. See Abel Monani Nyamamba & another v Republic ) C.A) criminal appeal No 86/1994. The proceedings before the trail magistrate touch on the right of the appellant to fair trial article 50(2) (h) of the Constitution provides as follows:“to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.”By the very fact that the hostile witness was stepped down, recalled and gave a different version of her testimony was a clear indication that such procedure would lead or occasion a substantial injustice. Under article 25 of the Constitution, the right to fair trial is one of the rights and fundamental freedoms which shall not be limited. The right of the appellant to fair trial was infringed as the learned magistrate did not inform the appellant of his right to be represented by an advocate at State expense. I must also consider the testimony of PW2, the complainant’s mother who testified that she saw the appellant at 200 a.m leaving PW1’s house. No attempt was made by the prosecution to prove the kind of light which enabled PW2 to identify the appellant nor did the learned trial magistrate make an inquiry as on how the PW2 managed to identify the appellant at 200 a.m It is also noted that PW2 stated that she saw the appellant leaving the scene. It is therefore expected that she saw the back of that person and therefore could not see his face and recognize him. Such identification is unreliable and cannot be relied on to corroborate the testimony of the complainant. I am inclined to agree with the appellant’s submission that the investigations were shoddy and the learned trial magistrate gave a blind eye to the omissions. The conviction based on such kind of evidence is no doubt unsafe. The submissions by the State that since the appellant did not question PW2 on the inability to identify him cannot be entertained. The burden was on the prosecution to prove that PW2 identified the appellant. This being a first appellate court, I have a duty to subject the evidence to a fresh and exhaustive examination and to come up with an independent finding. The appellant has a legitimate expectation that this court will subject the evidence to a fresh evaluation and the court to give an independent decision. I find that the testimony of PW2 is not reliable. Her allegations that she had reported the matter to the chief for the appellant to be warned was not substantiated by any evidence. The testimony of PW2 is not credible. On the evidence of arrest, PW4 was not candid on how the appellant was arrested. This is what PW4 stated.“I established PW1 was a minor and had sex with man he (sic) knew whom we arrested and found it was accused before court. I learnt they had sex severally as boyfriend and girlfriend. He fled home for a long time.”See page 16 line 16-19 of the record. No evidence was given on whether the complainant identified the appellant or where he was arrested. These are gaps in the prosecution which cast doubts in the case.From the above analysis, I opine that the appellant’s conviction was not safe. The trial magistrate failed to analyse the evidence, erred by not following the procedure on refractory and hostile witness, failed to comply with section 124 of the Evidence Act and failed to promptly inform the appellant of his right under article 50 (2) (h) of the Constitution. Having considered the evidence in its entirety, I find that the conviction of the appellant was not sound.

whether the sentence meted against the Appellant was lawful 37. The charge sheet dated September 10, 2020 indicates that the appellant was charged under section 8(1) as read with section 8(4) of the Act. Section 8(4) of the Act provides that:“A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”

38. It is not in dispute that the complainant herein was slightly above fifteen years old when the subject incident happened. Thus, the appropriate provision of the law on the appropriate sentence should have been section 8(3) of the Act which provides that:“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”

39. The trial court correctly noted that the subject offence attracts a minimum sentence of 20 years which he adopted. In my view, the trial court correctly applied the law and as such, the sentence meted against the appellant was lawful.

Conclusion 40. The upshot of the foregoing is that the appeal has merits.I allow the appeal. I set aside the conviction and sentence. The appellant will be set at liberty unless he is otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 12TH DAY OF OCTOBER 2022. L.W. GITARIJUDGE