[2022] KEHC 13924 (KLR)

Muruga v Republic (Criminal Appeal E097 of 2021) [2022] KEHC 13924 (KLR) (Crim) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13924 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E097 of 2021

JM Bwonwong'a, J

October 4, 2022

Between

Geoffrey Muruga

Appellant

and

Republic

Respondent

(An appeal against the judgment of Hon C Mwaniki, SRM, dated July 22, 2021, in Kibera Chief Magistrate’s Court, Criminal Case Number 9 of 2017, Republic v Geoffrey Muruga)

Judgment

1. The appellant has appealed against his conviction and sentence of twenty (25) years imprisonment in respect of the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act no 3 of 2006.

2. In this court, the appellant has raised six grounds of appeal in his petition of appeal and five supplementary grounds, which he filed together with his written submissions.This court has summarized the grounds of appeal as follows.

3. In ground 1 the appellant has faulted the trial court in failing to find that the elements of the offence of defilement were not proved beyond reasonable doubt as required by law. In ground 2 the appellant has faulted the trial court in failing to consider that the charge sheet was fatally defective. In ground 3 the appellant has faulted the trial court in law and fact by failing to consider that the DNA evidence exonerated him from the offence. In ground 4 the appellant has faulted the trial court in failing to find that the maker of the PRC form which is the primary document did not testify in this case. In ground 5 the appellant has faulted the trial court in failing to give due consideration to the appellant’s plausible defence. In ground 6 the appellant has faulted the trial court in failing in law to properly evaluate the evidence on record and relied on insufficient, uncorroborated incredible evidence, and came to a wrong decision that the appellant defiled the complainant. In ground 7 the appellant has faulted the trial court in failing to find that the burden of proof by the prosecution was not discharged and thus the prosecution case was not proved beyond reasonable doubt as required by law.

4. As this is the appellant's first appeal, the role of this appellate court is well settled. It was held in the case of Okeno vs R (1972) EA 32 and further in the Court of Appeal case of Mark Oiruri Mose vs R (2013) eKLR that this court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusions but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.

5. On grounds 1, 6, and 7 the appellant has challenged the prosecution evidence on the basis that it did not prove the elements of the offence of defilement. Secondly that the evidence was insufficient and uncorroborated to warrant a conviction. Finally, that the prosecution failed to discharge the burden of proof under the law beyond reasonable doubt.

6. It was the evidence of Pw 1 that she was the mother of the complainant. She testified that the complainant (AM) was two (2) years old, having been born on February 12, 2015. She recalled that on February 1, 2021 at around 10 am she had sent AM outside to play, only for the child to come back shouting ‘mama chomeka! Chomeka!’ (mum I am burning). That she did not observe anything unusual and gave her a banana whereupon the complainant returned outside to play. That she went towards the direction of the appellant’s house. She testified that shortly thereafter the complainant returned and was crying. That she lulled her to sleep. She then woke up and wanted to empty her bowels. That no sooner had she seated, she let out a painful cry. Pw 1 testified that she observed blood stains in her urine and on the complainant’s underwear.Her genitals were also bleeding.

7. Furthermore, Pw 1 testified while being crossed examined by the appellant that:“She came to me crying from the house from your house.”

8. She decided to go to the hospital and sought the assistance from her neighbours.

9. The appellant who was around informed her that he had witnessed the complainant falling onto a stove outside his door. It was at this stage that she rushed the complainant to a clinic nearby and was referred to Nairobi Women’s Hospital, where she was admitted for treatment. She also reported the incident to the area chief and the police, where she was issued with a P3 form. After investigations, the appellant was then apprehended and charged with the offence of defilement. It was her testimony that they had always been good neighbours with the appellant and had no ill will against him. Further, the complainant is still undergoing home care as she has now forced to use diapers throughout.

10. It was also her testimony that the plot where they lived had 12 tenants and only 3 households had tenants at that time namely the appellant, herself, and Mama Sharon. She maintained that the minor only went to the appellant’s house on that material day. On cross-examination, Pw 1 admitted that it was not the first time for the minor to go to the appellant’s house. Pw 1 also testified that she was on good terms with the appellant.

11. Edward Kinuthia Mbugua (Pw 2), a clinical officer produced the medical documents of prepared by Dr Ochwang Edwin, who had examined and treated the complainant at Nairobi Women’s Hospital on February 1, 2017. The observations made by this medical practitioner was that at the time the complainant was presented at the hospital, she had pains in her private parts. She had tears and fresh blood on the hymen. There was bleeding in the vagina. No spermatozoa were observed. The complainant was cleaned and treated in the theatre. He concluded that the injuries were consistent with sexual assault. He produced the post-rape care form (PRC), the gender violence recovery form, and the discharge summary as exhibits.

12. Dr Joseph Maundu (Pw 3) of Nairobi Police Surgery also examined the injuries on the victim for purposes of completing out the P3 form from Muthangari Police Station. He gave evidence that he observed slight bruising on the outer genitals with a small tear on the anal opening. The hymen was broken with recent tears. He also observed a small tear on her anal opening. His conclusion was that the injuries sustained were indicative of sexual assault. He produced the P3 form as exhibit 3.

13. Elizabeth Waithera Oyengo (Pw 4), an analyst at the government chemist gave evidence that she received several samples from the investigating officer for analysis to determine the presence of blood stains, semen, and any DNA. The samples were vaginal swabs from the complainant, buccal swabs and a green panty. She testified that the panty was stained with human blood and no semen was observed. Further, the DNA profile generated from the stains matched the DNA profile of the complainant. The DNA profile generated from the buccal swab of the appellant did not match any of the samples. She produced the report of her findings dated October 02, 2017.

14. PC no 97181 Vela Makungu (Pw 5), was the investigating officer having taken over from PC Veronica Thuo, who had investigated the matter. She testified that Pw 1 reported the case of defilement of the complainant by the appellant having spent time in his house. That it was thereafter that the complainant was in pain and needed medical attention. It was her testimony that pw1 has availed a birth certificate indicating that indeed the complainant was born on 12th February 2015. That Pw 1 also availed the stained panty the complainant had been wearing on the date of the incident. She testified that the appellant was arrested by administration police from the area chief’s office. She produced the complainant’s birth certificate and a sketch plan of the scene.

The case for the defence 15. The trial court found that the appellant had a case to answer and put him in his defence. He gave sworn evidence. He testified on February 1, 2017. He further testified that he had just arrived from work as a night watchman. He maintained that he saw the complainant playing outside and saw her slip and fall before getting up. Further that he went about his business during the day and when he came back, he overheard his neighbours say that something had happened to the child. He recalls that he informed his neighbor that he had witnessed the child fall and got up by herself. He testified that he was shocked when he was arrested and accused of defilement the complainant.

16. The appellant submitted that the complainant did not point out that it was him who defiled her. Secondly, it was impossible to defile the minor while her mother was in the next room in a mabati shelter and she failed to hear her loud cries. The appellant further submitted that the element of penetration was not proved by the prosecution. He argued that the medical findings of the broken hymen were not conclusive proof that there was penetration of the victim. He submitted that the medical evidence produced did not satisfy the burden of proof that the victim had been defiled.

17. Ms Edna Ntabo, prosecution counsel, submitted that the testimony of the victim is corroborated by Pw 2 and Pw 3, who carried out an examination on the victim. They filled the P3 form and the PRC which were produced as exhibits. She maintained that penetration need not be complete and that even the slightest or brief insertion amounts to penetration in accordance with section 2 of the Sexual offences Act.

18. She further submitted that the age of the minor was proved by the birth certificate, which was produced and it confirmed that the minor was 1 year and 11 months when the incident happened. She also submitted that the appellant was also positively identified by Pw 1. That the minor only went to the appellant’s house before she was defiled and he was the only one present in the compound. It was submitted that the prosecution had proved all ingredients of the offence of defilement and that the appellant was rightly convicted.

19. I have re-assessed the entire evidence as a first appellate court. I find that the evidence of the complainant was credible. I reject as lacking in merit the contention of the appellant that her evidence was uncorroborated and insufficient. I find that the conduct of the appellant corroborated the evidence of the mother of the complainant. The corroborating conduct of the appellant was that the complainant was injured when she fell on a stove at the door of the appellant. Pw 1 did not see a stove in the house of the appellant. The appellant again changed his explanation on how the complainant was injured by telling her mother that she fell on a dust pin. I find that the age of the complainant was established by her birth certificate which clearly proved that she was 1 year and 11 months when the offence was committed. The appellant was also positively identified by Pw 1.

20. I find that the charge sheet was not defective. The appellant’s contention in ground 2 that it was defective lacks merit and is hereby dismissed

21. However, I find that the DNA evidence exonerated the appellant, because Pw 4 confirmed that the DNA samples taken from him did not match any of the DNA profiles found on the victim, according to prosecution exhibit 5 (b).

22. However, I find that the medical evidence of Edward Kinuthia Mbugua (Pw 2) a clinical officer who produced the medical documents of Dr Ochwang Edwin, who had examined and treated the complainant at Nairobi Women’s Hospital on February 1, 2017 was inadmissible. The prosecution failed to lay a proper foundation for the reception into evidence of the medical reports prepared by Dr Ochwang Edwin, who had examined and treated the complainant at Nairobi Women’s Hospital on February 1, 2017. The conditions laid down in section 33 of the Evidence Act (cap 80) were not complied with because Dr Ochwang Edwin was available but was only 24 hours on duty. It was not demonstrated there was to be delay in securing him to testify.

23. Furthermore, I also find that the report of the police surgeon namely Dr Joseph Maundu (Pw 3) of Nairobi police surgery was also inadmissible, because he relied on the inadmissible medical reports of Edward Kinuthia Mbugua (Pw 2). His evidence therefore amounts to inadmissible hearsay evidence; although he purported to have examined the complainant. Pw 3 failed to independently carry an examination of the complainant as required by law. Section 33 of the Evidence Act (cap 80) Laws of Kenya deals with admission in evidence of statements made by persons whose attendance in court cannot be procured without an amount of undue delay or expense which in the circumstances of the case appears to the court to be unreasonable.

24. Furthermore, I find that the trial court considered the defence of the appellant. From the record, the appellant gave evidence under oath denying his involvement in the sexual assault on the minor. In reaching a verdict, the trial court noted that the accused person’s line of defence suggested that the evidence against him was fabricated. Further, he remained a stranger to the allegation. The court made a finding that the defence put forward was incredible. The appellant’s contention in ground 5 that the trial court failed to give due consideration and consider his defence, lacks merit and is hereby dismissed.

25. However, it is important to point out that a conviction cannot be based on the weakness of the defence evidence. In other words, the incredible defence evidence cannot form the basis of the conviction for defilement.

26. In the premises, I find that the appeal succeeds with the result that I hereby quash the conviction and sentence imposed upon the appellant.

27. However, I find that the prosecution proved the offence charged in the alternative count of committing an indecent act contrary to section 11 (1) of the Sexual Offences Act and I therefore sentence the appellant to ten years imprisonment; which sentence will begin to run from the date of conviction, that is, from June 22, 2021.

JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 4TH DAY OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr Kinyua court assistant.The appellant in person.Ms Joy for the respondent.