[2022] KEHC 11411 (KLR)

Musa v Republic (Criminal Appeal E022 of 2021) [2022] KEHC 11411 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11411 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E022 of 2021

GMA Dulu, J

June 14, 2022

Between

Nzioka David Musa

Appellant

and

Republic

Respondent

((Being an appeal from the original judgment of Hon. C.A Mayamba (P.M) in Makindu Senior Principal Magistrate’s Court (S.O) Case No.78 of 2019 pronounced on 18th October, 2019).)

Judgment

1. The appellant was charged in the magistrates’ court with defilement contrary to section 8(1) (2) of the Sexual Offences Act No 3 of 2006. The particulars of offence were that on July 6, 2019 at [particulars withheld] within Makueni County intentionally caused his penis to penetrate the vagina of MMK a child aged 10 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 on 6th and July 18, 2019 at [particulars withheld] within Makueni County willfully and unlawfully committed an indecent act by touching the vagina of MMK a child aged 10 years.

3. He denied both charges. After a full trial, he was convicted on the main count of defilement and sentenced to life imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal, relying on the following grounds –1)The trial magistrate erred by failing to observe that the trial was conducted in contravention of section 19 of the Oaths and Statutory Declarations Act concerned with the reception and admissibility of evidence of a child of tender years, article 4 of the Constitution, section 2 of the Sexual Offences Act, as well as presiding over unfair trial against his constitutional rights.2)The trial magistrate erred in law and facts when he convicted and sentenced him without observing that the charges before court were defective for both being at great variance with the evidence on record.3)The trial magistrate erred by convicting him without considering that there was no evidence to prove penetration without which the prosecution could not prove the offence of defilement to the required standard in law beyond reasonable doubt.4)The learned magistrate erred in shifting the burden of proof to the appellant, misapprehending and misdirecting himself on the evidence, hence arriving at the wrong conclusion by failing to observe that the prosecution evidence was untenable, unworthy, contradictory, inconsistent and full of lies, which required him to resolve the doubts in favour of the appellant.5)The learned magistrate erred both in law and fact by convicting him without properly applying section 124 of the Evidence Act and for using the child’s single and uncorroborated evidence to convict and sentence the appellant.6)The learned magistrate erred both in law and fact when he dismissed his sworn defence which alleged possibility of being framed up due to an existing grudge without giving cogent reasons and sentencing him without applying section 333(2) of the Criminal Procedure Code.

5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the written 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 stating the legal principle that I am duty bound to evaluate the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno v Republic [1972] EA 32.

7. I note that the appellant has raised both technical and substantive grounds of appeal. I will deal with the technical grounds first.

8. The appellant has complained that section 19 of the Oaths and Statutory Declarations Act (cap 15) regarding the reception and admissibility of the evidence of a child of tender years and article 4 of theConstitution and section 2 of the Sexual Offences Act relating to unfair trial, were violated by the trial court.

9. Indeed, Pw1 the alleged victim, was said to be 10 years. Thus under the Sexual Offences Act – she fell within the definition of a child of tender years and subject to voire dire process. The record shows that voire dire examination was conducted on her before she was allowed by the court to tender sworn testimony. Thus it cannot be said that the provisions of the Oaths and Statutory Declarations Act were not complied with by the trial court.

10. I also note that the language used in the trial was Kiswahili – English and the appellant had the chance and did infact, cross examine the witnesses at length. It cannot thus be said that there were violations of his rights to fair hearing under the Constitution or the Sexual Offences Act.

11. With regard to the other technical complaint that the charge was defective, I note that the appellant claims that the defect on the charge was that it was at great variance with the evidence tendered. Having perused the charge sheet, I note that the only defect was the description of section 8(1) and section 8(2), which was described as section 8(1) (2) of the Sexual Offences Act. The other error was the age of the alleged victim who was said to be aged 10 years, while the evidence on record was that she was aged 11 years, at the time of the alleged incident.

12. In my view however, both defects or variances are of minor nature and are curable under section 382 of the Criminal Procedure Code (cap 75), as they did not prejudice the appellant in his defence in any way, since there is no dispute that the alleged victim Pw1 was below 18 years of age.

13. I now come to the substantive grounds. The three elements of the offence of defilement are the age of the alleged victim which has to be below 18 years, penetration, and the identity of the culprit.

14. With regard to age the victim, Pw1 (the victim) and her mother Pw2 EMM, testified to her age. They gave her date of birth. A birth certificate was relied upon and produced in court as an exhibit. It was clear that the victim was 11 years old at the time of the incident. In my view the prosecution proved beyond any reasonable doubt that Pw1 was 11 years old at the time of the incident.

15. Did penetration of a sexual nature occur? The evidence on record from Pw1 was that she was penetrated on a date she could not remember. The charge sheet refers to penetration on July 6, 2019. Pw2 talked about the victim limping on July 15, 2019 at night. The report to the police was made on July 16, 2019 as stated in the evidence of Pw4 PC Gladys Santa. According to Pw5 Dr Josephine Mueni Martha, medical examination of the victim and signing of the medical examination report (P3 form) was on July 17, 2019. The finding in the report was that the hymen of the victim was broken but with no injuries and that there was a venereal infection, which was not a sexually transmitted disease.

16. In my view, the prosecution did not prove that there was sexual penetration on the date alleged. The first reason was that, the fact that the hymen was missing was not per se proof that sexual intercourse did occur, as the hymen could be missing for various other reasons, including biological reasons. Secondly, the limping of the victim was noticed on July 15, 2019 while the incident had occurred 9 days earlier. Thus, the limping in my view cannot be associated to sexual intercourse, on July 5, 2019, or sexual intercourse generally, as no trauma was noted by the doctor on the victim. Lastly, though the complaint talked about lower pelvic pains, in my view, such pains might as well have been caused by the infection noted on her, and not any sexual intercourse. I thus find that the prosecution did not prove sexual penetration beyond reasonable doubt.

17. Was the appellant the culprit? Having found that the prosecution did not prove penetration of a sexual nature, as alleged, I also find that the prosecution did not prove that the appellant was the culprit. In addition to this, the incident was said to have occurred at around midnight, and no explanation was given by the victim (complainant) why the lights would have been on at that time.

18. Though the trial magistrate thought that the defence of an existing grudge between the appellant and Pw2 was an afterthought, the prosecution was still required to prove their case beyond reasonable doubt irrespective of the line of defence taken by the accused. In the circumstances of this case, and the evidence on record, I find that the prosecution did not prove beyond any reasonable doubt that the appellant was the culprit.

19. 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 14TH DAY OF JUNE 2022, IN OPEN COURT AT MAKUENI.…………………………………George DuluJudge