[2023] KEHC 24689 (KLR)

Musundi v Republic (Criminal Appeal E081 of 2022) [2023] KEHC 24689 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24689 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E081 of 2022

REA Ougo, J

November 3, 2023

Between

Samuel Kurima Musundi

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence by Hon. C.M. Wattimah (SRM) in Sirisia SRM`s Court Sexual Offences Case No.22 of 2019 delivered on 20/9/2022)

Judgment

1. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 20th June 2019 between 1900 hours and 2000 hours within Bungoma County intentionally caused his penis to penetrate the vagina of MN a child aged 15 years. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No.3 of 2006.

2. After a full hearing, the trial court found that the prosecution proved its case to the required standard and convicted the appellant. The appellant was sentenced to 8 years imprisonment.

3. The appellant dissatisfied with the finding of the trial court has now lodged his petition of appeal raising the following grounds:1. That I am first offender.

2. That the learned trial magistrate erred in law and in fact in conducting proceedings that violated the rights of the appellant.

3. That the learned trial magistrate erred in law and in fact in arriving at a decision based on evidence that were full of contradictions and without analyzing the same.

4. That the learned trial magistrate erred in law and fact by not considering extraneous factors in decision making.

5. That the learned trial magistrate acted inhumane by awarding a conviction on the weakness of the appellants defence thus rejecting the alibi defence adduced by the appellant.

4. This being the first appeal, this court is mandated to analyse and re-evaluate the evidence afresh in line with the holding in the case of Okeno v. R [1972] EA. 32 in which the Court of Appeal for East Africa held that:“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 appellant 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.”

5. Rose Ng’otor (Pw1) testified that she is a clinical officer working at Cheptais Sub-County Hospital. She testified that the complainant had a history of being defiled. She was defiled on 20/6/2019 at 5:00 p.m. at the coffee plantation by a person well-known to her. On speculum examination, she had been bruised and was bleeding but was not swollen. After running laboratory tests, it was confirmed that there were red blood cells in the vaginal swab, pus cells, and epithelial cells. She had injuries to the genitalia, a broken hymen, PV bleeding and curdline discharge. The urine test revealed that she had an infection and was given antibiotics and analgesics. They also examined the appellant who also had pus cells in his urine. She produced into exhibit the complainant's treatment book, Pexh1, the P3 form, and the treatment book for the appellant.

6. TO (Pw2) testified that she is a county health worker. She heard that NM Pw3, who was her neighbor was defiled. Pw2 went to the victim who told her that she was defiled by the appellant in the coffee plantation. Pw2 went to where the child had been defiled and found cabbage and a small pant tied in a handkerchief and kept the items. The following day the chief and police officers were at the complainant’s home but Pw2 testified that Pw3 was trembling and she asked the police if she could take her to the station the following day. They reported the case on the following day and went to Cheptais health centre.

7. After conducting voire dire examination, the trial court directed that the complainant, NM (Pw3) gives unsworn evidence. She testified that on 20/6/2018 at 8:00 p.m. she was coming from Masaba and heading to her mother’s place in Namutokholo. She met the appellant and he held her hand and took her to the coffee plantation. He pushed her down and slept on her. She testified that:“I had clothes on at the time. He then did bad manners on me. He did not use anything to do the bad manners. He used his echolocholo, the thing is used to urinate, he inserted it in my vagina, where I use to urinate.”

8. She testified that Jomba Wangila came and got her off. The appellant started throwing stones at him and was told to go home. When she arrived home, she was alone and Pw2 took her to the police station and she told the police what had happened. She testified that she clearly saw the appellant who was well known to her. She recalled that there was lighting from the sky and the appellant wore a black coat and gum boots.

9. The appellant was placed on his defence and elected to keep quiet.

10. The appellant submits that the proceedings before the subordinate court were conducted in violation of Articles 49 and 50 of the Constitution. The appellant was arrested one month after the offence was committed giving an indication that they were not sure who committed the offence. She testified that the police indicated the age of the child as 15 yet it was not substantiated by any evidence. Although Pw2 testified that the child was 15 years she was not a medical practitioner. Pw1 on the other hand did not attend to the complainant and merely presented the evidence of another medical officer. There was no documentary evidence, that is a birth certificate, baptismal card, or age assessment report that shows the child’s age. He submitted that the child was 20 years old.

11. The only eyewitness Jomba Wangila did not testify before the court. The appellant submits that he was framed so that they could take his properties. He pointed to the evidence of Pw2 who testified that the girl admitted that she was on her period from Thursday. He testified that there were contradictions in the testimony of Pw1, Pw2 and Pw3 leading to the conclusion that the girl was coached.

12. He also pointed out that the appellant identified the perpetrator as Jomo Kabaka yet he is Samuel Kurima Musundi and the two were different people.

13. The prosecution in their submissions argued that they had proved the age of the complainant, that there was penetration, and the identity of the perpetrator. On the age of the minor, it was submitted that the trial magistrate had the benefit of seeing the minor and she appeared to be a minor. They relied on the case of JAO v Republic (2019) eKLR. On the issue of penetration, they submitted that Pw1 confirmed the fact of penetration on account that the child was bruised, bleeding, and had a broken hymen. On the issue of identification, it was submitted that the complainant knew the appellant for a long time, and at the time there was sufficient light from the sky to identify the appellant and she gave a description of how he was dressed. The court invoked the provision of section 124 of the Evidence Act and believed that the child was telling the truth.

Analysis And Determination 14. The elements constituting the offence of defilement include penetration, the age of the victim, and the identification of the offender.

15. Penetration is defined under section 2 of the Sexual Offences Act to mean the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case, the prosecution's evidence was clear that there was evidence of penetration. Pw3 testified that:“He then did bad manners on me. He did not use anything to do the bad manners. He used his echolocholo, the thing is used to urinate, he inserted it in my vagina, where I use to urinate.”

16. Pw3’s evidence was further corroborated by the testimony of Pw2 who testified that she examined Pw3 who had sustained injuries to the genitalia, a broken hymen, was bleeding, and had a whitish discharge. I therefore find that penetration was proved beyond reasonable doubt.

17. I now turn to consider whether the prosecution proved that the victim was 15 years old. The appellant submitted that Pw3 was 20 years old. He faulted the prosecution for failing to provide documentary evidence such as a birth certificate, baptismal card, or age assessment report to prove the age of Pw1. The age of the complainant could be proved through the parents of the victim or by medical evidence. The Court of Appeal in Richard Wahome Chege v Republic Criminal Appeal No 61 of 2014, sitting in Nyeri held that:“On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 [the doctor] who examined the complainant, and the complainant herself.”

18. In the case of Francis Omuroni vs. Uganda, Criminal Appeal No. 2 of 2000, where the Court of Appeal of Uganda held thus:“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 ….”

19. In this case, the prosecution evidence on age was based on the testimony of Pw1, Pw2, and Pw3. Pw3 testified that she was 15 years old while her neighbor Pw2 testified that the complainant was born in 1999 and this would mean that she was 20 years old when at the time of the offence. I however note that Pw2 was not the victim's parents/guardian and in my view, her evidence on the victim’s age carried very little weight. The clinical officer, Pw1 during her examination in chief testified that the complainant was 15 years old. The trial court in her judgment on the issue stated:“I am of the view that it would be safe to rely on other evidence other than documentary if the same would be corroborative. As it is, therefore, I find that it may cause injustice to the defence. However, I heard the complaint in court after conducting voire dire. In my view therefore in the midst of conflicting ages of the minor, it was evident that the victim is under the age of 18 years by looks and demeanour. I therefore find that she was under 18 years, thus a minor under provisions of the Childrens Act incapable of consenting…”

20. The trial court’s decision was therefore based on her observation and the respondent in their submissions supported the finding of the subordinate court. There were are contradictions concerning the age of the complainant and this was also captured by the trial court.

21. Pw1 in her testimony before the subordinate court testified that the complainant was 15 years. However, in the P3 Form which was filled by Pw1 in her capacity as a clinical officer, she found that the estimated age of the complainant was 18 years. There were definitely contradictions in the evidence tendered by the prosecution. In Philip Nzaka Watu v Republic (2016) CR APP 29 OF 2015, the court held that:“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.”

22. The Court of Appeal in Richard Munene v Republic [2018] eKLR, the Court of Appeal stated with regard to contradiction or inconsistency in the evidence of the prosecution witness:“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”

23. In this case, there were clear contradictions regarding the complainant’s age. I note that the trial magistrate had the opportunity to see the complainant, however, she did not make any finding on the evidence contained in the P3 form that was filled by Pw1 which revealed that Pw3 was 18 years old. The trial magistrate ought to have ordered an age assessment report in the circumstances. It is also my finding that contradictions in prosecution evidence could not simply be resolved by the trial magistrate’s observation of the victim in her judgment. In my view, the contractions regarding the age of the complainant were fundamental and went to the root of the prosecution case. Therefore, the contradictions regarding the age of the complainant should be resolved in favor of the accused person. I therefore find that the complainant was 18 years old at the time of the offence and the element of age was not proved to the required standard.

24. In the end,the appeal against conviction and sentence is allowed forthwith and the appellant shall be at liberty unless otherwise lawfully held.

DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 3RD DAY OF NOVEMBER 2023. R.E. OUGOJUDGE