[2022] KEHC 3121 (KLR)

Muteti v Republic (Criminal Appeal 64 of 2020) [2022] KEHC 3121 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3121 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal 64 of 2020

GMA Dulu, J

May 19, 2022

Between

Cyrus Mbindyo Muteti

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence of Hon. A. Ndungu in Makindu Principal Magistrate’s Court PMCR (S.O) Case No.35 of 2019 pronounced on 23rd June, 2020)

Judgment

1. The appellant was charged in the magistrates’ court with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 5th October 2018 at Kibwezi township in Kibwezi Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate the anus of ARP (name withheld) a child aged 9 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 the same day and at the same place intentionally and unlawfully touched the anus of (ARP) a child aged 9 years with his penis.

3. He denied both charges. After a full trial, he was convicted on the main count of defilement and sentenced to serve 20 years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds –1)The learned trial magistrate erred by convicting him without considering that there was no evidence to prove the offence of defilement to the required standard of proof in law which is beyond reasonable doubt in criminal cases and that the court proceedings against the appellant were conducted unfairly, hence unconstitutional.2)The learned trial magistrate erred in law and facts by failing to consider that there was no evidence to prove the alternative count of indecent assault either, hence erred by convicting him on the main count based on extraneous evidence which was motivated by his own opinion without relying on the evidence on record.3)The learned trial magistrate erred by failing to observe that the prosecution case was full of contradictions and inconsistencies, especially testimonies of Pw1 and Pw2 which coupled with poor police investigation rendered the prosecution case unbelievable, implausible and hence unreliable to attain a conviction.4)The learned trial magistrate erred in law and fact by failing to observe that the identification parade was irregularly conducted without observing the laid down regulations under the police standing orders.5)The learned trial magistrate erred when he dismissed the sworn defence of the appellant which alleged the possibility of being framed up due to existing grudge without giving cogent reasons which defence was weighty enough to displace the prosecution case.

5. The appeal was canvassed through 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, this court is bound to evaluate all the evidence on record afresh and come to its own independent conclusions and inferences – See Okeno v Republic [1972] E.A 32.

7. In proving their case, the prosecution called five (5) witnesses. The appellant, on his part, tendered sworn defence testimony and did not call any additional witness.

8. Pw1 was BAA the mother of the alleged victim whose evidence was that on 06/10/2018 at 7:00 am she sent her son the alleged victim to the shop but he delayed in coming back and came crying. The boy then said that someone had led him into the bush and defiled him through the anus, and that he could identify the person if he saw him again. It was her further evidence that the alleged victim was born on 01/10/2010 and that they reported the incident to the police and further that some weeks thereafter, the alleged victim saw the culprit, and with the help of the police he was arrested.

9. Pw2 was the alleged victim, whose evidence was that on 05/10/2018 at around 4:00pm he watched television at his grandfather’s house when the appellant approached him and forced him to sit on a chair and then told him to go and wait for him in the field which he did. The appellant then came and persuaded him to go with him to the bush where he defiled him through the anus. When he went back home he did not inform anybody about the incident. Next day he informed his siblings and his mother about the incident, after the mother had asked him why he was scratching his buttocks. It was his further evidence that he did not tell the police about the person who defiled him, and on going home, the mother (Pw1) disciplined him and that is when he informed her (Pw1) about the person who had defiled him.

10. Pw3 was Dr. Masila Antony a Medical Officer at Kibwezi Sub-County hospital, whose evidence was that on 08/10/2018 he filled a medical report form (P3 form) on the alleged victim. All physical examination was normal, except that there were lacerations in the anus of the alleged victim.

11. Pw4 was PC Charles Ogila who took over investigations from PC Wekesa who had been transferred to Machakos Police Station. According to him, PC Wekesa received a report on the sodomy incident on 05/08/2018 at 7:00pm and investigations were conducted and later the appellant was arrested and charged.

12. Pw5 was PC Francis Musyoka of Kibwezi Police Station who conducted an identification parade for the appellant, wherein the appellant was identified by the alleged victim.

13. When put on his defence, the appellant tendered a sworn defence. He denied committing the offence and stated that the father of the alleged victim P borrowed Kshs.50,000/= from him and reluctantly paid him Kshs.10,000/=. He stated that it was due to his pursuit of the debt owed that he was implicated with the offence herein.

14. The elements of the offence of defilement are first, the age of the victim, second, penetration of a sexual nature, and thirdly, the identity of the culprit.

15. In my view, with the evidence on record, the age of the victim has been proved by the prosecution beyond any reasonable doubt.

16. With regard to penetration, the alleged victim Pw2 said that he was penetrated through the anus. The mother Pw1 said that she found some dirt in the anus area of the victim. The medical report is that there were lacerations in the anal area of the victim, but no trauma.

17. Though the victim Pw2 said that he was penetrated through the anus, he was a reluctant witness and the medical evidence found laceration sin the anus, which in my view could just have been caused by hard stool. In my view, the prosecution did not prove beyond reasonable doubt that the victim was penetrated as his evidence and that of his mother Pw1 is contradictory and Pw2 was coerced by Pw1, which means that Pw2 was not a reliable witness. Pw2’s evidence thus does not satisfy the saving under the provisal to section 124 of the Evidence Act (Cap.80). I find that the prosecution did not prove penetration.

18. With regard to the appellant being the culprit, again the evidence of Pw1 and Pw2 regarding the date and time of the incident, and the sequence of events is contradictory. This evidence of two crucial witnesses, created a doubt whose benefit has to be given to the appellant. I find that the prosecution did not prove beyond reasonable doubt that the appellant is the culprit.

19. Lastly, there was an identification parade conducted. However, the parade did not comply with the necessary requirements of recording and describing all the steps taken in the parade, as provided under the Police Standing Orders, to clear any doubt on its authenticity. In addition the parade was conducted by a junior Police Officer, a constable in the same Kibwezi Police Station, who must have known details about the incident and those involved, and was not qualified to conduct the identification parade. As such the identification parade was of no evidential value.

20. For the above reasons therefore, I will allow the appeal on conviction. The sentence will also not stand.

21. Consequently, 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 19TH DAY OF MAY, 2022, IN OPEN COURT AT MAKUENI.GEORGE DULUJUDGE