[2022] KEHC 16204 (KLR)

Muthaka v Republic (Criminal Appeal 73 of 2017) [2022] KEHC 16204 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16204 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Appeal 73 of 2017

J Wakiaga, J

December 7, 2022

Between

Benson Mwangi Muthaka

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in SO No 765 of 2015 PMCC at Kangema)

Judgment

1. The appellant was charge with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006. He faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Act, to which he pleaded not guilty and was tried, convicted and sentenced to serve twenty-five (25) years imprisonment.

2. Being dissatisfied with the said conviction and sentence, he filed this appeal and raised the following summarized grounds of appeal:A.The trial magistrate erred in law and fact by failing to judiciously exercise his discretion in view of the clear fact that the complainants evidence was not corroborated.B.The appellant defence was not considered.C.The appellant was not allowed to call his witnesses.

3. Directions were issued that the appeal be heard by way of written submissions which were duly filed. On behalf of the appellant, it was submitted that the charge sheet was defective as there was an omission of the words unlawfully and wilfully as required in section 43 of the Act.It was contended that the testimony of the prosecution witnesses was unreliable and contradictory as regards the date and the time of the defilement and that the trial court erred in relying on the evidence of a single witness to convict the appellant, whereas there was allegation that two minors were defiled.

4. It was contended that the evidence of the complainant was not corroborated as it was contradicted with the other evidence on record and in particular the first report made.

5. It was stated further that the age of the complainant was not proved and the appellant was not positively identified as there was a possibility of mistaken identification as the appellant and the complainant were from the same village and used to freely walk into the complainant’s mothers house and was commonly known as mzee.

6. It was contended that penetration was not proved as the medical report revealed that the labia majora and minora were not affected, no sperms were seen neither was there any laceration and therefore the broken hymen could have occurred due to physical activities as the clinical officer concluded that there was no defilement. It was contended further that all the exhibits were available but no DNA was conducted contrary to the provisions of section 36(1) of the Act.

7. It was finally submitted that his rights under Article 50(2) of the Constitution were violated in that he was not provided with the witness statements.

8. On behalf of the state, it was submitted that the age and penetration were proved through the birth notification and P3 form and that the appellant was with the complainant for three days which was adequate time for her to master his face so as to positively identify him at the dock.

9. It was submitted that the omission of the words on the charge sheet did not render it defective as was stated in the case of George Hazron Mwakiov Republic [2010] e KLR and that the minor contradictions were expected as was stated in Richard Munene v Republic [2018] e KL. It was finally submitted that there was no need for DNA as the only medical evidence required to prove sexual offence was the medical report which was produced.

10. This being a first appeal the court is required to re-evaluate the evidence tendered before the trial court and to come to its own conclusions while giving an allowance to the fact that unlike the trial court, it did not have the advantage of seeing and hearing witnesses.

11. PW1 a minor aged ten years having been found to be intelligent enough stated on oath that the appellant whom she called Mzee called her while she was on her way to the shop with her sister to his house, and told them to collect somethings for their mother from his bedroom. He then invited for tea, after which he closed the door removed their cloths and did Tabia Mbaya to her, from which she felt pain and bled. He then threatened to attack them with a knife if they made any noise. He then turned and defiled her sister and later locked them in his house for three says during which period he continued to defile them.

12. In cross examination, he stated that they found the appellant at his gate and he immediately locked the gate and directed them to his house. She denied stealing money from the appellant’s house and that from the three day he held them he did not allow them to go outside and left a bucket where they could shit into which he disposed when he returned to the house and that they did not bath for the three days.

13. PW2 JW a minor aged 11 years corroborated the evidence of PW1 and stated that the appellant told them to remove their clothes, removed his penis and inserted in her for three days from Sunday to Wednesday when he opened the gate for them and they went to their neighbour called Janes place. They later went home when they met their grandmother who asked them where they had been for the three days and thy told her that they had gone to the appellants place to collect some goods. She stated that she had known the appellant before the said date.

14. In cross examination, she stated that the appellant defiled them in turns and that for those three days’ no one came to his place and that the appellant would live them in the house having locked them from outside and that on Tuesday night he had sex with PW1 the whole night, she further denied that they stole the appellant’s money.

15. PW3 EMC the grandfather of the complainant testified that his wife informed him that she had sent the children to the shop and they did not come back home. On Wednesday the appellant went to his home and alleged that the complainants had stolen kshs 660 from his house and that he had called them from the road for a meal in his house when they stole his money and that they disappeared without his knowledge, so he was looking for them.

16. The following day the complainant was beaten up by her uncle, upon which she opened up and explained that they had met the appellant at his place of work and he lured them to his house to enable them collect goods for their mother, when he defiled them in turns, he then called the area chief before reporting to the police leading to the appellant being arrested. It was his evidence that the appellant was known to him, having gone with him to the same school.

17. In cross examination, he stated that he had left for Nairobi on Tuesday in the evening and therefore made no effort to search for the children. He confirmed that the appellant later on came to his home to see the mother of the children and to complain that they had stolen his money and that is when they realized that the children had disappeared. He stated that PW1 returned home on Thursday the August 13, 2015 and when PW2 came home she corroborated the account by PW1.

18. PW4 Maithima Donah, a Clinical Officer stated that the complainant was ten years old and when he examined her, he noted that her hymen was freshly broken, though there was no sperm noted. The P3 form in respect of PW2 had been prepared by a colleague, with a history of having been severally defiled and upon examination he noted that her labia majora and minora had not been effected. In cross examination, he stated that freshly broken hymen needs a day before or thereabout.

19. PW 5 SGT Ekno confirmed that the complainants were taken to the Police Station by their grandfather and he recovered their clothes which included white dirty panty and from the investigations confirmed that the complainants were tricked by the appellant to get them into his house where he locked them in for three days during which period he defiled them in turns and that the appellant later on went to their home to complain having lost his money , he confirmed that the appellants home is opposite the shop.

20. In cross examination, he stated that he never interviewed the complainants mother and that the clothes of the complainants were never subjected to DNA testing.

21. When put on his defence, he stated that on the August 12, 2015, the complainants knocked at his gate and stated that they wanted to go for a short call, he later gave them tea before they left at 11. 00 am. He stated that the two children later returned to his house and stole his money and he reported them to their grandmother. It was his evidence that he had an operation which made it impossible for him to perform a sexual act.

Determination 22. From the proceedings and submissions herein, I have identified the following issues for determination in this appeal:a.Whether the appellant was positively identifiedb.Whether the prosecution case was provedc.Whether the sentence herein saw lawful.

23. On the identification of the appellant, the appellant put himself through his defence together with the complainants, in his house. His evidence was that the complainants wanted to go for short call in his house, whereas the complainants evidence was that the appellant tricked them into his house, to go collect some goods for their mother. The appellant later on alleged that the complainants had stolen money from his house, thereby corroborating the evidence that he was together with them in his house. He was known to the complainants as Mzee.

24. This evidence was corroborated in material particulars by PW3 the complainants grandfather whose evidence was that the appellant on the day when the complainants returned home, came to his compound and alleged that he had invited them for a meal in his house and in the process they stole his money and disappeared. This corroborated the evidence of the complainants that the appellant was known to them. I therefore find and hold that the identification of the appellant was free from error and that the same was passively identified and place together with the complainant.

25. On the proof of the prosecution case, the age was proved through the birth notification card and penetration was proved through the evidence of the complainant and the P3 form produced by PW4 whose evidence was that the complainant’s hymen was freshly broken thereby confirming penetration.

26. The mere fact that the prosecution did not call some witnesses, did not vitiate the prosecution case against the appellant, this being a sexual offence where under section 124 of the Evidence Act, the Court can convict on the basis of the sole evidence of the complainants.

27. On the appellant’s allegation, that his rights to free and fair trial were violated, from the proceedings herein, the appellant was adequately represented throughout the trial and was able to effectively cross examine all the prosecution witness and therefore find no merit on this ground of appeal which I hereby dismiss.

28. On sentence, the same remains at the discretion of the trial court and having noted that the appellant defiled two minors for three consecutive days in turn I am unable to interfere with the courts finding on the same, having taken into account the appellants advance age and his action.

29. The upshot, is that I find no merit on the appeal herein both on conviction and sentence which I hereby dismiss and affirm the judgement and sentence herein. The appellant has right of appeal.

DATED SIGNED AND DELIVERED AT MURANGA THIS 7thDAY OF DECEMBER 2022J. WAKIAGAJUDGEIn the presence ofCourt Assistant C MutahiMiss Otieno for the stateAppellant in person