[2022] KEHC 14844 (KLR)

Mutia v Republic (Criminal Appeal E018 of 2022) [2022] KEHC 14844 (KLR) (1 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14844 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal E018 of 2022

RK Limo, J

November 1, 2022

Between

George K. Mutia

Appellant

and

Republic

Respondent

(Appeal against the Judgement and Conviction and Sentence of Hon. Mogire Onkoba (PM) dated 22nd July, 2021 in the Sexual Offence Case No. 4 of 2016. )

Judgment

1. George K Mutia, the appellant herein was charged with committing an indecent act with a child contrary to section 11 (1) of the Sexual Offence Act No 3 of 2006. The particulars of the charge were that on October 21, 2016 at [particulars withheld] Primary School, within Kitui County, he intentionally did an act which caused the contact of his fingers with female genital organ namely vagina of (name withheld) a child aged 12 years 5 months 3 weeks.

2. The appellant denied committing the offence and the prosecution presented 6 witnesses to support their case. Below is a summary of the evidence tendered.

3. The victim (named withheld) PW1 testified on oath and told the trial court that she was in class 5 and recalled that on the October 21, 2016 the appellant, then a teacher at [particulars withheld] primary school called her out of class and asked her why she was looking ‘‘bad’’. The complainant stated she was at a loss because she was looking fine. She stated that the appellant told her to go back to class but later sent a boy to call her to go to class 3 where he directed her to go closer to where he was. She stated that she obliged and the appellant asked her if she had put on a bicker. She further testified that, the appellant then lifted her dress and inserted his finger into her vagina and when she cried, the appellant ordered her to go to class where he again ordered all the other pupils to go out and play and directed her to remain in class alone with him.The victim later reported the incident to her class teacher M/s M and fellow pupils. She testified that M/s M notified Mr M who in turn informed the Head Teacher and that she was later taken to hospital in the company of her mother (PW2) who had come to school for a parents’ day.

4. MP (PW2), the mother to the complainant testified that she was a single mother and that the complainant was her 2nd born and tendered the child’s clinic card as P Ex 1 which showed that the girl was born in 2004. She testified that on October 21, 2016 as she attended a parents’ day and that before she left the meeting her daughter went to her crying that the appellant had defiled her. She testified that Mr M further informed her of what had happened and that she informed the Head Teacher Mr K before taking her daughter to Nzatani Health Centre for medical check-up. She testified that the nurse at that clinic told her that the health centre lacked equipment and advised them to go to Migwani Sub-County Hospital. She stated that they went to the police and reported the incident upon which they were issued with a P3 form which they took with them to Migwani Sub-County Hospital. She testified that tests were carried out and her daughter was treated. She however, stated that she was not satisfied with the lab results and took her daughter to Muthale Hospital where medical checkup was conducted that yielded the same results. She insisted that her daughter was examined on the same day after the incident but her statement was recorded on October 25, 2016. She expressed shock that, the appellant, a teacher and a family man could do such an act to her daughter who she said was 12 years at the time.

5. Dr Christopher Waihenya (PW3) testified that he was based at Migwani Hospital as a medical superintendent. He testified that the victim was first treated at the hospital on October 21, 2015 following a history of attempted defilement. The doctor stated that he examined the victim on October 25, 2016 and found out the following:i.The genitalia was tender to touch.ii.The labia minora and majora were reddish with freshly torn hymen.iii.Whitish discharge from vaginal wall.iv.Pregnancy test negative.The doctor testified that there was penetration but could not tell if the penetration was caused by a finger or a male organ. He further testified that the victim had a Urinary Tract Infection (UTI) which could have been caused by an unsterilized finger. He tendered the P3 Form as P Ex2, treatment chit as P Ex3 and lab test request form and results as P Ex 4.

6. MJ (PW4), an eleven-year-old pupil at class six at [particulars withheld] primary school testified and corroborated the evidence of PW1. He testified that on October 21, 2021 the appellant then his teacher in class 3 sent him to class v where the victim was, to call her to him at class 3 classroom. He testified after accompanying the complainant to class III, he left her with the appellant and left to the field to play with other pupils.

7. CPL Gregory Maingi (PW5) testified that he was instructed to investigate a case of indecent assault against a child on October 21, 2016 and that after carrying out the investigations, he was satisfied that the appellant should be presented to court to face the charge of indecent assault.

8. TM (PW6) testified and corroborated the evidence of PW1. She testified that she was a teacher in the school where the victim was schooling and that on October 21, 2021, her colleague madam m a class five teacher went to her in class six in the company of a child crying complaining that her fellow teacher, the appellant herein, had defiled her. He testified that he reported to the Head teacher who after interrogating the culprit, directed that the girl be taken to hospital for medical examination. She testified that the complainant’s parent went to school and together they took the child for medical examination. The witness also confirmed that the appellant was a class 3 teacher and that she had not differed with him in the past.

9. When placed on his defence, the appellant denied committing the offence terming the charging false. He testified that he was a teacher at [particulars withheld] primary school and that on the material day, the head teacher had instructed him to organize where the parents would go and sit as it was a parents’ day at the time. he testified that he went to class 5 where he found pupils seated and that the complainant had sat improperly by exposing her inner ware and that the boys were peeping and making fun of her. According to him, he called the complainant to his classroom in class 3 in order to counsel her and guide her on how she should sit properly without exposing herself. The appellant confirmed that he asked the minor if she had a biker and the reason for that in his defence, was that he wanted to confirm that she was safe.He denied asking the girl to lift her dress or touching her private parts, adding that the girl was seated from a safe distance.

10. He claimed that the teacher M (PW6) was envious of his progress in career and may have pushed the girl to lie against him.

11. The trial court evaluated the evidence tendered and found that the evidence tendered proved that penetration had taken place and there was evidence of a much more serious offence but found it safe to convict the appellant with the offence for which he was charged and sentenced him to serve 10 years’ imprisonment.

12. The appellant was aggrieved and filed this appeal raising the following grounds namely;i.That the trial magistrate erred in law and fact by holding that the prosecution’s case had been proved when essential elements had not been established.ii.That the trial court erred by relying on evidence of a single witness.iii.That the conviction was based on uncorroborated evidence.iv.That the evidence relied on my court was contradictory.v.That his defence was not considered.

13. In his written submissions through the learned counsel Kinyua Mwaniki and Co Advocate, the appellant faults the trial court for finding that the prosecution’s case had been proved beyond doubt because the charge of indecent act under section 2 (1) of Sexual Offence Act does not include penetration and that the State tried un-successfully to amend the charge at later stage of the proceedings because of the anomaly. He submits that though the trial court disallowed the application for amendment, the issue was in its mind when in rendered a conviction.

14. He submits that the evidence relied on by the court was of a single witness and it was unsafe to do so in light of the evidence of PW5 who stated that the classroom where the incident took place was open with windows and doors which made it unlikely for an offence of such nature to take place. He contends that an infection and white discharge noted in the same day of the offence was evidence of lies.

15. He faults the recording of statements by PW4 and PW5 after three (3) witnesses has testified. He points out that he was cleared by Teachers Service Commission which in his view showed that he was not culpable for the offence.

16. He submits that the trial court convicted the appellant based on his conduct as seen in the society and not because of the offence.

17. He contends that his defence raised doubts about the prosecution’s case pointing out that PW5 was unreliable and that evidence on age was not cogent.

18. The prosecution has opposed this appeal and points out that the evidence tendered by PW1 indicated that there was penetration but the charge under section (2) (I) of Sexual Offence Act under which the appellant was charged with does not include an act that causes penetration. The prosecution contends that the medical evidence tendered by Dr Waihenya (PW3) indicates that there was penetration and blames the victim for naivety in the manner she presented her evidence. The respondent urges this court to take cognizance of the fact that the complainant is a village girl but it is unclear on what it wants this court to do.

19. This court has considered this appeal and the response made. The appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of Sexual Offence Act. As correctly pointed out, by prosecution, an ‘‘indecent act’’ going by section 2(1) of the Sexual Offence Act does not include an act which causes penetration. Going through the evidence of the complainant and PW3, it is evident that there was an element of penetration established and what the prosecution does not admit is the fact that the evidence tendered were at variance with the charge sheet and the complainant, in her naivety as put by the stat, had nothing to do with drawing of the charge sheet. The state in its submissions should have been more candid but blaming the naivety of the victim in my view is akin to passing the back.

20. This court has keenly perused through the evidence of Dr Christopher Waihenya (PW3). The doctor stated that the complainant was attended to on October 21, 2016 at Migwani Sub-County Hospital and clarified that he examined her on October 25, 2016 which was four days after the incident but the doctor found the following upon examination.‘‘The genitalia was tender to touch. The labia minora and majora were reddish with a freshly torn hymen. There was a whitish discharge from the vaginal wall………….’’

21. The doctor was even more categorical on whether in his opinion there was penetration when he noted;‘‘In my considered opinion there was penetration on the girl victim genitalia (sic) based on my examination…. I could not tell for a fact whether penetration was caused by a finger or a male organ…….’’

22. The doctors evidence on penetration in my view corroborated what the complainant (PW1) told the trial court. According to her the appellant sent a boy to fetch her from her class (five) and went to class three (3) where the appellant was the class teacher and while there, this is what she stated;‘‘I approached the teacher (appellant) closely and he asked me whether I had put on a biker. I told the accused person that I had put on a biker and he asked me to lift my dress for him to see but I refused. The accused person then lifted my dress without my consent and inserted his fingers into my vagina. I started to cry…………………………..’’

23. In his defence, the appellant did not dispute that he called the complainant to his class and were alone. This is how he narrated the incident;‘‘……………..The girl sat down and I started guiding her. I told her that as a girl she needed to sit properly and hide her nudity. That she should not freely expose her inner wear to the boys…… the girl out of emotions started crying…………………’’

24. The above in my view is quite telling because even if the appellant says the other girls were outside playing, why would he be alone in a classroom with a girl talking about innerwear’s and her nudity? He says he was a counsellor but why did he not ask a female colleague to chip in and assist if he was acting in good faith? In my view the evidence by the complainant was clearly corroborated by MJ (PW4) the pupil in class 3 who was sent by the appellant to call the complainant in class 5. He stated that he obliged the teacher and obediently went and called the complainant in class 5 and that he escorted her to class 3 where the appellant was and left her there. The appellant claims that PW4 and PW5 made their statements later but there is no evidence to that but even if there was, nothing to show that the statements was later recorded in bad faith and with a view to fix him. He also says that PW6 (TM) was jealous of his progress in career but there is nothing to show that PW6 harbored any ill will/motive against him. The appellant was well represented by counsel during trial and should have put PW6 to task in that respect but there was no such issue which means the appellant simply raised it in his defence as a afterthought

25. Now turning back, the legal provisions in regards to the offence committed against the minor, section 8(i) of the Sexual Offence Act states;‘‘A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.’’

26. The above definition is silent on the object that causes penetration but under section 5 of the Act, the law defines sexual assault as unlawful penetration of the genital organ of another using any part of the body, so where one uses the fingers to defile a child, the offence is committed under section 8 (1) of the Sexual Offence Act and the fact that the offence for which one was charged is different from what was proved during the trial by evidence does not provide an escape route to a culprit. The provisions of section 185 (b) as read with section 186 of the Criminal Procedure Code shuts any escape route because it states that where one is guilty of a sexual offence he may be convicted upon it even if he was not charged with it. The 2nd schedule of Sexual Offence Act, rule 4 states that section 186 of Criminal Procedure Code is now replaced with the following provision;‘‘When a person is charged with the defilement of a girl under the age of 14 years and the court is of the opinion that he is not guilty of that offence but he is guilty of an offence under Sexual Offence Act, he may be convicted of that offence although he was not charged with it.’’

27. The respondent has correctly pointed out in its written submissions that the appellant was inadvertently charged with an alternative charge when the normal practice should have seen him being charged with main charge of defilement or rape depending on the age of the victim. In this instance the main charge should have been defilement.

28. The trial court appears to have also grappled with the inadvertence on the part of the prosecution when it observed in its judgement thus;‘‘…………………….it is therefore clear that Dr Waihanya’s medical evidence had duly corroborated the victim’s evidence that her genitalia had been penetrated. It is important to note that with proven element of penetration into the girl’s genital organ, a move aggravated offence of defilement was made out………..……’’That finding by the trial magistrate was well founded up to there but the trial court went ahead, misdirected itself when it directed its mind to provisions of Section 179 which stipulates that a person can be found guilty of a less offence even if he was not charged with it if the evidence supports a conviction thereof.

29. The trial court erroneously boxed itself into that legal corner instead of directing its mind to the provisions of section 185 (b) and 186 of the Criminal Procedure Code which I find were applicable in the circumstances. My reading of subsection (b) of section 185 and 186 covers the circumstances of this case. The appellant was charged with a lesser offence of committing an indecent act with a child yet the evidence tendered conclusively and without any shadow of doubt established that he in fact committed a more aggravated/principle offence of defilement against the complainant.

30. I am not persuaded by the appellant’s defence that he was out to do a guidance and counselling session with the victim on how to sit properly. He evidently harbored other ulterior ill motive. He took advantage of his position as a teacher to commit the odious act against a minor.

31. The appellant submits that there were doubts in the prosecution’s case because even the Teacher’s Service Commission cleared him of any culpability but I am not convinced. The action taken by Teachers Service Commission against its employee (appellant herein) was purely an administrative disciplinary process. It had no bearing to the matter pending before the trial court. The finding of the Teachers Service Commission was not binding to the criminal court and the trial court was correct in disregarding it altogether.

32. This court has re-evaluated the evidence tendered at the trial court in its entirety as discussed above and I have reached the inevitable conclusion that this appeal lacks in merit and that the conviction by the trial court on the lesser charge of indecent act was erroneous because evidence adduced by the prosecution counsel established beyond reasonable doubt all the necessary ingredients of defilement contrary to section 8(1) of theSexual Offence Act which are: -‘‘i.Penetration as established by evidence of PW1, PW2 and PW3 who tendered P Ex 2, P Ex3 and P Ex 4 all of which proved penetration beyond doubt.ii.Age of the victim, established to by the immunization card P Ex1 tendered by PW2 showing the minor was born in 2004. The P3 Form as P Ex. 2 and treatment chit P Ex 3 all showed that the complainant was aged 12 years at the material time of the offence.iii.The positive identity of the penetrator. The appellant himself concedes that he was with the girl at the material time and as I have observed above he says he was doing some guiding and counselling session when according to him the girl got ‘‘emotional and started crying.’’ This court finds that the fact that the girl was taken for medical attention the same day adds credence to the credibility of prosecution’s witnesses.’’

33. In view of the foregoing, finds that it is fair and interest of justice to set aside the conviction by the trial court on the offence of indecent act with a child and in its place under section 354 of Criminal Procedure Code a conviction is hereby entered against the appellant on the offence of defilement he committed against the child under section 8(1) of Sexual Offence Act. The sentence of 10 years’ imprisonment meted on him is hereby enhanced to 20 years’ imprisonment as stipulated under section 8(3) of Sexual Offence Act. He has 14 days right of appeal.

DATED, SIGNED AND DELIVERED AT KITUI THIS 1ST DAY OF NOVEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE