[2022] KEHC 10125 (KLR)

Mutunga v Republic (Criminal Appeal 18 of 2020) [2022] KEHC 10125 (KLR) (16 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10125 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal 18 of 2020

RK Limo, J

May 16, 2022

Between

Robert Mwendwa Mutunga

Appellant

and

Republic

Respondent

(An Appeal vide Kitui Chief Magistrate’s Court Sexual Offence Case No. 1 of 2017)

Judgment

1. The appellant herein was charged with the offence of defilement contrary to Section 8(1) (4) of Sexual Offence ActNo. 3 of 2006 vide Kitui Chief Magistrate’s Court Sexual Offence Case No. 1 of 2017. The particulars were that; on the 10th day of January 2017 at about 6. 00pm at Kathuma sub-location in [Particulars Withheld] location in [Particulars Withheld] sub-county within Kitui County intentionally and unlawfully caused his penis to penetrate the vagina of KAM a child aged 17 years.

2. The appellant denied committing the offence but he was found guilty after trial and convicted.

3. The following is a summary of the evidence tendered at the trial.The Complainant (PW1) informed the court that she had travelled from Kwa Vonza to Kitui Town to visit her uncle. She however did not know where her uncle lived so when she arrived in Kitui town, she started asking around for directions to his house. She stated that the Appellant volunteered to assist her locate her uncle’s house and the two started walking to where she believed to be her uncle’s. She added that they walked for long and eventually reached a house where the Appellant defiled her. The witness stated that the Appellant covered her mouth with a leso to prevent her from screaming. She added that thereafter someone knocked on the door and when the appellant did not open the person broke the door down and gained access. She stated that her uncle also arrived shortly after upon which she told them of what had happened. She testified that the Appellant was apprehended and taken to Matinyani Police Station while she was taken to hospital.

4. Timothy Kimanzi (PW2) testified that the appellant met him on the said material day and asked him for Kshs. 100 to cater for an expected visitor he had just received. The witness stated that he had second thoughts about that and decided to go to the appellant’s house to see the unexpected visitor. He stated that when he got there he met the complainant with a bag inside the appellant’s house. According to him, the girl reportedly told him that she was from Kwa Vonza and was headed to her uncle’s place. He testified that the girl informed him that her uncle’s name was MK and started crying stating that she had been defiled. The witness stated that he went and fetched MK who informed him that he was expecting the girl and that together they headed back to appellant’s house and found it locked. He added that the said uncle kicked the door open before calling the police.

5. The evidence of PW2 was corroborated by MK (PW3) who testified that he got a report from PW2 that the appellant got a report from PW2 that the appellant had lied to his niece (PW1) before he defiled her.The witness, a soldier working with Kenya Defence Forces (KDF) testified that he went in the company of PW2 and found his niece at the appellant’s house. He testified that the appellant was in his pants when they arrived and that he admitted to defiling the girl. He testified that the girl was seated crying when they arrived and that they then apprehended the appellant and called the police. He added that he was also in the company of Hassan Kilonzi.

6. Hassan Kilonzi (PW4) testified and corroborated the evidence of PW2 and PW3.

7. PC Andrew Maina (PW5) the investigating officer from Matinyani Police Station stated a case of defilement was reported at the station and he took the Appellant and PW1 to Kitui Hospital for examination. That the two were examined and that age assessment was also conducted on PW1.

8. Dr. Edward Kiatu (PW6) the doctor who examined the Complainant and filled the P3 from testified and confirmed to court that the complainant was defiled. He testified that upon examination he found that private part of the minor had a foul smell discharge and a broken hymen. He tendered the P3 form as P Ex. 1. and PRC Form as P Ex 2.

9. PC Andrew Maina, (PW7) a Police Officer attached to Matinyani Police Station testified and tendered the age assessment report as Exhibit 3. The report indicated that the girl was aged 17 years old.

10. When placed on his defence, the appellant denied committing the offence stating that he did not touch a woman in 2002. He accused the Complainant’s uncle for sending Timothy Kilonzi (PW2) and Hassan Mutie to burn his house. He stated that he had a land dispute with the complainant’s uncle but did not give details. His position is that the complainant was his girlfriend though he knew that he was less than 18 years in age. He insisted that the whole case was a witch hunt because of the land dispute.

11. The trial court evaluated the evidence tendered and found that the prosecution had proved its case to the required standard. It convicted the appellant and sentenced him to serve 15 years in prison.

12. The appellant felt aggrieved and filed this appeal raising the following grounds namely; -i.That the trial Magistrate erred in law and facts by stage managing the case.ii.That the learned trial magistrate also erred in law and facts while not considering that this case was proved beyond reasonable doubts due that the case has no investigations officer (I.O) and the same followed the hearsay evidences from PW1 and PW2. iii.That the learned magistrate erred in law and facts when convicted accused person with the evidences of PW1 and PW2 not understanding that there was a difference a difference between the accused and PW2 who gave his evidence.iv.That the Honourable trial magistrate erred in law and fact when accepting the evidence of PW3 examination officer (doctor) not understanding that the accused was not examined following the said rape.v.That the learned trial magistrate fell in both law and facts while convicting the appellant without giving his alibi/ defense due regards and consideration that the whole prosecution evidence was flawed and unbelievable to sustain a conviction.

13. In his written submissions the appellant has advanced mainly two grounds. His first ground though raised without leave relates to right to fair trial. He faults the trial court for failing to inform him of his right to legal representation that additional ground in this appeal is incompetent as it has been raised without leave of this court and at submissions stage. The said ground is unsustainable as such.

14. The 2nd ground advanced in the appellant’s written submissions is that the prosecution’s case was not proved beyond reasonable doubt. According to him, the complainant’s uncle set him up because of a land dispute. He maintains that the ingredient of defilement which is penetration was not proved. He relies on the decision of Karisa Katanga Gona versus Republic (2015) eKLR to support his contention that he thought the minor was an adult and that she was his girlfriend adding that the complainant’s uncle never liked him.

15. The State through Mr. Okemwa has opposed this appeal. He contends that the age of the victim was established through the evidence of PW6 and that the victim was aged 17 years at the time.

16. He further contends that the element of penetration was well proved through the medical evidence tendered by PW6.

17. This court has considered this appeal and the response made. As a first appellate work the mandate of this court is to re-evaluate and re-assess the evidence tendered with a view to reaching own conclusion.

18. The appellant raised an important issue in his submissions which I however, find it belated and an afterthought. He says the victim was his girlfriend and that he thought she was an adult but looking at his defence, he did not raise the issue at all. Had he raised the issue earlier the trial court could have considered it because under Section 8(5) (a) of Sexual Offence Actit is a defence if an accused person facing a defilement charge can show that he was misled into thinking that the victim was above 18 years.

19. In this instance, the appellant did not raise the issue in his defence in the first place. I have gone through the grounds in his petition of appeal and that ground/defence is not there. That ground therefore is not only an aforethought but belated and incompetent as well as it has been raised as an additional ground without leave.

20. On the question of prove of penetration, I am satisfied that the prosecution’s case at the trial established and proved that element beyond doubt. I have gone through the evidence of PW1 regarding how she found herself with the appellant. She was looking for someone to assist her trace where her uncle lived. The appellant readily volunteered but it later transpired that he had an ulterior motive. An intention to take advantage of the girl and defile her. The evidence of PW1 (Complainant) was well corroborated by PW2; PW3 and PW4. PW2 in particular in my view gave an insight of what really happened on the material day and time. He stated that the appellant borrowed him Kshs. 100 because he had gotten an unexpected visitor. PW2 out of curiosity, perhaps owing to the appellant’s past history, decided to go and find out for himself whether the appellant’s allegations were true. His suspicion was confirmed because he says that when he arrived at the appellant’s house he found a girl seated and crying that she had been defiled.The evidence by PW2 shows that he knew the appellant well. The appellant states that the Complainant’s uncle (PW3) framed him because he never liked him but in the face of evidence of PW2 and PW4, it is evident that the appellant’s allegations regarding a land dispute are baseless. PW3 may not have known about the incident had PW2 not alerted him. The appellant has no issues with PW2 or PW4.

21. Besides the above, the medical evidence of PW6 clearly reveals that the girl was defiled. He age was also established by the P3 Form (P Ex1) tendered by PW6. Though the Police (PW7) has no capacity to tender the age assessment because of lack of expertise in the area of science, I find that the element of age was proved beyond doubt by PW6 whose evidence corroborated the evidence of the complainant with respect to her age.

22. In the face of the overwhelming evidence tendered by the prosecution, this court finds that the trial court cannot be faulted for reaching the conclusion it arrived at. The prosecution’s case against the appellant was proved beyond doubt. His conviction was well founded and I find no basis to overturn it.

23. On sentence, I find that the trial court handed out the minimum sentence provided under Section 8 (4) of the Sexual Offence Act. The sentence meted out was lawful and proper. I am not persuaded that there is any basis to interfere with it.

24In the end this court finds no merit in this appeal the same is disallowed . The conviction and sentence are upheld .

DATED, SIGNED AND DELIVERED AT KITUI THIS 16TH DAY OF MAY, 2022. HON. JUSTICE R.K. LIMOJUDGE