[2022] KEHC 14560 (KLR)

Mutunga v Republic (Criminal Appeal E112 of 2021) [2022] KEHC 14560 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14560 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E112 of 2021

GMA Dulu, J

October 19, 2022

Between

Francis Mwanzia Mutunga

Appellant

and

Republic

Respondent

((Being an appeal from the original conviction and sentence of Hon. E.M Muiru in Kilungu Principal Magistrate’s Court (S.O) Case No. 62 of 2020 pronounced on 17th November, 2021)

Judgment

1. The appellant was charged in the magistrate’s court with three counts. Count I was for attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act No. 3 of 2006.

2. The particulars of offence were that on December 7, 2020 at around 13. 00pm in Mukaa Sub-County of Makueni County unlawfully and intentionally attempted to commit an act which could cause penetration of his genital organ to the genital organ of PMK, a child aged 15 years.

3. In the alternative to count I, 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 December 7, 2020 at around 13. 00pm at Kilome Sub-Location in Makueni County intentionally and unlawfully committed an indecent act with PMK a child aged 15 years by touching her genital organ.

4. Under count II, he was charged with assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars of offence were that on the same date, time and place, unlawfully and willfully assaulted PM thereby occasioning her actual bodily harm on her neck.

5. Count III was impersonation contrary to section 382 of the Penal Code. The particulars of offence were that on the same day, place and time, with intent to defraud falsely represented himself to be a Police Officer.

6. He denied all the charges. After a full trial, he was convicted of attempted defilement, simple assault contrary to section 250 Penal Code, and impersonation. He was sentenced to 10 years imprisonment for attempted defilement, 6 months’ imprisonment for simple assault, and 6 months imprisonment for impersonation. The sentences were ordered to run concurrently thus a total of 10 years imprisonment.

7. Dissatisfied with the conviction and sentence of the trial court, the appellant has come to this court on appeal on the following grounds:-i.The learned magistrate erred in law and fact by relying on a defective charge sheet.ii.The learned trial magistrate erred in law and fact by relying on contradictory and inconsistent evidence to convict him contrary to the provision of section 163(1) (c) Cap 80 (Evidence Act).iii.The learned trial magistrate erred in law and fact by convicting the appellant against the weight of evidence as the case lacked crucial witness as per provisions of section 150 of the Criminal Procedure Code.iv.The learned trial magistrate erred in law and fact by holding that the prosecution proved its case to the required standards needed in an offence of this nature.v.The learned trial magistrate erred in law and fact without considering that the investigation was shoddy and all witnesses were trained, coached and tailored evidence to defeat justice.vi.The learned trial magistrate erred in law and fact by convicting the appellant by premeditated plan by a cartel of people being organized to victimize the accused person.

8. The appeal was canvassed through filing of written submission. The appellant filed submissions and supplementary submissions, while the Director of Public Prosecutions filed submissions. I have perused and considered the submissions on both sides.

9. This being a first appeal, I am required to evaluate all the evidence on record and come to my own independent conclusions and inferences – See Okeno v Republic (1972) EA 32.

10. I have evaluated the evidence on record. To prove their case, the prosecution called four (4) witnesses. On his part the appellant tendered sworn defence testimony and did not call additional witness.

11. The appellant has complained that the charge sheet was defective. He has not described the nature of defects. On my part, having perused the charge, I find no defects on the charge sheet. I dismiss that ground.

12. Coming now to the charge, I note that the evidence on count 1 relating to the charge of attempted defilement is of the alleged conviction Pw1 PMK. That on December 7, 2020, as she went to fetch water at 1 pm, the appellant caught up with her on a motor bike, held her, struggled with her, fell her down on the ground as she screamed, and began to lift her short when people who were burning charcoal were attracted by her screams and came to the scene.

13. There was also the evidence of Pw2 Samson Mulinge, who testified that between 12 noon and 1pm that day, he was removing charcoal with Daniel Kole in the forest, when they heard noise, and on following Daniel to the road, he saw Daniel fighting the appellant. On arrival at the scene, Daniel informed him that the appellant had caught the victim, and the incident was thus reported to the police and the appellant then arrested.

14. Though the appellant claims that a crucial witness Daniel was not called to testify, in my view the evidence of the alleged victim herein, was believable and was thus saved by the provisal to section 124 of the Evidence Act (Cap 80). It did not require corroboration. The evidence of Pw1 was satisfactory to prove the requirements for the offence of attempted rape in terms of the definition of attempts to commit an offence under section 388 (1) of the Penal Code, as it shows that the appellant attempted to defile her by knocking her down and removing her pair of shorts, in an attempt to sexually penetrate her.

15. In my view therefore, the prosecution proved beyond any reasonable doubt, all the elements of the offence of attempted defilement.

16. With regard to the offence of assault, the victim Pw1 stated that she was physically injured. The medical evidence of Pw4 Mr. Kasiamani the Clinical Officer however, was to the effect that there was no injury noted on Pw1. The appellant was charged with assault causing actual bodily harm but convicted of simple assault.

17. In my view, the prosecution did not prove beyond any reasonable doubt that an offence of assault was committed. What was proved was the attempt to commit a sexual offence, thus the mere physical contact between the victim and the culprit did not prove a separate offence of assault. I will quash the conviction for assault.

18. With regard to the offence of impersonation, again in my view, this offence was not proved by the prosecution beyond reasonable doubt. In my view, even assuming that the appellant said that he was a Police Officer, such statement alone, without further description of his name, rank and possibly his working station, did not establish the offence of impersonating a Police Officer. One will easily note from the charge also that there is an allegation of intent to defraud, but no evidence of the defrauding were tendered by the prosecution. Thus the offence was not proved.

19. I thus find that the prosecution did not prove the charge of impersonation and will quash the conviction on that count.

20. Consequently and for the above reasons, I dismiss the appeal on count 1 for attempted defilement. I uphold the conviction for attempted defilement and sentence imposed therein. Under assault, and impersonation, I allow the appeal and quash the conviction and sentences therein.

21. The appellant thus stands only convicted of attempted defilement and will serve the sentence of 10 years imprisonment imposed by the trial court on that count.

It is so ordered.Right of appeal explained

Dated, signed and delivered this 19th day of October, 2022 in open court at Makueni...................................George DuluJudge