[2022] KEHC 12093 (KLR)

Muturia v Republic (Criminal Appeal E142 of 2021) [2022] KEHC 12093 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12093 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E142 of 2021

TW Cherere, J

June 9, 2022

Between

Josphat Koome Muturia

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in Maua S.O Criminal Case No. 106 of 2019 by Hon. A.G MUNENE SRM on 15TH October 2021)

Judgment

Background 1. Josphat Koome Muturia(‘the appellant’) was charged with the offence of defilement contrary to section 8 (1) as read with 8(2) of the Sexual Offences Act No 3 of 2006. It was alleged that on December 26, 2019 at [Particulars Withheld] village [particulars withheld] Sub-location Antuambui location in Igembe North sub-county within Meru county intentionally and unlawfully caused his penis to penetrate the vagina of PG a child aged 8 years.

2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No 3 of 2006. It was alleged that on the same day and place, intentionally touched with his penis the vagina of PG a child of 8 years.

3. Appellant was tried, convicted on the main charge and subsequently sentenced to 40 years’ imprisonment.

Appeal 4. Dissatisfied with the conviction and sentence, the appellant lodged this appeal setting out 4 grounds of appeal in his submissions as follows;1)That the learned trial magistrate erred by law and fact by not calling to testify key witnesses adversely mentioned in this case.2)That the learned trial magistrate erred in law and fact in meting out a conviction that was not proved beyond any iota of doubt.3)That the learned trial magistrate erred law and fact by disregarding the facts raised in the appellants defence ofalibi.4)That the learned trial magistrate erred law and fact by failing to note that quite a considerable amount of time was lost before PW1 was taken to the health facility.

Analysis and determination 5. The appeal proceeded by way of written submissions. The appellant faulted the prosecution for not calling as witnesses the complainant’s father and other children who were with complainant when he allegedly called her was in the company of, her father. The trial magistrate was similarly faulted for not giving due consideration to the defence of alibi. Reliance was placed on JMN v Republic [2021] eKLR in support of the proposition that the prosecution has a duty to call all vital witnesses;Dennis Kinyua v Repubclic[2017] eKLR for the argument that sentences under the Sexual Offences Act are not mandatory and Wanjala Joseph MunyoKi Kimatu V Republic [2014] eKLR concerning consideration of alibi defence.

6. The state submitted that it had proved the case beyond reasonable doubt, that the defence was rightly rejected and that the trail court had no discretion but to impose the mandatory sentence and thus prayed that the sentence be enhanced to life imprisonment as provided under the Act. Reliance was placed on of George Opondo Olunga V Republic [2016] eKLR which reiterated the need to prosecution to prove ingredients of defilement and Francis Karioko Muruatetu & Another V Republic [2021] eKLR on the court’s discretion in sentencing in murder cases.

7. This being a first appeal, this court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial court, and give due allowance for that (See Okeno vs Republic [1972] EA32).

8. The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant. (See CWK v Republic [2015] eKLR).

Age of complainant 9. It is trite that the age of a minor is a critical component of a defilement charge and that it is an element which must be proved by the prosecution beyond reasonable doubt. In Kaingu Kasomo vs RepublicCriminal Appeal No 504 of 2010 the Court of Appeal stated as follows:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.

10. Complainant’s age was proved by way of a certificate of birth PEXH 5 which reveals that she was born on March 13, 2011 and was 8 years when the offence was allegedly committed.

Penetration 11. Section 2 of the Actdefines penetration to entail: -“partial or complete insertion of a genital organ of a person into the genital organ of another person.”

12. The P3 form PEXH. 1 reveals that complainant had bruises on the labia minora, labia majora and vaginal wall. I therefore find that the trial magistrate correctly found that penetration was proved.

Appellant’s Culpability 13. Complainant stated that she was her sister SK and M when appellant who is his uncle called her and defiled her in his farm. The offence was committed at night and the means by which the appellant was identified becomes critical for the reason that even in cases of recognition, the court is required to exercise caution and warn itself before basing a conviction on such evidence.

14. In the case of Paul Etole & Another vs Republic[2001] eKLR, the Court of Appeal stated the following with regard to identification through recognition. -“Evidence of visual identification can bring about a miscarriage of justice. But such miscarriage of justice occurring can be much reduced if whenever the case against an accused depends wholly or substantially on the correctness on one or more identifications of the accused, the court should warn itself of the need for caution before convicting the accused.”

15. In the present appeal, the prosecution did not tender evidence concerning lighting at the farm that the appellant allegedly defiled complainant. And whereas section 143 of the Evidence Act provides that ‘No particular number of witnesses shall in the absence of any provision of the law to the contrary be required for proof of any fact, the fact that the offence was committed at night obliged the calling of corroborative evidence especially from SK and M who were with complainant when she was allegedly called by appellant to establish that complainant was called by appellant and no one else.

16. The calling of corroborative evidence would in the circumstances of this case have been necessary for the reason that appellant raised a defence of alibi that he was not at the scene of crime.

17. The Court of Appeal in the case of Kiarie v Republic [1984] KLR held That: -“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.”

18. I have considered the evidence by the complainant as against the defence of alibi raised by the appellant. The prosecution case was not so strong against the appellant as to leave only a remote possibility in his favour which can be dismissed with the sentence that it is possible that he indeed defiled the complainant. The defence of alibi raised by the appellant, in my considered view raised a doubt in the prosecution case.

19. Accordingly, and for the reasons set out hereinabove, this appeal succeeds. The conviction is quashed and the sentence set aside. Unless otherwise lawfully held, it is ordered that the appellant shall be set at liberty. It is so ordered.

DELIVERED AT MERU THIS 09THDAY OF JUNE, 2022. WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Kinotiappellant - Present in personFor the State - Ms. Mwaniki (PPC)