[2022] KEHC 13636 (KLR)

Mwaiwa v Republic (Criminal Appeal E045 of 2021) [2022] KEHC 13636 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13636 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal E045 of 2021

JM Mativo, J

October 11, 2022

Between

Matano Mwaiwa

Appellant

and

Republic

Respondent

(An appeal against Judgement, conviction and sentence passed in CMC Criminal Case Number 20 of 2020, Voi, R. v Matano Mwaiwa, delivered by Hon. D. Wangechi P.M. on 12. 10. 2021)

Judgment

1. The established the principles to be kept in mind by a first appellate court while dealing with appeals1are:-1See Ganpat vs. State of Haryana{2010} 12 SCC 59. (a)There is no limitation on the part of the appellate court to review the evidence upon which the order appealed against is founded and to come to its own conclusion;(b)The first appellate court can also review the trial court’s conclusion with respect to both facts and law;(c)It is the duty of a first appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the decision appealed against or the entire proceedings if they are flawed;(d)When the trial court has breached provisions of theConstitution or ignored statutory provisions, or misconstrued the law, or breached rules of procedure, or ignored crucial evidence or misread the material evidence or has ignored material documents, or in any manner compromised the accused rights to a fair trial or prejudiced the accused etc. the appellate court is competent to reverse the decision of the trial court depending on the materials in question.

2. As the Supreme Court of India2stated: -2K. Anbazhagan vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015. 'The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the judge to see that justice is appropriately administered, for that is the paramount consideration of a judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.'

3. The appellant was convicted of the offence of defilement contrary to section 8 (1) (4) of the Sexual Offences Act3 (the Act) in CMC SO No 20 of 2020, at Voi. The indictment was that on the September 11, 2020 within Taita Taveta County he unlawfully and intentionally caused his penis to penetrate the vagina of MM, a child aged 16 years (the complainant). Alternatively, he was accused of committing an indecent act with a child contrary to section 11 (1) of the Act by intentionally touching her vagina with his penis on the above date and place.3Act No. 3 of 2006.

4. The complaint said she was aged 16 years and in form 2. She recalled that in August 2020 the applicant who was known to her called her through her mother’s phone and asked her to meet him. She declined his request that they be lovers. On September 11, 2020 he called her again and she agreed to meet him. She declined his request to sleep with her but he took her to a bush and forced her to have sex with him after which he took her to a bush near her home and he told her to lie that she had been raped by three people. She called a one Sera and told her she was bleeding. She identified her blood-stained jeans skirt in court and her pink t-shirt.

5. PW2, MAO, the complainant’s mother recalled that on September 11, 2020 the complainant left with her phone without saying where she was going. She took long, so they started looking for her. The complainant called and said she did not know where she was. With the help of Nyumba Kumi members they traced her at around 10pm. The complainant said the appellant raped her and she did not know where her pantie was. They took her to the police station and to Moi County Referral Hospital where she was examined and issued with a P3 form. She identified her blood-stained skirt and pink t-shirt in court.

6. PW3 Joti Nyawa, a clinical officer at Moi County Referral Hospital produced the complainant’s P3 form and treatment notes He said on examination, the complainant had lacerations with minimal vaginal bleeding; her hymen was freshly broken; HIV test was negative; No spermatozoa were seen; but pus and red blood cells were seen. He concluded she had been defiled.

7. PW4, Mwidadi Omar, a government analyst based at Mombasa produced a DNA report dated August 13, 2021 and a police exhibit memo. He did a test to determine the paternity on MA, the complainant’s child. He took samples from the appellant, the child and the complainant. He said DNA showed 99. 99 chances that the appellant was the child’s biological father. He signed the report dated August 13, 2021.

8. PW5, Sgt Lucy Macharia was the investigating officer. She escorted the complainant to hospital and the P3 form was filled. She arrested the appellant. She said the complainant realized that she was pregnant. She said DNA confirmed 99. 99 % chances that the appellant was the father of the complainant’s child. She said at the time of the incident, the complainant was aged 17 years, having been born on August 8, 2004. She produced her birth certificate, the skirt and t-shirt as exhibits.

9. In his sworn defence, the appellant denied the charges. He said he had loaned the complainant’s mother money which she adamantly refused to pay only for him to be arrested. She also said the complainant’s mother had forced her to live with her elder child but he refused. On cross-examination he said he was aware the DNA had confirmed that he was the father of the child.

10. In her judgment, the learned Magistrate was persuaded that all the elements of the offence had been proved and she convicted the appellant and sentenced him to serve 20 years imprisonment.

11. Though overlapping in certain respects, the appellant’s challenges may broadly be understood as follows: - (a) the elements of the offence were not proved; (b) the magistrate failed to evaluate the evidence properly; (c)the name in the birth certificate was not the complainant’s name; (d) the charges against him were borne out of ill-will; (e) the learned magistrate erred in failing to appreciate that the complainant had capacity to consent; (f) the sentence is excessive.

12. The appellant’s counsel submitted that the elements of the offence were not proved. He cited several decisions and submitted the complainant’s age was not proved. He argued that her birth certificate could not be relied on and that it offended the best evidence rule because the name of the complainant was different. (citing Jane Wambui v Stephen Mutembi & another4). He submitted that the complainant’s mother had malice against the appellant. He also submitted that the trial magistrate erred in failing to appreciate that the appellant believed that the complainant consented and she had capacity as provided by section 8(5) (6) of the Act. He submitted that the appellant had reasonably believed that the complaint was over 18 years. He relied on Eliud Wawer Wambui v Republic54[2006] e KLR.5[2019] e KLR.

13. On October 24, 2022, the respondent’s counsel informed the court that he had filed submissions. However, as at the time of writing this judgment, there were no copies of the same in the court file nor had a soft copy been forwarded to the court. So, I prepared the judgment without the benefit of the respondent’s submissions.

14. The single test for allowing an appeal against conviction is whether the conviction is unsafe. The principles of trial fairness and the accused’s right to make a full answer and defence are expressions of procedural principles of fundamental justice, and are also embodied in article 50 of theConstitution. The key principles are that: -(a)an individual must be proven guilty beyond a reasonable doubt;(b)the state must bear the burden of proof; and(c)criminal prosecutions must be carried out in accordance with due process. While the emphasis on an accused’s fair trial rights under article 50 should be primary, the right to make full answer and defence and the right to a fair trial are considered from the perspectives of the accused, the complainant, the community and the criminal justice system at large.

15. The appellant argued that the ingredients of the offence were not proved. Regarding the question age, in Hilary Nyongesa v Republic6 the court stated that 'age is such a critical aspect in sexual offences that it has to be conclusively proved and this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.' In John Cardon Wagner v Republic7 it was held that in defilement cases, the age of the complainant is proved by either medical evidence or through other evidence since the sexual offences act have different categories of ages and sentences of different ages. Also, in Musyoki Mwakavi v Republic8 it was held that apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense. Also relevant is Francis Omuroni v Uganda9 in which the court held that 'in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense.'6High Court Cr Appeal No. 123 of 2009, Eldoret.7High Court Criminal Appeal No. 404 of 2009 (Nairobi).8High Court Criminal Appeal No. 172 of 2012. 9Criminal Appeal no 2 of 2000- Court of Appeal.

16. The complainant’s mother testified in 2020 and gave her age as 16 years. The clinical officer testified in 2021 and gave her age as 16 years. The investigating officer also testified in 2021 and gave her age as 17 years. The birth certificate shows that she was born on March 8, 2004. The appellant’s contestation is that the name in the birth certificate is different from the name in the charge sheet. As the authorities cited above suggest, even if the birth certificate was unavailable, age can be determined by other evidence in the absence. Section 2 of the Act provides that a child has the meaning assigned thereto in the Childrens Act.10 The Children's Act defines a child as follows: - 'child' means any human being under the age of 18 years. The drafters of the Childrens Act were alive to situations whereby difficulties could arise in determining the actual age of a child. In its wisdom, Parliament adopted the definition at section 2 of the Act, which is:- 'age' where actual age is not known means apparent age. From the evidence before the court, the complainant was a child within the meaning of the above section. There is no reason to suggest that the complainant’s mother did not know the complainant’s age.10Act No. 8 of 2001.

17. The other element is penetration. We have on record the complainant’s evidence and the testimony of the clinical officer. This evidence was not discounted. In fact, from the appellant’s submissions, he admits the affair when he argues that he believed she was over 18 and had the capacity to consent. Essentially, his submission is that the sex was consensual. This submission, though it was not part of the appellant’s defenc in the lower court, settles any doubt, (if at all there was any) as to whether the appellant had sex with the complainant. Additionally, there is ample corroboration. First, the findings on medical examination as reflected in the P3 form and the testimony of the clinical officer. Second, the blood-stained skirt. Third, the pregnancy that ensued from the encounter and the DNA that settled the question of paternity. The foregoing sufficiently corroborates the complainant’s testimony and irresistibly points to the appellants guilty.

18. The third element is the appellant’s identity. His identity is not in doubt nor is it contested. He was well-known to the complainant and if at all there was any doubt, the DNA eliminated it.

19. His argument that the charges were actuated by malice does not pass the credibility or reliability test nor does it dislodge the prosecution evidence squarely placing him at the centre of action as the offender.

20. The appellant’s counsel in his submissions sought to find refuge in the provisions of section 8 (5) (6) of the Act. His argument, as I understand it is that the appellant believed that the complainant was over 18 years and she had capacity to consent and that she actually consented. This line of defence was not advanced during the trial. Worse still, it is being introduced from the bar. Submissions cannot be used to adduce evidence nor can the lawyer take to the witness box and adduce evidence disguised as submissions. The appellant had the benefit of an advocate during the trial who actively participated in the proceedings and raised objections as and when he deemed fit. It cannot be said that he forgot to advise his client on this line of defence if at all it existed. For now, it can safely be concluded that the appellant is simply raising the said defence as an afterthought, at this late hour. This is impermissible.

21. In view of my analysis and determination of the issues discussed herein above, the conclusion becomes irresistible that this appeal fails. The upshot is that the conviction and sentence imposed by the learned magistrate in chief magistrates SO No 20 of 202, at Voi, Republic v Matano Mwaiwa is up held. This appeal is dismissed.Right of appeal explained.

SIGNED AND DATED AT VOI THIS 6TH DAY OF OCTOBER 2022JOHN M. MATIVOJUDGESIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 11TH DAY OF OCTOBER 2022OLGA SEWEJUDGE.