[2023] KEHC 18816 (KLR)

Mwazumbo v Republic (Criminal Appeal E017 of 2022) [2023] KEHC 18816 (KLR) (22 June 2023) (Judgment)

Neutral citation: [2023] KEHC 18816 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal E017 of 2022

GMA Dulu, J

June 22, 2023

Between

John Mwazumbo

Appellant

and

Republic

Respondent

(From the conviction and sentence in Sexual Offence Case No. 24 of 2019 by Hon. Adisa (RM) at Taveta Law Courts)

Judgment

1. The appellant was charged in the Magistrate’s Court at Taveta with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No 3 of 2006. The particulars of offence were that on unknown date in the month of July 2019 at unknown time in Taveta Sub County within Taita Taveta County unlawfully and intentionally caused his penis to penetrate the vagina of FI (name withheld) a girl child aged 15 years.

2. In the alternative, 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 between the same dates and at the same place, unlawfully and intentionally touched the vagina of FI a girl child aged 15 years with his penis.

3. He denied both charges. After a full trial, he was convicted on the main count of defilement and sentenced to twenty (20) years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal through Counsel Mwinzi & Associates Advocates and relied on the following three grounds of appeal:-1. The prosecution failed to prove its case beyond reasonable doubt sufficiently to warrant conviction but rather the conviction was founded on presumptions that the appellant being found together with the victim had carnal knowledge contrary to sound principles of law and Constitution.2. That the trial court shifted the onus of proof to the appellants.3. There was honest and reasonable belief on appellant that the victim was age of majority.

5. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Mwinzi & Associates Advocates for the appellant, as well as the submissions filed by the Director of Public Prosecutions. Both sides have relied on decided case authorities.

6. This being a first appeal, I have to start by reminding myself that I am duty bound to evaluate all the evidence on record afresh, and come to my own independent conclusions and inferences, but bear in mind that I did not see the witnesses testify to determine their demeanour. See Okeno =Versus= Republic [1972] EA 32.

7. It is also trite law that this being a criminal case, the prosecution had the burden to prove each of the elements of the offence beyond any reasonable doubt, since an accused person has no burden to prove his innocence – see Miller =Versus= Minister of Pensions[1947] 2 AllER 372, and Woolimington =Versus= DPP (1935) AC 462, and Sawe =Versus= Republic (2003)eKLR.

8. The elements of the offence of defilement are the age of the victim who should be below 18 years. Secondly, penetration of a sexual nature, even if partial. Thirdly, the identity of the culprit.

9. In proving their case the prosecution called five (5) witnesses. On his part, the appellant tendered sworn defence testimony and did not call any additional witness.

10. With regard to the age of the victim, she testified as PW1. She stated that she was aged 15 years and had completed Standard 8. She relied on a birth certificate which she produced in court as an exhibit. It was not contested. The birth certificate shows that FI was born on October 20, 2004. It was issued on September 21, 2015.

11. In my view, the prosecution proved beyond reasonable doubt that the age of the victim was 15 years at the time of the alleged incident.

12. With regard to sexual penetration, the evidence on record is that of the victim PW1. Nobody else witnessed the sexual intercourse. The medical evidence of PW5 George Ombayo the Clinical Officer at Taveta hospital was to the effect that the victim was 16 weeks pregnant.

13. On his part, the appellant stated in his sworn defence that he had agreed with the victim to marry and that they had met the parents and cohabited from July to October. He did not mention sexual intercourse.

14. In my view, the evidence of PW1 the victim herein on sexual intercourse is believable and in terms of the provisal to Section 124 of the Evidence Act (Cap 80), can be acted upon to prove the fact of sexual penetration. Indeed, in my view, penetration did occur as the appellant himself admitted on oath that he lived with the victim as husband and wife for some months, and the medical evidence was that the victim was actually pregnant. The fact of pregnancy in the circumstances of this case supports the testimony of PW1 that she was sexually penetrated, whether by someone else or by the appellant.

15. In my view therefore, the prosecution proved beyond any reasonable doubt sexual that penetration did occur on the victim herein (PW1).

16. With regard to the identity of the culprit, the appellant himself stated in his sworn defence that he lived with the victim for some months as his wife. There cannot thus be any possibility of mistaken identity. I find that the prosecution proved beyond any reasonable doubt, that the appellant herein was the culprit.

17. Having found as above however, I note that the appellant stated in his defence as follows:-“On November 18, 2019 at night I heard a knock on the door. I opened the door and police officers asked if I was with FI. I admitted that I was with FI. I was later informed that she was below eighteen years. I had intended to marry her. I am an orphan. I beg for leniency.”

18. In my view, considering the evidence and circumstances of this case where the victim at her biological age, moved on her own volition to the house of the appellant, and lived there for several months with an intention to marry him, the defence under Section 8(5) of the Sexual Offences Act comes into play, and is applicable. In my view, any reasonable man would be misled to believing that the victim herein was an adult, the way the appellant stated in his defence, I will thus allow the appeal against conviction based on the defence available to the appellant, under Section 8(5) of the Sexual Offences Act; quash the conviction and set aside the sentence.

19. Consequently and for the above reasons, I allow the appeal, quash the conviction and set aside the sentence imposed by the trial court. I order that the appellant be set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED THIS 22ND DAY OF JUNE, 2023 AT VOI.GEORGE DULUJUDGEIn the presence of:-AppellantMr. Sirima for State presentMr. Otolo court assistant