[2023] KEHC 26578 (KLR)

Mwenda v Republic (Criminal Appeal E058 of 2022) [2023] KEHC 26578 (KLR) (20 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26578 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E058 of 2022

A. Ong’injo, J

November 20, 2023

Between

Erick Mwenda

Appellant

and

Republic

Respondent

(Being an appeal against the judgment of Hon. Ms. M. Mutuku CM delivered on 11th October 2022 in Mombasa Chief Magistrate’s Court S. O. Case No. 08 of 2019, Republic v Erick Mwenda)

Judgment

Background 1. The Appellant Erick Mwenda preferred the appeal herein against conviction and sentence in Mombasa Chief Magistrates Court S.O. Case No. 08 of 2019. The Appellant faced a charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act.

2. The particulars are that on the 30th day of January 2019 in Likoni Sub-County within Mombasa County, the Appellant unlawfully and intentionally caused his penis to penetrate the vagina of MS a child aged 11 years.

3. The appellant was found guilty and convicted for the offence of defilement and sentenced to serve life imprisonment.

4. The appellant was aggrieved by the decision of the trial court and he preferred the appeal herein on the following grounds: -i.That the learned trial Magistrate erred in law and fact by finding his conviction and sentence without considering that the expert’s report did not prove the case of defilement beyond reasonable doubt.ii.That the learned trial Magistrate erred in law and fact by finding his conviction and sentence without humbly considering that the prosecution case was governed by massive contradictions and discrepancies.iii.That the learned trial Magistrate erred in law and fact by failing to comply with Section 329 of the Criminal Procedure Code as mitigation is part of the trial process.iv.That the learned trial Magistrate erred in law and fact by finding his conviction and sentence without considering defence evidence.v.That the learned trial Magistrate erred in law and fact by finding the appellant’s conviction & sentence without considering that the sentence was harsh, excessive, unjust, unconstitutional, inhumane, and degrading.

5. The Appellant prayed that his appeal be allowed, conviction quashed and sentence set aside.

Prosecution’s Case 6. The prosecution’s case was that while the Appellant was operating a shop in Likoni called the Complainant at the shop and she entered a room in the shop where as she explained the appellant defiled her on a bed in the said room. That after he had defiled her, he gave her Kshs.30/=. She said the appellant inserted his penis in both her vagina and anus. That when she went home her mother told her to go to her biological father.

7. The complainant said she bled when the appellant defiled her. That she went to a neighbour and the neighbour accompanied her back to appellant’s shop where she told the neighbour what had happened to her. That she was taken to the hospital and given an injection and drugs. The complainant identified the appellant as the one who defiled her and said she was defiled in appellant’s shop during the day between 12. 00 noon and 1. 00 pm. She said she had been sent away from school on the day she was defiled.

8. PW2, a child rights volunteer, testified that on 30. 1.2019 Ali called and told her there was a child who had been defiled and the parents were not around. She was told the child was bleeding and emitting foul smell. PW2 took the child to hospital after which she took her to her parents after reporting to the police and recording a statement. PW2 said that the appellant was identified as the one who defiled the Complainant in his shop.

9. PW3 Dr. Farehena Zaveri a dentist assessed the appellant’s age as 17 years which translates to 20 years.

10. PW4, Mohamed Ali Juma, testified that on 31. 01. 2019 he had gone to Shika Adabu Hospital when at around 12. 00 noon he found I who told him that MS. aged 12 years came bleeding from the head and skirt had blood. That he called Sauti ya Akina Mama that deals with children rights. That he talked to Amina Juma and told her there was a child he suspected had been defiled. That A went at midnight and spoke to the girl and took her to hospital. PW4 said that the child told him it was the accused who defiled her. PW4 said that he had no grudge with the appellant. He said it was the child who identified the appellant. He also said he knew the appellant prior to the day of the incident.

11. PW5, Tufa Agisa Abdullahi, the Clinical Officer, examined the Complainant who had history of having been defiled by the shopkeeper who defiled her on 3 consecutive days while promising to give her money. He said the complainant’s hymen was almost broken and there was anal tear with swelling. The complainant was put on medication to prevent HIV as well as STI but it was confirmed on test that she was infected with syphilis. The Clinical Officer produced Sexual Violence Medical Certificate – ExP 1, PRC form – ExP 2 and treatment notes – ExP 3.

12. PW6, Stephen Kalai, the Clinical Officer at Likoni Sub-County Hospital examined the Complainant and filled a P3 Form which was produced as exhibit- ExP 4. He said on examination, the complainant vaginal wall was red and the vulva was swollen. That external genitalia had bruises. That swabs taken to the laboratory for tests confirmed the Complainant had been infected with a venereal disease. He produced the Complaints clothes and said that there was forceful penetration by a blunt object namely penis. The clinical officer said the clothes were blood stained.

13. PW6, P.C. Miriam Wambua Kavila, of Longo Police Post investigated the offence of defilement. She said the OCS handed to him blood stained skirt belonging to the minor. She said it was a neighbour who saw the child come from appellant’s shop with blood stained skirt and on interrogation. She was taken to hospital and matter reported. P.C. Miriam produced the clothes as exhibits. She also produced the child’s clinic card. She said the appellant was arrested by members of public. She said the child was taken to hospital within 2 hours of being defiled and that she identified the appellant as the one who defiled her.

Defence Case 14. When placed on defence, the Appellant said that he was employed by his brother as a shopkeeper and that the Complainant’s mother used to take goods on credit without paying. That on 27th February 2019 he demanded for Kshs. 9,770/= from her but she did not pay. That on 29. 01. 2019 he reminded her again but she said the Appellant was a foreigner. That on 31. 01. 2019 at 7. 00pm the Complainant and her parents went to the shop and started damaging the shop. That he told them they should go to the police. That after a short while the complainant’s uncle arrived and told him they should go to the police. That he was escorted to the police and later arraigned in court.

15. On cross examination, he said he did not have records of goods the complainant’s mother had taken on credit from his shop. He said his brother closed the shop and went upcountry. That he told the Complainant’s mother he intended to report to police that she owed her for shop goods taken on credit. He said the police did not listen to him. He said the Complainant did not owe him any money and did not threaten him. He said he had no grudge with the minor.

16. Directions were taken on 18th May 2023 that the appeal be canvassed by way of written submissions but as at the time of writing the judgment, no party had filed the submissions.

Analysis and Determination 17. This being the first appellate court, I am guided by the principles in David Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: -“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.

18. This court has considered the grounds of appeal, the records of appeal and submissions by the Appellant and Respondent and identifies issues for determination as follow: -a.Whether Medical Report (Expert Report) proved the case of defilement beyond reasonable doubt.b.Whether conviction was based on evidence that had massive contradictions and discrepancies.c.Whether the Appellant’s mitigation was considered.d.Whether the Appellant’s defence was considered.e.Whether the sentence was harsh, excessive, unjust, unconstitutional, inhumane and degrading.

19. Medical Evidence was produced by Tuya Agisa Abdullahi, PW4, the Clinical Officer at Mrima Health Centre examined the Complainant who was accompanied to the facility by a Community Health Worker from Ujamaa. The complainant narrated to her that the shopkeeper defiled her twice while promising to give her 500/= but it is on the 2nd occasion he gave her 100/= and told her to go for more money the next day. That when she went the next day he only gave her 30/= after defiling her.

20. PW4 found the Complainant had been abused sexually in the vagina and anus and the hymen was broken. PW4 also found the child had Syphilis. PW4 issued sexual violence medical certificates – ExP1 and also filled PRC from ExP2 Treatment notes were also produced – ExP3.

21. PW5, Stephen Kalei, Clinical Officer at Likoni Sub-County Hospital examined the Complainant and filled the P3 Form which he produced as ExP4. He confirmed evidence of PW4 that the Complaint’s hymen was torn and there was a tear and swelling of anal orifice plus the Complainant had venereal disease i.e. Syphilis. PW5 said the vaginal wall was red and the vulva was swollen. He observed the external genitalia had bruises. PW5 concluded that there was forced penetration by blunt object which is a human penis. He said the Complainant’s clothes were blood stained and she was taken to hospital immediately after the incident.

22. This court has not been shown how the medical reports have not proved that the offence of defilement was committed. The evidence of PW4 and PW5 corroborates evidence of PW1 that the appellant defiled her during the day on 30. 01. 2019 inside a room in his shop. PW3 saw the Complainant’s skirt had blood and he suspected she had been defiled and he alerted PW2, a Child Rights Volunteer worker. PW2 went to talk to PW1 at night. PW1 identified the appellant as the perpetrator. PW2 took the Complainant to Mrima Health Care Centre and she was treated and PW4 produced Sexual Offence Medical Certificate, treatment notes and PRC Form.

23. The prosecution proved beyond all reasonable doubt the age of the Complainant, they proved the identity of the perpetrator and the fact of penetration. The Appellant did not identify contradictions and discrepancies that he alleged could have affected his conviction.

24. The trial Magistrate considered the appellants defence on the 2nd paragraph at page 16 where she said: -“The Complainants testimony to this extent is corroborated by DW1 averment and grudges with the Complainants mother who was not available when the incidence happened or was she a witness”.

25. She said the appellant’s claims that he supplied the Complainant’s mother with provisions on debt was not ascertained. The Appellant did not raise the issue of credit given to the Complainant’s mother from his shop with the complainant or even PW2, PW3 or even on the Investigating Officer, PW 6. His defence was a mere denial brought too late in the day. Before sentence the appellant was given an opportunity to mitigate and he said he had reformed.“I got saved while in custody. I pray for a non-custodial sentence. I have not seen my parents for a long period”.

26. The trial Magistrate said she had considered mitigation and the fact that he was 1st offender but then sentenced him to serve life imprisonment. Section 8(1) as read with Section 8(2) of the Sexual Offence provides for mandatory sentence of life imprisonment where one defiles a child who is 11 years or below.

27. This provision has however since been declared unconstitutional by the Court of Appeal in Kitsao Munyeso case at Malindi and in the circumstances this court hereby sets aside the life sentence and substitutes thereof a term of 30 years Imprisonment to take effect from 1st February 2019.

28. The Appeal on conviction has not merit and is dismissed. The appeal on sentence succeeds partially. Right of Appeal of 14 days explained.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 20TH DAY OF NOVEMBER, 2023. HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the RespondentMs. Masinde Advocate for the AppellantAppellant present in personHON. LADY JUSTICE A. ONG’INJOJUDGECourt: Copy of judgment to be supplied to state and applicant.HON. LADY JUSTICE A. ONG’INJOJUDGE