[2023] KEHC 24892 (KLR)

Ndung’u v Republic (Criminal Appeal E012 of 2023) [2023] KEHC 24892 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24892 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E012 of 2023

SM Githinji, J

November 6, 2023

Between

Simon Mbugua Ndung’u

Appellant

and

Republic

Respondent

(Being an Appeal from the Judgment and Sentencing of Honourable E.K.Usui – Chief Magistrate at Malindi delivered on the 7th February, 2022 in Malindi Criminal Case No.E028 of 2020)

Judgment

CORAM: Hon. Justice S. M. GithinjiAppellant in personMs Ochola for the State 1. SIMON MBUGUA NDUNG’U was charged in the lower court with a main count of defilement contrary to section 8 (1) as read with subsection (2) of the Sexual Offences Act No.3 of 2006. 2. The particulars of this offence are that on the 9th day of March, 2020 in Malindi Sub-County within Kilifi County, the appellant unlawfully caused his penis to penetrate the vagina of SRN a girl aged 11 years.

3. In the alternative, the appellant was charged with the offence of committing an Indecent Act, contrary to section 11 (1) of the Sexual Offences Act No.3 of 2006.

4. The particulars hereof being that on the 9th day of March, 2020 in Malindi Sub-County within Kilifi County, the appellant unlawfully committed an indecent act by touching the vagina of SRN, a girl aged 11 years using his penis.

5. The prosecution case is that Pw-2 who is a mother of 8 children, the complainant herein being one of them, lives in Malindi where she does business. According to the complainant’s clinical card of which was produced as prosecution exhibit No.1, she was born on 22/9/2008. She was a pupil at [Particulars Withheld] Primary School in Standard 6. The appellant herein is their neighbour at [Particulars Withheld]. The children were used to visiting his home. On 9/3/2019 the complainant saw a broom for the appellant and decided to take it to his home. When she went she found him alone in the house. She gave him the broom. He however invited her inside the house. When she entered he closed the door behind them and led her to his bedroom. While there he removed his trouser, raised her skirt and did “bad manners” to her. In her words, he raped her. The incident took about 30 minutes. When he was done he gave her his wife’s scarf to wipe herself with it. He then went outside. The complainant went home but informed no one. The appellant had warned her against informing anyone. In 2018 the mother noted that at times the complainant was not sleeping at home. In 2020 she noted that the complainant was not walking properly, she was anxious, weak and could not play. The mother decided to take her to the police. On 9/3/2019, she was taken to Pw-3 an officer at Malindi Police Station, who is also the investigating officer. This officer gave evidence twice as Pw-3 and Pw-5. The officer interrogated the complainant who disclosed about the defilement issue. She was referred to the hospital.

6. The complainant was attended to at Malindi Sub-County Hospital on 10/7/2020 by Pw-4. She was examined and no physical injuries were noted. A vaginal examination revealed the hymen was broken. Other female genitalia parts were normal. Laboratory tests conducted revealed only presence of epithereal cells. All other tests were negative. The clinician formed an opinion that she had been penetrated. The P-3 was then filled.

7. Pw-3/Pw-5 investigated the matter. She recorded witness statements. She was taken to where the appellant was and she arrested him. The appellant said at the alleged time of the offence he had travelled home in Kiambu. She went to Genesis Bus Service to confirm it. She confirmed he had travelled on that day. She wrote a letter requesting for Bus travelling records for passengers. She was informed the Bus Company destroys the record after 2 months.

8. The trial court placed the appellant on his defence. The appellant’s defence is that he lives in Malindi. The complainant is his neighobur. She used to visit his house during the day, as well as other children. The children kept on knocking his gate with requests to charge phones. They had become a nuisance and he stopped them from visiting. That is when the problem began. The appellant was informed that his mother was unwell. He travelled home on 8/3/2019 and arrived in Nairobi on 9/3/2019. He gave the bus tickets to the prosecution to authenticate the same. He produced the receipts as D-exhibit 1 and 2. (I however do not find them in the original lower court’s record).

9. The appellant called his wife as a witness. The wife stated she had lived with the appellant for 30 years. The complainant and other children used to visit them. She used to offer them food. They however stopped it and that is why the charges were fabricated. On the alleged day of the incident her husband had travelled to check on his sick mother.

10. The trial magistrate weighed the evidence and found it strong enough to warrant a conviction. The appellant was accordingly convicted of the offence in the main count and sentenced to serve 25 years imprisonment.

11. The appellant dissatisfied with the said conviction and sentence, appealed to this court on the grounds that; -

1. The evidence of Pw-1 and particulars of the offence in the charge sheet are contradictory.

2. Birth Certificate was not produced to proof the age of the victim.

3. The evidence of the bad character of the complainant was not weighed, on where she had been sleeping out since 2018.

4. The victim had been watching Television in the village elder’s house till late night and the appellant was not the only suspect for the offence.

5. The defence of alibi was not properly weighed by the trial magistrate.

6. The prosecution case was not proved beyond reasonable doubt given the yawning gaps in it. 12,The appeal was canvassed by way of written submissions. As a first appellate court I have considered the charge, prosecution evidence, appellant’s defence, finding of the lower court and the sentence meted, the grounds of the appeal and submissions by each side.

13. I do agree with the prosecution that there was a typographical error in the particulars of the offence in the charge sheet where it’s stated the offence took place on 9/3/2020 instead of 9/3/2019. The evidence of the complainant, of Pw-3 and the P-3 form states the date of offence as 9/3/2019. The appellant in his defence also took the said date, as the correct date of the offence. The produced clinical card reveals the victim was born on 22/9/2008. As of the date of the alleged offence on 9/3/2019 she had not celebrated her 11th year birthday and was therefore aged 10 years. Her 11th year birthday would have been on 22/9/2019. The victim and her mother were not therefore correct on her age, but given that it’s firmly established by the Health Child Card, the contradiction is not fatal to the prosecution case. The most important issue in relation to age of the victim is to established that she was a child, below the age of 18 years, and for the purposes of the sentence place it within the brackets of; - (1) 11 years and below (2) Between 12 and 15 years and (3) Between 16 and 18 years. In this case the victim was 10 years old and the error did not prejudice the appellant in anyway in the matter as it’s within the first range disclosed above, of which is the one disclosed in the charge sheet.

14. Penetration is not disputed. Pw-1 indicates she was penetrated in her genital organ by the genital organ of the appellant. The clinical officer’s observation that the hymen was broken and epithelial cells noted, buttress the fact that the victim had been penetrated.

15. The 3rd issue which is challenged by the appellant is the allegation that he is the one who penetrated her. The evidence on record, that of Pw-2 is that since 2018 the victim was in the habit of sleeping out. She (Pw-1) also stated that she was sleeping outside.

16. It was not investigated where actually she was sleeping as there is no claim that she ever spent a night in the appellant’s house. The complainant’s evidence is that she was defiled once by the appellant, during the day.

17. On cross-examination she revealed that she did not bleed, which suggests that he is not the one who broke the hymen. However, the doctor found her hymen broken and concluded she had been penetrated. The question is, by who? The appellant disclosed he travelled on 8/3/2019 to Kiambu to see his sick mother. On 9/3/2019 he was in Nairobi. The investigating officer who gave evidence as Pw-5 indicated she went to Genesis (Bus Service) and confirmed accused had travelled on that date. She wrote a letter to Genesis Coaches to give their travelling record for passengers but discovered they destroy their books after every 2 months. The appellant had availed travelling receipts to the investigating officer for confirmation which she did to the given extent. In his defence he denied the offence and said on the alleged date of the offence he was away. His wife confirmed the same. The trial court in dismissing the defence said the evidence should have been availed earlier for ease of confirmation. The position is not right as the onus is on prosecution to establish their case beyond reasonable doubt. The defence position is confirmed by the investigating officer to have credence and cannot be wished away. The appellant may not know why probably he was fixed instead of the real culprit being disclosed by Pw-1, but was certain he never committed the offence, and could not have done so on the date claimed as he was away. His defence raises a reasonable doubt as to whether he is the one who committed the offence. The trial court should have utilized the doubt in his favour and acquitted him of the offence. I do hereby correct the said error and find the appeal merited. The conviction and the sentence are quashed. The appellant is set free unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 6TH DAY OF NOVEMBER, 2023. .........................S.M. GITHINJIJUDGEIn the Presence of; -1. The Appellant in Person2. Ms Mkongo for the Prosecution