[2022] KEHC 13021 (KLR)

Nduwa v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 13021 (KLR) (20 September 2022) (Judgment)

Neutral citation: [2022] KEHC 13021 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E067 of 2021

GMA Dulu, J

September 20, 2022

Between

James Mauni Nduwa

Appellant

and

Republic

Respondent

((Being an appeal from the original conviction and sentence of Hon T.A Sitati in Makindu Principal Magistrate’s Court PM (S.O) Case No.64of 2019 pronounced on 8th November2019).)

Judgment

1. The appellant was charged in the magistrate’s court with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 13th April 2019 at [Particulars Withheld] Village in Kibwezi Sub-County within Makueni County intentionally and unlawfully caused his male organ namely penis to penetrate the vagina of MM (name withheld) a girl aged 8 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 on the same date and at the same place intentionally and unlawfully caused his male organ namely penis to touch the vagina of MM a child aged 8 years.

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

4. Dissatisfied with the conviction and sentence, the appellant has now come to this court on appeal on the following grounds –1. The learned trial magistrate erred in law and fact when he convicted and sentenced him without observing that the charges before court were defective both for being at great variance with the evidence on record.2. The learned magistrate erred in law and fact by convicting him without considering that there was no evidence to prove penetration without which the prosecution could not prove the offence of defilement to the required standard in law of beyond reasonable doubt.3. The learned magistrate erred in fact and in law in shifting the burden of proof to the appellant, misapprehending and misdirecting himself on the evidence, hence arriving at the wrong conclusion; by failing to observe that the prosecution evidence was untenable, unworthy, contradictory, inconsistent, and full of lies, which required him to resolve the doubts in favour of the appellant.4. The learned trial magistrate erred both in law and fact by convicting him without properly applying section 124 of the Evidence Act and for using uncorroborated evidence to convict and sentence the appellant.5. The learned trial magistrate erred both in law and facts when he dismissed the sworn defence whichalleged the possibility of being framed up due to an existing grudge without giving cogent reasons.

5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by the appellant and those filed by the Director of Public Prosecutions.

6. This is a first appeal. As a first appellate court, I am duty bound to evaluate all the evidence on record afresh, and come to my own independent conclusions and inferences. See Okeno –vs- Republic[1972] E.A 32.

7. In proving their case, the prosecution called six (6) witnesses. On his part, the appellant tendered a sworn defence testimony and did not call any additional witness.

8. The elements of the offence of defilement are the age of the victim which has to be below 18 years. Secondly, penetration even if partial. Thirdly, the identity of the culprit.

9. With regard to the age of the victim, she testified as Pw3, and stated that she was nine (9) years old at the time of testifying on 17/10/2019. The victim’s mother Pw2 EMN stated that the victim was born on 02/01/2011 and relied on the child’s clinic card. There was no contest regarding the age of the victim.

10. In my view, the prosecution proved beyond any reasonable doubt that the victim was 8 years old at the time of the alleged offence.

11. Did penetration of a sexual nature occur? The victim Pw3 stated that penetration of a sexual nature did occur on 13th April 2019. The mother of the victim Pw2 said that on that particular date, she had gone to visit her sick husband at Kimana where she stayed for four weeks. The medical evidence tendered by Pw1 Dr. Anthony Masila was to the effect that the P3 form was filled by Dr. Lucy Ogelle on 23/05/2019 erroneously entered as 2018. It was the medical evidence the hymen of the victim was missing but not freshly. Nothing else unusual was noted. It was also the doctor’s evidence that the medical notes recorded by Sammy a Clinical Officer at Kibwezi hospital were dated 20/05/2019.

12. In my view, from the evidence on record, even if sexual penetration had occurred it was not proved that such penetration had occurred on the victim on the date alleged due to the long lapse of time before the victim went to hospital. It was about a month after the alleged incident. Secondly the doctor did not record any opinion on what had caused the perforation of the hymen. Thirdly, the doctor said in cross examination that the hymen can be broken for other reasons such as trauma and bicycle riding.

13. I thus find that the prosecution did not prove beyond reasonable doubt that sexual penetration occurred on the date of offence alleged.

14. Was the appellant the culprit? The evidence against the appellant on his involvement in the crime was that of Pw3 the complainant, and Pw4 MM, both minors. In particular, Pw4 stated that he peeped through a window and saw the appellant “doing bad manners” to the victim and that thereafter he informed the mother of the complainant about the incident.

15. In my view, it is striking that the same Pw4 did not immediately tell his mother about the incident after she arrived from her journey. Instead the mother was first informed about the sexual act by Pw5 JKK, a village elder who was informed about the incident by EM who did not testify in court, and no reason was given by the prosecution for such failure to call this crucial witness. It is also not clear from the evidence on record how the said EM became aware of the incident. Thus the reference to EM was hearsay evidence and cannot be relied upon.

16. In my view, the prosecution evidence on record left a big gap as to whether infact the appellant had close contact with the victim, let alone having an act of defilement that day. Considering the sworn defence of the appellant that they infact lived together with the victim in the same home, and his clear testimony that on the material day he went for a crusade, his defence version in my view is believable. He could not have been expected not to meet the victim that day as they lived in the same homestead, but that was not proof of defilement.

17. Thus, even assuming that the appellant carried her on a bicycle, that act alone cannot be sufficient proof that he had sexual intercourse with her that day. I thus find that the prosecution did not prove that the appellant was the culprit. The appeal will thus succeed.

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

DELIVERED, SIGNED & DATED THIS 20TH DAY OF SEPTEMBER 2022, IN OPEN COURT AT MAKUENI.………………………………….GEORGE DULUJUDGE