[2018] KEHC 7997 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NO. 199 OF 2014

RASHID MWABEJA MBOVU…………...… APPELLANT

VERSUS

REPUBLIC………………………....………RESPONDENT

J U D G M E N T

1. The Appellant, RASHID MWABEJA MBOVU was on the 27/5/2011 charged with the offence of defilement contrary to section 8(1) as read with section 5(2) of the Sexual Offences Act, No. 3 of 2006. He further faced an alternative charge of Indecent Act on a girl contrary to section 11(1) of the same Act.

2. The trial commenced before J. Omburu, SRM, on 11/11/2011 when the ability of the complainant M B to understand nature of an oath was tested and the court found that she was of sufficient intelligence to understand the nature of an oath and was ordered to give a sworn testimony. That magistrate took evidence of PW 1 and it appears the file was taken over by Hon. V. Yator who took the remaining four (4) witnesses.

3. In total, the prosecution called 5 witness, being, the complainant her mother S K Dr. Lawrence Ngona of Coast General Hospital who completed the P3 Form, Anna Kari a grocery shop operator and No. 62566 Corporal Beatrice Mongeli the Investing Officer.

4. After the prosecution closed its case and accused put on his defence, the accused, now Appellant, gave a sworn statement in Kiswahili and opted not to call any witness but to tender submissions.

5. In its judgment dated the 28/10/2014, the court found that the prosecution had proved its case to the requisite standards found no merits in the defence offered and convicted the Appellant of the offence of defilement contrary to section 8(1) as read with section 8(2) sexual offences Act. He was sentence to serve life imprisonment on the 29/10/2014.

6. Aggrieved by that conviction and sentence the Appellant did file a petition of Appeal and set out five grounds of Appeal expressed thus:-

i. THAT the learned trial magistrate erred in law and fact in convicting me the appellant while relying on a defective charge that was not supported by the evidence adduced in court and subsequently put in the committal proceedings thus contravening section 89,137,214,275,(1) and 26(2) of the C.P.C.

ii. THAT the learned trial magistrate erred in law and fact by convicting and sentencing without considering that, the BURDEN OF PROOF in the present case was not established beyond reasonable doubts as the evidence of PW 3 (DOCTOR LAWRENCE NGONE) which would have formed an integral part in proving their case had no credible evidence to warrant my conviction thus contravening section 107 as read together with 109 of the evidence act and articles 159(2) (a) & (d) of the constitution.

iii. THAT the learned trial magistrate erred in law and fact by in convicting me the appellant without considering that, the evidence adduced by the prosecution and subsequently put in the committal proceedings had a lot of in variances and contradictions that did not reconcile to warrant my conviction thus contravening section 153 as read together with section 154 of the evidence act.

iv. THAT the learned trial magistrate erred in law and fact by convicting me the appellant without considering that, the CREDIBLE WITNESS who were mentioned and subsequently put in the committal proceedings were never compelled to appear in court to create a clear line of reasoning to the prosecution evidence that contravened section 144 as read together with section 150 of the C.P.C.

v. THAT the learned trial magistrate erred in law and fact in convicting me the appellant without giving due consideration to the ALIBI DEFENCE advance by the appellant which the learned trial magistrate was duty bound by law to consider prior to imposing the sentence upon the appellant thus contravening section 212 as read together with section 235 of the CPC bearing in mind that there was a grudge between the complainant’s mother and the appellant over the damaged motor vehicle which the appellant prior to his arrest used to ride.

7. He therefore prayed that the Appeal be allowed, conviction quashed and sentence set aside.

Summary of the evidence adduced by the prosecution

8. The complainant PW 2, told the court that in April 2011 he was playing with fellow children named as R and J when the Appellant, their neighbor, called her but she refused. The Appellant came downstairs held her by the hands and forcefully took her to the Appellants house. The girl said, the Appellant undressed her by removing her skirt and pant, removed his own clothes and put his manhood into her vagina and anus while lying on her on a bed within the single room. He asked the girl not to tell anybody so that he would give her ride on a motorcycle owned by the girls mother and being operated by the Appellant.

9. The girl added that she attempted to scream but the Appellant blocked her mouth. After the act, she dressed went down took the keys to her mother’s house and went in. She said that the act left her with injuries on the vagina and anal opening. She however did not tell the mother that evening because she feared the mother would cane her. Two days later, as she was bathing the appellant went by the bathroom and told her not to dress up after bathing. She ignored the advice dressed up and wanted to go down to play with the friends but the Appellant took her to the mother’s house and raped her on the vagina only. After the act, the Appellant got up, dressed and closed the door behind him. The girl went to the toilet and cleaned herself of the white fluids which had been deposited on her private parts before proceeding downstairs to play with her friends R and J. Once again she did not tell the mother when she came back neither did she tell anybody in school.

10. The third incident was said to have been on a Thursday at about 12pm when the girl had gone to a lady named Mama. D to pick the house keys. The girl said she did pick the keys, went into the house took a call from the mother and went down to play with the two friends when the Appellant once again called her to go up, she refused but the Appellant, went for her and pulled her into his house. In the house, the Appellant had carnal knowledge of her but since she felt pain, she pushed him off and yellow things came from his penis and fell on the bed. She dressed up, went for the keys bathed and started watching TV. This time round when the mother came back, she told her of the three incidences. The mother promised to talk to the Appellant. That was on a Thursday.

11. Two days day later, on Saturday the same week, the Appellant was said by the complainant to have had carnal knowledge of her in the sitting room on a chair. When the mother came after the girl had bathed, she was told for the second time about the offence. Once again the girl reported, the mother promised to talk to the Appellant to stop the matter. The witness added that the same trend continued the following week on Monday, for the 5th incident, when the girl decided to tell Mana D and her own mother. The following day on a Tuesday the mother and daughter went and made a report at the police station. She recorded a statement and was referred to the hospital where she examined and given an injection. The girl identified the Appellant at the dock as the person who had raped her, a person he knew and would go to their house for the mother to send to the shop. She said that she had not been told what she had told to the court.

12. On cross examination, the witness told the court that the Appellant would visit their home, was friendly with the mother and would take meals with them until after the incident when the relationship deteriorated. She essentially reiterated what she said in evidence in chief that she did not tell anybody about the incidences initialy and that nobody saw the Appellant in the act.

13. PW 2, the mother to the complainant gave the court evidence to the effect that on the 16/5/2011 when she came back from work she did not get the complainant in the house then went to the grocery kiosk and found her seated there and the kiosk owner asked the complainant to tell her what had happened. She went with the child to the house trying to get the story from her and left her showering as she escorted her guest one S. She spoke to the ladies at the kiosk who told her that the Appellant had been defiling the complainant who was living in the same building but upstairs. She then went with the child to the pastor and the child told them what had happened.

14. The next day the girl was taken to hospital and examined and a P3 form issued and completed. She gave the birth date of the complainant as 12/3/2003 and a birth certificate was produced. She produced P3 and PRC which according to her confirmed the complainant had been sodomized and defiled vaginally. She confirmed having not noticed any strange behavior from the child because she would bath herself. On relationship with the Appellant the witness said she had employed him to ride a motorcycle and he had dined with them in her house.

15. In cross examination, the witness said that she was informed by Mama B before anybody else had told her. She said she called in the pastor as a neutral person that he did not have any grudge with the appellant and that a child aged only 9 years could not know the grudge between her and the Appellant. In re-examination the witness said that by the time the Appellant was arrested he was still riding her motorcycle.

16. Then came PW 3, the doctor. His evidence was that he completed a P3 form for the complainant on 7/5/2011. The complainant was that she had been defiled by a person known to us severally and the last incident was on 29/4/2011. Referring to the PRC form she said the examination revealed the hymen was not intact but not freshly, perforated with no other injuries. Investigations for venereal diseased was negative but he confirmed that the girl has been defiled prior to 7/5/2011 and assessed degree of injury as maim. He produced the P3 form signed on 25/5/2011 as exhibit P2 and PRC Reference 7672/11 as Exhibit. P3. On Sodomy he said it was not clinically possible to prove same as the same was not fresh.

17. On cross examination, the witness said the complainant had been treated at the gender centre prior to him seeing her on 24/5/2011. He said he confirmed defilement but did not know the culprit.

18. PW 4 was A K aka M B who said that in May 2011, she was at her kiosk at about 5pm when the complainant passed on a motorcycle being ridden by the Appellant and an undisclosed woman told her that the girl was having sexual relationship with the rider and that other woman hated the girl. To the witness the girl is called M. She thereafter looked for the child for a few days but she did not come till one day, was passing by the kiosk, she called her and informed her that she knew what was happening and the girl opened up and told her that she had been going to the Appellants house and the appellant had had sexual intercourse with her thrice-twice on the anus and once on the vagina. The witness said that the girl reported to her that Appellant had promised to help her with homework. As she was talking to her and advising her to tell the mother, the mother came and the girl broke down in tears. She asked the mother not to beat her.

19. On cross examination, the witness said that the woman customer who broke to her the news did not introduce herself to her. She denied framing up the Appellant due to a grudge with the girl’s mother over a motor cycle because she did not know the motor cycle belonged to the complainant’s mother.

20. PW 5, the investigating officer’s evidence, was largely about how he recorded the witness statements from the complainant and the mother. She said the complainant and the mother went to her officer, the gender office on 17/5/2011 and was attended to by a colleague, she recorded their statement a week later on the 24/5/2011 and that the complainant did not remember the exact dates of the incidents but it was “between the months of April”. From his investigations, the Appellant lived in the same building with the complainant and her mother, was a rider to the mother’s motorcycle and would follow the complainant to the bathroom and defile her there. He did arrest the Appellant and therefore identified him as the person in the dock.

21. When cross examined by the appellant, the witness said that he was both arresting and investigating officer. He said the incident happened on the first floor where the complainant also lived. He confirmed having not traced the customer who informed neither PW 4 and did not interrogate the pastor. He denied being part of the scheme to frame him saying that he did not know him before the event and argued that if there was a grudge the complainant mother would not have employed him as a motorcycle rider. He said he could not take the Appellant for medical examination because time had lapsed. With that the prosecution’s case was closed and the court then delivered a ruling under section 210 of the criminal procedure court holding that a prima facie case had been established against the Appellant and placed him on his defence.

Evidence by the Appellant

22. In his sworn evidence the appellant said he was arrested on the 26/5/2011 by two men after a neighbour called A had pointed him out to the two men. When he asked the reason for his arrest he was told that there were ongoing investigations without saying which ones and was handcuffed and driven to Bamburi Police Station.

23. At the police station, his finger prints were lifted by a lady officer who told him he would know the reasons for his arrest later. He said that the complainant’s mother had threatened to teach him a lesson for having put her into a loss of Kshs.85,000/= being repairs of the motorcycle he was ridding for her. He said that him and the complainant’s mother had an open difference before the child over the spoilt motorcycle.

24. In cross-examination, he said that they had stayed for 2 years between 2010 and 2011 when the difference occurred. The difference occurred because he had given the motorcycle to a friend who spoilt it and the complaints’ mother spent Kshs.20,000/= on repairs and vowed to cause to him similar loss. He stressed that the child had confirmed the difference between him and the mother.

Analysis and determination

25. This being a first appeal the duty of the court to re-appraise the whole and entire record of the proceedings at trial with a view to coming to own conclusions without the obligation to be bound by the findings and conclusion of the trial court. That re-examination and re-appraisal of the record must entail the re-evaluation of the evidence and analysis of the same in line with the decision made at trial to establish if the findings are in congruence with the evidence and the law applicable[1].

26. By her judgment dated and delivered as aforesaid, the trial court in finding the appellant guilty held and found as follows:-

“The accused person was clearly identified by the complainant asan employee of the complaint’s mother as a boda-boda rider who used to dine in the house of the complainant’s mother and would sometimes be sent. I found the complainant’s evidence consistent and credible. It was tested in cross examination by the defence but remained unshaken. A birth certificate was produced to prove the complainant age at the time of the incident to have been 9 years. The accused on the other hand narrated how he was arrested on 26th May, 2011 and charged with an offence he did not know blaming the complainant’s mother because of a grudge that existed because the accused damaged the motor cycle belonging to the complainant’s mother.

I did not gather any evidence of grudge or malice between the accused and the complainant’s mother. In fact the accused remained an employee of the complainant’s mother until he was arrested. Looking at the issue that the accused says that the child admitted that there was a grudge between him and the complainant’s mother, the child clearly told the court that the accused and her mother were not in good terms after her mother learnt that the accused had been defiling her child. Failure to call other witnesses from the plot the accused and the complainant used to live in was not fatal as they would not have added value as they were not eye witnesses. In turn I find no merit in the accused’s defence”.

27. Being guided by the principle applicable to this appeal as set above, the all-important issue for determination is whether the evidence led by the prosecution did prove beyond reasonable doubt that the accused person did commit the act of defilement -inserted his genital organ, partially or completely, into the genital organ of the complainant.

28. It is not in dispute that the complainant was proved to be aged 9 as at the date of the alleged offence. against the For such age when penetration is proved against the Accused the prescribed sentence is life. In this Appeal and at trial the identification of the accused or his recognition was also not in dispute as he was a person well known to the complainant as well as PW 2 & 4.

How true that the evidence bythe complainant was consistent and credible?

29. In her evidence the complainant told the court that she was molested on a Monday, Tuesday, Thursday, Saturday and the next Monday, five incidences within 8 days. For the five attacks the girl said she informed the mother twice but the mother promised to talk to the Appellant. She repeated having told the mother of the incident when she was under cross examination.

30. However the evidence of the mother PW 2 and that PW 4 were to the effect that the child never told anybody about he attacks till she was confronted by PW 4 after the PW 4 was informed by an unknown woman. This situation begs the question who between the child and the two adults ever told the truth. If the child is believed as cogent and credible then the adults must have cheated on held something from the court. It would then beg the question as to what was the motivating purpose to lie. Conversely if the adults are believed then the child must have not told the whole truth. In that event the evidence of the act would be shaken and the trial court was then enjoined to observe and apply the provisions of 124 of the Evidence Act.

31. That provision reads:-

“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.

Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth”.

32. In this matter there was no evidence independent of the evidence of PW 1, a child of tender years, on how the attacks took place. That having been the case, it was incumbent upon the trial court to give her reasons why it was satisfied that the child told the truth. In this case, the trial court was content to say; I found the complainants evidence consistent and credible. It was tested on cross examination but remain unshaken. On this finding I beg to disagree with the trial court. In her evidence PW 4 said:-

“I remember May 2011, I was at my kiosk at about 5pm when another woman came and on the process, a child called M passed being carried on a motor bike by Rashid. The woman told me that she hated the child because the boy who was riding the motor bike they were having sexual relations. The following day I looked for the child but she did not come. One day I sent some children to call her but they were told that she was doing homework. One day at around 5pm she passed by and I called her and told her that I knew what was happening between her and Rashid. She told me she had had sex with Rashid 3 times, twice on the anus, and once on the vagina”.

33. I note that there is disclosed inconsistency on the number of attacks alleged by the complainant to the court and what she allegedly told to the PW 4. It begs the question whether the lady, PW 4, ever threatened the child and how the child reacted to her approach that she knew what was happening between her and the Appellant. However more important is the fact that PW 4 was categorical that the woman who told her about the affair between the complainant and the Appellant never used to leave in their plot. Nobody bothered to find out how she came by the knowledge of the acts committed by the Appellant behind closed doors. To this court such was a matter the trial court should have probed a little further even by asking PW 4 for more details. Without such details a reasonable doubt would have remained in the mind of any reasonable person listening to the evidence of the credibility of the revelation by the undisclosed lady, who hated the complainant, that she was engaged in sexual intercourse with the Appeal.

34. I am not saying that the Appellant never had an opportunity to commit the offence charged. All I am saying is that the prosecution had the duty to prove the Appellants guilt beyond reasonable doubt. Now that there was doubt on the accuracy of the account given by the Complainant, it was not enough that the complainant remained steadfast on her account.

35. Every time there is a reasonable doubt created in the mind of the court, such doubt is to be resolved in favour of the Accused.

36. I find that there were reasonable doubt which did not sit well with the trial court’s finding that the only evidence of the complainant was consistent and credible. Additionally no reasons were advanced for the court to have believed that the complainant was telling the truth.

37. One additional things remain however clear, if the account of the mother and complainant is to be believed then the attacks took place between 9th and 16th of May 2011. If that be true, then the evidence led did not sit in consonance with the charge sheet. According to the charge sheet, the offence was committed between 7th and 29th April 2011. The evidence led does not prove the charge preferred against the Appellant. In those circumstances I stand guided by the decision of the Court of Appeal in Yongo vs Republic [1983] KLR 319 for the proposition that where such happens, it was open to the trial court to direct that the charge be amended the moment the realization is made and the appellant called upon to plead to it.

38. Now that the trial court did not direct the amendment of the charge it follows that the court proceeded upon a defective charge and the conviction thereby arrived at cannot stand but must be quashed. I do quash it and having so quashed it, I set aside the sentence of life imprisonment but order that the matter be remitted for trial before another court for trial on the merits. Let him the appellant be presented before the Chief Magistrate Mombasa on 19/2/2018 for purposes of taking a plea.

39. It is so ordered.

Dated and delivered at Mombasa this 16th day of February 2018.

P.J.O. OTIENO

JUDGE

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