[2023] KEHC 24161 (KLR)

Tuti v Republic (Criminal Appeal E54 of 2022) [2023] KEHC 24161 (KLR) (16 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24161 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E54 of 2022

GMA Dulu, J

October 16, 2023

Between

Waita Tuti

Appellant

and

Republic

Respondent

(From the conviction and sentence in Sexual Offence Case No E004 of 2020 delivered on 24th February 2022 at Makindu by Hon J D Karani(RM))

Judgment

1. The appellant was charged in the Magistrate’s court with attempted defilement contrary to section 9(1)(2) of the Sexual Offences Act No. 6 of 2006. The particulars of offence were that on September 21, 2020 in Makueni County attempted to cause his penis to penetrate the vagina of JKO a child aged 14 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 the offence being that on the same date and at the same place intentionally and unlawfully touched the vagina of JKO a child aged 14 years with his penis.

3. He denied both charges. After a full trial, he was convicted on the main charge of attempted defilement, and sentenced to ten (10) years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has 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 for both being at great variance with the evidence on record.2. The trial magistrate erred by convicting him without considering that there was no evidence to prove the offence of attempted defilement to the required standard of law of beyond reasonable doubt.3. The learned magistrate erred by failing to apply section 124 of the Evidence Act and failing to appreciate that the prosecution’s evidence was greatly uncorroborated and was full of explicit inconsistencies and marred with contradictions and also erred by shifting the burden of proof on the accused person thereby prejudicing him greatly.4. The learned magistrate erred when he convicted and sentenced him without observing that the prosecution did not avail any evidence on his identification.5. The learned magistrate erred when he dismissed his sworn defence which alleged possibility of being framed up without giving cogent reasons and sentencing him to mandatory minimum sentence against the Constitution and the court’s discretion in sentencing.

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

6. This being a first appeal, I am expected to make a fresh and exhaustive examination of the evidence and make my own independent decision. I am also required to weigh the conflicting evidence and make my own inferences – see Kiilu & another v Republic(2005) KLR 174.

7. At the trial, the prosecution called five (5) witnesses. The appellant on his part, tendered sworn defence testimony and did not call any additional witness.

8. The elements of the offence of attempted defilement for which the appellant was convicted and sentenced is first, the age of the victim who should be below 18 years. Secondly, the physical attempt to have sexual intercourse with the victim. The third element is the identity of the culprit.

9. This being a criminal case, each of the elements of the offence had to be proved by the prosecution beyond any reasonable doubt. The appellant had no burden to prove his innocence – see section 107 of the Evidence Act and the case of Sawe v Republic (2003) eKLR.

10. With regard to the age of the victim – she testified as PW1. It was her evidence that she was JK aged 15 years as at March 25, 2021. She relied on her birth certificate which was produced in court as an exhibit. Her mother PW2 AM did not testify to the age of PW1.

11. Even though PW2 did not testify to the age of the victim PW1, in my view with the birth certificate produced in evidence, which was not contested in any way, the prosecution proved beyond any reasonable doubt that the victim herein (PW1) was aged 14 years at the date of the alleged incident.

12. Did the prosecution prove that there was an attempt to defile PW1? The evidence on this attempt is that of PW1 the victim. Such evidence of a single witness victim of a sexual offence if believable and is believed by a trial court on reasons to be stated in proceedings can be a basis for sustaining a conviction in terms of the provisal to section 124 of the Evidence Act (cap.80).

13. In the present case, I am of the view that the evidence of PW1 of the attempt to defile is not believable. This is because the victim PW1 initially informed the police that she was defiled, which is borne by the evidence of PW5, PC Ahmed Mohamed the investigating officer. The entry by the police on the first page of the P3 form also refers to a report of defilement.

14. It is thus apparent that after PW4 Dr. Peter Mutinda Mukene found no evidence of defilement on PW1 and recorded so in the signed P3 form, that the version of PW1 changed to attempted defilement.

15. From the evidence on record of PW1, PW2, and PW3 however, the appellant entered the toilet where PW1 was, and the door of the toilet was bolted from inside when PW2 arrived at the scene. Was there an attempt by the appellant to defile?

16. Section 388 of the Penal Code defines what constitutes an attempt to commit an offence. In the case of Mussa Said v Republic (1962) EA 454, 455 Spry J (as he then was) stated:-“The principles of law involved are very simple but it is their application that is difficult. If the appellant intended to commit the offence of larceny and began to put his intention into effect and did some overt act which manifests that intention, he is guilty of attempted larceny (Penal Code S.380). The burden on the prosecution is therefore first to prove the intention and secondly to prove an overt act sufficiently proximate to the intended offence.”

17. In my view, with the unbelievable evidence and report of PW1 who initially reported a rape which was not proved, the evidence from the same witness as to attempt to defile cannot also stand. What is clearly unshaken and established by the prosecution however, was the fact that the appellant went into the same estate houses toilet after the victim PW1 had entered, and locked the toilet. That alone in my view, though a mischief does not necessarily amount to an attempt to defile.

18. On that account alone, I will allow the appeal.

19. Was the appellant the culprit? Since I have found that there was no attempt to defile proved by the prosecution, I also find that the appellant was not the culprit or a culprit in the allegation.

20. The appellant has also raised technical grounds of appeal that the charge or charges were defective. I find no defect disclosed in any of the charges.

21. Consequently, and for the above reasons I allow the appeal quash the conviction and set aside the sentence. I order that the appellant be released from custody unless otherwise lawfully held. The appellant should however desist from bad conduct or manners.

DATED, SIGNED AND DELIVERED THIS 16TH DAY OF OCTOBER 2023 VIRTUALLY AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantAppellantMr. Kazungu for State