[2009] KEHC 2858 (KLR)
The court found that the five-day delay in reporting the alleged defilement, when considered alongside the background of a family feud between the complainant and the appellant's families, raised serious doubts about the motive for the complaint. The delay also undermined the reliability of the medical evidence, as...
Source-derived case information.
- Citation
- [2009] KEHC 2858 (KLR)
- Parties
- Appellant: Vidensio Makanga Mwinga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 93 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant set free unless otherwise lawfully held
- Judges
- CA Ombija
- Legal Topics
- Defilement, Identification Evidence, Delay in Reporting, Medical Evidence, Family Feud Motive
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vidensio Makanga Mwinga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for defilement was safe given the delay in reporting the offence.
- 2 Whether the identification of the appellant was reliable in the circumstances of the case.
- 3 Whether the medical evidence was sufficient to support the conviction given the lapse of time.
Ratio Decidendi
The court found that the five-day delay in reporting the alleged defilement, when considered alongside the background of a family feud between the complainant and the appellant's families, raised serious doubts about the motive for the complaint. The delay also undermined the reliability of the medical evidence, as intervening events could have affected the findings. Furthermore, the identification of the appellant was not sufficiently reliable, as it was based solely on the complainant's testimony in circumstances of darkness, with conflicting accounts regarding voice and facial recognition. These factors, taken together, rendered the conviction unsafe. The court therefore allowed the...
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant set free unless otherwise lawfully held
Orders
- The appeal against conviction and sentence is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
Criminal Appeal 93 of 2006
VIDENSIO MAKANGA MWINGA.....................APPELLANT
VERSUS
REPUBLIC...........................................................RESPONDENT
J U D G M E N T
The appellant, Vidensio Makanga Mwinga, was charged with the offence of defilement of a girl under the age of sixteen years contrary to section 145 of the Penal Code.
The particulars of the offence are that on the 31st day of January, 2006, at about 9. 00pm, in Lamu District, within Coast Province, unlawfully had carnal knowledge of E W M, a girl under the age of sixteen years.
He was convicted after trial and sentenced to serve 7 years imprisonment together with hard labour.
He raised 6 grounds of appeal, in his home made grounds, in the memorandum of appeal (undated), but received in court on 19th October 2007, as can be discerned from the court stamp.
At the hearing he argued grounds 1-6 globally. In doing so he adopted his home made grounds by way of submission. He denied the offence. He prayed that the appeal be allowed, conviction be quashed and the sentence be set aside.
Mr. Ogoti, learned state counsel, conceded the appeal. In doing so he urged me to find that the offence is said to have been committed on 31st January 2006. Yet the report to the police was made on 5th February 2006. This was after a period of 5 days. The lapse of 5 day’s seen against the background of a long feud involving land between the appellant’s family and the family of the complainant, the motive for the report appears/seems to be a vendetta.
Furthermore the report having been made five (5) days after the event the medical report was vulnerable to intervening events. It was not sound evidence to find a conviction.
Last but not least, I was urged to find that it was night. Being dark the issue of identification did not come out clearly in evidence. One witness claimed he was recognized by voice. Yet another claims that he identified him by the face. There is material contradiction which ought to be resolved in favour of the appellant.
I have had the advantage of re-evaluating the whole evidence as I am bound to do being the first appeal court. Having done so, I find that the report was not made contemporaneous with the event. A delay of 5 days raises suspicion as to the motive of the complainant given the background of a family feud between the two families.
In addition thereto, the medial evidence was taken after 5 days. During which period the intervening facts militated against a proper finding in medical science.
Last but not least, I take issue with the circumstances of identification. It was night. No one saw the appellant except the complainant. She claims to have identified him by voice and face though it was dark. However, she took 5 days to raise the complaint with her mother and the police. A lapse of five (5) days in respect of such offence raises the possibility that the charge was a frame up as against the appellant.
For those reasons, the appeal against the conviction and sentence is allowed. The conviction is quashed, sentence is set aside and the appellant is set free unless lawfully held for some other lawful reasons.
Dated and delivered at Malindi this 4th day of May 2009.
N.R.O. OMBIJA
JUDGE
Mr Ogoti for Republic
N/A for accused