Case ID:201542

Mutua v Republic (Criminal Appeal 77 of 2015) [2022] KEHC 12017 (KLR) (8 June 2022) (Judgment)

Case Metadata

Case Number:

Criminal Appeal 77 of 2015

Parties:

Mutua v Republic

Date Delivered:

08 Jun 2022

Case Class:

Court:

High Court at Kitui

Case Action:

Judgment

Judge(s):

Robert Kipkoech Limo

Citation:

Mutua v Republic (Criminal Appeal 77 of 2015) [2022] KEHC 12017 (KLR) (8 June 2022) (Judgment)

Court Division:

Criminal

County:

Kitui

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Mutua v Republic (Criminal Appeal 77 of 2015) [2022] KEHC 12017 (KLR) (8 June 2022) (Judgment)

Neutral citation:

[2022] KEHC 12017 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal 77 of 2015

RK Limo, J

June 8, 2022

Between

Kithonga Mutua

Appellant

and

Republic

Respondent

(Being an Appeal from the Original Conviction and Sentence in Kitui Senior Principal Magistrate’s Court Criminal Case No. 190 of 2013 judgement by Hon. Esther Boke(PM)

Judgment

1.

Kithonga Mutua, the appellant herein was charged with the offence of defilement contrary to section 8 (1) as read with sub-section 3 of the

Sexual Offences Act

No

3 of 2006.

The particulars of the offence are that on February 10, 2013 at [Particulars Withheld] Village, Nzambani Location within Kitui County he unlawfully committed an act that caused penetration by inserting his penis to the vagina of (name withheld) a child aged 11 years.

2.

The appellant denied committing the offence and the prosecution presented three witnesses to prove their case. The following is a summary of the evidence tendered in support of the prosecution’s case.

3.

The minor/complainant (

PW

1) testified on oath and stated she was 11 years old and was in class 3 at [Particulars Withheld] Primary School. She informed the trial court that she knew the appellant who was from Kinyua Village. She recalled that on February 10, 2013 while going home from school, she met the appellant who took her to his home where he removed her pant and defiled her. The girl testified that she bled during the ordeal and could not urinate. She testified that the appellant kept her in his house until the following morning when she went and told her aunt on what had happened. She said that the aunt in turn took her to her grandmother from where she was taken to Kitui District Hospital and later to Kitui Police Station to report. The minor added that the appellant had warned her not to scream during the ordeal and cautioned her against telling anyone what had happened to her.

4.

The minor further informed the trial court that her mother died of HIV complications at Thika. The girl got emotional at one stage blaming the appellant for defiling her when he very well knew that both her parents were dead. The trial court noted that the minor at the time was walking with difficulties when she turned up in court to testify on July 2, 2013.

5.

Dr

Mutuku Patrick (PW2) testifying on behalf of Dr John (F) who had gone back for further studies, testified that he had worked with the said Dr John for two years and was well aware of her handwriting and signature.

6.

The doctor testified that the medical information contained in the P3 form was in respect to the complainant in that case who was found to be 11 years old.

7.

The doctor stated that the minor was taken to hospital on April 26, 2013 complaining of abdominal pain and pain while passing urine which was as a result of defilement which had occurred in February, 2013 but had not been reported.

8.

The doctor testified that upon examination the girl was found to be unkept as both her body and clothes were dirty. The doctor noted that the victim had a healing abscess (smelly with pus) on the left thigh and broken hymen she was found to be a

HIV

patient and an orphan. The P3 form was tendered as

P Exb

4, Age assessment P Ex 3 and PSI form P Ex 2.

9.

KK (PW3), the grandmother to the minor stated on February 10, 2013, a Friday, the victim did not come home from school as was usual at 3 PM and that at 5PM she sent her brothers to go and look for her which was in vain.

10.

She testified that her grandchild was taken home at 5am by the appellant the following day. The witness stated the appellant who was a neighbour, told her that the girl had spent the night in his house. The grandmother further testified that she noticed her granddaughter was limping on one leg and that when she asked her what the problem was, she told her that the appellant had defiled her the whole night after locking her in his house. She further stated that the girl reported to her that she was threatened by the appellant. She added that, when she checked on her, she found her private parts were swollen and that she was unable to hold urine and was urinating continuously. The grandmother added that she then took her to Kitui District Hospital for treatment where they were issued with treatment card and P3 form. She added that the mother to the minor died when the minor was 5 years old and had been taking care of the minor whom she confirmed was

HIV

Positive and denied having any grudge against the appellant.

11.

When put on his defence, the appellant gave unsworn statement and denied committing the offence. He added that he was arrested on February 7, 2013. He testified that he was taken to where the victim resided and asked if I was the perpetrator and that when the girl answered in the affirmative, he was taken to Maluma sub-location where he was tied up on a tree and beaten up thoroughly before being taken to the police station where he was locked up for 2 days before being arraigned.

12.

The trial court evaluated the evidence and found that the prosecution’s case against the appellant had been proved beyond doubt and convicted him. On sentence the trial magistrate found that the appellant was charged with defilement contrary to section 8(1) as read with 8(3) instead of section 8(2) since the victim was 11 years. The trial court found that the age of the minor was not clearly established and as a result of the doubt, she sentenced the appellant to 30 years which was the sentence prescribed under section 8(3) of the Sexual Offence Act. That finding was erroneous but I will get back to that issue shortly.

13.

The appellant was aggrieved by the whole decision and preferred this appeal raising the following grounds namely: -

i.

That the trial magistrate erred by relying on uncorroborated evidence.

ii.

That the trial magistrate erred by relying on contradicted evidence.

iii.

That the trial magistrate did not consider that recognition was not established.

iv.

That the trial magistrate convicted him on non-existent evidence as there was no witness from the scene of crime.

v.

That the trial magistrate erred by convicting him on scandalous evidence and misrepresentation.

14.

In his written submissions the appellant raised additional new grounds without leave of this court as stipulated under section 350 (2) of the

Criminal Procedure Code

. This court will therefore not consider them.

15.

He contends that the evidence of the minor was not corroborated yet the incident occurred in broad daylight.

16.

He further submits that all the elements of defilement were not proved beyond reasonable doubt. He submits that the age of the victim was not established adding that age is a key ingredient in the offence. He wonders why the victim took so long to be taken for treatment adding that the case was never investigated because the investigating officer never attended court to testify.

17.

This court has considered this appeal and the grounds raised. For the record, the respondent through the Office of the Director of Public Prosecution did not oppose this appeal which I find odd given the circumstances of this case. The victim was an eleven years old orphan who by all standards is vulnerable and required public prosecutor to at least be on her side and defend her interests for ends of justice to be met. That notwithstanding, this court shall determine this appeal on merit as this court has always done.

18.

The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of

Sexual Offence Act

.

It is true as pointed out by the trial court that the appellant ought to have been charged under section 8(1) as read with section 8(2) of the

Sexual Offences Act

given the age of the minor.

19.

The mandate of this court as the first appellant court is to re-evaluate or re-assess the evidence tendered at the trial with a view to making own conclusion bearing in mind that unlike the trial court, this court does not have the benefit of the trial who observed the demeanor of witness first hand as they testified.

20.

This appeal has raised 3 issues for determination which are: -

i.

Whether there was a defect in the charge sheet.

ii.

Whether the age of the victim was established.

iii.

Whether the prosecution’s case was proved to the required standard.

21.

I will begin with the issue of age as it will have a bearing on the question regarding the charge sheet.

(i) Whether The Age Of The Victim Was Established Or Proved

22.

The age of a victim in case of defilement is a key ingredient because it determines the sentence to be meted out on a convict or persons found guilty. In this instance, both the appellant and the trial court seem to converge on the fact that the age of the victim was not clearly established. However, this court finds the convergence erroneous because the evidence tendered by the prosecution shows that the age of the victim was actually clearly established beyond doubt. The age of the minor was well established to be 11 years by the evidence tendered. The reasons for my findings are as follows:-

i.

Firstly, the minor during voire dire examination stated that she was 11 years old and in class 3 at [Partculars Withheld] Primary School.

ii.

Secondly, the grandmother who was the guardian of the minor testified that the minor was an orphan and aged 11 years. She stated;

‘‘She was eleven years old. She is my granddaughter…….’’

The evidence of the minor in respect to age was well corroborated by the grandmother who stated that she took care of the child from age 5 when her mother passed on. The grandmother appeared certain about her age and there is no question about that.

(iii)

Thirdly, and more importantly is that the medical evidence properly tendered by

Dr

Patrick Mutuku (PW2), (age assessment report (P Ex3) and P3 Form (P Ex 4) They do clearly indicate that the minor was aged 11 years. The trial court fell into error by finding that the grandmother did not state the date of birth. It was a misdirection to hold that because the birth certificate was not produced, the age of the victim was not established. The age of a victim is not necessarily proved only by a birth certificate. Any other evidence so long as it is conclusive can establish the age. The age assessment report dated May 2, 2013 from Kitui District Hospital on its own sufficiently proved that the age of the victim was eleven years.

23.

The P3 form (

P Ex

4) also properly tendered in evidence also corroborated the fact that the age of the minor was eleven years old. When one looks at the treatment card tendered as P Ex 1 one can clearly see that the age of the victim indicated as 11 years.

This court finds that the evidence tendered by the prosecution in respect to age was cogent and consistent. It clearly established that the victim was aged 11 years at the time. The key ingredient of age was therefore, proved beyond reasonable doubt.

(ii) Whether The Charge Was Defective

24

The charge sheet presented to the trial court as observed above read that the appellant was being charged with defilement contrary to section 8(1) as read with 8(3) instead of section 8(2) given that the age of the victim was 11 years.

This court finds that there was a defect on the charge which was curable under section 382 because the omission in the charge sheet did not occasion the appellant any prejudice. The particulars on the charge are clear. The appellant was charged with the offence of defiling a girl age 11 years old. The appellant therefore knew the charges facing him well before the trial began. So he cannot say he was prejudiced in any way. The only downside is that the charge sheet read section 8(3) instead of the correct section 8(2) and this resulted in the appellant being given a lesser sanction instead of the correct sanction provided by the law section 8(2) of the Sexual Offence Act. This court pursuant to the provisions of section 186 of

Criminal Procedure Code

hereby finds that the correct conviction ought to be and should be under section 8(2) of

Sexual Offences Act

. The conviction of the appellant is therefore substituted to be under section 8(2).

(iii) Whether The Prosecution’s Case Was Proved Beyond Doubt

25

Apart from age which I have found to have been proved beyond doubt, the other 2 elements necessary to be established in a defilement case are: -

i.

Penetration

ii.

Positive identification of the perpetrator

26.

I will begin with the element of penetration. The evidence of PW1 or the victim is candid and horrid. The initial trial magistrate did commendably well as she captured well the demeanor of the minor including the way she walked in the court with difficulty. This is what the magistrate captured;

‘‘I further note that the child has difficulty walking and on questioning her she says she was defiled and now cannot walk properly as she has not healed …………………’’

27.

The minor appeared that she was still quite traumatized when she testified in court as the trial court captured her mood as ‘‘angry and crying’’ while answering the appellant in cross examination that he defiled her in her home and

‘‘I now cannot go to school and I am not able to urinate and (

sic

) I now just stay at home.’’

28.

The evidence of the grandmother was also candid and consistent with what the trial magistrate observed during trial. She stated that the minor was taken back home at 5am and when she observed the child,

‘‘she was limping with one leg……. Her privates parts were swollen and was urinating continuously ……..’’

29.

The medical evidence tendered by Dr Mutuku (PW2) was corroborative and consistent with the evidence of the minor and PW3 with respect to the element of penetration. The doctor stated that the minor had a wound on her thigh which had smelly pus and that her hymen was broken which meant that penetration was positive.

30.

The evidence tendered by the prosecution was quite overwhelming and proved beyond doubt that the minor was defiled. The medical documents (treatment chit P Ex 1 and P3 form P Ex 3) fully corroborates the evidence of the minor and her grandmother. The same to some extent was captured by the trial magistrate who as I have observed above did a commendable job of capturing the demeanor of the minor in the proceedings as seen from the record.

(iv) Whether The Appellant Was Positively Identified

31.

The appellant faults his identification on grounds that there was no eye witness called and that the investigation officer was not called to testify. However, the contention holds no water because the minor positively identified him. The grandmother (PW3) stated that the appellant was a neighbour and he took back the minor to her at 5 am after defiling her the whole night. The appellant himself stated in his defence that a group of people went to apprehend him and took him to where the victim was and that when the victim pointed out that he was the perpetrator he was taken to Sub-Chief where he was beaten before being escorted to the Police Station.

This court finds that the appellant was properly identified by the victim. He was a neighbour and well known. The question of mistaken identity could not arise. The minor was almost hysterical at the trial when the appellant faced her during cross-examination.

32.

This court finds that the prosecution’s case against the appellant on the whole was proved beyond any reasonable doubt. This court finds no merit in this appeal. The conviction is upheld. The sentence meted out against the appellant was not lawful because the appellant ought to have been convicted and sentenced under section 8(1) as read with section 8(2) of the

Sexual Offence Act

. For the interest of justice, and under the

Sexual Offences Regulations

2008, this court invokes its revisionary powers under section 364 of

Criminal Procedure Code

in setting aside the sentence of 30 years imposed and in its place the appellant shall now serve life imprisonment which is really what he deserved as stipulated under section 8(2) of the

Sexual Offence Act

. He defiled an 11-year-old orphan and caused her trauma and permanent scar in her life. This court has no hesitation to review the 30 years sentence by enhancing it to life imprisonment under regulation 3 of

Sexual Offences Regulations

2008. He has 14 days. Right of Appeal.

DATED, SIGNED AND DELIVERED AT KITUI THIS 8

TH

DAY OF JUNE, 2022.

HON JUSTICE RK LIMO

JUDGE

*