1.The Appellant herein, Paul Mutua Mwangangi, was convicted after trial of the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, No 3 of 2006. It was alleged that on diverse dates between 24th September and 28th November 2016 in Laikipia County he intentionally and unlawfully committed an indecent act with a child by touching the anus of one DM, a boy aged 12 years. He was acquitted of the main charge of defilement contrary to section 8(1) & (3) of the same Act.
2.On 14/11/2017 the Appellant was sentenced to serve ten (10) years imprisonment. He has appealed against both conviction and sentence, mainly upon the grounds that the trial court having acquitted him of the main charge for the reasons that the complainant’s testimony was uncorroborated, it could not properly convict him of the alternative charge upon the same uncorroborated evidence; and that in any case the charge was not proved to the required standard.
3.Learned counsel for the Respondent supported the conviction upon the basis that all the ingredients of the offence were proved beyond reasonable doubt by “overwhelming evidence”.
4.Learned counsels appearing chose to argue this appeal by way of written submissions. I have read and considered their able submissions. This being a first appeal it is my duty to evaluate all the evidence placed before the trial court and arrive at my own conclusions regarding the same. I have borne in mind however, that I did not see or hear the witnesses as they testified, and I have given due allowance for that fact.
5.The complainant (PW2) gave unsworn evidence after a voire dire examination. Of his testimony in regard to the main charge, the trial court stated, inter alia –
6.The trial court, as seen in the above extracts, obviously had grave doubts about the veracity of the complainant’s testimony and refused to convict the Appellant upon the main charge. The same doubts should have extended to the alternative charge, and the court should have sought corroboration in respect to it. There was no corroboration of the complainant’s testimony that the Appellant’s penis had come into contact with his anus and produced a “whitish shiny substance”.
7.The complainant had given a story of repeated defilement in the anus multiple times over a period of about two months, the last defilement being on 20/11/2016 only nine days before he was medically examined on 29/11/2016. Yet the Post Rape Care Form (Exhibit P2) revealed absolutely nothing – no bruises or marks. The medical report (Exhibit P1) was equally bereft of any useful observations – the rectal examination revealed no fresh fissures. Only some stool was noted on the finger of the doctor examining him, and relaxed sphincter muscles. There were no obvious injuries.
8.Upon what basis then did the trial court convict the Appellant of the offence in the alternative charge? It was merely upon the complainant’s testimony that the Appellant’s penis had touched his anus. We have already seen that the trial court had serious doubts about the complainant’s testimony regarding the main charge. The complainant was a child of tender years who had given unsworn evidence. The court did not caution itself as required in the proviso to section 124 of the Evidence Act, Cap 80.
9.Upon my own evaluation of the evidence placed before the trial court, I am not satisfied that the conviction was founded upon good and sound evidence. It is not safe and cannot be allowed to stand.
10.In the event, I will allow this appeal in its entirety. The conviction is hereby quashed and the sentence imposed set aside. The Appellant shall be released forthwith unless otherwise lawfully held. It is so ordered.