Kavanda v Republic (Criminal Appeal E011 of 2022)  KEHC 9894 (KLR) (13 July 2022) (Judgment)
Neutral citation:  KEHC 9894 (KLR)
Republic of Kenya
Criminal Appeal E011 of 2022
LM Njuguna, J
July 13, 2022
Newton Gitonga Kavanda
1.The appellant herein was charged with the offence of defilement contrary to Section 8(1) (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the same being that on April 26, 2018 at around 1640 Hrs at Gichiche sub-location within Embu County, intentionally and unlawfully caused his penis to penetrate the vagina of S.N.N a child with mental disability aged 11 years old.
2.He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 and the particulars being that; on 26.04.2018 at around 1640 Hrs at Gichiche sub-location within Embu County, intentionally allowed his genital organ namely penis to touch the vagina of S.N.N a child aged 11 years.
3.At the hearing, the prosecution called four (4) witnesses in support of the charge and in a judgment delivered on January 12, 2022 proceeded to convict and thereafter sentenced him to serve life imprisonment.
4.The appellant being dissatisfied with the conviction and the sentence, has appealed to this court and has listed eight (8) grounds of appeal in his petition of appeal dated 08.02.2022 which can be summarised as:
5.When the appeal came up for hearing, the court directed that the appeal be canvassed by way of written submissions.
6.The appellant submitted that he was charged under a defective charge sheet in that he was charged under section 8(1) as read with 8 (2) of the Sexual Offences Act 2006 instead of section 146 of the Penal Code.That the allegations and evidence adduced by the prosecution would have been ideal for a charge of defilement of idiots or imbeciles. It was submitted that the charge was fatal and prejudicial to the appellant as he was convicted on a defective charge sheet. Reliance was placed on the cases of Nzioka Kilonzo v Republic (2017) eKLR; Yongo v Republic  KLR, 319.
7.It was also the appellant’s submission that the trial magistrate’s judgment did not adhere to the rules of procedure articulated in section 169 of the Criminal Procedure Code and that the trial magistrate failed to evaluate the individual testimonies of each witness thus the same casts a lot of doubts in the said judgment.
8.Section 169 of the CPC provides as follows: -
9.The Court of Appeal in the case of Hawaga Joseph Ansanga Ondiasa v Criminal Appeal No. 84 of 2001 held as follows:
10.And in the case of Samwiri Senyange V R  20 EACA stated as follows: -
11.From the foregoing, failure to comply with Section 169 (1) does not render the judgment a nullity as technical failure of this nature does not vitiate the trial particularly where the evidence on record is sufficient to support the conviction for the offence the appellant had been charged with.
12.The appellant further submitted that the trial court failed to consider the defence of alibi as raised yet, the defence was very credible and could have helped the court reach a proper determination. It was further submitted that the defence was raised at the earliest opportunity to allow the prosecution time to investigate on its truthfulness but the police failed to investigate on the same and further, the court neither cited nor provided anyauthority to support its decision. In the end, it was his case that the defence of alibi was not well considered. Reliance was placed on the cases of Erick Otieno Meda v Republic  eKLR and R v Biya (1952) 4 SA 514 at 512 C.
13.Further, it was the appellant’s case that the evidence of the complainant remains uncorroborated given that the evidence by the intermediary did not satisfy the stipulations as enumerated in section 31 (1) and (2) of the Sexual Offence Act. Equally, it was submitted that the medical examiner’s evidence was too remote to warrant any form of connection to convict the appellant. That the general rule is that corroborating evidence must affect the accused by connecting or tending to connect him with the crime, confirming in some material particulars not only the evidence that the crime has been committed but also that the accused committed it. It was further submitted that the evidence was not corroborated and thus unsafe to sustain the conviction. Reliance was made on the case of Keith Wekesa Simiyu v Republic  eKLR. In the end, the appellant submitted that the appeal herein be allowed, conviction be quashed and sentence set aside.
14.I have considered and analyzed the evidence which was tendered at the trial court by both the appellant and the prosecution, the grounds of appeal and the written submissions by the appellant and I find that the issue for determination is whether the prosecution proved its case beyond any reasonable doubt.
15.In reference to section 107 (1) of the Evidence Act, the burden of proof rests on the prosecution to establish every element in a criminal charge beyond any reasonable doubt. [See Miller v Minister of Pensions 2 ALL ER 372 – 373].
16.The appellant herein was charged with the offence of defilement. The same is provided for under Section 8(1) of the Sexual Offences Act.
17.The court has considered the submissions filed herein and the grounds of appeal as listed in the amended petition of appeal. The court has also re-evaluated the evidence that was adduced before the trial court as is expected of it being the first appellate court.
18.The duty of the first appellate court was explained in the case of Joseph Njuguna Mwaura & 2 Others v Republic  eKLR as follows;
19.On whether the prosecution proved the case against the appellant, the ingredients for proof of the offence of defilement are;
20.On the age of the complainant, the prosecution had to prove that the complainant is a child. Among the exhibits that were produced by the prosecution are the age assessment report and a child dedication certificate. The latter shows that the complainant was born on June 20, 2007 and on the other hand, the age assessment report showed that she was by then aged between 12 – 13 years. The offence herein was allegedly committed on April 26, 2018.The age bracket given in the age assessment report was the approximate age of the complainant. In my view, the date of birth given on the child dedication certificate is more accurate. The said document was not challenged in evidence and the court is more persuaded to go by the age indicated thereon as 11 years.
21.In reference to the identification of the appellant as the person who perpetrated the offence herein, it is trite that in any criminal offence, the positive identification of a person is what connects them to that offence. It is therefore extremely important that any evidence on identification must be thoroughly and carefully scrutinized to avoid any miscarriage of justice. In the case of Kariuki Njiru & 7 others v Republic, Criminal Appeal No. 6 of 2001 (Unreported) the court held as follows:
22.I find that the circumstances were favourable for identification given that the appellant was a neighbour and that notwithstanding, the alleged offence happened during the day. [Also see Anjononi & Others v Republic  KLR].
23.On whether there was penetration, section 2 of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another. It is trite that the key evidence relied upon by the courts in rape and/or defilement cases in order to prove penetration is the complainant’s own testimony which is usually corroborated by the medical report presented by the medical officer. In this case, the complainant in her evidence testified on how the appellant removed her clothes and thereafter put his thing in her private parts. The other available evidence is that of PW1, the clinician who examined the complainant. According to him, she had a torn biker with brownish stains. She looked retarded but of fair general condition; on vaginal examination, she had a whitish discharge and she was treated and discharged. She was seen two (2) hours post the incidence and the laboratory tests showed no positive findings. On cross examination, PW1 stated that it was possible the complainant was defiled. Further, the laboratory request results indicated that there was no spermatozoa seen. The P3 Form that was produced as evidence did not reveal any injuries to the genitalia save for the presence of whitish mucus discharge at intoitus. In my considered view and going by the evidence of PW1, P3 Form and the laboratory test results, the evidence adduced was not sufficient to sustain a conviction of the appellant for the offence of defilement but it disclosed the evidence of indecent act with a child.
24.I am alive to the decision in the case of Kassim Ali v Republic  eKLR it was held:
25.Which was reaffirmed in the case of George Kioji v R Nyeri Criminal Appeal No. 270 of 2012 (unreported) that-
26.However, it is my considered view that where medical evidence has been produced by the prosecution and it contradicts and/or does not support the complainant’s evidence, the court cannot ignore the same but the court has to consider it alongside other available evidence. When all the evidence is considered, there are doubts if indeed there was penetration, which doubts I hereby resolve in favour of the appellant.
27.From the record, the only other evidence as to whether penetration occurred is that of the victim when she testified that the appellant had put his thing in her private part (cambi). In my view, this evidence considered along the evidence of the medical expert, is not cogent enough to sustain a criminal conviction for defilement. There may have been strong suspicion that the complainant and the appellant could have had a sexual activity but the Court of Appeal already pronounced itself in this regard. [See Sawe v Republic (2003) KLR 364]. It is trite that those doubts should be resolved in favour of the appellant. [See Titus Karani v Republic  eKLR].
28.I am therefore reluctant to find that the appellant committed the offence of defilement given that the same has not been proved beyond any reasonable doubt hence my conclusions as above. [See Daisy Koech v Republic  eKLR and Mercy Chelangat v Republic  eKLR].
29.The appellant has submitted that he was charged on a defective charge sheet in that he was charged under Section 8(1) as read with 8 (2) of the Sexual Offences Act 2006 instead of section 146 of the Penal Code which states as follows:
30.He has urged this court to findthat the evidence that was adduced did not support the charge because Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act addresses children who are mentally stable and/or normal, while the complainant in the charge was found to be mentally challenged. He submitted that the charge ought to have been amended to read Section 146 of the Penal Code which provides for defilement of idiots or imbeciles. According to the Appellant, the charge was defective and he should thus be acquitted.
31.The Court has confirmed from the particulars of the offence on the charge sheet that the charge addressed defilement in its ordinary sense and further mentioned that the victim was mentally challenged. The same was brought to the attention of the trial Court when the Prosecution realized that the same had been captured on the charge sheet and thus prayed that the child be treated as vulnerable under section 31 (1) (c) of Sexual Offence Act.
32.This Court, however, observes that Section 8 (1) and (2) of the Sexual Offences Act does not specify whether the child victim with respect to the charges thereon is one who is mentally upright or one who is mentally challenged. This Court finds that the generality of these provisions allow for the charge to be brought against an accused who is alleged to have committed the offence on a child who is mentally upright as well as a child who is mentally challenged thus the provision of section 31 (1) (c) of the Act.
33.Having regard to the finding of Nyamweya J (as she then was ) in the case of Patrick Mwanzia v Republic, Criminal Appeal No. 112 of 2014  eKLR where she held that: -
34.In any event, the court has noted that the issue of the alleged defective charge sheet is not a ground of appeal. It was only raised in the submissions filed in support of the appeal. In my considered view, the issue was raised too late in the day and since it is not a ground of appeal, this court cannot give it a lot of weight in determining the appeal for the reason given above. I say so because, had the issue been raised early during the trial, the respondent would have had a chance to respond to the same, and if possible, amend the charge sheet.
35.In reference to grounds 4 and 5, the appellant having raised the defence of alibi, it is trite that the onus was on the prosecution to displace the defence. The Court of Appeal in the case of Victor Mwendwa Mulinge v Republic  eKLR held the view that:
36.In this case, the appellant submitted that the trial court failed to consider the defence of alibi and further gave no authority to support its stand. The defence of alibi was based on witness testimony of which the credibility of the witness did weaken the said defence. In my view, the material fact and the date relevant to placing the appellant at the locus quo is whether the appellant was with him on 26.04.2018. The appellant’s witness, testified that he was with the appellant at the place of work and that he could not remember the date and further that, they could work together if they got work but not on daily basis. Further, the prosecution no doubt required adequate notice to investigate the allegation of the defence of alibi as the same was raised too late in the trial.[See Waka Evans Amira v Republic  eKLR]. I therefore hold the view that the said alibi is found to be unreliable and the same should fail.
37.In regard to the sentence meted out by the trial court, the appellant was charged with defilement as the main charge. The record shows that the complainant was aged11 years. The appellant herein was charged under Section 8(1) (2).
38.Going by the fore analysis, the court thus quashes the conviction of life imprisonment and instead finds the appellant culpable 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 and convict him accordingly for the alternative charge.
39.The appellant is hereby sentenced to 20 years imprisonment.
40.It is so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 13 TH DAY OF JULY, 2022.L. NJUGUNAJUDGE.......................for the Appellant..................for the Respondents