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Kithinji v Republic (Criminal Appeal E068 of 2022) [2023] KEHC 523 (KLR) (2 February 2023) (Judgment)
Neutral citation:
[2023] KEHC 523 (KLR)
Republic of Kenya
Criminal Appeal E068 of 2022
TW Cherere, J
February 2, 2023
Between
Samwel Kithinji
Appellant
and
Republic
Respondent
(An appeal from the conviction and sentence in Meru Criminal S. O E018 of 2021 by Hon. M.A. Odhiambo (RM) on 27th April, 2022)
Judgment
1.Samwel Kithinji Appellant) was charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006 (the Act). Appellant 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. The offences were allegedly committed on June 13, 2021 against DN a child aged 14 years.
2.Complainant recalled that on June 13, 2021, her cousin took her to the house of a man and left them with the man for the night within which time the man defiled her. She stated that the said man introduced himself to her as Kithinji Mwiti and she state that was the said man but was unknown to her before that date. When Complainnat met her father the following day, she stated that she was defiled by M and another person she did not name.
3.Complainant was examined on June 16, 2021 and was found with bruises in her genitalia, and her underwear was bloodstained. Appellant was arrested on June 17, 2021 after he was identified by the Complainant.
4.Appellant in his sworn defence denied the offence. He stated that he saw the Complainant for the first time in court. E M who was alleged to have taken Complainant to the house of Appellant denied it.
5.After considering both the Prosecution and Defence cases, the learned trial magistrate found the Prosecution case proved and on April 27, 2022 convicted and sentenced Appellant to serve 20 years’ imprisonment
6.Dissatisfied with both the conviction and sentence., Appellant filed this appeal mainly on two grounds. Firstly, that the evidence of his identification was not conclusive and secondly that there was no prove of penetration.
Analysis and determination
7.In considering whether the Prosecution case was proved beyond any reasonable doubt, I will be guided by the elements constituting the offence of defilement which are proof of penetration, the age of the minor and the identity of the assailant (See CWK v Republic [2015] eKLR), the evidence on record and the grounds of appeal.
8.It is trite that the age of a minor is a critical component of a defilement charge and that it is an element which must be proved by the prosecution beyond reasonable doubt. (See Kaingu Kasomo vs Republic Criminal Appeal No 504 of 2010).
9.Proof of the age of a victim of defilement is crucial because the prescribed sentence is dependent on the age of victim. (See Hadson Ali Mwachongo vs Republic Criminal Appeal No 65 of 2015 [2016] eKLR & Alfayo Gombe Okello vs Republic Cr App No 203 of 2009[2010] eKLR.
10.Complainant was born on September 6, 2007 as shown on his certificate of birth and the trial magistrate’s finding that she was 14 years at the material time was well founded.
11.Upon examination, Complainant was found with was found with bruises in her genitalia, and her underwear was bloodstained and the learned trial magistrate’s determination that defilement was proved was equally well founded.
12.Concerning identification of the perpetrator, it is trite that visual identification in criminal cases can cause miscarriage of justice and should be carefully tested. The court in Wamunga v Republic (1989) KLR 424 at 426 had this to say:
13.In the case of R v Turnbull, (1976) 3 All ER 551 Lord Widgery CJ observed as follows on identification: -
14.The difference in approach between identification and recognition was expressed thus by Madan JA in Anjononi and Others vs The Republic [1980] KLR;
15.The trial magistrate correctly appreciated that the Complainant and Appellant were strangers. Complainant stated the person that defiled her was unknown to her. It did not come out clearly how Appellant was identified. There was no evidence led that he was one and the same person as Kithinji Mwiti that allegedly defiled Complainant.
16.Mativo, J (as he then was) in Elizabeth Waithiegeni Gatimu vs Republic [2015] eKLR stated as follows:
17.The standard of proof in criminal case such as this one must be beyond reasonable doubt enough to lead to a conviction. Our criminal justice system is pegged on Article 50(2) (a) of the Constitution which guarantees individual freedoms under the Bill of Rights, particularly, the aspect of innocence until proven guilty. It cannot be gainsaid that this burden of proof rests on the State and does not shift to the Accused.
18.English case law is also replete with decisions which elucidated this standard of proof in a criminal case. Lord Denning in the case of Miller vs Minister of Pensions (1942) AC stated as follows: -
19.The degree of proof in criminal cases was properly established in the classicus English case of Woolmington vs DPP 1935 A C 462. Similarly, in Bakare vs State 1985 2NWLR, Lord Oputa of the Supreme Court of Nigeria adopted the principle as follows at page 465: -
20.I associate myself with the foregoing holdings and I find that Accused having denied the offence and the evidence of his identification having not been conclusive, he was entitled to the benefit of doubt.
21.From the foregoing analysis, I find and hold that the conviction and sentence imposed on Appellant were unsafe. Accordingly, the conviction is quashed and sentence set aside. Unless otherwise lawfully held, it is hereby ordered that Appellant shall be set at liberty forthwith.
DELIVERED AT MERU THIS 02nd DAY OF February 2023.WAMAE. T. W. CHEREREJUDGEIn the presence of:-Court Assistant - KinotiAppellant - Present in personFor the State - Ms. Kitoto (PPC)
