REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO.149 OF 2012
JOSEPH MUTINDA MWANZA......................................... APPELLANT
VERSUS
REPUBLIC ................................................................ PROSECUTOR
From original conviction and sentence in Criminal Case No. 195 OF 2007 at the Chief Magistrate’s Court at Embu by Hon. E.K. NYUTU– RM on 14/7/2008
J U D G M E N T
JOSEPH MUTINDA MWANZIA the Appellant herein was charged with the following offences;
Count 1
Defilement contrary to section 8(1) (2) of the Sexual Offences Act No.3 of 2006
The particulars as stated in the charge sheet were as follows;
JOSEPH MUTINDA MWANZIA: On the 22nd day of April 2007
in Mbeere District within Eastern Province defiled JMN a child aged seven (7) years.
Alternative Count
Indecent Act with a child contrary to section 11(1) of the Sexual Offences Amendment Act 3 of 2006
The particulars as stated in the charge were as follows;
JOSEPH MUTINDA MWANZIA: On the 22nd day of April 2007 in Mbeere District within Eastern Province committed an act of indecency with JMN by touching her private parts.
Count II
Defilement contrary to section 8(1) (2) of the Sexual Offences Act No.3 of 2006.
The particulars as stated in the charge sheet were as follows;
JOSEPH MUTINDA MWANZIA: On the 22nd day of April 2007 in Mbeere District within Eastern Province defiled EWW a child aged three (3) years.
Alternative Count
Indecent Act with a child contrary to section 11(1) of the Sexual Offences Amendment Act 3 of 2006
The particulars as stated in the charge sheet were as follows;
JOSEPH MUTINDA MWANZIA: On the 22nd day of April 2007 in Mbeere District within Eastern Province defiled JMN a child aged seven (7) years.
The matter proceeded to full hearing and the Appellant was convicted on both principal counts. He was sentenced to life imprisonment on each count. And he filed this appeal citing the following grounds;
- The learned trial Magistrate erred in both law and fact when she convicted the Appellant relying on evidence which was inconsistent and uncorroborated.
- The learned trial Magistrate erred in both law and facts when she failed to consider the fact that the Appellant was not taken for a medical examination to ascertain the truth of the allegations – read DNA.
- The learned trial Magistrate erred in both law and facts when she failed to consider the fact that the complainants in this case were taken for treatment after the expiry of 24 hours and no explanation was offered during the trial.
The Prosecution case is that on 22/4/07 PW2 and PW4 (all minors) were playing at the home of PW6 who is their grandmother. PW4 actually lives with PW6 but PW2 had been left there by her mother (PW1) who was going to the market. While there the Appellant called them to his house and showed them his pictures. He sent Yvone who was with them to go and buy sweets. He then placed them on his bed in turns after removing their pants. He then did to them what they called bad things. When he was through he told them to go home. PW2 did not tell the mother immediately they met her at home. Meanwhile PW3 who is PW6’s daughter went to PW6’s home on 22/4/2007. That night PW4 was crying of pain below her abdomen. On 24/4/2007 the Appellant came to the home to assist with some farm work. When PW4 saw him she became restless and hid behind PW6. PW6 asked her why she did that. Its then she explained to her what the Appellant had done to her and PW2. The Appellant then walked away to his home. PW6 checked the minor and reported the matter to the Police and PW1. The minors were taken to hospital. PW2 and PW4 stated in their evidence that the Appellant had warned them against mentioning to anyone what he had done. If they did he would bury them. PW5 produced the P3 forms he filled after examining the children (EXB 1 & 2). He confirmed that the minors had been penetrated in their genitalia.
The Appellant in his unsworn explained that he had on this day worked on the shamba the whole day. The next day he was arrested from the same shamba as he worked. He said the grandmother (PW6) has a grudge against him because of land which she wants to take away from him. When the appeal came for hearing the Appellant presented the Court with written submissions. He has challenged the medical evidence and states that he was framed because of the grudge with his grandmother. He has also taken issue with the charge sheet which he submits was defective.
M/s Ing’ahizu for the State opposed the appeal saying the evidence of the Prosecution was overwhelming. And that the evidence of the minors was consistent and reliable. The medical evidence supported the evidence of the minors she submitted. And finally that the minors knew the Appellant as he was their relative.
This is a first appeal and this Court has a duty to re-evaluate and reconsider all the evidence and arrive at its own conclusion. In doing so it must not lose sight of the fact that it did not hear nor see the witnesses. The Court of Appeal in the case of KIILU & ANOTHER –V- REPUBLIC [2005] (1) KLR 174 held thus;
- An appellant on a first appeal is entitled to expect the
evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.
- It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts' findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.
I have considered the submissions by the Appellant and the State together with the grounds of appeal. I have equally re-evaluated the evidence on record.
In the 2nd ground of appeal the Appellant stated that the evidence adduced was inconsistent and uncorroborated. The trial Court acknowledged that the complainants (PW2 & PW4) were children of tender years i.e. seven (7) years and three (3) years respectively. She conducted a voire dire examination to satisfy herself of the suitability of them testifying. She then made appropriate orders. PW5 also confirmed their ages as seven (7) years and three (3) years respectively. These two children knew the person who defiled them. The evidence of PW3 and PW6 who slept in the same house with PW4 on the 1st night of this incident stated the child had cried a lot during the night showing them the lower abdomen as the cause of her pain. Secondly on 24/4/2007 when the Appellant came to PW6’s home both PW3 and PW6 noticed that the minor (PW4) was very uneasy and kept on hiding behind the grandmother (PW6). It was at this time she was asked what it was and she explained what the Appellant had done to her and PW2. The Appellant immediately left for his home. The mother of PW2 was also informed of the report by PW4. Both PW2 and PW4 said they could not report this matter because the Appellant had threatened to bury them if they said anything about it. The medical examination by PW5 showed that the minors (PW2 and PW4) had been defiled. He explained the condition of their genitalia vide the P3 forms (EXB1 & 2). This medical evidence corroborated the evidence of PW2, PW3, PW4 and PW6. The evidence is also very consistent.
Ground 3 and 4
These minor children reported the matter after three (3) days. Even if the Appellant had been taken for medical examination nothing much could have been revealed. There was no need for a DNA Test in the circumstances. The delay to be taken for treatment was very well explained. The children had been threatened. Infact PW4 stated that the Appellant told her if she reported he would bury her next to Keith. She was even hiding behind her grandmother (PW6) when the Appellant came to the home to do some farm work. Section 124 Evidence Act provides;
Section 124 of the Evidence Act provides;
“Corroboration required in criminal cases notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth”.
The learned trial Magistrate was within the Law even to convict on the evidence of PW2 and PW4 since she believed them. But in this case there is clear evidence from other witnesses.
The Appellant has dwelt so much on the issue of a grudge because of land. Even if there was such a grudge the evidence against the Appellant is so overwhelming and displaces it. These minor children were defiled and it is not them who had a grudge with Appellant. The cross examination would have sold them if they were lying. I am satisfied that the learned trial Magistrate analysed the evidence well and arrived at the right decision. The appeal lacks merit and is dismissed. The conviction and sentence are confirmed.
Right of appeal explained.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 7TH DAY OF NOVEMBER 2013.
H.I. ONG'UDI
J U D G E
In the presence of;
M/s Ingahizu – State
Appellant
Njue- C/c