Director of Public Prosecution v Mwamzuzu aka Zecha (Sexual Offence E003 of 2023) [2024] KEMC 72 (KLR) (9 January 2024) (Judgment)
Neutral citation:
[2024] KEMC 72 (KLR)
Republic of Kenya
Sexual Offence E003 of 2023
ZK Kagenyo, RM
January 9, 2024
Between
Director of Public Prosecution
Republic
and
Omar Ali Mwamzuzu aka Zecha
Accused
Judgment
1.The accused person was on the 5th day of January 2023 arraigned for the offence of attempted defilement contrary to section 9 (1) as read with (2) of the Sexual Offences Act No. 3 of 2006. (sic).The particulars were that on the 4th day of January 2023 at [Particulars Withheld] in Kwale county within the coast region, intentionally attempted to cause his penis to penetrate the anus of A.M.M a child aged 15 years.
2.The accused denied the charges and a trial ensued.
Prosecution’s Case
3.The DPP, to discharge their duty under section 107 of the Evidence Act lined up a total of 6 witnesses.
4.PW 4 was AMM, the complainant herein who told the court that in the early morning hours of the 4th day of January 2023, while at their family business where they operate a water vending machine, the accused person who was their home’s groundman stormed into that water vending shop and in a weird and unprecedent behavior, he closed the door and the window from the inside and placed the keys into his pocket. After so doing, the accused commandeered the complainant thus, “vua suruali leo nakufira!” In a state of fear and adrenaline reflex reaction, the complainant attempted to scream and fight back but the accused person threatened, “ukipiga kelele mimi nakuua leo!” It dawned on the complainant that it was a life and death situation and not only his genital sanctity was threatened but also his young, innocent and blameless life. He put a good fight by screaming and resisting the hellbent efforts by the accused person. The accused beat up the complainant senselessly threatening him further that, “nyamaza! Nyamaza! Ama nakuua!” In the melee the complainant sustained knife cuts, teeth bites and other blunt object trauma injuries. The complainant lives to thank his courage and defiance of the threats of the accused as the screams and bangs on the door attracted the neighbours and relatives who came to his rescue. Too drained, worn out and starved of oxygen, the complainant just collapsed and fell unconscious immediately he was rescued from the shackles of death and threatened pedication.
5.PW 1, FWO was one of the first responders to the screams of the complainant, PW 4. He narrated how he heard the screams coming out from the shop in which the complainant was in and when himself and other responders tried to knock and make pleas for the opening of the door, all their efforts were in futility that necessitated them to break the door and rescued the complainant whom they found held captive by the accused person in that shop. He told the court that he rescued the accused from a mob injustice by the angry crowd of people that had formed.
6.PW 3, YKO also testified as among the first responders just as PW 2. Her evidence was in consonance with that of PW 2 on material facts which was a similar case with PW 5, RHM.
7.The medical practitioner who testified as PW 3 confirmed the injuries that had been sustained by the complainant and observed that in general, the complainant had observable injuries all over his body which were freshly inflicted as at the time he was examined by the medical practitioner.
8.PW 6, NPS Officer Service No. 87838 Cpl Machafu Said testified in his capacity as the investigating officer and narrated how the complaint was lodged in their station and how he investigated the same and preferred the charges before court. He however stated that the accused was presented to the station by police officers from the Administration Police who told the station that they had rescued him from a mob injustice. Cpl Said in the company of other police officers escorted the accused to the hospital for treatment.
9.After the evidence of PW 6, the prosecution closed its case.
10.The accused person was placed on his defence and section 211 of the Criminal Procedure Code and Article 50 (2) (i) of the Constitution of Kenya having been explained to the accused person, he elected to exercise his right to silence and invited the court to make its judgment without him making any closing arguments.
11.As is its duty, the court retired to make its determination.
Analysis and Determination
12.The accused person has been charged with the offence of attempted defilement which is proscribed by section 9 (1) as read with section 9 (2) of the Sexual Offences Act thus;
13.In SKM v Republic [2018] eKLR the Court in interrogating the essential ingredients to be proven by the prosecution in a charge of attempted defilement held that, the prosecution in an offence of attempted defilement must prove the other ingredients of defilement except penetration; it must prove the age of the complainant, positive identification of the accused, and then prove steps taken by the accused to execute the defilement which did not succeed.
14.The prosecution was duty bound to prove that;a.The accused took steps that were it not for the “but for” test, would have caused penetration to the complainant;b.The complainant was a child; andc.The positive identification of the accused.
15.On the second element, the prosecution produced as P.Exh 4 a Certificate of Birth for AMM the son of MAM and MHM and indicated the date of birth as 9th day of January 2008 and therefore as of 4th day of January 2023, the complainant was just 5 days shy to his 15th birthday and hence a child under section 2 of the Children Act, 2022 as well as under Article 260 of the Constitution of Kenya.
16.On the element of identification, I note the evidence proffered on the manner in which the accused ended up locking himself up into the shop with the complainant and how he was found by the responders to the screams of the complainant. I further note that the complainant and the accused had known each other for long and hence there would be no possibility of error.
17.On the first element of attempt it is my view that the same comprises bith a subjective test and an objective test.
18.Section 388 of the Penal Code defines attempt as:Section 388 (1)When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.Section 388 (2)It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.Section 388 (3)It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.
19.In Joseph Owino Khadudu v Republic [2020] eKLR, faced with a similar situation of attempted defilement, the court found that;For an offence to be an attempt, it must pass the “but for” test
20.Borrowing from what the High Court opined as constituting an offence of attempted rape and reading it mutatis mutandis, the case of Abraham Otieno vs Republic [2011] eKLR Kisii H.C Criminal Appeal No 53 of 2009, Asike Makhandia J (as he then was) tells us what would constitute the offence of attempted rape as follows;
21.Now turning on to the present case, firstly I assessed the nature of the witnesses who testified before this court. I considered the witnesses as forthright and who testified in a manner desirable by any adjudicating tribunal. On the part of the complainant, I chose to believe that he was telling the truth for the narration of the sequence of the accounts that unfolded and the subsequent corroboration of some of the facts and further for the honesty he displayed by alluding to the good character of the accused when he said that he has never heard of such a heinous act by the accused person in the past.
22.I observed that the accused person;a.entered the shop and demonstrated weird and unusual character to the complainant;b.thereafter he locked the shop from inside and retained the keys;c.Sequentially, he ordered the complainant to remove his panties;d.He expressed his intention as to sodomize the complainant;e.Upon the resistance of the complainant, the accused used force to get his body into that of the complainant;f.Upon further resistance by the complainant, the accused used actual threats and violence;g.When the complainant called for help, the accused who was at a vantage and dominating position refused to open neither the door nor the window;h.The accused continued to withhold the keys and denied the complainant any opportunity to open the door or the window; andi.The accused only surrendered when he was outwitted and overpowered by the responders who broke into the shop.
23.I make a finding that but for the resistance of the complainant, the accused would have sodomized the complainant while conscious and but for the prompt response by the villagers the accused would have sodomized the lifeless body of a suffocated and if lucky unconscious complainant.
Disposition
24.Having found so, I do make a finding that the prosecution has furnished evidence before this court proving beyond reasonable doubt that the accused person attempted to defile the complainant and I thus find him guilty of the offence of attempted defilement which is proscribed under section 9 (1) as read with 9 (2) of the Sexual Offences Act .
25.The accused person is hereby informed of his right to lodge an appeal against this judgment and the conviction in the High Court within 14 days from today’s date if dissatisfied with this court’s finding.
JUDGMENT WRITTEN, DATED AND SIGNED AT NAIROBI ON THIS 1ST DAY OF NOVEMBER, 2023.KIONGO KAGENYORESIDENT MAGISTRATEThis Judgment has been Delivered in Open Court at Kwale on this 9th day of January, 2024, by Hon… C.K Auka in accordance with the provisions of section 200 (1) (a) of the Criminal Procedure Code, upon the transfer of Hon. Kiongo Kagenyo (Mr.) (RM), to Milimani Small Claims Court effective 11th September 2023.In the presence of:Mr. Khamis the ProsecutorMr. Hud the Court AssistantAccused