REPUBLIC OF KENYA

High Court at Machakos

Criminal Appeal 85 of 2009

ALEX MUTISO MUTUA ………..………………………..…...… APPELLANT

VERSUS

REPUBLIC ……………………………………..………………. RESPONDENT

(Being an appeal from the judgment of the Principal Magistrate S.A Okato Ag. PM delivered on
15/10/2008 in Kangundo Criminal Case No. 189 of 2008)

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(Before George Dulu J)
JUDGMENT

The appellant Alex Mutiso Mutua was charged in the subordinate court with defilement of a girl aged
13 years contrary to section 8 (3)of the Sexual Offences Act No. 3 of 2006. The particulars of charge
were that on 11th March 2008 at Mukengesya sub-location, Komarock Location in Kangundo District
within Eastern Province intentionally and unlawfully by the use of his genital organ namely penis had
carnal knowledge of RNM a girl aged 13 years. In the alternative, he was charged with indecent act with
a child contrary to section 11 (1) of the Sexual Offences Act No.3 of 2006. The particulars of offence
were that on the same day and place unlawfully and indecently assaulted RNM by touching her private
parts namely vagina. He denied the charges. After a full trial, he was convicted on the main count and
sentenced to serve 30 years in prison.

Being aggrieved by the decision of the subordinate court, he appealed to this court. His grounds of appeal
are three. Firstly, that the learned trial magistrate erred in relying on untrustworthy evidence. Secondly,
that the prosecution failed to prove its case beyond reasonable doubt and that the case was a frame
up. Thirdly, ground was that the sentence is harsh and excessive.

With the leave of the court, the appellant tendered written submissions to court and opted not to make
verbal submissions. I have perused the written submissions.

The learned State Counsel Mr Mwenda opposed the appeal. Counsel submitted that the learned
magistrate addressed two important issues. Firstly, whether there was defilement. Secondly, whether the
identification was positive. On the first issue, counsel contended that the learned trial magistrate properly
relied on the evidence of PW4 the medical officer who filled and produced the P3 form. In counsel’s
view, the evidence on record established that there was forcible penetration as the hymen was torn and
there were also signs of lacerations and injuries. In addition, a vaginal swab showed presence of
sperms. In counsel’s view, the medical evidence corroborated the evidence of the complainant PW1.

On the second issue of identification, counsel submitted that the complainant PW1, who was 13 years old,
clearly identified the appellant as the culprit. The incident occurred in broad daylight at 1 p.m. PW2 a
minor, also saw the appellant who chased him away.

Counsel emphasized that though PW1 and PW2 were minors, their evidence was consistent and
believable. It was infact PW1 who led the public to the arrest of the appellant.

The facts of the prosecution case in brief are as follows. On 11/3/2008 at 1 p.m., the complainant RNM
(PW1) aged 13 and MM (PW2) aged 9, a sister and a brother (both minors), went to a thicket belonging
to a teacher Mwalimu M (PW3) to fetch firewood. They met the appellant who was an employee of
PW3. The appellant was armed with a panga and had a dog. The appellant told PW1 that his employer
(PW3) had instructed him that whoever was found cutting firewood in the thicket would be required to
cut firewood for PW3. He gave PW1 his panga to cut firewood, while PW2 fled because of fear of the
dog. Before PW1 started cutting the firewood, however, the appellant grabbed her, knocked her down,
removed her bikini and pant and defiled her. PW1 and PW2 then screamed and AM and KM, both of
whom did not testify, came to the scene. Other people also came to the scene and PW1 directed them to a
place where they saw the appellant grazing cows owned by PW3. The appellant was then arrested by
members of the public.

PW1 informed her mother about the incident and was taken for treatment. PW4 Dr Jackline Ochieng
treated the complainant (PW1). She filled the P3 form which she produced as an exhibit. It was the
evidence of PW4 that the complainant’s hymen was broken. There were lacerations on the posterior
(bottom) of the vulva. There were traces of dried stains of whitish fluid in the inner aspect of the
thighs. There were pus cells and proteins in the genitals of PW1.

The appellant was then charged.

When put on his defence, the appellant gave an unsworn statement. His defence statement was very
short. He stated:-

“I am Alex Mutiso Mutua from Matetani, I am a farmer. I know nothing about this case.”

Faced with this evidence, the trial court found that the prosecution had proved its case against the
appellant beyond any reasonable doubt.

This is a first appeal. As a first appellate court, I have to remind myself that I am duty bound to re-
evaluate all the evidence on record and come to my own conclusions and inferences – See Okeno –vs-
Republic (1972) EA 32.

The conviction of the appellant is based on the evidence of two witnesses who are minors. These are the
complainant PW1 who was 13 years of age, and her brother PW2 aged 9 years. In convicting the
appellant, the learned magistrate stated thus in the judgment:-

“I have considered the evidence on record and find that the prosecution has proved its case against
the accused beyond reasonable doubt. Since the evidence I have relied on is uncorroborated
evidence of children of tender age, I warn myself of the danger of convicting on uncorroborated
evidence of children of tender age and proceed to convict the accused as charged in the main
count.”

Indeed, the evidence of the eye witnesses is of the two children. One of the children is not of tender years
as she was above 10 years. Section 2 of the Children Act No. 8 of 2001 provides as follows with regard
to tender age:-

“child of tender years” means a child under the age of ten years.”

In effect, the complainant (PW1), who was 13 years old, was not a child of tender years. However, it must
be stated that both the witnesses (PW1 and PW2) were minors, in that they had not attained the age of 18
years. Though there is no legal requirement that evidence of children should be corroborated, the court
must direct itself as to whether the evidence is believable.

The screams of PW1 and PW2 were said to have been heard by the members of the public. In particular,
one AM and KM came to the scene. The appellant was also said to have been arrested by members of the
public. None of these crucial witnesses was called to testify. Even the mother of the complainant, who
took the complainant to the police and to hospital, was not called to testify. No reason was given for the
failure of the prosecution to call these crucial witnesses. From the medical evidence, it cannot be doubted
that the complainant was defiled. The medical report P3 form, and other evidence clearly confirm
this. However, was it the appellant who was the culprit? The involvement of the appellant in commission
of the offence had to be established beyond reasonable doubt. The burden was on the prosecution to do
so.

In the case of Bukenya & Others –vs- Uganda (1972) EA 549 at page 550 the Court of Appeal for East
Africa stated:-

“It is well established that the Director has a discretion to decide who are the material witnesses
and whom to call, but this needs to be qualified in three ways. Firstly, there is a duty on the
Director to call or make available all witnesses necessary to establish the truth, even though their
evidence may be inconsistent. Secondly, the court itself has not merely a right but also the duty to
call any person whose evidence appears essential to the just decision of the case. Thirdly, while the
Director is not required to call a superfluity of witnesses, if he calls evidence which is barely
adequate and it appears that there were other witnesses available who were not called, the court is
entitled under the general law of evidence, to draw an inference that the evidence of those witnesses
if called would have been or would have tended to be adverse to the prosecution case.”

In our case, not only were the two witnesses who were mentioned above not called to testify, the medical
evidence is not conclusive that the defilement was committed by the appellant. The doctor did not state
what process they carried out to determine that the dried white substance on the thighs of the complainant
was semen with spermatozoa. No evidence was tendered on whether the source of that spermatozoa was
the appellant. This is a case where the prosecution failed to bring to court the crucial evidence which
would prove the appellant guilty beyond reasonable doubt. Since the burden is always on the prosecution
to prove the guilt of an accused beyond reasonable doubt, they are duty bound to do so.

There is evidence from the prosecution suggesting that the appellant attempted to escape. The suspect
behavior of the appellant in attempting to escape from arrest, per se, does not prove his guilt – See Sawe
–vs- Republic (2003) KLR 364 in which the Court of Appeal stated that suspicion however strong
cannot be a basis for sustaining a conviction in a criminal case.

Considering all the facts and evidence placed by the trial magistrate by the prosecution, I find that the
prosecution left open such gaps in the evidence they tendered that resulted in their failure to prove their
case against the appellant beyond reasonable doubt. I find merits in the appeal and will allow the same.

For the above reasons, I allow the appeal, quash the conviction and set aside the sentence. I order that the
appellant be set at liberty unless otherwise lawfully held.

Dated and delivered at Machakos this 18th day of December 2012.

George Dulu
Judge
In presence of:-

Appellant present in person

Mutinda – Court clerk