Mwangi v Republic [2022] KEHC 1603 (KLR)

Mwangi v Republic (Criminal Appeal 74 of 2018) [2022] KEHC 1603 (KLR) (10 March 2022) (Judgment)

Albert Wambugu Mwangi v Republic [2022] eKLR

Neutral citation: [2022] KEHC 1603 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal 74 of 2018

DW Mbuteti, J

March 10, 2022

Between

Albert Wambugu Mwangi

Appellant

and

Republic

Respondent

(Appeal from original Conviction and Sentence in Nanyuki CM Sexual Offence Case No 5 of 2017 – D Bosibori, RM)

Judgment

1. The Appellant herein, Albert Wambugu Mwangi, was convicted after trial of sexual assault contrary to section 5(1) of the Sexual Offences Act, No 3 of 2006. It was alleged that on 29th January 2017 at [Particulars withhheld] area in Kieni-East Sub-County within Nyeri County, he unlawfully and willfully caused penetration into the vagina of one BMM, a juvenile aged 8 years, using his index finger. On 26/10/2018 he was sentenced to serve fifteen (15) years imprisonment. He has appealed against both conviction and sentence.

2. Learned counsel for the Respondent does not support the conviction. He submitted that there were grave material contradictions in the evidence of the complainant (PW2) and other witnesses, particularly the evidence of the clinical officer (PW1) and an alleged eye witness (PW3). Learned counsel also submitted that whereas the Post Rape Care (PRC) form of the complainant did not indicate any injuries in the genital area, the P3 filled by PW1 showed some injuries.

3. I have read through the record of the trial court in order to evaluate the evidence placed before that court and arrive at my own conclusions regarding the same. This is my duty as the first appellate court. I have borne in mind however that I neither saw nor heard the witnesses testify, and I have given due allowance for that fact. I have also considered the written submissions of the Appellant, as well as the oral ones of the leaned counsel.

4. The complainant (PW2), along with her friends PW3 and PW4 were all minors aged about 8 years. After examination by the court they all gave unsworn testimonies because either they did not understand the nature or solemnity of the oath, or were of insufficient intelligence. What I find rather surprising is that all their testimonies, in-chief, cross-examination and re-examination, as recorded, are lengthy, very neat and flowing and in such language (words, phrases, etc.) as if the testimonies were given by very intelligent and knowledgeable adults! There is absolutely no hesitation noted in the testimonies, not even in answering questions in cross-examination. Without making any judgment or casting aspersions, I find this rather odd and unsettling. Generally speaking, children, particularly those not old or intelligent enough to give sworn evidence, will not testify in that manner. Come to think of it, even among adult witnesses, you do not find many that will testify in such flowing, lengthy and intelligent way, particularly in cross-examination.

5. Nevertheless, even with the flowing testimonies, an unbroken thread of truth in the story told is not to be found. There were many material contradictions in the details given that tended to show that the witnesses may have been given a story to tell, which ultimately they did not all tell it as it should have been told. These material contradictions should have been resolved in favour of the Appellant.

6. The clinical officer (PW1) whose evidence should have been of assistance to the court, did not himself examine the complainant before filling up the medical report (P3). He stated that he filled the P3 from the PRC form that had been prepared by some other medic who did not testify.

7. Having evaluated the entire evidence placed before the trial court, I am not satisfied at all that the conviction is safe. The charge against the Appellant was not proved beyond reasonable doubt.

8. I will in the result allow this appeal in its entirety; the conviction is hereby quashed and the sentence imposed set aside. The Appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 9TH DAY OF MARCH 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 10TH DAY OF MARCH 2022