REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL NO 8 OF 2019

(From the judgment by H. Ng’ang’a SRM on 8/1/2019 in SOA No. 72 of 2018)

(CORAM: F. GIKONYO J.)

STS ................................................................................... APPELLANT

VERSUS

JUDGMENT

1.   The appellant faced charges of defilement contrary to section 8(1) as read with 8 (2) of the Sexual Offences Act.  Particulars of the offence were that on 27/8/2018 at mid-day at Idamat location, Narok East sub-county within county of Narok he unlawfully and intentionally caused his penis to penetrate the vagina of VW a child aged 7 years.

2.   He was tried, convicted and sentenced to a life imprisonment. He was aggrieved by the conviction and sentence and filed this appeal.  He cited 7 grounds of appeal but which may be summarized into the following complaints:

a.  THAT the trial magistrate failed to exercise discretion based on the basis of mandatory sentence provided in section 8(2) of Sexual Offences Act.

b.  THAT the prosecution did not prove its case beyond reasonable doubt. Proof of age and alleged contradictions in witness testimonies shall be discussed here.

3.   In his address to the court, the appellant submitted that the trial magistrate convicted him in a haste before he could even call his witnesses. He also sought leniency because since his incarceration, his family had dispersed with no one to take care of them. He insisted that his children need him.  He also told the court that he is suffering from H.I.V AIDS. He blamed his wife for orchestrating his arrest, charging and eventual conviction and sentence. 

4.   It was his submission that PW 1 was examined by the doctor but no medical evidence was submitted to that effect.  He prayed for his appeal to be allowed.

5.   Ms. Torosi the learned state counsel, submitted that the prosecution proved its case beyond reasonable doubt for:

a.   Age of the complainant was proved through birth register and Health card which show that she was born on 28/10/2009.

b. Penetration was proved by complainant’s own direct evidence as well as medical evidence encapsulated in the P3 form and other treatment notes produced.

c.   There were no alleged contradictions as PW 1’s evidence was corroborated by PW3.  The court found Pw 1 to be credible.

6.   Ms. Torosi also discounted allegation by the appellant that he was not given an opportunity to call witnesses, for he informed the court that he does not wish to call any witness.  His claims to the contrary are not therefore true.  She beseeched court to dismiss his appeal.

ANALYSIS AND DETERMINATION

Preliminary issue

7.   The claim by the appellant that the trial magistrate convicted him in  haste before he could call his witnesses requires immediate resolution. I note at page 19 of the proceedings, that the trial court fully complied with section 211 of the Criminal Procedure Code and when the accused was asked inter alia whether he wishes to call any witnesses he replied:

Accused: …. I will not call any witnesses.

Accordingly, it is not true that the accused was not given an opportunity to call witnesses.

Elements of offence of defilement

8.   The offence of defilement is established under section 8(1) of SOA as follows:

“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”

9.   From the said section, it is discernible that the prosecution must prove:

a.   That the victim is a child- age becomes important;

b.   That there was penetration; and

c.   That the Appellant committed the act of penetration with the child.

Age

10. In SOA, other than determining the applicable sentence, age is an essential element of the offence of defilement, for this offence is only committed against a child.  According to section 2 of SOA, a child is as defined in section 2 of the Children Act as follows

“child” means any human being under the age of eighteen years;

11. PW 1 in her voir dire examination told the court that she was 7 years old.  Pw 2, her mother stated that PW 1 was born on 28/10/2009.  PW 4 produced a clinic card and register of birth which show that PW 1 was born on 28/10/2009.  Therefore, as at 27/8/2018 she was about 8 years 10 months.  Accordingly, age was proved and Pw 1 was a child.

Penetration and by whom

12. According to section of 2 of SOA

“sexual penetration'’ means any act which causes the penetration to any extent of the vagina, anus or mouth of a person by the penis or any other part of the body of another person, or by an object; ‘’touch” or touching” includes kissing, nabbing, feeling, fondling or caressing any part of a person’s body with any part of the body or with an object.”

13. PW 1 told the trial court that on the material day, she took porridge for her dad when dad held her hand and took her to the maize plantation. Her dad removed her clothes and lay her down. He removed his trousers and lay on her.  She felt pain in her vagina (where I urinate in).  He also pressed her down and she felt pain in the chest.  She was lying facing down.  He did it quickly and stood up after he had finished.  She wore her clothes, picked the cup and went to the house.  At that time her mum had gone to Mulima to work.  She stated that when he grabbed her and lay on her, he threatened her with death if she ever revealed what had happened.  During cross-examination by her dad (Accused) she affirmed that she was taken to hospital because of what he did to her.

14. PW 2 stated that on the material day, PW 1 came to her crying.  When she asked what was wrong, she replied, “Baba yangu amenirape’’- which means that my father has raped me. When she examined PW 1’s private parts she found “uchafu” white and red.   PW 1 was in pain and could not walk.  She immediately reported the matter to the elders who advised her to take PW 1 to hospital. She took PW 1 to hospital where she was examined in her presence. She then went to the chief who advised her to report the matter to the police which she did and recorded a statement.  During cross-examination, she denied that she framed the accused on these charges.  Her evidence corroborates that of PW 1 that there was penetration of PW 1 and by the appellant.

15. Medical evidence produced by PW 4 also confirmed penetration.  PW 4 stated that examination revealed that hymen was torn, inflamed and painful.  There was whitish substance as well as blood and spermatozoa.  All these matter indicated defilement.  She produced medical treatment chits, P3 forms and Post Rape Report.  She noted that PW 1 was given PEP which prevents one from turning HIV positive if administered within 72 hours. She was, therefore negative.  The accused was however HIV positive. The evidence show beyond reasonable doubt that there was penetration of PW1.

16. PW 4 Gladys Mwangi was the investigating officer.  She recorded witness statements and issued a P3 form which was produced in court.  Her evidence is a further reinforcement of the case.

17. The appellant argued that he was framed by his wife due to mental problems.  His evidence was that PW 1 brought him porridge at the shamba and after he had finished the porridge, she took the cup and went back.  He stated that he came back at 6.00PM and did not find his family home.

18. At least the appellant acknowledged that PW 1 took porridge to him at the shamba.  This is consistent with what PW 1 and PW 2 told the court.  The evidence of PW 1 is believable for it gave a succinct account of what happened on the material day. She was not under any delusion that it was the accused who defiled her. This is somebody she knew very well. PW 2 corroborated her evidence.  This evidence coupled with the medical evidence clearly show that the appellant committed an act of penetration with PW 1 who was a child, thus, contrary to section 8(1) of the SOA.  I do not therefore find any reason to interfere with the conviction herein. His defence was a mere denial and does not hold sway.   I dismiss the appeal and conviction.

Sentence

19. The appellant was sentenced to serve a life sentence.  The relevant penalty clause is section 8(2) of the SOA which provided that

8 (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

20. The trial magistrate stated in sentencing the appellant that:

      “…………..the offence attracts a minimum mandatory sentence.”

21. From the final sentence imposed, it is evident that trial court subjected itself to a fetter of “minimum mandatory sentence.” This kind of abdication from exercise of discretion in sentencing is a serious judicial error in principle. In fact, the sentence was passed on 8/1/2019 which is post Muruatetu decision which declared law that provides mandatory sentences to be unconstitutional for taking away court’s discretion in sentencing.  All courts other than the Supreme Court are bound by the decision of the Supreme Court.  The trial court is expected to be aware of and to apply this principle in Muruatetu decision by way of Judicial Precedent. It appears the trial court did not exercise discretion in sentencing, thereby causing prejudice to the appellant.  I set aside the life sentence.

22. The appellant is first offender.  But although he committed a heinous crime, he is 57 years old and sick with HIV AIDS. Life sentence for such person is like a death sentence.  These circumstances warrant a lesser term of imprisonment.  Accordingly, I sentence him to 15 years’ imprisonment.  The sentence shall commence from 29/8/2018 when he was first arraigned in court.  I note he was never granted bond, hence the date of commencement of jail term.  See provisions of section 333 of the Criminal Procedure Code.

Dated, signed and delivered at Narok through Teams Application this 9^th day of December, 2020

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F. GIKONYO

JUDGE

In the Presence of:

1.   Ms. Koina for the State

2.   The appellant in person

3.   Court Assistant – Mr. Kasaso