REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

CRIMINAL CASE NO. E003 OF 2018

JMM......................................APPELLANT

-VERSUS-

REPUBLIC.......................RESPONDENT

J U D G M E N T

Introduction

1. Before this court is an appeal against the judgment of S. M. Nyaga (SRM) Marimanti that was delivered on 16/04/2021 in Criminal Case No. 13 of 2020 (S.O.A.).

2. The brief background of the trial case is that the Appellant was charged with the offence of defilement contrary to Section 8(1)(3) of the Sexual Offences Act No. 3 of 2006 (hereinafter referred to as the “Act”).

3. It was alleged that on 01/03/2020 at [Particulars Withheld] village of Tunyai location within Tharaka South Sub-County within Tharaka Nithi County, the Appellant intentionally caused his penis to penetrate the vagina of LGC, a child aged fifteen (15) years.

4. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Act.

5. The prosecution called a total of five (5) witnesses in support of its case. Upon full trial, the Appellant was found guilty and sentenced to serve 20-years imprisonment.

6. Being dissatisfied with the conviction and sentence, the Appellant instituted the present appeal vide a Petition of Appeal filed on 29/04/2021.

The Appeal

7. The Appellant has raised the following grounds of appeal:

a. The Learned Magistrate erred in law and in facts in convicting the Appellant of an offence that was not disclosed by evidence.

b. The Learned Magistrate erred in law and in facts in convicting the Appellant over a defective charge sheet.

c. The Learned Magistrate erred in law and in facts in sentencing the Appellant excessively under the circumstance of the case.

d. The Learned Magistrate erred in law and in facts in failing to find that the Appellant was a minor and as such he ought to have been treated as also defiled and therefore benefit by a discharge.

8. On 29/11/2021, the appeal was argued through viva voce evidence. The Appellant, through his advocate on record, argued the above 4 grounds of appeal together. It was his submission that the conviction was not safe as the victim and the Appellant were all alone at the time the incident happened. It was further his submission that the trial court ought to have warned itself on the reliance of the evidence of a single witness before convicting the Appellant. According to him, the victim told lies before the court as the parent of the victim and the Appellant has a dispute over land.

9. With regard to the issue of sentencing, the Appellant submitted that the Appellant and the victim were age mates aged 17 years and 15 years respectively at the time of the incident. Stating that the Appellant has a wife and child who depended on him, the Appellant’s counsel urged this court to find that the trial court erred in not calling for a pre-sentencing report. He finally prayed for leniency and recommended a review of the sentence to three (3) years as per the recommendation of the probation report.

Response to the Appeal

10. Counsel for the Respondent conceded that the report from the probation officer recommended a three (3) year probation sentence. It was however her submission that this court has discretion to give its own view and the said report cannot compel a judicial officer to take the recommended opinion.

11. The Respondent’s counsel further submitted that the fact of penetration was proved with the evidence of PW1 and corroborated by the clinical officer who produced the P3 form.

12. On the issue of the absence of an eyewitness, the Respondent submitted that it was difficult to expect a witness other than the Appellant and the victim and that the victim was the key prosecution witness.

13. The Respondent further submitted that the age of the victim had been sufficiently proved.

14. The issue of the charge sheet being defective as well as the alleged difficulties between the victim’s parent and the Appellant were never raised before the trial court.

15. The Respondent finally submitted that the sentence provided in the Act is the minimum mandatory sentence which the trial court passed. It was thus her submission that the same was proper and that this appeal should be dismissed.

Issues for Determination

16. Having considered the submission of the parties and the evidence tendered before the trial court, it is my view that the following are the main issues for determination.

a. Whether the prosecution proved its case beyond any reasonable doubts;

b. Whether the sentences meted against the Appellant was excessive in the circumstances.

c. Whether the charge sheet was defective.

Analysis

17. This is a first appeal. The law is well settled that the first appellate court has a duty to re-evaluate the evidence adduced before the trial court, analyse it, and come up with its own independent finding. The court is however supposed to make allowance for the fact that the trial court had the benefit of seeing and hearing the witnesses to assess their demeanour. In Kiilu & Another vs. Republic [2005] 1KLR 174 the Court of Appeal stated that:

“1. 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 conclusions.

2. 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 Court’s findings and 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.”

See also Okeno vs. Republic [1972] EA 32 on the same subject.

18. In this case, the trial magistrate found that the prosecution had proved the charge of defilement against the Appellant to the requisite standard of beyond any reasonable doubt. This court is therefore called upon to consider afresh the evidence on record while considering the issues raised in this appeal. Below is an analysis of the evidence that was adduced before the trial court against the grounds of appeal raised by the Appellant.

Prosecution’s case

19. PW1 was the complainant in this case. She stated that she was in Class 8 and a resident of Gakunguru location. She recalled that on 01/03/2020, she was walking from her home area to her aunt’s place. On reaching river Gakurungu, she met the accused person. It was around 6 p.m. The accused demanded for sex but PW1 refused. That is when the accused wrestled her down to the grass, lifted her skirt, removed her pant and had sex with her. After ejaculating, the accused released her. PW1 picked her belongings and continued her journey. On reaching the shop owned by one Mary (PW2), she asked for a mobile phone and called her neighbours, Monica and Harriet, who helped her reach her brothers, Solomon (PW3) and Manase. PW1’s brothers rushed to her aid and went to report the matter at Tunyai Police Station where PW1 was held as a rescue measure. The following day, PW1 was escorted for treatment at Tunyai dispensary and Matiri Hospital.

20. On cross examination, it was PW1’s evidence that she could not scream for help as the accused blocked her mouth with his fingers and there was a loud posho mill nearby. In addition, it was her evidence that there were no homesteads nearby.

21. PW2 was Mary, a shop attendant at Gachaine location, who corroborated PW1’s evidence. She recalled that on the material day, PW1 arrived at her shop while crying. It was about 8.30 p.m. PW1 asked for her mobile phone stating that she wanted to call her brothers. On enquiring about why she was crying, PW1 narrated that the Appellant had forcible sex with her. According to PW2, she noticed that PW1’s lips were swollen.

22. PW3 was Solomon Ndugo Chabari. He corroborated the testimonies of PW1 and PW2 to the extent that on the evening of 01/03/2020, he received a phone call from PW2 at about 8.30 p.m. He was then briefed on what had transpired and he immediately rushed to PW2’s shop accompanied with one Manase Majira where he found PW2 with PW1. They reported the matter to the police the following day and then escorted PW1 to hospital for treatment.

23. PW4 was Lilian Wahu, a clinical officer at Marimanti Level 4 Hospital. She filled the P3 form for PW1 on 16/03/2020 after she was seen at Tunyai Health Centre on 02/03/2020. It was her evidence that upon examining PW1, she found that PW1 had a history of defilement by a person known to her. It was her testimony that PW1 was treated and given medication. She produced in evidence PW1’s treatment notes from Tunyai dispensary, Post Rape Care Form and P3 form as P. Exhibits 1, 2, and 3 respectively. She testified that there was evidence of penetration as PW1’s hymen was broken.

24. PW5 was PC Ann Wambugu of Tunyai Police Station, the investigating officer in this case. She corroborated the evidence of PW1 and PW3. It was her testimony that PW1 and her brothers reported that the accused had had forcible sex with PW1 while she was on her way to her grandmother’s home. She produced in evidence PW1’s birth certificate (P.Exhibit 7). She also produced in evidence PW1’s clothing comprising of a red skirt, a soiled red blouse and a soiled yellow biker/pant as P. Exhibits 4, 5, and 6 respectively.

25. The prosecution then closed its case, and the accused was put on his defence.

Defence case

26. The Appellant opted to remain silent and only called one witness, Elias Ngai (DW1), the area manager and a neighbour to both the accused and PW1. It was his testimony that the accused had a grudge with PW1’s father, one Chabari Ndugo. Apparently, the accused bought atree from the said Chabari but the deal did not go through. Consequently, it is alleged that Chabari refused to refund the purchase price.

Whether the prosecution proved its case to the requisite standard

27. The Appellant contends in Ground 1 of his appeal that the evidence adduced was not sufficient to support his conviction.

28. In Dominic Kibet Mwareng vs. Republic [2013] eKLR the court stated that:-

‘The critical ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant.’

29. On the proof of the age of the complainant, it was the prosecution’s evidence that she was aged 15 years at the time of the alleged defilement. In Joseph Kibet Seet vs. Republic [2014] eKLR, the court stated that -

‘It is trite law that the age of a victim can be determined by medical evidence and other cogent evidence.’

30. The same position was adopted in Musyoki Mwakavi vs. Republic High Court Criminal Appeal No. 172 Of 2012, where the court was of the view that -

‘…apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense…’

31. In Hilary Nyongesa vs. Republic Eldoret Criminal Appeal No 123 of 2009 the Court of Appeal stated that: -

‘Age is such a critical aspect in Sexual Offences that it has to be conclusively proved … And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.’

32. PW5 produced the complainant’s birth certificate S/No. 0075990 as P.Exhibit 7 which proves that PW1 was only 15 years old on the incident day. In my view, the trial court was correct to rely on the said birth certificate in finding that the complainant was fifteen (15) years at the material time. Thus, the age of the complainant was proved to the required standard. I note that  there was no dispute on the age of the complainant.

33. The second essential element required to prove the offene of defilement is penetration. Section 2 of the Sexual Offences Act defines ‘penetration’ as: -

“…the partial or complete insertion of the genital organs of a person into the genital organs of another person ...”

34. In George Owiti Raya vs. Republic [2013] eKLR it was held that: -

“There was superficial penetration because there was injury on the vaginal opening as the medical evidence has indicated and further there was a whitish-yellow foul smelling discharge seen on the genitalia... it remains therefore that there can be penetration without going past the hymen membrane.”

35. In the case of Erick Onyango Ondeng vs. Republic [2014] eKLR the Court of Appeal held as follows on the aspect of penetration: -

“In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.”

36. There were no eyewitnesses of the incident other than the complainant who testified that the Appellant had forcible sex with her on the material day. PW1 was examined a day after the incident.  According to PW4, the medical officer who examined her, PW1’s hymen was broken, and she had a smelly discharge. She also noted that PW1’s underwear had a whitish substance resembling spermatozoa. According to her, the condition of PW1’s genitalia and her history were proof of penetration. In the circumstances, it is my view that the element of penetration was equally proved to the required standard.

37. The final element that the prosecution had to prove to secure a safe conviction is the positive identification of the Appellant as the assailant. According to PW1, the Appellant was known to her as a friend of her mother. DW1 confirmed that he is a neighbour to both PW1 and the Appellant. After the incident, PW1 immediately meet PW2 at her shop and identified the Appellant as her assailant. It is therefore believable that the Appellant was previously known to PW1 and that she positively identified him on the material day.

38. The Appellant has however challenged the evidence of PW1 on the ground that she was the only eyewitness in this matter. According to him, the trial court ought to have warned himself on reliance of a single witness to convict him.

39. While corroboration is important, it is not mandatory in sexual offences. The proviso to Section 124 of the Evidence Act clearly states that corroboration is not mandatory in sexual offences if the trial court is satisfied on the credibility of the complainant. The same position was reiterated by Court of Appeal in the case of J.W.A v. Republic [2014] eKLR.

40. Section 124 of the Evidence Act provides as follows:

“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.”

41. It is not in dispute that the evidence alleged to implicate the Appellant was not entirely that of the complainant (PW1).  The other piece of evidence connecting the Appellant with the defilement can be traced to PW2 (a shop attendant), PW3 (the complainant’s brother), and PW4 (the clinical officer). The trial court having conducted a voir dire examination of PW1 and being satisfied that the complainant was a truthful witness, I see no error of law in the findings of the trial magistrate.

42. In the circumstances, it is my view that the prosecution did prove the charge against the Appellant to the requisite standard. I opine that trial court was correct to find the Appellant guilty of the offence based on the evidence that had been placed before it. It is therefore my view that the appeal against conviction should fail.

Whether the sentence meted was excessive in the circumstances

43. The Appellant on Ground 3 of his Appeal contend that the sentence meted against him was excessive in the circumstances.

44. The Court of Appeal in Thomas Mwambu Wenyi vs. Republic [2017] eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira vs. State of Maharashtra at paragraphs 70-71 where it was held on sentencing that: -

“70. Sentencing is an important task in the matters of crime.  One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no strait jacket formula for sentencing an accused on proof of crime.   The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction.   What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.

71. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence.

As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer.  The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”

45. Section 8(3) of the Sexual Offences Act provides that:

“(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”

46. This is a serious offence and the minimum sentences prescribed in Sexual Offences Act are indicative of the seriousness of the offence. I however note that the Appellant was a child at the commission of the offence in terms of Section 2 of the Children Act No. 8 of 2001 which defines a “child” to mean any human being under the age of 18 years. A copy of his birth certificate (Serial no. xxxx and entry no. xxxxx) was produced before the trial court evidencing that the Appellant was born on 18^th July 2002. This means that the Appellant was 17 years 8 months at the time of the subject incident.

47. Section 143(1) of the Children’s Act provides as follows:

“Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that such person is under eighteen years of age, the Court shall make due inquiry as to the age of that person and for that purpose shall take such evidence, including medical evidence, as it may require, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act and of all proceedings thereunder, be deemed to be the true age of the person.”

48. The Court of Appeal in the case of M.A.BI ~v~ Republic (2018) eKLR held that the essence of complying with Section 143 (1) of the Children’s Act is to ensure that a child is not treated as an adult during the proceedings and at the conclusion of the proceedings. At the conclusion of the proceedings, for example, a child who is adjudged to have defiled another is not be sentences as an adult. The court should deal with such a child offender in any of the ways prescribed under Section 191(1) of the Children’s Act which provides various discretionary less severe options of dealing with such cases.

49. With regard to children who have attained the age of 16 years, such as the Appellant herein Section 191 (1) (g) of the Children’s Act provides that one of the methods of dealing with the child is to order him or her to be detained in a borstal institution. Section 191 (1) (g) and (l) of the Children’s Act provides as follows:

“In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways—

(a) …

(b) …

(c) …

(d) …

(e) …

(f) …

(g) in the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for the establishment and regulation of borstal institutions;

(h) …

(i) …

(j) …

(k) …

(l) in any other lawful manner.”

50. It is not lost in my mind that the objectives of sentencing in Kenya as guided by the Judiciary Guidelines on sentencing and reiterated in several decisions include: deterrence, rehabilitation, accountability for one’s actions, society protection, retribution and denouncing the conduct of the offender on the harm done to the victim.

51. The appellant was seventeen years and eight months when he committed the offence.  He was a border line case with only four months to reach the age of majoriy.  Section 191 of the Children Act (supra) gives lee way to the court to deal with the offender in any other manner.

The Court of Appeal in the case of Dennis Mokula Matanya & Another –v- Republic (2014) eKLR considered the application of the Section 191 supra and Section 25(2) of the Penal Code and held that the court has discretion to deal with the child in any other lawful manner.  Section 25(2) of the Penal Code provides:

“(2) Sentence of death shall not be pronounced on or recorded
against any person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence such person to be detained during the President’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to to be in legal custody.”

It is therefore unlawful to impose a death penalty on a person below the age of eighteen years.  Any ohter lawful sentence may be imposed.

Where the appellant has attained the age of eighteen years at the time of sentencing, the solution lies with in dealing with the offender under Section 191(L) of the Children’s Act.

The Court of Appeal in JKK –v- Republic 2013 eKLR the court held that when dealing with an offender who has attained the age of sixteen years, the court can sentence him in any other lawful manner.

Sentencing remains the discretion of the trial magistrate. In this case the court disregarded the probation officer’s report and sentenced the appellant to twenty years.  The exercise of discretion of the trial magistrate is unfettered.

The learned trial magistrate was not bound to accept the recommendations by the probation officer.  The learned trial magistrate did consider the fact that the appellant was below eighteen years.  He relied on the Court of Appeal JKK –V- Republic (supra) where the court held that the appellant though a minor must serve a custodial sentence.

The trial magistrate made a finding of fact on the demeanor of the appellant and noted that he was not remorseful.  I must leave room for this as the trial magistrate had the opportunity to assess the demeanor.

I find that the trial magistrate considered the relevant facts in arriving at the sentence passed. 

I find no reason to interfere with the sentence.  I have perused the probation officer’s report.  The appellant denied commission of the offence despite having been lawfully convicted.  This demonstrates the fact that he was not remorseful.  A none custodial sentence like probation is supposed to give the offender an opportunity to reform.  The appellant has denied the charge.  A sentence on probation would therefore not serve the intended purpose.  I find that the sentence imposed was proper in the circumstances and I therefore find no reason to interfere with it.

Whether the charge sheet was defective

The accused was charged with defilement contrary to Section 8(1)(3) of the Sexual Offences Act.  The section provides:-

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

(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction
to imprisonment for a term of not less than twenty years.”

The applicant did not tender submissions on this ground.  Section 382 of the Criminal Procedure Code (Cap 75 Laws of Kenya) provides as follows:

“Subject to the provisions hereinbefore contained, no finding,
sentence or order passed by a court of competent jurisdiction shall
be reversed or altered on appeal or revision on account of an error,
omission or irregularity in the complaint, summons, warrant, charge,
proclamation, order, judgment or other proceedings before or during
the trial or in any inquiry or other proceedings under this Code, unless
the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or
irregularity has occasioned a failure of justice the court shall have regard
to the question whether the objection could and should have been raised
at an earlier stage in the proceedings”

If the accused raises an issue of defects on the charge, he is supposed to show that a miscarriage of justice or prejudice has been occasioned.  The section under which the accused was charged  provides for a minimum sentence of twenty years.  The sentence passed on the appellant is the one provided under the law.

In conclusion:

I find that the conviction and sentence by the trial magistrate was safe.  I find no reason to interfere with the conviction and sentence.  The appeal lacks merits and is dismissed.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 7TH DAY OF FEBRUARY 2022.

L.W GITARI

JUDGE

7/2/2022

Judgment has been read out in open court.

L.W. GITARI

JUDGE

7/2/2022