REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL APPEAL NO. 9 OF 2020

HEZRON KIPKEMOI MUTAI....................................APPELLANT

VERSUS

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

(BEING AN APPEAL FROM THE JUDGEMENT OF HON. E SOITA (RM) DATED 4^TH MARCH 2020 IN CRIMINAL CASE NO. 3611 OF 2015 AT MOLO)

JUDGEMENT

1. The appellant was charged with the offence of Defilement contrary to Section 8(1), (2) of the Sexual Offences Act No 3 of 2006. The particulars of the offence were that on the 18^th day of November 2015 in Londiani sub-county within Kericho County intentionally caused his penis to penetrate the vagina of SC a child aged 3 years and 6 months. 

2. The alternative count was Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars of the offence were that on the 18^th day of November 2015 in Londiani sub-county within Kericho County intentionally caused his penis to penetrate the vagina of SC a child aged 3 years and 6 months.

3. The appellant was convicted and sentence to life imprisonment hence this appeal. The appellant has raised the following grounds of appeal challenging the judgement: -

a) THAT the learned trial magistrate erred in law and in fact by not considering that crucial elements of defilement were not proved beyond any reasonable doubt.

b) THAT the learned trial magistrate erred in law and in fact by failing to appreciate that I was not given time to prepare for my defense. 

c) THAT the learned trial magistrate erred in law and in fact by relying on insufficient evidence.

d) THAT the learned trial magistrate erred in law and in fact by failing to appreciate that the medical evidence tendered before court did not create a nexus between me and the alleged offence.

e) THAT the learned trial magistrate erred in law and in fact by dismissing my plausible defense which was not rebutted without offering any cogent reasons thereof.

4. Before looking at the merits or otherwise of the appeal it shall be  worthwhile to summarise the evidence as presented during trial. 

5. PW1 the complainant gave unsworn evidence and testified that she  lived with PW2, R and S (her grandfather). That she had  seen the appellant at home but she did not know his name. She  testified further that the appellant called her to his place which was  in their home, closed the door, removed her trouser and used his  thing for urinating to defile her at home. That R took her to the  hospital and that it was the only time the appellant defiled her and  he told her not to tell R.

6. On cross examination she stated that her grandmother was at home  alone on that day and that the accused house had one room and had  a steel door and it was open.

7. Upon re-examination she testified that her grandmother was at  home on that day and that the door to the accused house was opened  though it had curtains so no one could see them.

8. PW2 RK the complainant’s grandmother, testified  that on 18^th November 2015 she was at [Particulars Withheld] Girls Primary where  she is a teacher when her daughter S told her that PW1 had  gone to the appellant’s house and when she came back she realized  that her trousers were hanging. That when she asked PW1 why her  trousers were hanging she said that her private parts were paining  and that was when she suspected that the appellant had done  something to her. PW2 told S to take PW1 to the clinic at  Kipsirichet where they suspected that she had been defiled and  they were referred to Londiani District Hospital where PW1 was  examined and it was confirmed that she had been defiled.

9. PW2 testified that the hospital suspected that it was not the first time  PW1 was defiled. They were advised to go to the police station  where they did a report and they were given a letter which they took  to Kipsirichet AP post who provided police officers who went and  arrested the appellant. She testified further that when the incident  happened the appellant was staying at their home as she was  assisting him by paying his school fees. She positively identified the  accused in court and stated that there was no grudge between them  and that he had even pleaded guilty at home. 

10. On cross examination she stated that in her home there was Andrew  who was the herd’s boy and lived with his family at Kipsirichet, her  cousin Elly and the appellant who had just arrived home on that day.  She had lived with the appellant since 2013 and PW1 since 2012.  She stated further that PW1 interacted well with the appellant and  that she suspected that it was the appellant who had been defiling  her. She added that the appellant had been well behaved.

11. PW3 SC the aunt to PW1 testified that on 18^th  April 2015 she was at home taking care of PW1, when she came  wearing her trouser hanging half way. She asked her what had  happened and PW1 stated that she was feeling pain and that the  appellant had placed a big stick in her private parts. She went on to  testify that when she checked PW1 private parts she saw a whitish  discharge. She called PW1’s mother who instructed that she takes  her to the dispensary. Upon their arrival there, the doctor checked  PW1 and advised her to report to the police. She testified that she  knew the accused as he used to school near their home and lived  with them. She positively identified the appellant in court.

12. On cross examination she testified that the appellant was slashing  grass at the time PW1 informed her about the black stick. She  confirmed that the appellant was arrested while at home.

13. PW4 DR. ALFRED CHESIRE a clinical officer testified that he  received the P3 form for PW1 on 19^th November 2015 for an incident  reported at Londiani police station on 18^th November 2015 at  1500hrs, whereby PW1 had been defiled by unknown person. He  testified further that on examination of PW1, her clothes had no  tears, on genitalia the hymen was absent and there was a whitish  discharge oozing out of the vagina. That the lab test showed  negative results for HIV and syphilis and the age of the injury was  21 hours ago and that the nature of offence was defilement. He dated  the P3 form and signed it.

14. He produced the following documents in support of his case; the lab  test, treatment sheet, birth notification for PW1, the PW1’s P3 form,  the appellant’s P3 form, his lab result and treatment form the same  were marked as Pexh 1, 2, 3, 4, 5, 6 and 7 respectively. He positively  identified the appellant in court.   

15.  PW5 Number 64319, SERGEANT LINUS MUGAMBI testified that  on 18^th November 2015 a report of defilement was made at Londiani  Police station by the aunt to PW1. That they were referred to  Londiani sub-county hospital for examination and it was discovered  that there was some interference on her genital organ. He testified  further that the appellant was arrested and brought to the police  station and then escorted to Londiani sub-county hospital for  medical check-up. 

16. He went on to testify that he did not record the statement of PW1 as  she was 3 years old but he however recorded the statement of the  other witnesses who attended to her. He did investigations on the  appellant and after considering the evidence on record from the  witnesses and the doctor he decided to charge him with the present  offence. That further, the appellant was identified by the PW1, her  aunt and he also identified the appellant as the one before the court.  He produced the P3 form.

17. When placed on his defence the appellant denied the charge and  gave sworn evidence but did not call any witness. He testified that  on the 18^th November 2015, he went on his normal routines together  with a colleague until 12.00 pm and they went for lunch. That after  waiting for lunch up to 2.30pm he went back to the place where  he was staying and at 3.00pm when the offence was alleged to have  taken place he was trimming the fence. He testified further that he  was arrested at around 1900hrs.

18. The court directed that the matter be disposed by way of written  submissions which the parties have complied.

Appellant’s Submissions

19. The appellant in his submission challenged the element of  penetration and that the same ought to have been proved before he  was found guilty of such an offence. He submitted further that his  right for fair hearing under Article 50 (2) of the Constitution was  seriously and gravely infringed as he was never afforded the  adequate time and the services of an advocate to prepare his  defence. 

20. He went on to submit that the honourable trial magistrate erred in  law and fact when she recorded the unsworn evidence of PW1  without conducting a voir dire. That the trial magistrate failed to  consider the plausible evidence he raised and that he indicated he  had an alibi witness that he wanted to call in his defence. He urged  the court to allow his appeal, quash the conviction, set aside the  sentence and set him at liberty.

Respondent’s Submission

21.  The learned state counsel submitted that it was the onus of the  prosecution to prove the ingredients of the offence of defilement.  That the age of the minor was proved by the clinic card which gave  her date of birth. That further she was able to narrate what  transpired while she was in the company of the appellant and that it  was the first time the act was committed on her.  

22. He went on to submit that the appellant had a four-year period to  organize himself and in most instances the adjournments were  caused by him in order to call a witness before closing his case. That  in his defence the appellant did not attack the prosecution case and  that he never challenged his identification by PW1 during the  hearing. That further the appellant did not avail an alibi to confirm  his assertions and that neither PW1 nor her mother had any grudges  with him. The learned state counsel urged the court not to interfere  with the sentence owing to the high prevalence of the defilement  cases and the fact that PW1 was a child of tender age.

ANALYSIS AND DETERMINATION

23. Having perused the entire record herein, the proceedings and the  submissions by both parties, the duty of the court was clearly spelt  out in the case of OKENO V.REP 1972 E.A. 32. The Court of Appeal  stated that;

 “An appellant on a first appeal is entitled to expect the  evidence as a whole to be subjected to a fresh and exhaustive  examination (Pandya v R [1957] EA 336) 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 (Shantilal M Ruwala v R [1957] EA 570). 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; it must  make its own findings and draw its own 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 Peters v Sunday Post [1958] EA  424.”

24. There are three now accepted grounds which ought to be satisfied  for sexual offences to be proved, namely, the age of the victim, the  identity of the perpetrator as well as penetration.

25. In DOMINIC KIBET MWARENG VS. REPUBLIC [2013] eKLR the  court reinforced the same when it 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.’

26. In the instant case the age of PW1 is not in dispute and the same was  proved by the birth notification card produced as P. Exhibit 3 in  court.

27.  Regarding the identity of the appellant, it is clear from the evidence  of PW1, PW2 and PW3 that the appellant was residing with them for  some time and the appellant also in his defence testimony admitted  to that. Therefore, the same is also not in dispute.

28. What is in contention therefore is the penetration bit, whereby the  appellant in his submissions argued that the evidence adduced by  PW1 only was not enough to sustain a conviction and the same also  applied to the medical evidence by PW4. The appellant argued  further that PW4 testified that he examined PW1 on 19^th November  2015 but Pexh 1 and 2 are dated 18^th November 2015.

29. The court has looked at the evidence tendered by PW4 and notes  that he actually signed the P3 form on 19^th November 2013 and in his  testimony he indicated that that was the date he received the same  from Londiani police station. The date indicated on PW1’s lab results  and her treatment notes is indicated as 18^th November 2018.  I do  not respectfully see where the contradiction lies as alleged by the  appellant. PW4’s testimony did not indicate the dates when the lab  test was conducted and the treatment notes written. He only stated  the date he received the P3 form and he dated and signed it as  stated above. 

30.  On the evidence of PW1 only not being enough to establish his  conviction, PW1 in her testimony testified as follows;

 “…. alitolea trouser alifanyia tabia mbaya alitumia kitu  yake ya kukojoa kufanyia tabia mbaya....”

31. When examined, PW4 concluded as follows;

 “…on examination of PW1, her clothes had no tears, on  genitalia was hyperanium vaginal was and hymen was  absent, there was a whitish discharge oozing out of the  vagina. On the lab test, he screened for HIV which was  negative, on analysis there was numerous pus cells we  screened for syphilis which was negative, age of injury was  21 hours ago, nature of offence is defilement…”

32. The above extended quotation clearly captures what PW1 went  through. There was not much in cross examination by the appellant  to poke holes on the PW1’s evidence. She was clear on what the  appellant did and her evidence was corroborated by PW4’s  evidence. 

33. It is therefore my finding that based on the above and the medical  report evidence that indeed PW1 was defiled.

34. On the issue of voir dire evidence not being conducted, I note from  the court’s record that the trial court tried to conduct a voir dire on  16^th December 2015 but the same was not successful as PW1 was not  able to talk as she seemed traumatized and not responding to the  questions posed to her. The law on voir dire is clear as stated  in Section 19 of Cap 15 as regards a child of tender age. 

35. Further, in the case of MARIPETT LOONKOMOK v REPUBLIC  [2016] eKLR the court of appeal sitting in Mombasa held as follows:  -

“. . . that the definition in the Children Act is not of general  application; that it was only intended for the protection of  children from criminal responsibility and not as a test of  competency to testify.  It follows therefore that the time- honored 14 years remains the correct threshold for voir dire  examination.  It follows from a long line of decisions that  voir dire examination on children of tender years must be  conducted and that failure to do so does not per se vitiate the  entire prosecution case.  But the evidence taken without  examination of a child of tender years to determine the  child’s intelligence or understanding of the nature of the  oath cannot be used to convict an accused person.  But it is  equally true, as this Court recently found that: -

“In appropriate case where voir dire is not conducted, but  there is sufficient independent evidence to support the  charge… the court may still be able to uphold the  conviction.”

36.  In the view of the foregoing I find no fault with the trial court in not  conducting voir dire. In any case it is apparent that the complainant  gave unsworn evidence and the appellant cross examined her. The  unsworn evidence as the custom is must be corroborated and not  generally taken on its own. In this case the same was clearly  corroborated by the evidence of the other witnesses. There was no  prejudice suffered by the appellant.

37. On whether the appellant right to fair hearing under Article 50 (2) was seriously and gravely infringed, Article 50 of the Constitution provides that the right to fair hearing includes the rights at paragraphs (2) (a) (c) (g) and (h) thus:

“(a) to be presumed innocent until the contrary is proved;

(c) to have adequate time and facilities to prepare a defence;

(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;

(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;”

38. Section 40 of the Legal Aid Act, No. 6 of 2016.  provides that:

(1)  A person who wishes to receive legal aid, shall apply to the Service in writing.

(2) Where a person wishes to apply for legal aid the person shall apply before the final determination of the matter by a court.

(3) An application under subsection (1) shall be assessed, with respect to the applicant’s eligibility for legal aid services in accordance with this Act.”

39. Further in Republic vs Karisa Chengo & 2 others [2017] eKLR the  Supreme Court stated:

 “Consequently, in view of the principles already expounded  above, it is clear that with regard to criminal matters, in  determining whether substantial injustice will be suffered, a  Court ought to consider, in addition to the relevant  provisions of the Legal Aid Act, various other factors which  include:

i. The seriousness of the offence;

ii. The severity of the sentence;

iii. The ability of the accused person to pay for his own   legal    representation;

iv. Whether the accused is a minor;

v. The literacy of the accused;

vi. The complexity of the charge against the accused;”

40. In addition, the Court of Appeal in the case of David Njoroge  Macharia v Republic [2011] eKLR after reviewing the past and  current law stated that as follows: -

 “...Art 50 of the Constitution sets out a right to a fair hearing,  which includes the right of an accused person to have an  advocate if it is in the interests of ensuring justice. This  varies with the repealed law by ensuring that any accused  person, regardless of the gravity of their crime may receive  a court appointed lawyer if the situation requires it. Such  cases may be those involving complex issues of fact or law;  where the accused is unable to effectively conduct his or her  own defence owing to disabilities or language difficulties or  simply where the public interest requires that some form of  legal aid be given to the accused because of the nature of the  offence...We are of the considered view that in addition to  situations where “substantial injustice would otherwise  result”, persons accused of capital offences where the  penalty is loss of life have the right to legal representation at  state expense.”

41. Having looked at the court records, I see no application by the  applicant during the lower court trial requesting for representation  by an advocate. I note further that the trial was conducted in a  language clearly understood by the appellant and as a result he was  able to cross examine the witnesses. Further, the record does not  also indicate that he was a minor at the time of the offence.

42. The appellant who is a teacher by training clearly cannot claim not  to have understood the environment he was in nor the language  applied throughout the proceedings. In essence this court does not  find any prejudice he suffered during the entire trial process. At the  same time I find that the appellant’s right to legal representation at  the state expense was not infringed.   

43. Regarding the sentence imposed by the trial court, the punishment  provided in Section 8(2) of the Sexual Offence Act for a person  found guilty of committing an offence of defilement against a child  aged less than 11 years is that of life imprisonment. The complainant  herein was aged approximately 3 years 11 months at the time of the  offence was committed.

44. Although the sentence was proper it is the view of this court that life  sentence is indefinite which runs contrary to the established  principles of certainty. In other words, it is not efficacious.

45. Consequently, the appeal is dismissed, the life sentence  imposed against the appellant is set aside and replaced with a  custodial sentence of 25 years computed from 11^th March 2020.

DATED SIGNED AND DELIVERED VIA VIDEO LINK THIS 17TH DAY OF MARCH 2022.

H K CHEMITEI.

JUDGE