Criminal Appeal E045 of 2021

Case Metadata
Case Number:	Criminal Appeal E045 of 2021
Parties:	Abong’andhoga v Republic
Date Delivered:	07 Nov 2022
Case Class:
Court:	High Court at Kisumu
Case Action:	Judgment
Judge(s):	Wilfrida Adhiambo Okwany
Citation:	Abong’andhoga v Republic (Criminal Appeal E045 of 2021) [2022] KEHC 14936 (KLR) (7 November 2022) (Judgment)
Advocates:	Olel
Court Division:	Criminal
County:	Kisumu
Advocates:	Olel
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Abong’andhoga v Republic (Criminal Appeal E045 of 2021) [2022] KEHC 14936 (KLR) (7 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14936 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E045 of 2021

WA Okwany, J

November 7, 2022

Between

Japheth Abong’andhoga Alias Oricho

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence of hon. CNC Oruo in SOA No. 42 of 2020 dated 28/10/2021)

Judgment

1.The appellant was convicted of the offence of defilement contrary to Section 8(1) (3) of the Sexual Offences Act No 3 of 2006 and sentenced to 20 years’ imprisonment. The particulars of the charge were that on 23^rd day of July 2020 [Particulars Withheld] Sub Location in Kisumu West Sub-County within Kisumu County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina JAO a child aged 14 years without her consent.

2.He was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 OF 2006.

3.He is aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal as per his petition of appeal filed on 2^nd November, 2021 are that:-i.That the learned trial magistrate erred in law by convicting the appellant based on weak and inconsistent evidence.ii.That learned trial magistrate misdirected himself in law by shifting the burden of proof to the accused person, contrary to well established principals.iii.The learned trial magistrate erred in law by failing to critically evaluate evidence proffered in identifying the accused person, thereby wrongly convicting him based on weak and inconsistent evidence.iv.That the learned trial magistrate erred in law in his evaluation of the entire evidence thereby making findings contrary to the provisions of the Evidence Act.v.The learned trial magistrate erred in law by failing to correctly apply law as regards standards set before convicting the appellant for the offence of defilement as set out under the Sexual Offences Act No 3 of 2006.vi.That the judgment delivered offends the express provisions of Section 169 (1) of the Criminal Procedure Code.vii.The sentence handed down was excessive in the circumstances of this case.

Submissions

4.When the matter came up for hearing on 2^nd August 2022, Mr. Olel learned counsel for the appellant submitted that the trial magistrate erred in convicting the appellant when there was inconsistency in the evidence presented by the prosecution witnesses and the charge sheet. He observed that the complainant was defiled 22^nd July 2020, and that the was examined on 23^rd July 2020, at 9 am, the P3 form indicates that the offence was committed on 23^rd July 2020 at 1.30 am.

5.Counsel further noted that according to the complainant’s parents, the offence was committed on 23^rd July 2020 at about 3pm which evidence contradicted the doctor’s testimony that incident occurred on 22^nd July 2020 at 4pm while the police report showed that a report was made on 23^rd July 2020 at 1.20pm.

6.Counsel argued that the inconsistency in the evidence was not explained and remains on the record. Counsel submitted that even though the complainant testified that there were other children at the home/scene where the offence allegedly happened, the said children were not called as witnesses to corroborate the complainant’s evidence.

7.Counsel further doubted if the complainant could have been defiled without attracting the attention of the other children in the vicinity. Counsel also highlighted the inconsistency in the evidence of PW2 who stated that the victim bled following the sexual assault when there was no medical evidence of bleeding. Counsel urged the court to find that the prosecution witnesses were not truthful.

8.On sentence, counsel submitted that the accused was aged 21 years and that given the social set up, there may have been a boy/girl relationship between the appellant and the complainant. Counsel urged the court to review the sentence.

9.For this argument, counsel relied on the decision in Petition No. E 017/2021 Yawa Ngwale vs Republic where the court found that the Sexual Offences Act is unconstitutional to the extent that it prescribes the minimum sentence.

10.According to Mr. Olel, the court came mete out other sentence given the age of the appellant.

11.Ms Odumba, learned counsel for the state opposed the appeal and submitted that the trial court arrived at the correct decision in convicting and sentencing the appellant. She urged the court to uphold the conviction and sentence.

12.On the alleged variation/conflict on dates, counsel submitted that the charge sheet is 23^rd July 2020 which is the dated the clinical officer examined the victim as she was taken to hospital on the same day.

13.Counsel conceded that the dated stated by the clinical officer is not accurate since no other evidence supports it. She submitted that all the ingredients of the offence of defilement had been prove to the required standards.

14.Regarding the inconsistency on whether or not the complainant bled following the assault, counsel submitted that the minor had washed and changed her pants thus explaining the inconsistency in the blood seen by PW4.

15.Counsel added that there was sufficient proof of fresh penetration as P3 for was filled 5 days after the assault. Counsel urged the court to ignore the minor inconsistencies in the prosecution’s case.

16.On sentences of 20 years imprisonment, counsel submitted that the same is lawful under Section 8(1) (3) of the Sexual Offences Act as the victim in this case was 14 years old. She maintained that there was no evidence to show that the appellant and complainant had a romantic relationship.

17.Counsel referred to the Supreme Court’s decision in Muruatetu and argued that Yawa Ngwale case (supra) cannot overrule the Supreme Court’s guidelines on sentencing.

18.In a rejoinder, Mr. Olel submitted that the glaring inconsistencies in the prosecution’s case should be resolved in the appellant’s favour.

Evidence.

19.The prosecution called a total of five witnesses in support of its case. PW1, the complainant testified that she went to visit her friend one E on 23^rd July 2020, only to be informed that E was not at her home. She stated that on her way back home she met the appellant who called her to his place, dragged into the house of Eva’s brothers, took her to bed, put on a condom, threatened her and defiled her after which she went back home.

20.On getting home, she found her father who beat her as she was not home but she never told him what had happened. She however later informed her mother that the appellant has defiled here after which she was taken to the hospital before the matter was reported to the police.

21.On cross examination, she stated that E is her neighbour and the appellant’s brother.

22.PW2, IPO, the complainant’s mother testified that PW1 is her daughter aged 14 years. She recalled that she was at her place of business on 23^rd July 2020 when her husband called her to enquire about the whereabouts of PW1.

23.She stated that she later got home at about 5pm when she saw PW1 limping and crying. PW1 informed her that her father had beaten her and that the appellant had defiled her. She took PW1 to hospital and later reported the matter to the police.

24.She testified that she examined the complainants’ private parts which had blood and that the complainant was in pain. She also testified that the appellant was known to her as they live in the same village.

25.PW3 JOO, the complaint’s further testified that he got home on 23^rd July 2020 at about 3pm and realized that the complainant was not at home. He then saw the complainant come back but she was not able to explain where she had been. He then beat her and left the home but on coming back, PW2 informed him that the appellant had defiled PW1. PW1 was then taken to hospital and they reported the incident to the police.

26.PW4 P.C. Maureen Anguku was the investigator stationed at Ogal Police Post. She sated that she was on duty on 23^rd July 2020 at 1.20pm when PW1 and PW2 reported that he appellant had defiled PW1. She stated that the appellant surrendered himself to the police two days later.

27.PW5 Keziah Tanui was the Clinical Officer bases at Jaramogi Oginga Odinga Teaching and Referral Hospital. She testified that she filed the PRC form on examination the complainant. She noted bruises and whitish discharge from her vagina. The complainant’s hymen was broken.

28.She produced the PRC form while the P32 form was produced by PW1. When placed on his defence, the appellant denied the offence and stated that he was never examined to establish if he defiled the complainant.

Analysis and Determination

29.As the first appellate court, this court is minded of the principles set in the case of Okeno vs. Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to afresh and exhaustive examination (Pandya V R 1975) E.A 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 conclusion (Shantilal M. Ruwala V. R[1957] E.A 570. It is not the junction 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 vs Sunday Post 1978) E.A 424.”

30.The appellant herein was charged with the offence of defilement. The ingredients of the offence of defilement were stated in the case of George Opondo Olunga vs Republic [2016] eKLR, as identification or recognition of the offender, penetration and the age of the victim.

31.In the instant case, the ingredients of identification and age of the victim were not disputed. The appellant was well known to the complainant as her neighbour and brother to her friend, one E. The complainant’s Birth Certificate (P Exhibit 2) indicated that she was born on 12^th November 2006. This means that the complainant was 14 years old as at 23^rd July 2021 when the incident occurred.

32.Turning to the element of penetration, I note that the same is defined under Section 2 of the Sexual Offences Act as “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

33.In John Mutua Munyoki vs. Republic [2017] eKLR, the Court of Appeal held that:“Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt… The clinical officer was categorical that he was not in a position to ascertain the act of defilement after examining the complainant. He testified that he conducted vaginal examination and found no tears, no bruise, no hymen and no discharge. In addition, there were no spermatozoa and yeast cells or fungal cells. The complainant had also confirmed to him that she had previously engaged in sexual intercourse and was therefore not a virgin. Accordingly, the lack of hymen could not be attributed to the alleged incident involving the appellant. In a nutshell, there was no evidence of penetration. Faced with similar situation, this court in the case of Arthur Mshila Manga (supra) observed while allowing the appeal that:“‘But did the medical evidence on record established that JM was defiled” We do not think so. It is apposite to produce verbatim the findings of Jenliza after examining JM, as narrated before the trial court by PW 3. No blood stain was seen on clothes. On the head, abdomen and thorax nothing was seen. On the genitalia the hymen was absent and the vagina was open. No discharge was seen. No injuries on the legs or hands. Pregnancy and HIV tests were negative. The urine was negative. HIV test was to be done after three months. I wish to produce the PW3 form as PEX1.The Court proceeded and stated that:“‘From both the evidence of PW 3 as well as the P3 form, which we have carefully perused, other than noting absence of hymen and consequently an open vagina, Jenliza never expressed any opinion that the JM had been defiled, or defiled the previous day. There was nothing on record to suggest that JM had lost her hymen the day before Jenliza examined her. The medical evidence having failed to confirm that JM was defiled, the only other evidence of defilement was that of JM. It is trite that under the proviso to Section 124 of the Evidence Act, a trial court can convict on the evidence of the victim of a sexual offence alone. (See Mohamed v Republic (2008) KLR G&F, 1175 and Jacob Odhiambo Omuombo v Republic (supra).However, before the court can do so, it first must believe or be satisfied that the victim is telling the truth and secondly it must record the reasons for such belief.As we shall endeavor to demonstrate later in this judgment, much as the trial court believed the testimony of the complainant, there was no strict compliance with the requirements of the proviso to section 124 of the Evidence Act aforesaid. It is quite clear that there was doubt as to whether the complainant was actually defiled by the appellant since there was no credible evidence as to the penetration of the complainant. It is trite that those doubts should have been resolved in favour of the appellant.”

34.The complainant testified as follows on the defilement: -“On my way home, I met the accused person. I know him as Oricho…. He threatened to beat me. The accused put on a condom and had sex with me. I went home.”

35.The key evidence that the courts rely upon in establishing penetration in the offences of rape or defilement is the complainant’s own testimony which is usually corroborated by the medical report presented by the medical officer. In the present case, I have no doubt that the child was telling the truth on what had transpired. She was categorical that she was defiled by the appellant, a person she knew and even identified at the dock.

36.The complainant’s testimony was supported by the Clinical Officer PW5, who testified that she authored the PRC (Post Rape Care) form dated 23^rd July 2020. The PCR form, in part, contains the following information.“The Survivor reports that yesterday 22/7/2020 she went to visit her girlfriend Eva but she missed her. On her way back she was called by Oricho who grabbed her to his friend’s house (Jerry) threw her on bed and forcefully penetrated her vagina using his penis….Date of examination 23/7/2020 at 9.20amDate of incident 22/7/2020 at 4pmGenital ExaminationBruises of 6 O’clock & 5 O’clockHymen Broken.”

37.I have perused the P3 Form produced in court Exhibit 5, wherein at the section of the physical state of and any injuries to the complainant’s genitalia the report states; “Normal external genitalia, Hymen broken.”

38.In disputing penetration, the Appellant took issue with the discrepancy in the date and time of the offence as stated by the complainant and her parents on one hand and as stated by the investigating officer and the Clinical Officer on the other hand. I note that while the complainant testified that she was defiled on 23^rd July 2020 at 3pm, PW4 the Investigating Officer testified that the complainant and her mother reported the matter to the police on 23^rd July 2020 at 1320hours which translates to 1.20pm. PW5, the Clinical Officer, on her part, testified that the date of the incident was 22^nd July 2020 and that she examined the victim/complainant on 23^rd July 2020 at 9.20am.

39.My finding is that the discrepancy or difference in the date and time of the incident, as narrated by the complainant and her parents and as stated by the police and the Clinical officer, does not dilute the otherwise watertight evidence presented by the complainant and corroborated by the medical evidence. I am satisfied that the offence of defilement was proved to the required standards and that the trial magistrate arrived at the correct finding in convicting the appellant.

40.On sentence, Mr. Olel, learned counsel for the appellant submitted that the same was harsh given the circumstances of the case and the appellant’s tender age. This court is aware of the recent developments in the jurisprudence on mandatory sentences. For instance, in WOR vs Republic (Criminal Appeal E017 of 2020) KEHC 412 (KLR) Ochieng J. (as he then was) held that:-“Prior to the Supreme Court’s decision in the case of Francis Karioko Muruatetu & Another vs Republic [2017] eKLR, the courts construed mandatory sentences in a literal sense; just like the trial court herein. However, as the Supreme Court held, mandatory nature of prescribed sentences for the offence of Murder, was unconstitutional because it took away the Court’s discretion to be able to determine such sentence as may be informed by the particular circumstances of the case before it.I am alive to the fact that the Supreme Court did issue Directions, subsequent to its judgment in the “Muruatetu Case”, clarifying that that decision was only in relation to murder cases.However, I hold the considered view that if the mandatory nature of the death penalty was declared unconstitutional, a similar reasoning can extend to mandatory sentences such as those in Section 8 of the Sexual Offences Act.I am unable to see any distinction between the mandatory nature of the sentence for the offence of Murder, and the mandatory minimum sentence for the offence of defilement. In my view, what renders the sentence unconstitutional is the fact that the prescribed sentence completely precludes the Court from exercising any discretion, regardless of whether or not the circumstances so required.Accordingly, I do hereby set aside the sentences…. In the circumstances I now hereby re-sentence the Appellant to 15 Years Imprisonment for the offence of Defilement; and another 15 Years Imprisonment for Deliberate Transmission of HIV. However, I direct that the sentences should run concurrently.”

41.Taking a cue from the decision in the above cited case, I find that the mandatory sentences provided in statutes is no longer binding on our courts. In the circumstances of this case, and having regard to the mitigation presented by the appellant before the trial court, I find that a 3 year sentence would suffice. In the circumstances I now hereby set aside the 20 year sentence and re-sentence the Appellant to 3 Years Imprisonment for the offence of Defilement which sentence shall begin to run from the date of his conviction.

42.This court makes the following final orders:-i.The appeal on conviction fails and the conviction is hereby upheldii.The appeal on sentence same is allowed and the appellant 20 years’ imprisonment is hereby reduced to 3 years’ imprisonment. Sentence will begin to run from the date of conviction.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 7^TH DAY OF NOVEMBER, 2022.W. A. OKWANYJUDGEIn the Presence of:Court Assistant – OjalaOlel for Appellant

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