Wekesa v Republic (Criminal Appeal E062 of 2022)  KEHC 16326 (KLR) (15 December 2022) (Judgment)
Neutral citation:  KEHC 16326 (KLR)
Republic of Kenya
Criminal Appeal E062 of 2022
RPV Wendoh, J
December 15, 2022
1.This is an appeal from the judgment of the Resident Magistrate Kehancha dated 16/12/2020. The appellant was charged with the offence defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. He was alleged to have defiled a child aged nine (9) years MWM on 28th and 29th April 2020. He was acquitted of the said charge.
2.In the alternative, he was charged with the offence of committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act.
3.The particulars were that on 28th and 29th April, 2020 at [Partuculars withheld] location he intentionally touched the vagina of MWM a child aged nine (9) years. he was convicted of the alternative charge and sentenced to ten (10) years imprisonment.
4.The appellant is aggrieved by the judgment of the trial court and preferred this appeal. He raised three grounds of appeal in his submissions.1)that his Constitutional rights under Article 50(2)(b) and (j) of the Constitution were violated;2)That the offence was not proved;3)That the appellant’s identity was not full proof;4)That the sentence meted was harsh and excessive.
5.On the first ground, the appellant contends that the witness statements and documents to be relied upon were not served on him in good time to enable him prepare his defence and that the P3 form produced in evidence does not relate to the complainant; that he was not examined to confirm if he could commit the offence as he suffers from erectile dysfunction; that he failed to defend himself properly because he was confused; that he is unwell and prays for quashing of conviction and sentence set it aside or reduction of the same.
6.Mr. Mulama the prosecution counsel filed his submissions opposing the appeal.
7.He submitted that the court found the minor, PW1 was found to be nine (9) years of age as per the testimonies of PW2 and PW3; that the court should disregard the Birth Certificate produced by PW4, CPL Mutua describing the complainants as sixteen (16) years nine (9) months; that the court had the opportunity to see the minor and ascertain whether she was about 17 years old. Counsel relied on the decision of PMM vs. Republic (2018) eKLR and Court of Appeal in Mwalango Chicoro Mwanjembe vs, Republic (2016) eKLR. that age can be proved, by documentary evidence, i.e. birth certificate, baptism card or evidence of a guardian and medical evidence. As to proof of penetration, counsel urged that the same was proved from PW1’s testimony in terms of Section 2 of the Sexual Offences Act which defines penetration; that PW3, found that there was redness of the labia Majora and broken hymen which he described as attempted defilement; that the trial court found that the medical evidence indicated that the insertion was not complete, but there was partial insertion which amounts to penetration and thus the trial court erred in dismissing the oral evidence of the minor that there was penetration.
8.Counsel urged the court to set aside the conviction on the alternative charge and replace it with a finding on the main charge.
9.As to whether the defence was considered, counsel urged that it was duly considered and the court found there to be no grudge or malice nor did he raise the issue of erectile dysfunction.
As to the Appellants right under Article 50(2)(b)(g) and (j)
10.Counsel submitted that even if the record does not show that the appellant was availed witnesses statements. From the cross examination of the witness, it was clear that the appellant was aware of the prosecution case and it is demonstrated in cross examination of PW1 and PW4.
11.As to the appellant’s right to counsel, under Article 50(2)(g) counsel noted that the court did notify the appellant of the said right.
12.As regards sentence, counsel urged that under Section 8(2) of the Sexual Offences Act, the appellant was liable to a sentence of life imprisonment. Counsel urged the court to pass the mandatory sentence as was held in Onesmus Safari Ngao vs. Republic Criminal Appeal No. 5 of 2020, counsel urged that the sentence meted on the appellant was a slap on the wrist and urged the court to imposes the mandatory life sentence. Counsel also relied on the decision of R vs. Ruth Wanjiku Kamande Criminal Appeal No. 102 of 2018 where the court handed the accused a death sentence for murder.
13.Mr. Mulama urged this court to dismiss the appeal as the prosecution case was not discredited at all.
14.This is a first appeal and it behoves this court to exhaustively examine all the evidence tendered in the trial court, analyse it and come up with its own determination.
15.This court should however bear in mind that it neither saw nor heard the witnesses testify. This court is guided by the decision in Okeno vs. Republic (1972) EA 32.
16.The prosecution called a total of five witnesses in support of their case. PW1 MWM gave unsworn evidence after the court conducted a voire examination and found that she did not fully understand the meaning of the oath. She told the court that she is aged eight (8) years, she knew the appellant as a person who used to plough their farm and also knew where he lived; that on 29 /4/2020, while on a guava tree, the appellant told her to come down, took her by the hand upto his house. He closed the door, removed her skirt removed her inner clothes and inserted his ‘kidudu’ in what she uses to urinate. He held her mouth. When he finished, he told her not to tell anyone but she told her ‘Goko’ (grandmother). On 29/4/2020 at 6:00a.m when fetching water the appellant caught her again, took her to his house, cooked bananas and tea. She slept there but refused to do bad manners with him. She bathed next day and went home and ‘Goko’ wanted to know where she slept. PW1 took the grandmother to the appellants’ house. One Obiaya and Mama took her to the Police Station and then to hospital.
17.PW2 HJ, the complainant’s mother told the court that on 29/4/2020, she heard from the grandmother of the complainant that PW1 had not slept at home; that PW1 was taken to her and that grandmother told her to report to the police PW2 enquired from PW1 who disclosed that the appellant had found her picking guavas and defiled her. PW2 said that PW1 lives with her grandmother (Goko).
18.PW3 Brian Mogaka a Clinical Officer at Kuria West Sub County Hospital examined the complainant (PW1) on 30/4/2020 and found the labia majora to be reddish but no bruises or lacerations; the hymen was broken and had a foul smelling discharge; that there were traces of blood in the urinalysis and urine had pus. According to him, because of the tenderness to the labia, the penetration was not complete. He said that the complainant was in pain and she had an infection.
19.PW4 Cpl Thomas Mutua, the investigating officer testified that a report of alleged defilement had been made on 30/4/2020 but the appellant could not be traced at his house. On 8/5/2020, he was arrested while ploughing land in Kehancha. PW1 said that the complainant was aged nine (9) years as per her birth certificate.
20.When called upon to defend himself, the appellant gave unsworn evidence in which he denied the offence. He denied knowing why he was arrested and did not know the complainant and that he was just framed. He claimed to be sickly. He did not call any other witness.
21.Having considered all the evidence tendered in the trial court and the submissions filed by both parties, I think that it is proper if I address alleged violations of the Constitution first.
22.Article 50 of the Constitution guarantees accused person’s right to fair hearing. By dint of Article 25 right to fair hearing cannot be derogated. The appellant alleges violation of the following rights; Article 50(2) (b) and (j). Article 50 (2) (b) and (j) provide as follows:-
23.I have perused the court record. When the appellant was arraigned in court on 11/5/2020, it is recorded that the substance of the charge and every element was read and explained to the appellant. Interpretation was in Kiswahili which he understood. He replied to the charge that it was false. He did likewise deny the alternative charge. A plea of not guilty was entered and the case proceeded to full trial. Nowhere in the proceedings did the appellant claims not to have understood the charge. Even the fact of pleading not guilty clearly indicates that he understood the charge. The appellant has not stated clearly what he did not understand in the charge. I have no doubt that the charges were read to the appellant, explained to him through an interpreter and he understood them. The charge complied with Section 134 of the Criminal Procedure Code which provides as follows:-
24.It is no wonder that when the matter came up for hearing on 18/5/2020, the appellant said that he was ready to proceed with the hearing. The right under Article 50(2)(b) was not breached.
25.The appellant also complained that he was not given witness statements as required, to enable him prepare his case which was a violation of Article 50 (2) (j). Although it is not expressly stated on record that the appellant was given witness statements, from the cross examination of PW1, PW2 and PW3, which was elaborate and detailed, it goes to show that the appellant must have had the witness statements. In cross examination of PW1, the appellant made reference to PW1’s statement. She said “the 2nd day it is not true that I wrote I was with him at the shops shelter. He is lying (Being referred to her statement to the police that it was a veranda not a shop). I wrote it was veranda for the house and not a shop.” It is evident from this cross examination that the appellant had the witness statements at the time PW1 testified. PW4 also referred to witness statements in cross examination. I find that the appellant had been issued with witness statements by the time of the trial and that ground must fail. The court finds that appellants rights to fair trial were not infringed.
Whether the offence of defilement was proved.
26.To prove an offence of defilement, the prosecution has to prove beyond any doubt the existence of the following:-1.That there was penetration;2.That the complainant was a child;3.Identify of the perpetrator.
27.Penetration is defined under Section 2 of the Sexual Offences Act as follows:-
28.Although PW1 gave unsworn evidence, she was subjected to a lengthy cross examination and at no time did she faulter in the narration of the events of 28th and 29th April, 2020. They were clear and detailed. Tested in cross examination , her evidence was unshaken. The appellant whom she knew well, took her by the hand, led her to his house, locked the door undressed and put his organ for urination into hers. It seems he repeated it on 29th night when she slept in his house. PW3 found that PW1’s labia majora were red with tenderness. In fact the doctor could not do tests on her because the complainant was in pain. PW3 found that there was partial penetration which to him was attempted penetration. That is an interpretation in literary terms. However, the Sexual Offences Act is clear. The act of Penetration need not be complete but can be partial. In Mark Oiuri Mose vs. Republic (2013)eKLR the court held as follows:-
29.From the definition of the term penetration under Section 2 of Sexual Offences Act and the testimonies of PW1 and PW4, there was proof of penetration. I find therefore, that the trial court fell into error when it found that the apeplalnt committed an indecent act with a child under Section 11(1) of the Sexual Offences Act.
30.As to the age of the complainant, the court found her to be a child of tender age and therefore took her through voire dire examination. PW1 said that she was eight (8) years old. PW2, PW1’s own mother also said that she was eight (8) years old. PW1 was subjected to age assessment (PEX3) and she was found to be about nine (9) years. As held in the PMM’s case (supra) and Mwalango’s case supra, age can be proved through a birth certificate, baptism card, by medical evidence or by oral evidence of the guardian or parent. I find that There is sufficient evidence on record to confirm that the complainant was by then eight to nine years, hence a minor.
Who was the perpetrator?
31.The offence took place in broad day light. PW1 knew the appellant before. He lured PW1 into his house not once but twice and she even spent the night with him. Once interrogated as to where she slept, she pointed to the appellant. Though the appellant claims to have been framed, he did not allude to any reason as to why he could have been framed. He denied knowing the complainant and although in cross examination of PW2, he seemed to be insinuating that she wanted money from him, that was not his defence.
32.During the trial, the appellant claimed to have erectile dysfunction. Although he was supposed to be taken for medical check up, it was not clear what happened. Again it was not part of his defence. PW1 was specific and particular in her narration of what happened to her, that the appellant inserted his ‘kidudu’ for urinating into hers’. I have no doubt that the appellants’ male organ is what penetrated PW1.
33.Whether his defence was considered, the court clearly considered the defence and found no reason why PW1, a child of nine (9) years would have framed the appellant. The court also observed PW1’s demeanour and guided by Section 124 of the Evidence Act, believed PW1’s evidence as unshaken and the truth.
34.The appellant was given notice by the State of their intention to apply to the court to find that an offence of defilement was committed and that the court should sentence appellant under Section 8(2) of the Sexual Offences Act. After the appellant was duly warned of the consequences of the notice; he insisted that he wants to proceed with his appeal.
35.In the end, I find that the trial court’s finding convicting the appellant for an offence of committing an indecent Act, with a child contrary to Section 11 (1) of the Sexual Offences Act was made in error. I quash the conviction and set aside the sentence. I find that the appellant defiled the complainant and I convict him of that offence of defilement contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act.
36.The complainant was a young child of 8 – 9 years, one fit to be the appellants grandchild whom he should have been protecting. Instead, he was preying on her and stole her innocence. I have taken into account the appellants advanced age of over fifty (50) years but because of his conduct, he should be kept away from other would be victims for a while by the court handing him a deterrent sentence. He is sentenced to twenty five (25) years imprisonment.
DELIVERED, DATED AND SIGNED AT MIGORI THIS 15TH DAY OF DECEMBER, 2022.R. WENDOHJUDGEJudgment delivered in the presence ofMr. Maatwa, for the State.Appellant present in person.Evelyne Nyauke – Court Assistant