GNK v Republic (Criminal Appeal E075 of 2022)  KEHC 16236 (KLR) (Crim) (13 December 2022) (Judgment)
Neutral citation:  KEHC 16236 (KLR)
Republic of Kenya
Criminal Appeal E075 of 2022
K Kimondo, J
December 13, 2022
(Appeal from the judgment in S. O. Case No. 143 of 2017 in the Chief Magistrates’ Court at Makadara by H. M. Nyaga, Chief Magistrate, dated 22nd December 2021)
1.The appellant was charged with two counts of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act (hereafter the Act).
2.He was adjudged guilty on count I as well as the alternative charge to count II (committing an indecent act with a child) contrary to section 11 (1) of the Act.
3.He was sentenced to life imprisonment on the first count and to ten years on the alternative charge. The sentences were 'to run concurrently'.
4.The particulars of count II were that on diverse dates between 26th and 30th September 2017 at [particulars withheld] township within Nairobi, he caused his penis to penetrate the anus of MK [particulars withheld] a boy aged 11 years.
5.Regarding count II, particulars were that on the same dates and place, he penetrated the anus of CN [particulars withheld] a boy aged 9. The alternative charge on that count was that his penis touched the private parts of the complainant.
6.The appellant filed an appeal on May 19, 2022. There are four grounds which can be condensed into two: Firstly, that the prosecution’s evidence was riddled with contradictions; and secondly, that the defence was disregarded.
7.The appellant filed submissions on July 8, 2022. His case is that the prosecution did not prove the charge beyond reasonable doubt. I must point out that he tried to urge additional grounds in those submissions without the mandatory leave of the court. Such grounds are without legal and procedural foundation.
8.One important point raised in the submissions is that he was convicted and sentenced under section 8 (2) of the Act instead of section 8 (4) as charged. I will address the complaint later in the judgment.
9.The appeal is contested by the respondent through grounds of opposition dated September 7, 2022 and written submissions dated September 8, 2022.
10.On November 24, 2022, the appellant and learned counsel for the respondent informed me that they were relying wholly on their submissions.
11.This is a first appeal to the High Court. I have re-evaluated the evidence and drawn independent conclusions. I am alive that I neither saw nor heard the witnesses. Njoroge v Republic  KLR 19, Okeno v Republic  E. A. 32.
12.The complainants were children of tender years. The trial court conducted a detailed voire-dire examination. The learned trial magistrate was satisfied that the two were intelligent and understood the duty of telling the truth. However, they did not comprehend the nature of an oath and were thus affirmed.
13.I am thus satisfied that the trial court employed the correct procedure in taking their evidence. See generally, Republic v Peter Kiriga Kiune Criminal Appeal 77 of 1982 (unreported), Johnson Muiruri v Republic  KLR 445.
14.According to PW1 (MK) at around 10:00 pm on September 26, 2017, the appellant slept between him and CN. The appellant then pulled down PW1’s trousers and underwear and put his penis into his anus. He tried to scream but he was threatened by the appellant.
15.According to Dr Joseph Maundu (PW4) the anal sphincter for MK was loose and 'there was likelihood of defilement'. He produced the relevant P3 Form for MK as exhibit 3(b). I thus concur with the learned trial magistrate’s finding that MK was penetrated.
16.In reaching that conclusion, I am well guided by section 2 of the Sexual Offences Act which defines penetration as 'the partial or complete insertion of the genital organs of a person into the genital organs of another person'.
17.CN also claimed to have been penetrated by the appellant on September 25, 2017. But according to the doctor (PW4) his 'anal region was normal'. I have paid heed to the P3 form for this complainant (exhibit 3(a). I again agree with the learned trial magistrate that the evidence could not sustain the main charge of defilement in count II. Furthermore, the alleged date of the offence fell outside the particulars of the charge sheet. Granted the evidence, even the alternative charge was on shaky foundation.
18.The mother of the two complainants MMW (PW3) said her sons were born in 2006 and 2008 respectively. This was the only evidence on age. She said she had given the birth notifications to the investigator. The latter did not testify. So was age proved? my answer is affirmative for the following reasons: Firstly, the trial court had the full benefit of seeing and hearing the minors and conducted a detailed voire dire examination.
19.Secondly, the mere absence of a birth certificate or other documentary evidence does not mean the age was not proved. I am fortified in that conclusion from the recent decision of the court of appeal in Martin Wanyonyi Nyongesa v Republic, Eldoret, Criminal Appeal 661 of 2010  eKLR. The learned judges delivered themselves as follows-
16.Accordingly, I find that PW1 was aged 11 while PW2 was 9 at the time of the offence. Granted the position, the charge sheet erroneously made reference to section 8 (4) instead of section 8 (2) of the Act. The conviction and sentence by the trial court is clear. In any case I find that the error was curable under section 382 of the Criminal Procedure Code.
21.I will now return to the evidence of PW3. The appellant was her 'boyfriend…it was an on and off relationship [which] started in 2011'. They had no children together. It was a difficult relationship and on the dates of the alleged offences, they had separated.
22.On one of the unspecified days, she came back to the house late and found the appellant sleeping on a mattress on the floor with MK. She became suspicious because 'the bed was not fully occupied'. The next morning, she caned the boys who opened up on the matter.
23.The appellant testified in the lower court that he was the step-father to the two complainants and lived with them in a single-roomed house. There is hence no doubt about identification. See Wamunga v Republic  KLR 424, Maitanyi v Republic  KLR 198 at 201. There was only one bed. According to PW3, the boys would sleep on a mattress on the floor while the couple would occupy the bed.
24.The appellant’s defence was that the charges were fabricated by PW3. He also said that he was HIV positive yet none of the complainants was infected. The learned trial magistrate analyzed the defence and the submissions by the appellant and found it to be bogus. The trial court in the judgment found that it was not necessary that transmission of HIV be proved; and, that that would constitute a different offence. It is thus not true that the appellant’s defence was not taken into account.
25.I have stated earlier that the evidence of PW1 was corroborated by the medical evidence from PW4. Furthermore, the appellant had the opportunity to commit the offence. He was living with the two complainants. This amounts to further corroboration. Opo v Republic [1976-80] 1 KLR 1669.
26.I partly agree with the appellant that there were some inconsistencies in the evidence from the two complainants. But they were minor and immaterial. Furthermore, and as stated by the court of appeal, in any trial there are bound to be such discrepancies. Joseph Maina Mwangi v Republic, Criminal Appeal No. 73 of 1993.
27.I have however paid keen attention to the evidence of PW3. When she first testified on April 4, 2018, she said that between 26th and 30th September 2017, she was separated from the appellant. It means that the incidents she referred to when the appellant defiled the complainants must have taken place earlier. That must be the case because when she was recalled to the stand on November 4, 2019, she said that 'previously, when my children told me about what you did, you denied'.
28.I have also treated her evidence with circumspection in view of the fights and conflicts in the relationship. But I have found no cogent evidence to show that she framed up the appellant. Like I have stated, there was sufficient and corroborated evidence from PW1 and PW4 showing that the appellant defiled PW1.
29.In the end, I have reached the conclusion that the appellant partially or fully penetrated PW1 (MK). The conviction on count I was thus safe. However, the conviction on the alternative charge under count II was unsafe and is set aside.
30.I will now turn to the sentence. Section 354 (3) of Criminal Procedure Code empowers this court to review the sentence. Under the Act, the minimum sentence for defiling a child under the age of 11 years is life imprisonment. The trial court considered the appellant’s mitigation and records. It also referred to recent trends and precedents on sentencing.
31.The court of appeal has however given fresh guidance on minimum sentences under the Sexual Offences Act. In Jared Koita Injiri v Republic  Kisumu Criminal Appeal 93 of 2014  eKLR. The court held:
30.I accordingly set aside the life sentence. I have considered that the appellant is a first offender, the gravity of the offence and the life-long trauma to the young complainant.
31.The upshot is that the appeal partially succeeds to the extent that the conviction on the alternative charge in count II is set aside. However, the conviction on count I is upheld. The appellant shall now serve a term of 20 years in jail on count I. The sentence shall run from December 22, 2021, the date of the original conviction. However, any period spent in remand custody shall be deducted from the sentence.It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF DECEMBER, 2022.KANYI KIMONDOJUDGE Judgment read virtually on Microsoft Teams in the presence of-Appellant.Mr. A. Otieno for the Republic instructed by the Office of the Director of Public Prosecutions.Mr. E. Ombuna, Court Assistant.