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NMK v Republic (Criminal Appeal E007 of 2021) [2023] KEHC 779 (KLR) (2 February 2023) (Judgment)
Neutral citation:
[2023] KEHC 779 (KLR)
Republic of Kenya
Criminal Appeal E007 of 2021
LW Gitari, J
February 2, 2023
Between
NMK
Appellant
and
Republic
Respondent
Judgment
1.The appellant was charged with the offence of defilement contrary to Section 8(1)(3) of the Sexual Offences Act (No. 3 of 2006). In the alternative, the Appellant faced the charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (No. 3 of 2006) (the “Act”).
2.The trial court found the Appellant guilty of the main count and sentenced him to serve fifteen years’ imprisonment.
3.The Appellant, being dissatisfied with the decision of the trial court filed the instant appeal challenging both the conviction and sentence vide the Petition of Appeal dated 26th January 2021. He raised the following grounds of appeal:i.That the learned magistrate erred in both matters of law and facts by imposing a harsh and excessive sentence without considering the circumstances in which the offence was committed.ii.That the learned trial magistrate erred in both matters of law and facts by imposing a harsh and excessive sentence upon the appellant without taking into consideration that he was deceived by the victims physical appearance.iii.That the learned trial magistrate erred in both points of law and facts by disregarding the appellant’s defense without giving cogent reasons.iv.That the learned trial magistrate erred in both points of law and facts by imposing a harsh and excessive sentence without considering the victim’s report.v.That the learned trial magistrate erred in both matters of law and facts by taking into consideration only the age of the complainant without considering that she did not disclose her age to the appellant hence contravened Section 8(1)(5) of the Sexual Offences Act.
4.The appeal was canvassed by way of written submissions. The Appellant filed his submissions on 23rd February 2022 while the Respondent filed his submissions on 28th April 2022. Hereunder is a summary of the respective submissions of the parties.
Appellant’s Submissions
5.It was the submission of the Appellant that the sentence imposed upon him was harsh considering that he was arrested at a youthful age and a first offender. According to him, the complainant herein was the same age as the Appellant and they were amicable friends and not strangers. He stated that the complainant willingly consented to having a relationship with the Appellant and that from her appearance, it could be presumed that she was an adult.
6.The Appellant further faulted the trial court for not taking into account the period that he had spent in custody while undergoing trial. The appellant thus prayed for this court to discharge him unconditionally or, in the alternative, to impose a lenient sentence.
Respondent’s Submissions
7.In opposing the appeal, the Respondent submitted that the sentence meted out on the Appellant is as provided under Section 8(3) of the Sexual Offences Act which is couched in Mandatory terms. As such, it was submission of the Respondent that in the circumstances, there is no other sentence that can be meted out on the Appellant.
8.The above notwithstanding, the Respondent conceded that the time that the Appellant spent in custody during the pendency of his case before the lower court ought to be deducted from the sentence that was meted out against him.
Issue for determination
9.From the Appellant’s grounds of appeal and the respective submissions of the parties, the main issues for determination by this Court are:i.Whether the Appellant’s conviction was safe.ii.Whether the sentence meted against the Appellant was excessive.iii.Whether the trial court took into account the time the Appellant spent in custody while undergoing trial and if not, which sentence will be appropriate in the circumstances?
Analysis
10.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 v Republic [2005] 1KLR 174 the Court of Appeal stated that:
a. Whether the Appellant’s conviction was safe.
11.In the main count, it was alleged that on diverse dates between 22nd and 27th February 2019 at [particulars withheld] Village in Tharaka South Sub-County within Tharaka Nithi County, the Appellant intentionally caused his penis to penetrate the vagina of a child aged 15 years. The Appellant pleaded not guilty to the charge and the matter proceeded to full trial.
12.PW1 was the victim herein. She testified that she was 16 years old having been born on 7th March 2003. She stated that she knew the accused in the dock and had known him since 2017. She stated that she moved in with the accused for 5 days in February 2019 when they used to have sexual intercourse. They were then found out on 27th February 2019 by the Assistant Chief and police and they were subsequently arrested. PW1 was then escorted to Marimanti hospital for medical examination where she was found to be pregnant.
13.PW2 was Lilian Wahu, the medical officer who examined PW1 on 1st March, 2019. According to her, PW1 gave a history of being defiled by a person known to her under the false belief that the person she was having sex with would marry her. PW2 examined the genitalia of PW1 and observed that her hymen was broken though not freshly. She also noticed a whitish discharge on her vaginal wall. A pregnancy test was conducted and PW1 was discovered to be pregnant.
14.PW3 was Patrick Nyaga Muchege, an assistant chief in Mwanyani Sub-location. He testified that sometime in the month of February 2019, PW1’s mother, went to Miomponi AP Camp and reported that the whereabouts of her daughter (PW1) were unknown. On 23rd February 2019, she received news from the villagers in [particulars withheld] in Mwanyani sub-location that a young girl who appeared to be of school-going age had been seen at the home of the accused. PW3 made enquiries into the matter and confirmed that PW1 was indeed living with the accused. PW3 then reported the matter to Turima Tweru AP Camp for further investigations. PW1 and the accused were later arrested and escorted to Turima Tweru AP Camp.
15.PW4 was APC Timothy Njeru Ndathe, the arresting officer. It was his testimony that on the material day, he was on duty and in the company of his colleagues APC Musyimi when PW3 went and reported that the Appellant was living with a school girl in [particulars withheld] village. PW3 then led them to the Appellant’s house where they found the complainant. According to PW4, they interviewed the complainant and she confirmed that the Appellant had taken her there as a wife. They took her and as they were leaving, they met the Appellant and that is when they arrested him. PW4 stated that they also interviewed the Appellant and he stated that the complainant was his wife.
16.PW5 was P.C. Emmaculate Kilonzo from Marimanti Police Station. He was the investigating officer in this case. He recalled that on the material day at about 11.59 a.m., he was summoned by the OSC who briefed him about the present case. By this time, the Appellant and the complainant were at Turima Tweru Police Post. In the company of his colleague, P.C. Mohamed, PW5 proceeded to Turima Tweru Police Station where the complainant was handed over to them. He commenced investigations and recorded the witness statements. The following day, PW5 escorted the complainant to Marimanti District Hospital and the Appellant was then arraigned in court. He stated that upon the examination of the complainant, she was found to be pregnant.
17.PW6 was the complainant’s mother. She recalled that between 22nd and 27th February 2019, her daughter, the complainant herein, dropped out of school and went to live with the Appellant as his wife. The complainant was then in Standard 7. PW6 reported the matter to the local administration, that is, the area chief and assistant chief. The complainant was then found at the Appellant’s home and the two were arrested. PW6 was then called to go to Turima Tweru Police Post where the complainant and the Appellant had been taken. They were then transferred to Marimanti Police Station and it is there that PW6 recorded her statement. This marked the end of the prosecution’s case.
18.The Appellant was then put on his defence. He testified as DW1. It was his testimony that on the material day, he left his home and went to open his businesses at Kaangutu Market. That as he was serving his customers, he received a call from his mother asking him to go back home and look after their cows. That he proceeded home and later returned to Kangutu Market. That later on, he saw the area chief with police officers from Turima Tweru Post who arrested him and took him to the said post. That he was informed that he had been arrested for defiling and marrying a school girl, which allegations he denied stating that he did not know the girl. It was further his testimony that the area chief had a grudge against the Appellant’s family as he had married the sister to the Appellant’s father but they divorced. According to the Appellant the said grudge also existed because the area chief and his divorced wife still had property disputes over the properties they had brought together.
19.The learned trial magistrate after evaluating the evidence came to the conclusion that it supported the main charge of defilement. He found the appellant guilty and convicted him.
20.In a case of defilement contrary to Section 8(1) of the Sexual Offences Act, the evidence produced by the prosecution must prove the ingredients of the offence which are:i.That the victim was a minorii.That there was penetration, whether partial or complete,iii.That the accused was positively identified as the perpetrator.
21.Below is an analysis of the aforesaid elements vis-à-vis the evidence adduced by the prosecution.
Age of the victim
22.The complainant herein was born on 7th March, 2003 as per her certificate of birth bearing the serial no. 36xxxx which was produced as an exhibit. This means that the complainant was a week shy of turning 16 years old at the time that the offence was committed. Under section 8(3) (supra) a person commits an offence of defilement where the child is between the age of twelve and fifteen years. It is the age of the child which determines the sub-section under which the offender will be charged. Age is therefore a key ingredient which must be proved. The age of the complainant was proved to the required standard. In the case of Kaingu Elias Kasono v Republic C.A Malindi Criminal Appeal No.54/2010 the court stated that “the age of the victim of a sexual Assault under the sexual offences Act is a critical component. It forms part of the charge which must be proved in the same way as penetration in cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for sentence to be imposed upon conviction will depend on the age of the victim.”
Penetration
23.On the issue of whether there was penetration, the complainant was examined by a medical officer and found to be pregnant. The evidence of pregnancy of the complainant is sufficient proof beyond reasonable doubt that penetration took place, whether partial or complete. The fact of the broke hymen also proved that thee was penetration
Identification of the Perpetrator
24.The complainant stated that the Appellant had been her boyfriend since 2017 and that she later got married to him and they lived as husband and wife in the period between 22nd February, 2019 and 27th February, 2019. The complainant stated that she used to have sexual intercourse with the Appellant during that period. The complainant’s testimony is sufficient to prove that the Appellant had sexual intercourse with her since the said testimony does not need corroboration as per the proviso under Section 124 of the Evidence Act which state:
25.There is a long list of decisions affirming the position that in sexual offences where the victim is a minor, corroboration is no longer necessary as a matter of law. In the case of J.W.A. v Republic [2014] eKLR, the Court of Appeal observed:-
26.In the present case, corroboration of the evidence of the complainant was not necessary as the trial court noted that:
27.From the foregoing, it is my view that the prosecution did prove beyond reasonable doubt that the Appellant defiled PW1. As such, the Appellant’s conviction by the trial court was indeed safe in the circumstances of the case. The defence of the appellant was a mere denial. He never raised the issue that the complainant did not disclose her age to him. Section 8(1) (5) (6) of the Sexual Offences Act provides:The section requires that an accused raises this defence at his trial. It is only after the defence has been raised that the court will consider the defence, the circumstances and the steps which the appellant took to ascertain the age of the complainant. This is because when the accused opts to rely on the defence, the evidential burden shifts on him to which satisfy the conditions under the Section. It is a defence which is available to an accused person. He should lay a basis for that defence during the trial. The appellant did not raise the defence during the trial. It cannot therefore be considered at this stage.
Sentence
28.The age of a child determines the sentence to be imposed upon the offender in cases of defilement. The law on defilement in cases where a child falls in the age bracket of between 12 and 15 years is provided for under Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act. Section 8(1) of the Act provides as follows:
29.From the above provisions, it is clear that the minimum of 15 years is imposed where the child victim is aged between the sixteen and eighteen years as per the provisions of Section 8(4) of the Act. On the other hand, a minimum of twenty years is prescribed under Section 8(3) of the Act for a victim child aged between twelve and fifteen years.
30.In this case, the trial court correctly noted that the complainant herein was 15 years old as at the date of the commission of the offence. The court however sentenced the Applicant to 15 years’ imprisonment yet the applicable sentence, considering the complainant’s age should have been 20 years as prescribed under Section 8(3) of the Act.The sentence imposed by the learned trial magistrate cannot be said to be harsh and excessive. The learned trial magistrate considered all the relevant factors and a social inquiry report. It is trite that sentencing is an exercise of discretion by the trial Judge. The law is well established by a line of authorities from this court and the Court of Appeal that an appellate court will not interfere with the discretion of the trial court in sentencing unless it is shown that the sentence was manifestly excessive, took into consideration irrelevant factors or overlooked some material factors, or acted on wrong principles. This stated in the case of Ogolla s/o Owuor v Republic [1954] E.A CA 270.In Shadrack Kipkoech Kogo v Republic C.A, Criminal Appeal No. 253/2003, Eldoret, the court stated-In Benard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal stated that, ‘sentence is a matter that rests in the discretion of the trial court and must depend on the facts of each case.’The learned trial magistrate considered the probation officers report which he found was not in favour of a none custodial sentence. That the appellant committed the offence while out on bond for a similar offence. He concluded that the appellant is a habitual sexual predator who deserved a deterrent sentence. Taking all these factors which the learned trial magistrate took into consideration, I find that they wee relevant in determining the sentence. The trial magistrate proceeded to exercise discretion and passed a sentence which was below the mandatory minimum provided under the Act. I find the sentence was not manifestly harsh. I have no reason to interfere with the exercise of discretion by the trial magistrate. This ground must therefore fail.
31.The Appellant further submitted that in sentencing him, the trial court erred by not taking into consideration the time he had spent in custody while undergoing trial. Section 333(2) of the Criminal Procedure Code provides as follows:
32.This position is also contained under Clauses 7.10 and 7.11 of the Judiciary Sentencing Policy Guidelines which state:
33.The Appellant herein was arrested on 27th February, 2019. He was failed to meet the bail/bond conditions set by the trial court and such remained in custody from 27th February, 2019 until 27th August, 2020 when the trial court delivered its judgment in this matter. This means that the Appellant spent 1 year and 6 months in custody while undergoing trial. As such, this time ought to have been considered by the trial court during sentencing.
34.The upshot of the above, in my view I find no reason to interfere with the sentence of 15 years’ imprisonment imposed by the learned trial magistrate. Considering Section 333(2) of the Criminal Procedure Code which is couched in mandatory terms the said sentence should run from 27th February, 2019, when the Appellant was arrested, so as to factor in the time that the Appellant spent in custody while undergoing trial.
Conclusion:
25.The appeal is without merits and is dismissed. The Deputy Registrar to issue an amended committal warrant and serve it on the officer in -charge of the Prison where the appellant is serving sentence.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 2ND DAY OF FEBRUARY 2023.L.W. GITARIJUDGE
