[2022] KEHC 17188 (KLR)

Abdi v Republic (Criminal Appeal E047 of 2022) [2022] KEHC 17188 (KLR) (Crim) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17188 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E047 of 2022

JM Bwonwong'a, J

December 15, 2022

Between

Muktar Mohamed Abdi

Appellant

and

Republic

Respondent

((Being an appeal against the conviction and sentence delivered on 1/2/2022 by Hon. Z. Abdul, S.R.M, in Milimani Chief Magistrate’s Court in Sexual Offence Case No. 31 of 2019 Republic vs Muktar Mohamed Abdi)

Judgment

1. This is an appeal against the conviction and sentence of life imprisonment imposed by the trial court for the offence of defilement contrary to section 8 (1) (2) of the Sexual Offences Act, No. 3 of 2006. In his petition of appeal, the appellant has raised seven (7) grounds of appeal challenging both his conviction and sentence.

2. The main grounds raised are as follows. That the learned trial magistrate erred in law and fact in convicting the appellant, when the weight of the evidence did not prove the elements of the offence of defilement. The court erred in convicting the appellant, when there was no sufficient evidence to support the conviction. The learned trial magistrate erred by relying on the uncorroborated evidence of a minor. The sentence meted was manifestly excessive considering the circumstances of the case.

3. As this is the appellant's first appeal, the role of this appellate court is well settled. It was held in the case ofOkeno v Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oiruri Mose v R [2013] eKLR, that this court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

4. LEB (name withheld) Pw 1 told the court that he is 10 years old, having been born on 27th July 2010 and was in school in grade 5. He testified that the appellant had been his madrasa teacher since 2017. That during their lessons and when his mother was away, the appellant would place him on plastic chair, cover his mouth with his hands, remove his clothes and put his penis into his anus. The complainant told the court that the appellant defiled him on diverse dates between 2017 and 2019. He testified that the appellant threatened to stab him if he disclosed these incidents to anyone.

5. In October 2019, he disclosed to his mother what had been happening and he was taken to Nairobi hospital for treatment. The incident was also reported to the police. In court he identified the appellant as the perpetrator.

6. MHH (Pw 2) testified that she is the mother of Pw1 who was being taught religious lessons by the appellant. The appellant would go to their home for the lessons at which time, she would go about her other chores. She told the court that she noticed that Pw 1 was withdrawn and inquired what was the problem. Upon further inquiry, Pw 1 told her that the appellant had defiled him on several occasions and threatened him not to tell anyone. It was her testimony that she took the minor to Nairobi Hospital for treatment and reported the incident at Kilimani Police Station. She was issued with a P3 form and referred to Nairobi Women’s Hospital for counselling and examination.

7. John Njuguna (Pw 3), a clinical officer at Nairobi Women’s Hospital testified on behalf of Belden Nyaswathi, who had examined Pw 1. He told the court that Pw 1 was brought to the facility on 31st October 2019, after he was reported to have a change in behaviour and was experiencing pain in the lower abdomen. On interrogation, the victim stated that his madrasa teacher had been defiling him. Upon examination, no injuries were noted in his genitalia or anus. He concluded that there was late presentation of penal anal penetration. In cross-examination, he told the court that it was normal for such findings in cases where the incident happened over 8 months, prior to the examination.

8. No. 8xxx0 Cpl Dionisio Njeru (Pw 4), the investigating officer testified that the incident was reported at Kilimani Police station. It was his evidence that he escortedPw 1 and Pw 2 to Nairobi Women Hospital for examination and treatment. He proceeded to arrest the appellant, who denied defiling the complainant.

9. The appellant was found to have a case to answer and was put on his defence. He elected to give sworn testimony. He testified that he is a madrasa teacher and had been engaged to teach the complainant from 2016 up to 2019. He denied defiling Pw 1 insisting that he also teaches other children and there had never been an accusation or allegation against him.

10. In grounds 1 and 2 of the appeal, the appellant challenged the weight of the prosecution’s evidence relied upon. He contended that the elements of the offence of defilement were not proved and his conviction was improper. In his submissions, the appellant submitted that there was no evidence tendered to show that the complainant suffered any penetration whatsoever. Further, that the evidence of his mother (Pw 2) and the clinical officer (Pw 3) did not support the element of penetration.

11. In rebuttal, the respondent submitted that the complainant narrated to court how on various occasions he was defiled by the appellant. The clinical officer’s findings of examination of his anal region was that there were no injuries and there was late presentation of penal penetration.

12. From the record, the complainant narrated to court how the appellant defiled him on various occasions during their religious lessons. He told his mother of his ordeal and he was taken to hospital, where he was examined. The clinical officer concluded that this was a case of late presentation of penal penetration. In addition, the age of the complainant was proved, having been born on 27th July 2010 and was therefore a child during the incident. He also positively identified the appellant as the perpetrator of the offence. I find that the elements of the offence of defilement were proved beyond reasonable doubt.

13. In ground 3 the appellant complained that the learned trial magistrate erred by relying on the uncorroborated evidence of a minor. The appellant submitted that the evidence of Pw 2, Pw 3 and Pw 4 was largely circumstantial. He submitted that Pw 2 testified thatPw 1 confided in her that the appellant put a pillow on his mouth during the alleged ordeals. That in contradiction, Pw 1 testified that the appellant would allegedly use his hands to cover his mouth during the alleged ordeals. The appellant urged the court not to ignore the inconsistencies, which cast doubt on the truthfulness of Pw 1’s evidence.

14. He submitted that the trial court was wrong to invoke the provisions of section 124 of the Evidence Act (Cap 80), Laws of Kenya.

15. In this regard, section 124 of the Evidence Actprovides as follows: -“Notwithstanding the provisions of section 19 of the oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other evidence in support thereof implicating him.Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

16. In reaching a determination to convict the appellant, the trial court noted that the child was clear and consistent in his evidence and believed the child’s testimony. The court was therefore satisfied of the child’s truthfulness and his testimony was not shaken in cross examination. The ground therefore fails and is hereby dismissed for lacking in merit.

17. The appellant also submitted that during his trial he was not accorded a fair trial. He is of Somali ethnicity and does not have a proper grasp of English or Kiswahili. That during the trial he was not accorded an interpreter and could therefore not understand the proceedings of the trial court. Counsel for the respondent in the course of his submissions made a candid observation, that it is possible that the appellant did not understand the proceedings in the lower court; since they were conducted in English; which was translated to Kiswahili. On this ground, he urged the court to find that the trial in the lower court was a mis-trial.

18. Regarding the complaint that the appellant was denied the right to interpretation, it is evident that such right is an integral component of a fair trial, for an accused person must be in a position to fully appreciate the goings on at his trial and the evidence given by the witnesses so as to challenge the same, should he wish to. I find as persuasive the decision of the court in Said Hassan Nuno v Republic [2010]eKLR, in which that court stated that:“This court has continually held that an accused person is entitled to choose a particular language he will use in the proceedings and there is a duty to provide an interpreter to him in that language”

19. From the record, during plea taking, the language used was English which was translated to Somali.Pw 1 and Pw 2 testified in Kiswahili and when the appellant did not have the services of an advocate, he cross examined them in Kiswahili. In his defence, the appellant gave evidence in Kiswahili. An advocate came on record, and took over the matter recalling the witnesses under oath to give evidence.

20. At no point in time did the advocate on record for the appellant inform the court that the appellant was in any difficulty with regard to understanding the proceedings. The Court of Appeal in Boniface Kamande & 2 Others v Republic[2010] eKLR stated that:“Lastly, we deal with the issue of language. In the particular circumstances of these appeals, we are satisfied the appellants fully understood the language used in their trial…….The considerations we have set out in respect of the issue of the constitution must equally apply to this issue, namely the presence of advocates at various stages of the trial and none pointing out that an appellant did not understand the language being used”.

21. This ground of appeal therefore fails and is hereby dismissed, for lacking in merit.

22. I find that the medical evidence of John Njuguna (Pw 3), the clinical officer, who testified on behalf of his colleague (Belden Nyaswati) is inadmissible. The prosecution failed to lay a foundation for the reception of the medical report prepared by Belden Nyaswati, who was reported to have gone on unpaid leave. The laying of the said foundation was a condition precedent to the reception of the evidence of Pw 3. It was not demonstrated that Belden Nyaswati would not be secured to testify without unreasonable delay. This is very clear from section 33 (b) of the Evidence Act(Cap 80), Laws of Kenya. which provides as follows:“Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases—(a)(b)when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;”

23. Upon evaluating the entire evidence, I find that even without the said medical evidence the offence was proved beyond reasonable doubt.

24. The appellant submitted that the trial court found that the prosecution had established a prima facie case without explaining to him his rights as required under section 210 of the Criminal Procedure Code (Cap 75) of the Laws of Kenya. and proceeded to put him on his defence. He submitted that the provisions of this section are mandatory in nature and form and that they were not complied with.

25. From the record, the prosecution closed its case and the accused was given an opportunity to file submissions. A ruling date was fixed. In its determination, the court found that the prosecution had established a prima facie caseagainst the appellant and placed him on his defence. It is at this point that the appellant opted to give sworn evidence in his defence. I find that the provisions of the said law were complied with. The ground therefore fails and is hereby dismissed for lacking in merit.

26. On sentence, the appellant submitted that the sentence imposed was manifestly excessive considering the circumstances of the case. The appellant was sentenced to life imprisonment. It is trite law that sentencing is a matter for the discretion of the trial court. That discretion must be exercised judiciously in accordance with the law taking into account the facts and circumstances of each case.

27. The punishment prescribed by the law for the offence of defilement for a child of less than 11 years is life imprisonment. The court record shows that the appellant was a first offender.The sentenced imposed by the trial court was therefore lawful.

28. The upshot of the above analysis is that the appeal is hereby dismissed in its entirety.

JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF DECEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMr. Otao holding brief for Mr. Eshuchi for the appellantThe applicant in personMs Akunja for the Respondent