[2023] KEHC 25684 (KLR)

AKN v Republic (Criminal Appeal E020 of 2022) [2023] KEHC 25684 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25684 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Appeal E020 of 2022

FN Muchemi, J

November 3, 2023

Between

AKN

Appellant

and

Republic

Respondent

(Being an Appeal against the conviction in the Principal Magistrate Court in Wang’uru by Honourable P. M. Mugure (PM), in Criminal Sexual Offence Case No. 30 of 2018 on 10th February 2022)

Judgment

Brief Facts 1. The appellant lodged this appeal against the entire judgment of the Principal Magistrate Wang’uru where he was charged and convicted of the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 for the offence.

2. Being aggrieved by the decision of the trial court, the appellant lodged the instant appeal citing 4 grounds of appeal summarised as follows:-a.The leaned trial magistrate erred in law and fact on convicting the appellant on a defective charge sheet;b.The learned trial magistrate erred in law and in passing the judgment convicting the appellant whereas the prosecution had not proved its case to the standards required;c.The learned trial magistrate erred in law and in fact in failing to take into consideration that the appellant needed legal representation;

3. Parties disposed of the appeal by written submissions.

The Appellant’s Submissions 4. The appellant submits that he is not the biological father of the complainant as he testified during his defence. The appellant relies on the case of Sekitoliko vs Uganda (1967) EA53 and submits that the prosecution did not prove its case beyond reasonable doubt and especially the element of the age of the minor for no documentary evidence was provided. To support this contention, the appellant relies on the case of Kaingu Elias Kasomo vs Republic (Malindi Criminal Appeal No. 504 of 2014). Neither did the prosecution prove penetration as the appellant argues that a broken hymen is not conclusive proof of penetration. It is further argued that the medical evidence did not support the conviction as there were no bruises seen meaning that no sexual intercourse took place, the P3 Form had no stamp from Thiba Health Centre therefore it is doubtful whether the minor was treated there.

5. The appellant relies on Section 124 of the Evidence Act and the case of Maina vs Republic Nairobi High Court Criminal Application No. 955 of 1969 and submits that the evidence of the minor was not corroborated. It is further argued that he used to beat the complainant to discipline her as his child. According to the appellant, it was the complainant’s mother who framed him because he refused to cater for the needs of the children after they separated with the wife. The appellant thus relies on the case of Bater vs Bater 1950 ALL ER 458 & 459 and submits that the prosecution did not prove its case beyond reasonable doubt.

The Respondent’s Submissions 6. The respondent submits that the prosecution proved its case beyond reasonable doubt and that from the testimony of PW1, the minor, the appellant was known to her to be a violent person and that is why she hid behind the toilet on the material day on his arrival home. The respondent states that throughout the trial, the trial court did not detect any grudge between the appellant and the victim. It was actually the father of the minor who was reckless with his family s shown by the evidence on record. The complainant was candid that it was not the first time the appellant was sexually molesting her as he had turned the behaviour into a habit.

7. The respondent relies on Section 143 of the Evidence Act and submits that as regards witnesses, the prosecution has a burden to call witnesses who are sufficient to establish a fact. The respondent submits that the prosecution called witnesses in this case who managed to convince the trial court that the appellant was liable for what the complainant went through. Thus the onus shifts to the appellant to demonstrate any contradictions in the prosecution’s case if any.

8. The respondent argues that the appellant did not deny the fact that he was the complainant’s father, that he further confirmed that he married the minor’s mother and were blessed with other children. The respondent further submitted that the appellant’s defence of an alibi is an afterthought. At the time the appellant was placed on his defence, he did not deny that he was at the scene. The respondent argues that the appellant did not demonstrate in his defence that the charges were a fabrication or that there existed an underlying grudge between the complainant and the appellant.

9. The respondent thus submits that the offence of incest was proved and the sole evidence of the complainant was sufficient to convict the appellant. The respondent relies on Section 124 of the Evidence Act and the case of George Kioi vs Republic Criminal Appeal No. 270 of 2012 and submits that it was not necessary to prove using DNA that the appellant defiled the minor as long as the trial court was satisfied that an offence was committed, it could convict on the evidence of the minor as corroborated by the medical evidence.

Issues for determination 10. The appellant has cited 4 grounds of appeal which can be compressed into three main issues:-a.Whether the prosecution proved its case beyond any reasonable doubt;b.Whether the trial court considered the defence evidence;

The Law 11. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.

12. Similarly in the case of Okeno vs Republic [1972] EA 32 where the Court of Appeal set out the duties of the appellate court as follows:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA 336) and 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 vs R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and 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 [1958]EA 424. ” This was also set out in the case of Kiilu & Another vs Republic [2005] KLR 174.

Whether the prosecution proved its case beyond any reasonable doubt. 13. Section 20(1) of the Sexual Offences Act No. 3 of 2006 provides for the offence of incest as follows:-Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge, his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years.

14. Thus the key ingredients of incest include:-a.Knowledge that the person is a relative;b.Penetration or indecent act;c.Age of the victim;d.Identification of the perpetrator.

15. The complainant, PW1 testified that the appellant was her father and she knew him as her father since she was born. Later the complainant’s parents separated and she lived with the appellant for some time. In 2017, together with her siblings they moved to her mother’s house. PW6, the investigating officer testified that the minor and the minor’s mother told her that the appellant was the minor’s father. The appellant in his defence confirmed that he married the minor’s mother but they had separated. The appellant did not deny that he was the father of the minor, in his defence. As such, the prosecution established that the appellant was the father of the complainant in that he had married her mother and accepted the minor as his child.

16. Section 2(1) of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

17. It was the testimony of PW1 that PW1 and her siblings were left to stay with the appellant but later moved to her mother’s house. On 4/12/2014 PW1 said that she was at her mother’s house cooking outside when the appellant came there. The minor testified that she hid behind the toilet as the appellant was a violent man and she feared that he would beat her up. PW1 further testified that the appellant used to beat her and forcefully sexually assault her. She explained that the appellant would remove her clothes and his and then put his penis into her vagina. The minor stated that when the appellant saw her behind the toilet, he grabbed her by the neck and took her to his house in Maendeleo on foot. She further explained that she did not scream or shout for help and when they reached the appellant’s house, he started beating her with a cooking stick asking her why she was crying. The minor further testified that the appellant removed her clothes forcefully after she refused to undress on his instructions. He then removed her panty and skirt before he removed his underwear and trousers. She further testified that the appellant placed her on his bed while facing up and inserted his penis into her vagina. PW1 testified that she did not scream as the appellant was covering her mouth with his hand. She stated that she went to her bed and slept and the next morning she went back to her mother’s house but she did not tell her mother since her mother was a drunkard and took miraa. She further testified that she told her neighbour Mama Ken, PW2 what transpired.

18. PW5, the clinical officer testified that he examined the minor on 7/12/2018 and found that her hymen was broken and that she had a whitish discharge. He said that he did not administer prophylaxis as the offence had taken place for more than one year. He concluded that there was sexual assault for a period of about one year approximately 5 times. PW5 produced the P3 Form, Post Rape Care Form and the treatment notes.

19. Thus the evidence of PW1 was corroborated by the medical evidence of PW5 who testified that the minor’s hymen had been broken. Thus from the analysis of the evidence, it is my considered view that there is ample evidence to prove that penetration did occur.

20. On the age of the victim, the court of Appeal in Edwin Nyambogo Onsongo vs Republic (2016) eKLR, the court stated as follows in respect of proving the ageof the victim in cases of defilement:“….the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.

21. PW1 testified that she was 15 years old at the time of giving the testimony. PW6, the investigating officer stated that she took the minor to Embu for age assessment and established that the minor was 14 years old on 15/2/2019 when the incident took place. PW6 said that she did not have the minor’s birth certificate and that the mother of the child, who was not a witness in this case had been charged in court with child neglect. PW6 produced the age assessment report dated 15/02/2019 in evidence which confirmed that the minor was aged 14 years as at 15/2/2019. Therefore it is my considered view that the prosecution proved the age of the minor.

22. The trial court observed that PW1’s testimony did not require corroboration in light of the proviso of Section 124 of the Evidence Act which states: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.

23. The trial court further observed that the minor was consistent, genuine and truthful as she narrated her account of what transpired on the material night at the appellant’s house. I have perused the trial court’s proceedings and noted that PW1’s evidence was precise and consistent and unshaken on cross examination. As such, it is my considered view that PW1’s evidence does not require corroboration by any other evidence save for medical evidence under Section 124 of the Evidence Act. The medical evidence of PW5 was to the effect that there was forceful penetration caused by a male organ.

24. The appellant has further argued that the medical evidence did not implicate him and no tests were carried out to prove he had sexual intercourse with the minor. As the Court of Appeal noted in Geoffrey Kioji vs Republic Nyeri Criminal Appeal No. 270 of 2010 (UR):-Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to Section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.

25. On the evidence of identification, the appellant is the complainant’s father and she knew him well. On the material day, the appellant went to the minor mother’s house and dragged her from where she was hiding in the toilet and took her to his house. It is my considered view that the appellant was positively identified by the complainant.

26. The appellant further submits that the trial court did not consider his defence. He testified that the mother of the complainant was his wife but they had separated and that the mother to the minor took the children to her grandparents. The appellant further testified that when the mother of the complainant learnt that he acquired an inheritance from his parents, he was summoned by the chief as she wanted money for school fees. The trial court noted the appellant’s defence and stated that the appellant never rebutted the evidence of PW1 as he confirmed in his defence that he had issues with his ex-wife, the complainant’s mother. The trial court further noted that the appellant’s defence was a mere denial. The court observed that as the minor’s father the appellant ought to have taken care of her and protected her instead of preying on her. It is therefore my considered view that the trial court did consider the defence evidence but found that it did not displace the evidence by the prosecution witnesses.

27. PW1 gave a comprehensive testimony of the incident in a consistent manner. After careful analysis of the evidence, I am of the considered view that the prosecution proved its case against the appellant beyond any reasonable doubt.

28. The conviction was based on cogent evidence and is hereby upheld.

29. In regard to sentence, the appellant was sentenced to serve life imprisonment which under the proviso to Section 11 of the Sexual Offences Act which provides that where the victim is under the age of eighteen (18) years, the sentence is life imprisonment. The trial court in her ruling on sentence took into consideration the circumstances of the offence including the trauma the appellant caused to his daughter. The appellant was said to have a previous conviction though the prosecution did not produce his previous records. The presentence report was not in favour of the appellant being released back to the community.

30. I am in agreement with the trial court that the appellant deserved a deterrent sentence. In my considered view, the sentence of life imprisonment is too harsh even in the aggravating circumstances of a father sexually assaulting his daughter who was a minor. I also take into consideration that jurisprudence on the minimum sentences under the Sexual Offences Act have been declared unconstitutional for depriving the courts of their discretion in sentencing. The recent Court of Appeal case of Manyeso vs Republic (Criminal Appeal No. 12 of 2021) [2023] KECA 827 (KLR) set aside life imprisonment sentence and substituted it with a sentence of imprisonment. I am of the considered view that the accused deserves to be accorded a sentence that is not too harsh and excessive.

31. In his mitigation, the appellant said that he had spent a long period in remand. The record shows that the appellant was arrested on 19/12/2018 and that he remained in custody throughout the trial. He was sentenced on 24/4/2022. This was a period of three and a half (3 ½) years which ought to be taken into consideration in sentencing him herein as provided for by Section 333(2) of the Criminal Procedure Code.

32. I hereby set aside the sentence of life imprisonment and substitute it with an imprisonment sentence of twenty five (25) years to commence on 19th December 2018, when the appellant was arrested.

33. The appeal is only partly successful.

34. It is hereby so ordered.

DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023F. MUCHEMIJUDGEJUDGEMENT DELIVERED THROUGH VIDEO LINK THIS 24TH DAY OF OCTOBER, 2023