[2022] KEHC 9814 (KLR)

Amingo v Republic (Criminal Appeal 117 of 2018) [2022] KEHC 9814 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9814 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal 117 of 2018

FA Ochieng, J

July 13, 2022

Between

David Ochieng Amingo

Petitioner

and

Republic

Respondent

(Being an Appeal against the Judgement of Hon. J. N. Wambilyanga – PM Kisumu dated and delivered on the 18th day of December 2018 in the original Kisumu CMSO No. 8 of 2017])

Judgment

1. The Appellant, David Ochieng Amingo was convicted for the offence of Attempted Defilement contrary to Section 9 (1) (2) of the Sexual Offences Act. He was then sentenced to ten (10) years imprisonment.

2. His appeal herein is against both the conviction and the sentence.

3. The appeal was canvassed on the following four grounds: -“(1)The trial court erred in law and in fact, by relying on inconclusive evidence of identification.(2)The prosecution failed to prove the steps taken by the accused to execute defilement, which did not succeed.(3)The trial court failed to fully appreciate the dangers inherent in the acceptance of a single identifying minor witness, whose evidence was uncorroborated.(4)The sentence is manifestly excessive, in the light of Section 26 (2) of the Penal Code and Section 333 (2) of the Criminal Procedure Code.”

4. Being the first appellate court, I have re-evaluated all the evidence on record. I will be making reference to the said evidence when analyzing the submissions made by both the Appellant and the Respondent. The said analysis will be carried out in a sequential manner, in line with the various heads under which the Appellant canvassed his grounds of appeal.

Identification. 5. The Appellant submitted that although the offence allegedly occurred in broad daylight, at about 11. 00am, the prosecution did not lead evidence to demonstrate that there was sufficient lighting inside the single room wherein the offence was allegedly committed.

6. He also submitted that the Complainant could not have seen him during the alleged incident, as the Complainant had bent over, and was facing away from his Assailant.

7. I find that there are two aspects to the issue of identification. First, the Complainant knocked on the door, and the Assailant opened it. The Assailant grabbed the Complainant, and pulled him into the house. I find that because the incident happened in broad daylight, the Complainant was able to positively identify the Appellant.

8. The fact that the Assailant thereafter caused him to bend over, whilst facing away from him, would not alter the fact that the Complainant had already identified him. And there was no break in the chain of events, from the moment the Assailant opened the door, until the time when the Complainant managed to escape. During the whole period, they were only two persons, being the Complainant and the Assailant.

9. If there had been more than 2 persons in the room, at the material time, it may have been possible to argue that the Complainant could not be certain about which of the other persons had attempted to defile him. But, as it was only the Appellant who was in the room, with the Complainant; and because the Complainant had identified him, I find that there was no room at all for the alleged mistaken identification.

Steps Taken in Executing the Offence. 10. The Complainant testified that his Assailant pulled him into the room; pushed him onto the bed; threatened to kill him if he should make any noise; pulled down his trousers; applied some glycerin oil on him; caused him to bend over; and then tried to insert his penis into the anus of the Complainant. I find that the said steps, which were executed by the Appellant, constituted sufficient proof of all the ingredients of attempted defilement.

Uncorroborated Evidence of a Single Identifying Witness. 11. The Appellant submitted that the trial Court ought to have warned itself of the dangers in relying upon the uncorroborated evidence of a child of tender years.

12. The Learned Trial Magistrate was alive to the provisions of Section 124 of the Evidence Act, which stipulates as follows: -“Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declaration Act, where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for that offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material 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.”

13. The trial Court noted that the victim made an effort to promptly report the incident to the Village Elder. The said Village Elder corroborated that piece of evidence, confirming that when he returned home on the afternoon of the material day, he got a report that the Complainant had been there, earlier.

14. When the Complainant went to the home of the Village Elder that afternoon, he found the Appellant there; and he informed the Village Elder about the assault which the Appellant had visited upon him.

15. Just like the trial Court, I am satisfied that the Complainant gave evidence which was clear and consistent. During cross-examination, the Complainant remained steadfast in his answers. Accordingly, I find that the reasons cited by the trial Court, for its belief that the Complainant was telling the truth, is properly founded.

16. The medical evidence was not in sharp contrast with the testimony of the Complainant. The Clinical Officer testified that there were no injuries on the Complainant’s anus. To my mind, that piece of evidence is consistent with the offence, and the evidence tendered, because if the Assailant had actually penetrated the Complainant’s anal orifice, the offence would have been Defilement.

17. On the P3 Form, the information provided by the Police Officer who issued the said Form was that the Complainant had told the police that he had been: -“…..sodomised by a person known to him……”

18. It is the P3 Form which the Complainant went with to the hospital. Pw6 produced the said report in court, as Exhibit 3.

19. During cross-examination, the Doctor (Pw6), made it clear that he was not the person who had examined the Complainant. Pw6 produced the report on behalf of her colleague. And Pw6 made it clear that: -“……what is in the report is the truth.”

20. It is well settled that documents speak for themselves. Therefore, Pw6 was very right to state that the contents of the P3 Form were the truth. Neither she nor any other person could have any plausible reason to discount the truth of the information penned down by Dr. Sophie Opiyo, or by the Police Officer who had recorded information given to him by the Complainant.

21. Although Pw6 said that the Complainant did not know the person who was the perpetrator, I find that that evidence is at variance with the very document which she told the Court, to contain the truth. Pw6 said: -“I do not know what he told the police.”Yet, the very document which the doctor produced in evidence, contained a hand-written statement, to the effect that the Complainant had been sodomised by a person known to him.

22. What is the court to make out of the evidence of Pw6, on the issue as to whether or not the Complainant knew the Assailant? I believe that the answer was given by the witness, when she said: -“I do not know what happens in the station about filling of P3 Forms.”

23. If Pw6 knew that “Part 1” of the P3 Form contained information given to the Police Officer, she would definitely have verified that the Complainant had told the police that he knew his Assailant.

24. The surprising lack of knowledge, on the part of Dr. Florence Mbadi (Pw6), concerning what happens at the police station when the P3 Form was being filled-in, did not and could not derail the truth as reflected on the face of the said P3 Form.

25. In the result, the totality of the evidence tendered by the Prosecution was not only consistent, but was also sufficient to prove beyond any reasonable doubt, that it is the Appellant who attempted to defile the Complainant: -

The Sentence. 26. It was the Appellant’s submission that there was a conflict between Section 389 of the Penal Code and Section 9 (1) (2) of the Sexual Offences Act.

27. To support his case, the Appellant cited the case of David Mwangi Mugo v Republic, HCCRA No. 1263 of 2002. Although the Appellant told the Court that the appeal was determined by Tunoi, Aganyanya and Visram JJA, the correct position is that the appeal was at the High Court, where it was determined by Lesiit and Makhandia JJ, (as they both were at the time).

28. Furthermore, although the Appellant was convicted for the offence of Attempted Robbery with Violence, the Court did not discuss nor determine the question of an alleged conflict between Section 389 of the Penal Code and Section 9 (1) (2) of the Sexual Offences Act.

29. The Appellant also sought reliance upon the decision in Godfrey Ngotho Mutiso v Republic HCCRA No. 17 of 2008. In that case, the Court held that:-“……Section 204 shall, to the extent that it provides that the death penalty is the only sentence in respect of the crime of murder, is inconsistent with the letter and spirit of the Constitution, which as we have said, makes no such mandatory provision.”

30. The Learned Judges of Appeal remitted the case to the High Court, with directions that the High Court should hand down an appropriate sentence, after giving due consideration to mitigation.

31. In effect, that case has no application to this case, in which the Appellant was convicted for Attempted Defilement.

32. Nonetheless, I hold the considered view that when the Penal Code sets down a specified sentence in respect to a particular offence, the Court is obliged to give effect to the specified sentence.

33. There are some offences which are specified in two categories, being the “complete” offence, such as Murder; and the “incomplete” offence of Attempted Murder.

34. As the offence of Attempted Murder is set out at Section 220 of the Penal Code; and the sentence for it is specified under that same statutory provision, the Court is under an obligation to give effect to the laid down sentence.

35. The Court cannot ignore a sentence which is laid down in respect of a particular offence, and invoke Section 389 of the Penal Code, so as to impose the lesser sentence. Section 389 clearly stipulates: -Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment, he shall not be liable to imprisonment for a term exceeding seven years.”

36. In this case, there is a prescribed sentence for the offence of Attempted Defilement. Therefore, Section 389 of the Penal Code does not come into play. Secondly, the prescribed sentence is neither Death nor Life Imprisonment, so Section 389 of the Penal Code is not applicable to this case.

37. I find no merit on the appeal against both conviction and sentence. The appeal is therefore dismissed.

38. However, pursuant to Section 333 (2) of the Criminal Procedure Code, I direct that when the Prison Authorities will be calculating the actual duration which the Appellant is to serve the sentence of ten (10) years imprisonment, they shall take into account the period of one year two months and 8 days which the Appellant spent in custody, whilst his trial was still ongoing.

DATED, SIGNED AND DELIVERED AT KISUMUTHIS 13TH DAY OF JULY 2022. FRED A. OCHIENGJUDGE