[2022] KEHC 3238 (KLR)

ANM v Republic (Criminal Appeal E048 of 2021) [2022] KEHC 3238 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3238 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E048 of 2021

LM Njuguna, J

May 12, 2022

Between

ANM

Appellant

and

Republic

Respondent

(Being an appeal against the sentence and conviction by Hon. Gichimu J.W. in SPM’s Runyenjes Criminal Case (Sexual Offence) No.05 of 2019 delivered on 28. 10. 2020)

Judgment

1. The appellant herein filed the petition of appeal dated November 9, 2011 wherein he has challenged the conviction and sentence by the trial court in Senior Principal Magistrate’s Court at Runyenjes in Sexual Offence Case No. 05 of 2019. The trial court convicted the appellant of the offence of defilement contrary to Section 8(1) as read together with Section 8(4) of the Sexual Offences Act No. 3 of 2006 and sentenced him to serve life imprisonment. He faults the trial court for his conviction and sentence.

2. The appellant herein is the step father of the complainant having married the complainant’s mother when the complainant was five years old. That the appellant worked at Embu town as a mechanic and only went home over the weekend. On the material day, the complainant’s mother had travelled to Murang’a to attend a burial when the appellant decided to retreat back home only to defile the complainant. He threatened her never to inform anyone lest he kills her.

3. The appellant was tried and convicted of the offence of defilement contrary to section 8(1) as read together with Section 8(4) of the Sexual Offences Act No. 3 of 2006 and sentenced to serve life imprisonment.

4. It is that conviction and sentence that necessitated the instant appeal wherein the appellant raised the grounds of appeal as hereunder:i)The learned magistrate erred in both points of law and facts for failing to note that the prosecution’s evidence was inadequate to hold a conviction.ii)The learned trial magistrate erred in both points of law and facts by convicting the appellant without considering that the prosecution evidence was full of contradictions and was not corroborated which was inconsistent with the provisions of the evidence Act.iii)The learned trial magistrate erred in both points of law and facts by disregarding the appellant’s defence without giving cogent reasons.iv)The trial magistrate erred in both matters of law and facts by imposing a harsh sentence without considering the fact that being a first offender, the appellant was lawfully entitled and qualified to benefit from Article 50(2) of the Constitution.

5. At the hearing of the appeal, the parties chose to rely on their written submissions to argue the appeal.

6. On the first ground, the appellant submitted that the complainant herein was aged 17 years and that the trial magistrate sentenced the appellant herein to life imprisonment whereas the law provides for a sentence not less than fifteen years. In that regard, the sentence of life imprisonment was harsh in the given circumstances in that in as much as the complainant referred to the accused person as father, there was no blood relation between them and that is why the offence of defilement was preferred instead. He proceeded to submit that the misdirection led to the trial magistrate reaching a wrong finding. Reliance was made upon SVS Muchunu & Another(AR24/77) (2012) ZAKPH C6 Kwazulu Natal High Court. It was submitted that the sentence meted out was excessive given the circumstances herein.

7. The appeal was opposed by Ms. Mati, the Learned Prosecution Counsel as it is devoid of merit and thus should be dismissed. The respondent submitted that all the ingredients of the offence of defilement were proved and proceeded to rely on the case of Simiyu & Another v Republic(2005) eKLR. It was submitted that the sentence for the nature of the offence committed herein, attracts a sentence of not less than 15 years, and the trial magistrate rightly gave reasons why the appellant ought to be sentenced to life imprisonment given the unfortunate circumstances under which the offence was committed. The respondent submitted that in as much as the appellant was not the biological father of the complainant, the complainant rightfully identified the appellant as the person who is married to her mother. Further, PW2 also identified the appellant as her husband. Reliance was placed on Kiambu High Court Criminal Appeal No. 154/ 2016 DKG v Republic 2018 eKLR. In relation to sentence, it was submitted that the hands of the trial court were tied by the law in regards to the offence committed and the circumstances under which it was committed. The respondent prayed that this appeal be dismissed given the aggravating factors under which the offence was committed.

8. I have considered the appeal before me and the written submissions by both parties. As already indicated, the appeal is on both conviction and sentence wherein the appellant contends that his conviction was not safe and further that, his sentence was harsh and excessive.

9. The duty of this court while exercising its appellate jurisdiction was set out by the Court of Appeal in Okeno v Republic[1972] E.A. 32 and re-stated in Kiilu and another v R [2005] 1 KLR 174 where it was held that the evidence as a whole is to be exposed to a fresh and exhaustive examination and thereafter, the court should draw its own conclusions. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses. Further, the court should be alive to the principle that a finding of fact made by the trial court shall not be interfered with unless it is based on no evidence or on a misapprehension of the evidence or that the trial court acted on the wrong principles (See Gunga Baya & another v Republic [2015] eKLR).

10. Having considered and analyzed the evidence before the trial court, the issue for determination is whether the appellant has made a case for this court to interfere with the conviction and sentence imposed by the trial court.

11. It must be appreciated that under Section 107(1) of the Evidence Act, the burden of proof is on the prosecution to establish every element in a criminal charge beyond reasonable doubt. This was well buttressed in the principle in the cases of Woolmington v DPP 1935 AC 462 and Miller v Minister of Pensions2 ALL 372-273.

12. In the case before the trial court, the appellant was charged with the offence of defilement contrary to section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. In Charles Wamukoya Karani Vs Republic, Criminal Appeal No. 72 of 2013,“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

13. The question therefore is whether the above elements were proved to the required standards.

14. It is not disputed that the complainant at the time of the commission of the offence, was 16 years old as the same could be ascertained from the evidence produced before the trial court (specifically P3 Form and the Birth Certificate).

15. In the case of Edwin Nyambaso Onsongo v Republic (2002) eKLR, in which the court cited the case of Mwolongo Chichoro Mwanyembe v Republic, Mombasa Criminal Appeal No. 24 of 2015 (UR) the Court of Appeal held that:….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, guardian or medical evidence among other forms of proof…..

16. As such, I am satisfied that the complainant was a minor which satisfies the legal requirement.

17. In regards to whether there was penetration, Section 2 of the Sexual Offences Actdefines penetration to mean the ‘partial’ or complete insertion of the genital organs of a person into the genital organs of another.

18. In this case, PW1 testified how the appellant got into her room at night while she was asleep, blocked her mouth and defiled her and thereafter, threatened her with death if she disclosed to anyone what had happened. The complainant gave a graphic account of all that transpired. Even without corroboration her evidence was cogent enough for the court to return a verdict of guilty. It is now well established that the oral evidence of a single witness is indeed sufficient to warrant a conviction. (See George Kiojivs R Nyeri Criminal Appeal No. 270 of 2012 (unreported). The court was of the view that:“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 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.”

19. Further, PW4, the clinical officer testified that upon examination of the complainant, he found that the complainant was defiled and that there were tears which were healing on the left lateral labia majora; the hymen was broke; the healing had scars; there was presence of whitish discharge and that the complainant was eight months pregnant. PW4 who was the investigating officer also testified that on 18. 02. 2019, she recorded a report for a child who allegedly had been defiled by the father and proceeded to produce the complainant’s birth certificate and DNA report from the government Chemist which returned a positive report that the appellant was indeed the father of the complainant’s baby.

20. The appellant has submitted that the trial court subjected him to a harsh sentence and his mitigation was never considered by the trial court. The trial magistrate in his judgment notedthe fact that he carefully reviewed the evidence on record and in the end, he was satisfied that the prosecution proved its case beyond any reasonable doubt. In the same breadth, the court record notes that the appellant was given a chance to mitigate and upon which he pleaded with the court for a non-custodial sentence since he had a family which depended on him. The court noted that the appellant’s mitigation but further noted the appellant herein committed a very serious offence; an offence that has caused untold emotional and physical harm on the complainant and therefore, a judgment was pronounced based on all the factors and evidence presented before the trial court. As such, the appellant cannot be heard to say that his mitigation and/or defence were never considered.

21. The appellant further submitted that the trial court meted out a harsh and excessive sentence which was disproportionate to the charge. The legal position on sentencing was stated succinctly by the Court of Appeal for East Africa in the case of Ogola S/O Owoura v Reginum(1954) 21 270 as follows: -“The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James v R., (1950) 18 E.A.C.A 147:"It is evident that the Judge has acted upon some wrong principle or overlooked some material factor."To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case: R v Shershewky, (1912) C.C.A. 28 T.L.R. 364. "

22. In the instant case, Section 8(4) of the Sexual Offences Act states that:A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

23. The appellant argued that due to the reason that it was never controverted that he was not the biological father of the complainant, the trial magistrate erred in law in sentencing him to life imprisonment as opposed to 15 years imprisonment. The trial magistrate explained that in the given circumstances, a maximum sentence was preferred given that in as much as the appellant was not the biological father of the complainant, the appellant committed a very serious offence and caused the complainant untold emotional and physical harm. The reasoning of the court found a legal lacking in the case of BNM v Republic, Mombasa Criminal Appeal No. 232 of 2009 [2011] eKLR where the court was of the view that:“……my own understanding is that ‘half father’ is a term which means exactly the same as ‘step-father’ – it means one who is not a biological father of the child. Therefore by dint of this S 22(1) of the Act the appellant being a step-father of the complainant and one who stood in ‘loguo parenthis’ can legally be charged and indeed convicted of the crime of incest with her.” [See DKG v Republic[2018] eKLR].

24. In the instant case, the sentence under Section 8(4) of theSexual offences Act is imprisonment for a term of not less than fifteen years.

25. Having considered the circumstances surrounding this offence I find that the sentence was within the law. The learned trial magistrate exercised his discretion judiciously in meting out a maximum sentence since he directed his mind to the circumstances under which the heinous offence was committed by the appellant. I find no reasons to interfere with the sentence. (See Edwin Kipkurui Rono vs Republic [2022] eKLR).

26. In conclusion, I find the appeal to be wholly unmerited and the same is hereby dismissed.

27. It is ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 12TH DAY OF MAY, 2022. L. NJUGUNAJUDGE.................for the Appellant.................for the Respondent