[2022] KEHC 14603 (KLR)

Aremo v Republic (Criminal Appeal 196 of 2018) [2022] KEHC 14603 (KLR) (Crim) (1 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14603 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 196 of 2018

K Kimondo, J

November 1, 2022

Between

Naftali Omondi Aremo

Appellant

and

Republic

Respondent

(Appeal from the decision of E. Riany, Senior Resident Magistrate, in S.O. No. 9 of 2018 at Milimani, Nairobi dated 25th September 2018)

Judgment

1. The appellant was convicted on four counts of defilement contrary to section 8 (1) of the Sexual Offences Act. He was imprisoned for life on each count; the sentences to run concurrently.

2. The particulars were that on diverse dates between December 2017 and April 2018 at [Particulars Withheld] within Nairobi County, he intentionally caused his penis to penetrate the vaginas of EAO (aged 11); DAA (aged 6); DAO (aged 6); and, JAO (aged 8) [their particulars withheld].

3. He lodged an appeal in person and out of time on November 6, 2018. On June 17, 2022, the High Court granted him leave to file the appeal out of time.

4. The appeal raises five grounds. I will compress them into three. Firstly, that the learned trial magistrate failed to fully evaluate the evidence which was in any event contradictory, inconsistent and insufficient. Secondly, that the burden of proof was unfairly shifted to the appellant; and, thirdly, that the appellant’s evidence was not taken into account.

5. In a synopsis, the appellant contends that the offence was not proved beyond reasonable doubt.

6. The appellant’s counsel filed brief submissions dated September 1, 2022.

7. The appeal is opposed by the respondent through grounds of opposition dated August 5, 2022 and submissions filed on September 16, 2022.

8. On October 17, 2022, the appellant and the respondent informed me that they were relying wholly on those submissions.

9. This is a first appeal to the High Court. I have re-evaluated the evidence and drawn independent conclusions. I am alive that I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] EA 32.

10. The trial court noted fairly early that all the complainants were minors. One of the issues raised in the appellant’s submissions is that their respective ages were not established. Before delving further into the matter, I will dispose of the procedural issue of taking the evidence of a child of tender years. From the charge sheet all the four girls were aged between 6 and 11 years and thus fell within that bracket.

11. The trial court conducted a sketchy voir dire examination. The questions posed are not recorded but there are brief answers which made the learned trial magistrate to conclude that they comprehended the nature of an oath.

12. The true purpose of a voire dire examination is to establish whether a child of tender years understands two things: the nature of an oath; and, the need to tell the truth. Despite the failure to comply fully with recording of questions and detailed responses by the minors, I am satisfied that the trial court correctly established that the minors could testify on oath. See generally,Republic v Peter Kiriga Kiune Criminal Appeal 77 of 1982 (unreported), Johnson Muiruri v Republic [1983] KLR 445.

13. Furthermore, there was no prejudice to the appellant as he was granted full opportunity to cross examine all the complainants. I will return later to the efficacy of their testimony; or, whether their evidence required further corroboration.

14. The second broad issue is whether the age of the minors was established. The age of the complainants is material in offences of this nature because the Act provides for graduated minimum sentences. See John Wagner v Republic [2010] eKLR, Macharia Kangi v RepublicNyeri, Court of Appeal, Criminal Appeal 346 of 2006 (unreported), Kaingu Kasomo v Republic, Court of Appeal at Malindi, Criminal Appeal 504 of 2010 (unreported), Felix Kanda v Republic Eldoret, High Court Criminal Appeal 177 of 2011 [2013] eKLR.

15. The court established the ages of the minors (PW1 to PW4) from their testimonies and that of their parents (PW5 to PW8). The fact that the children were below 18 years could further be gleaned from the evidence of PW9 (a social worker), the medical evidence from PW12 (a nurse) and PW13 (a medical doctor).

16. The mere absence of a birth certificate or other documentary evidence does not mean the age was not proved. I am fortified in that conclusion from the recent decision of the Court of Appeal inMartin Wanyonyi Nyongesa v Republic, Eldoret, Criminal Appeal 661 of 2010 [2015] eKLR. The learned judges delivered themselves as follows-"From the evidence, besides the evidence of PC Paul Mwangi, who we consider was incompetent to ascertain the child's age, all other evidence indicated that ZN was either 12, 13 or 15 years. When this is considered against the backdrop of the charge sheet which specified the complainant's age as 12 years, it is evident that the ages indicated, all fell within the age bracket specified under section 8 (1) and (3) of the Act, and concerned the defilement of a child within the particular age bracket. As such, we find that, the charge and the sentence preferred were sound, and no prejudice could be held to have been suffered by the appellant. At any rate, we consider that the discrepancies are not material and curable under section 382 of the Criminal Procedure Code." [underlining added].

17. Furthermore, the trial court had the benefit of seeing and hearing the minors. Two were aged only 6 years, another one 8 years and the last one 11 years. I find no material discrepancy between the evidence by the complainants and their parents regarding their ages. I thus accept that EAO was aged 11; DAA and DAO were aged 6 while JAO was 8. Any other interpretation would lead to a travesty of justice.

18. I will now proceed to re-evaluate the evidence. DAA (PW1) claimed she was defiled by the appellant on two occasions. She knew the appellant by the name Jasega. She and her friend JAO (PW4) met him at a hotel a day earlier when he bought them snacks known as “star star” and “chenga”. The following day, JAO took PW1 to Jasega’s place who was living alone.

19. She described the location in detail: the house was a mud-walled one-roomed shack along a corridor. He gave them tea and bread. He undressed, and then removed her dress and inner wear. The witness said that he inserted his “dudu ya kukojoa” into her “dudu”. It went in a little, was painful and she bled. She disclosed the matter to her sister who in turn informed their mother, B (PW8) the following day. Her father (PW6) only learnt of the matter on 10th April from his wife, PW8.

20. The evidence of JAO (PW4) was largely consistent with that of PW1. After they got to the appellant’s house, who she also knew as Jasega, he placed her on his bed and “took his dudu and put here kwa susu”.

21. The evidence of the two minors was corroborated in part by the lengthy testimony of PW12, Pacific Owuor, a nursing officer; and, PW13 (Dr Joseph Maundu). They produced the respective post rape care (PRC) and P3 forms (exhibits 1(b), 1 (c), 5 and 6). PW1’s vagina had slight slits at position 4 and 8 o’clock. Her hymen was broken. PW4’s hymen was not intact and had a tear at position 7 o’clock

22. The other child, DAO (PW2) went to the appellant’s house on one occasion with DAA (PW1) and EAO (PW3). All three knew him as Jasega. He asked them to “sleep” on the bed. He removed PW2’s panty, rubbed her “susu”, got on top of her and inserted his “dudu” into hers. She disclosed the matter to her mother. PW3, said in the material part that the appellant “covered [her] face using a blanket…undressed [her]… and took his “dudu and put in [hers]”.

23. PW3 testified further that Jasega asked him to get onto the bed. He undressed. He then “took his dudu and put in [hers]”. It was painful and when she tried to scream, he slapped her and told her to get out.

24. Again, the evidence of PW2 and PW3 was partially corroborated byPW12, Pacific Owuor, the nursing officer; and, Dr Joseph Maundu (PW13) and the respective post rape care (PRC) and P3 forms (exhibits 1(a), 1 (d), 3 and 4). PW2’s hymen was broken. Her vagina had an “offensive smell….whitish substance between the labia minora and majora” . PW3’s hymen was not intact either. She also had an abrasion around the urethral region.

25. From the evidence of PW1,PW2, PW3 and PW4 so far, I am satisfied that they knew the appellant well and identified him as Jasega. They described his house in sufficient detail (a mud-walled one-roomed hovel along some corridor) and what he did to them. This was evidence of recognition; far more reliable than simple identification. Wamunga v Republic [1989] KLR 424,Maitanyi v Republic [1986] KLR 198 at 201.

26. I agree with counsel for the appellant that the description of genitalia by the minors as dudu and susu was colloquial. But I am alive that children of the ages of some of the complainants here may may not describe sexual acts in a graphic manner. But in this case, and quite apart from the medical evidence by PW12 and PW13, I find that they all sufficiently described the sexual acts in terms that leave no doubt that the appellant penetrated them.

27. Learned counsel for the appellant submitted that the use of the word dudu for instance by all the complainants shows they were couched. But I have also considered the evidence of the appellant (DW1). He denied the offence. But he admitted that he was living alone as his wife had gone “on safari to attend to a sick child”. He conceded that he met the complainants on a number of occasions in his house.

28. For instance, on December 18, 2017, he admitted that he bought one of the minors some groundnuts. The following day, he went with her to his “place, cooked and ate”. He claimed that on March 24, 2018, the children stole Kshs 200 from his house. He reported the matter to their mother and the cash was returned. He said the children were pestering him for food and that when he chased them away, EAO (PW3) threatened to frame him up for rape.

29. There was then the evidence of his sole witness, Maurice Oyugi (DW2). He said that on 2nd and April 7, 2018 he was with the appellant the whole day at some building sites. In short, he was setting up an alibi. That alibi was raised well after the close of the prosecution’s case. But it did not shift the burden of proof to the accused.Republic v Johnson[1961] 3 All ER 969, Saidi Mwakawanga v Republic [1963] EA 6.

30. I have thus weighed the alibi against the evidence of key prosecution witnesses. I have discounted it for four main reasons: Firstly, the offences took place on diverse dates between December 2017 and April 2018 that go well beyond the dates referred to by DW2. Secondly, one of the complainants, EAO (PW3), gave specific dates for Christmas 2017 when she was defiled. Thirdly, the appellant admitted being in his house alone with some or all the complainants. Fourthly, I find that the complainants were truthful. They were consistent on the identity of the appellant, his house and the sexual acts. As I stated earlier, there is further corroboration by PW12 and PW13.

31. Furthermore, under the proviso to section 124 of the Evidence Act, where the victim of a sexual offence is the complainant, corroboration is not mandatory if the court is satisfied that the witness was truthful.

32. In addition, I find that the appellant had the opportunity to commit the offence. He was living alone and either lured the complainants to his house or took advantage of their desperation for food or snacks. This amounts to further corroboration.Opo v Republic [1976-80] 1 KLR 1669.

33. In the end, I have reached the conclusion that the appellant is the one who partially or fully penetrated the vaginas of all the four complainants. Section 2 of the Sexual Offences Act defines penetration as “the partial or complete insertion of the genital organs of a person into the genital organs of another person”.

34. True, there were inconsistencies as urged by the learned counsel for the appellants. But they were minor and immaterial. Furthermore, and as stated by the Court of Appeal, in any trial there are bound to be such discrepancies. Joseph Maina Mwangi v Republic, Criminal Appeal No 73 of 1993.

35. When juxtaposed against the complainant’s evidence, the appellant’s alibi and defence was a red herring. I am also unable to say that the burden of proof was unfairly shifted to the appellant or that his evidence and that of his witness (DW2) was disregarded by the trial court: The impugned judgment dealt at some length with the appellant’s defence. The learned trial magistrate simply did not believe the appellant. I concur entirely in that finding.

36. I thus find that the conviction was safe. The upshot being that the appeal against conviction is dismissed.

37. I will now turn to the sentence. Section 354 (3) of Criminal Procedure Codeempowers this court to review the sentence.

38. The mandatory sentence for defilement of a child of below 11 years is life imprisonment. The Court of Appeal has however given fresh guidance on minimum sentences under the Sexual Offences Act. In Jared Koita Injiri v Republic [2019] Kisumu Criminal Appeal 93 of 2014 [2019] eKLR. The court held:"In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis.The appellant was provided an opportunity to mitigate in the trial court where it was stated that he was a first offender. He pleaded for leniency. However, it cannot be overlooked that the appellant committed a heinous crime, and occasioned severe trauma and suffering to a young girl. His actions have demonstrated that around him, young and vulnerable children, like the complainant could be in jeopardy.Needless to say, pursuant to the Supreme Court decision in Francis Karioko Muruatetu & another vs Republic (supra), we would set aside the sentence for life imposed and substitute it therefore with a sentence of 30 years from the date of sentence by the trial court." [Emphasis added]

37. I accordingly set aside the life sentences. I have considered that the appellant is a first offender, the gravity of the offences and the life-long trauma to the young complainants. The appellant shall now serve a term of 30 years imprisonment on each of the four counts. The sentences shall run concurrently from September 25, 2018, the date of the original conviction.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 1ST DAY OF NOVEMBER 2022. KANYI KIMONDOJUDGEJudgment read virtually onMicrosoft Teams in the presence of-The appellant.Prof. Nandwa for the appellant instructed by Ali & Company Advocates.Mr. Mutuma for the Republic instructed by the Office of the Director of Public Prosecutions.Mr. E. Ombuna, Court Assistant.JUDGMENT Nairobi Criminal Appeal 196 of 2018 Aremo v Republic Page 3