[2022] KEHC 15141 (KLR)

ASM v Republic (Criminal Appeal 57 of 2019) [2022] KEHC 15141 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15141 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 57 of 2019

SN Mutuku, J

October 12, 2022

Between

ASM

Appellant

and

Republic

Respondent

((Being an appeal against the conviction and sentence in Criminal Case No. SO. 4 of 2017 at Kajiado Chief Magistrate Court in the judgement of Honourable Resident Magistrate M. Chesang on 23rd May, 2018)

Judgment

1. The Appellant, ASM, was charged with the main count of Incest contrary to section 20(1) of the Sexual Offences Act. (herein referred to as the Act). The particulars thereunder were that on diverse dates between April 2016 and January 15, 2017 in Kajiado Central sub-county with Kajiado County, being the father intentionally and unlawfully caused his genital organ (penis) to penetrate into genital organ (vagina) of his daughter MN a girl aged 11 years.

2. The Appellant faced an alternative charge of Indecent Act with a child contrary to Section 11 as read with section 11(1) of the Sexual Offences Act. The particulars thereunder were that on diverse dates between April 2016 and January 15, 2017 in Kajiado Central sub-county with Kajiado County, being the father intentionally and unlawfully caused his genital organ (penis) to penetrate into genital organ (vagina) of his daughter MN a girl aged 11 years.

3. He was tried, found guilty and convicted of the main charge and sentenced to life imprisonment. He is aggrieved by the conviction and the sentence and filed this instant appeal in which he has raised the following grounds of appeal:i.That the learned trial magistrate erred in law and facts in convicting the Appellant yet the prosecution had failed to prove his case beyond reasonable doubt as required by law.ii.That the learned trial magistrate erred in law and fact by failing to observe the irreconcilable contradictions in the prosecution case.iii.That the learned trial magistrate erred in law and fact by failing to find the Appellant had been framed and that there existed hatred and grudge between the appellant and the complainant.iv.The Learned trial magistrate erred in law and fact in admitting and relying on testimony of incompetent witnesses.v.That the Learned trial magistrate erred in law and fact in failing to conduct voir dire in respect of PW1. vi.The conviction and sentence are a miscarriage of justice.vii.The sentence was harsh and excessive in the circumstances.

4. The Appellant filed his submissions dated July 26, 2021. In addition to the written submission, the Appellant, though his counsel, made oral submissions in court. He submitted that the magistrate erred in law and fact in convicting him yet the prosecution had not proved its case beyond reasonable doubt; that no evidence was adduced in court to prove the alleged father-daughter relationship; that there were irreconcilable contradictions in the prosecution case in that while PW1 claimed that her skirt was removed and that the appellant removed his trousers, PW3 stated that neither the skirt nor the trousers were removed and that she saw a maasai shuka. Further that PW3 forced PW1 to adopt her story that she had been defiled and that he had been framed but the trial court failed to consider this. He submitted that PW1 and PW3 were not credible witnesses and the trial court should not have relied on their testimonies.

5. He submitted that the trial court erred in law and fact in failing to conduct a voir dire examination in respect of PW1 contrary to the Evidence Act, which states that wherever a minor appears in court to testify, the court must satisfy itself that the minor is intelligent enough and that they understand the essence of making an oath.

6. He further argued that the age of the complainant was not proved in that no birth certificate was produced or even an age estimation report by the medical practitioner.

7. He submitted that the sentence was harsh and excessive; that the Sexual Offences Act by providing for minimum penalties infringes the provision of theConstitution on fair trial by taking away the discretion of the court and that the magistrate misunderstood section 20(1) having provided for life imprisonment as the minimum penalty yet that was the maximum penalty. The Appellant prayed for the sentence to be set aside for a lesser one.

8. The appeal was opposed by the learned Prosecution Counsel who submitted that the case was proved beyond reasonable doubt; that PW1 identified the accused as her father a fact which was not disputed; that on his own defence the appellant testified that during his arrest the police asked whether he knew the girl and he confirmed she was his daughter and that PW3 also confirmed that she saw the accused with his daughter having sex.

9. On the issue of penetration, it was submitted that PW1 testified that the accused removed her skirt and his trousers and started having sex with her this was corroborated by PW3 who stated that she saw the appellant having sex with his daughter; that PW2 a medical doctor testified that the labia minora and majora were swollen and the hymen was inflamed and red as if there was an infection; that the hymen was also broken and that on identification of penetrator, he was well known to the minor as she was able to positively identify the appellant in court.

10. It was the submissions of the Prosecution that the case was proved beyond reasonable doubt and that the issue of clothing is immaterial as it does not in any way cast doubt as to whether the minor was defiled by the appellant. They relied on the case of Jackson Mwanzia Musembi v Republic [2017] eKLR quoting, with approval, the Ugandan case of Twehangane Alfred v Uganda – Criminal Appeal No 139 of 2001 [2003] UGCA.

11. On the issue of existence of a grudge, it was submitted that this ground should be dismissed as it was not raised during trial.

12. On credibility of witnesses, it was submitted that the evidence of PW1 was corroborated by PW2, the doctor, and further by PW3 who saw the appellant in the act of defiling the minor.

13. On the issue of conducting a voir dire, the trial court omitted this and stated that the minor was competent to testify. However, the mishap should not by any means invalidate the testimony of the other witnesses in the case. They relied on the case of Peter Ekai Epungure Criminal Appeal No 4 of 2019 and the case of Athumani Ali Mwinyi v R Cr Appeal No 11 of 2015.

Determination 14. My duty as the first appellate court is to re-consider and re-evaluate all the evidence adduced before the trial court and come up with an independent decision. I did not have the opportunity to observe the witnesses as they testified. I will give allowance for that.

15. The evidence is straight forward. The complainant, the victim of this offence is a daughter of the appellant. There is no doubt of that fact as the record shows although the appellant seems to claim that there is no evidence to show that he is the father of the complainant. From the outset, I find that this issue, that the appellant is the father of the complainant has been proved and admitted.

16. On January 15, 2017, the complainant accompanied her father the appellant to go to town. According to her evidence, she wanted the appellant to buy a pen for her. Somewhere along the way at a riverbed with a cluster of trees, the appellant stopped walking, removed the complainant’s skirt and his trousers and had sex with the complainant. According to the complainant, she heard the appellant say that someone has seen them and named the person as mama G/G, a person known to both. Fearing to be identified, the appellant held the complainant’s hand and both started running away. They boarded a boda boda and went into town. After shopping, they returned home whereupon the complainant was confronted by the woman who had seen them and beaten over the incident.

17. NN, PW3, is the woman referred to as mama G/G. She testified that while looking for firewood on January 15, 2017 at around 5pm she saw the appellant having sex with his daughter the complainant. According to her evidence, the complainant was seated leaning against the edge of the ditch while the appellant was having sex with her. According to her, the child had her blue jeans skirt pulled up, with panty removed while the appellant had light blue trouser which had been lowered to his feet. She testified that when the appellant saw her they started running away as the appellant attempted to zip up his trousers as he ran. She testified that the two boarded a boda boda and rode away. Later she confronted the girl at her home and beat her for doing what she had done.

18. The offence of incest is created by Section 20(1) of the Sexual Offences Act, which provides that:“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:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which cases penetration or the indecent act was obtained with the consent of a female persons.”

19. The above provision gives the ingredients required to sustain a conviction of incest once proved. The relationship of the victim and the perpetrator must be proved. The age of the victim must be proved for purposes of the appropriate sentence. The indecent act or an act which causes penetration must be proved.

20. From my reading of the record in this appeal, I am satisfied that the issues raised by the Appellant relate to:i.insufficient evidence to prove the case beyond reasonable doubt;ii.the inconsistencies in evidence;iii.the issue of a grudge between the appellant and complainant;iv.the issue of voir dire examination;v.harsh sentence, andvi.age of the complainant.

21. On the relationship between the complainant and the appellant, there is evidence from the complainant that the appellant is her father. She identified the appellant in court as her father. PW3 testified that she saw the appellant having sex with his daughter on January 15, 2017. Both were known to her. PW4, J, who was identified by complainant as her step mother told the court that she received information from PW3 that the appellant had been found having sex with his daughter. In his defence, the appellant acknowledges the complainant as his daughter. This evidence satisfies me beyond reasonable doubt, that the appellant is the father of the complainant.

22. On the issue of grudge between the appellant and the complainant, it is my finding that there is no evidence to prove there existed such a grudge.

23. On the issue of inconsistencies in the evidence of the complainant and that of PW3, I have considered all the evidence. The complainant told the court that her skirt and the appellant’s trousers had been removed. According to the evidence of PW3, the girl’s skirt had been pushed upwards while the appellant’s trouser had been lowered. I do not see any inconsistencies in the evidence. To my mind, it is a matter of semantics. There is sufficient evidence to show that the appellant had sex with the complainant. They were found in the very act.

24. On the issue of the age of the complainant, there is evidence to show that she was aged 12 years. That is what she told the court and further confirmed by an age assessment report produced as exhibit 3 produced by PW5 SGT Khadija Ibrahim. For purposes of the offence under trial, she was under 18 years of age and falling under the proviso to section 20 (1) of the Sexual Offences Act.

25. On the issue of penetration, PW1 testified that the Appellant removed her skirt and also removed his trousers and started defiling her. She further stated that it was not the first time he was doing that to her; that he would wait for her step mother to go away and he would carry her from bed and that the appellant used to threaten to cut her with a panga if she told anyone. This was corroborated with the testimony of PW2 who stated that the complainant’s labia minora and majora were swollen, her hymen was also broken leading to the conclusion that the child had engaged in sex as the hymen was partly torn. Further PW3 an eye witness had seen the appellant having sex with his daughter. There is therefore no doubt that penetration was proved beyond any reasonable doubt.

26. On the issue of voir dire examination, I have noted that in Maripett Loonkomok v Republic [2015] eKLR, the Court of Appeal had this to say in respect of voir dire:“Section 19 of the Oaths and Statutory Declarations Act is concerned with the reception and admissibility of evidence of a child of tender years. The section starts by declaring that where the child does not, in the opinion of the court understand the nature of an oath, his evidence may nonetheless be received though not given upon oath. But that evidence shall only be received if, again in the opinion of the court, the child is possessed of sufficient intelligence to justify the reception of the evidence and also if, the child understands the duty of speaking the truth...The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82 the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 10 years. This Court has recently in Patrick Kathurima v R, Criminal Appeal No 137 of 2014 and in Samuel Warui Karimiv R Criminal Appeal No 16 of 2014 stated categorically that the definition in the Children Act is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honored 14 years remains the correct threshold for voire dire examination..."

27. Section 19 (1) of the Oaths and Statutory Declaration Act provides that:“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.

28. I have read the record of the trial court. It shows that on September 25, 2017, the learned trial magistrate recorded as follows:MN child aged 12 years unsworn and states in Kiswahili:-“I attend [Particulars Withheld] School in Standard 5. I am the complainant herein. I am in court to say the statement when the accused was standing outside the court, he told me “Usiseme”. I have come to testify what accused did to me. My grandfather told me to say the truth and not lies. I will tell the truth.”Court: Child is a competent witness.

29. It is clear to me that the record does not accord with the provisions of Section 19 (1) of the Oaths and Statutory Declarations Act. The purpose of conducting a voir dire examination is for the court to satisfy itself that the child of tender years (14 years and below) understands the nature of oath. If the child does not understand the nature of oath, his/her evidence may be received, though not given upon oath, if, in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.

30. Further in the the Maripett Case (supra) the Court of Appeal held that:“It follows from a long line of decisions that voire dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this court recently found that;“In appropriate cases where voire dire is not conducted, but there is sufficient independent evidence to support the charge … the court may still be able to uphold the conviction”.

31. The only way a trial court is able to determine if a child of tender years understands the nature of oath is by conduction a voir dire examination and asking particular questions aimed at establishing that fact. The record of the lower court does not show that voir dire examination was conducted in the manner envisaged under the law. It is a botched examination and cannot be termed as a voir dire examination. However, this does not mean that all is lost. As shown above in the Maripett case, even though what was done here cannot be said to be a voir dire examination per se, there is sufficient independent evidence to support the charge.

32. Before I consider the issue that the sentence is harsh, it is my duty to determine first if the evidence adduced in the lower court is sufficient to prove the case against the appellant beyond reasonable doubt. I have re-evaluated all the evidence tendered and re-considered it. I am satisfied that the appellant committed the offence. There is the evidence of the victim herself which evidence is corroborated by that of an eye witness, PW3. There is the medical evidence confirming that the complainant had been defiled. I am satisfied that the case against the appellant has been proved beyond reasonable doubt.

33. On the issue of harshness of the sentence, I agree with the Appellant that the trial court misapprehended the proviso to section 20 (1) of the Sexual Offences Act by misconstruing the words “shall be liable to life imprisonment” to mean maximum mandatory sentence. In Opoya v Uganda (1967) EA 752 the Court was of the view that these words provide a maximum sentence only and the courts have discretion to impose life sentence in deserving cases or any other lesser sentence.

34. In Ogolla s/o Owuor, (1954) EACA 270 the Court stated as follows:“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

35. For the reason that the trial court misinterpreted the proviso to section 20(1) of the Sexual Offences Act, this court, sitting on appeal, has no choice but to interfere with the sentence and alter it.

36. In conclusion, it is my finding that the case against the Appellant has been proved beyond reasonable doubt. The conviction is hereby upheld. However, I will, and do hereby, alter the sentence from life imprisonment to 20 years imprisonment. The sentence shall commence from the date the Appellant was sentenced by the lower court until the sentence of 20 years is served. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 12TH OCTOBER, 2022. S N MUTUKUJUDGE