[2024] KEHC 15967 (KLR)

Ayoya v Republic (Criminal Appeal E022 of 2023) [2024] KEHC 15967 (KLR) (18 December 2024) (Judgment)

Neutral citation: [2024] KEHC 15967 (KLR)

Republic of Kenya

In the High Court at Vihiga

Criminal Appeal E022 of 2023

JN Kamau, J

December 18, 2024

Between

Wycliffe Kibabi Ayoya

Appellant

and

Republic

Respondent

(Being an Appeal from the Judgment of Hon S. O. Ongeri (SPM) delivered at Vihiga in Senior Principal Magistrate’s Court in Sexual Offence Case No E035 of 2021 on 25th May 2022)

Judgment

Introduction 1. The Appellant herein 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. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.

2. He was convicted by the Learned Trial Magistrate, Hon S. O. Ongeri (SPM), on the charge of defilement and sentenced to fifteen (15) years imprisonment.

3. Being dissatisfied with the said Judgment, on 14th August 2023, he lodged the Appeal herein. His Petition of Appeal was dated 18th July August 2022 (sic). He set out five (5) Grounds of Appeal. He filed Supplementary Grounds of Appeal dated 14th March 2024 on 19th March 2024. He set out four (4) Supplementary Grounds of Appeal.

4. His Written Submissions were also dated 14th March 2024 and filed on 19th March 2024 while those of the Respondent were dated 17th May 2024 and filed on 20th May 2024. The Judgment herein is based on the said Written Submissions that both parties relied upon in their entirety.

Legal Analysis 5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.

6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify and thus make due allowance in that respect.

7. Having looked at the Appellant’s Grounds of Appeal, Supplementary Grounds of Appeal and parties’ Written Submissions, it appeared to this court that the issues that had been placed before it for determination were as follows:-a.Whether or not the Prosecution proved its case beyond reasonable doubt; andb.Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.

8. The court dealt with the said issues under the following distinct and separate heads.

I. Proof Of Prosecution’s Case 9. Grounds of Appeal Nos (2), (3) and (4) of the Petition of Appeal and Supplementary Grounds of Appeal Nos (1), (2) and (3) were dealt with under this head as they were all related.

10. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.

11. It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR.

12. This court dealt with the aforesaid Grounds of Appeal under the following distinct and separate heads.

A. Age 13. The Appellant submitted that the Birth Certificate of the Complainant, JI (hereinafter referred to as “PW 1”) was only marked for identification but was not produced as an exhibit thus her age was in doubt. In this regard, he relied on the case of Eliud Ouma Agwara vs Republic [2015] eKLR where it was held that the age of the complainant in sexual offences could be proved by documentary evidence but that it could not be proven by sworn evidence or P3 Form unless the person who completed the P3 Form medically examined the complainant at the time of completing the P3 Form.

14. On its part, the Respondent reproduced the evidence of PW 1 and her mother, Alice Pamela Oyengo (hereinafter referred to as “PW 2”) and pointed out that PW 1’s Birth Certificate was produced by PW 2 as exhibit in court and that the Appellant did not object to the production of the same. To buttress its point, it cited the case of Francis Omuroni vs Uganda Criminal Appeal No 2 of 2000(citation not given) where it was held that apart from medical evidence, age could also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.

15. Notably, PW 1 testified that she was born on 14th March 2005 and that she was sixteen (16) years old. PW 2 testified that PW 1 was born on 16th March 2005. She produced her Birth Certificate whish was marked as exhibit in this case. The Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut this evidence by adducing evidence to the contrary. Thus, it was not true that the same was not produced as evidence as submitted by the Appellant. His argument therefore fell on the wayside.

16. The aforementioned Birth Certificate showed that PW 1 was born on 16th March 2005. The offence herein was committed between 14th April 2021 and 4th May 2021. Consequently, this court was satisfied that the Prosecution had proved that PW 1 was sixteen (16) years and was therefore a child at the material time.

B. Identification 17. The Appellant did not submit on this issue. On the other hand, the Respondent submitted that PW 1 testified that it was the Appellant who defiled her for three (3) weeks. It added that PW 1 knew him by name and therefore it was not in doubt that she could easily identify him. It asserted that the Trial Court found that she was an honest witness. To buttress its point, it invoked Section 124 of the Evidence Act.

18. PW 1 testified that on the material date of 14th April 2021, she was going to the river when he met the Appellant who told her that his sister had completed class eight (8) and that he would give her her books. She stated that he took her to his house, locked her from the inside, removed her clothes and his clothes and inserted his penis in her vagina. She stated that she stayed with him for three (3) weeks and that his mother would bring them food.

19. This court noted that PW 1 was the only identifying witness. Having said so, under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), a trial court could convict a person on the basis of uncorroborated evidence of the victim if it was satisfied that the victim was telling the truth.

20. Notably, the proviso of Section 124 of the Evidence Act states that:-“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), 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 an 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 (emphasis).”

21. Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. Other corroborating evidence could assist the trial or appellate court to come with a determination as to who between the opposing witnesses was being truthful. Other corroborating evidence could be proof of penetration, which was dealt with later in the Judgment herein.

22. The incident took place at day time when PW 1 was going to the river. There could not have been any possibility of a mistaken identity because she and the Appellant were not strangers as they stayed together in his house for three (3) weeks.

23. This court thus came to the firm conclusion that the Prosecution proved the ingredient of identification which was by recognition.

C. Penetration 24. The Appellant submitted that the evidence that was tendered to prove penetration was flawed because although PW 1 indicated that she stayed with him for three (3) weeks, there was no recent sign of penetration when she was medically examined. He argued that according to the Medical Report, everything was normal save for the missing hymen. He contended that a missing hymen was not conclusive proof of penetration.

25. In this regard, he placed reliance on the case of John Mutua Munyoki vs Republic (2017) & Athur Mushila Manga (eKLR citation not given) without highlighting the holding that he was relying upon. He submitted that the Trial Court introduced doubt when it stated that the clinical officer had certified that the missing hymen confirmed that there might have been penetration. It was his case that the fact that PW 1 led her parents and the police to his house did not prove penetration. He added that the Prosecution needed to call his mother as a witness to confirm that she was the one feeding her for the said three (3) weeks.

26. He further cited the case of Martin Charo vs Republic [2016] eKLR where it was held that the conduct of the complainant played a role in defilement cases. He contended that PW 1 only decided to report after she was chased by the alleged boyfriend.

27. On the other hand, the Respondent submitted that PW 1’s evidence was corroborated by that of the Clinical Officer, Boaz Aliona (hereinafter referred to as “PW 3”) and that it had proved the ingredient of penetration. It invoked Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mahammed vs Republic [2020] eKLR where it was held that the key evidence relied on by the courts in rape cases and defilement in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer.

28. PW 3 confirmed that PW 1’s hymen was missing but that she did not have any injuries. He concluded that she had been defiled as there was penetration. He produced the Post Rape Care (PRC) Form, P3 Form and Treatment notes as exhibits in support of the Prosecution’s case.

29. Notably, PW 1’s evidence was well corroborated by the oral evidence of PW 2 and the Investigating Officer, No 237684 Gregory Sammy (hereinafter referred to as “PW 4”) and by the scientific evidence that was tendered by PW 3 which confirmed recent penetration.

30. The Appellant’s assertion that his mother ought to have been called to confirm that PW 1’s testimony that she stayed at his house for three (3) weeks was not supported by law. The Prosecution was not mandated to call a particular number of witnesses to prove a fact. Indeed, Section 143 of the Evidence Act Cap 80 (Laws of Kenya) stipulates as follows:-“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

31. This court was satisfied that the witnesses who were called by Prosecution to establish the charge beyond reasonable doubt were sufficient. THE Appellant seemed to suggest that PW 1 only reported the issue after he chased her away. There was an implied admission that he was her boyfriend. How else would he have known that PW 1 was chased away by her alleged boyfriend if he not referring to himself? It was evident that his defence was simply a denial. His evidence was not watertight enough to displace the Prosecution’s inference of guilt on his part.

32. The Trial Court could not therefore have been faulted for having found that he did in fact penetrate PW 1 and that the Prosecution had proved its case against him beyond reasonable doubt.

33. In the premises foregoing, Grounds of Appeal Nos (2), (3) and (4) of the Petition of Appeal and Supplementary Grounds of Appeal Nos (1), (2) and (3) were not merited and the same be and are hereby dismissed.

II. Sentencing 34. Grounds of Appeal Nos (1) and (5) of the Petition of Appeal and Supplementary Ground of Appeal No (4) were dealt with under this head.

35. He placed reliance on the case of EdwinWachira & 9 Others vs Republic Petition No 97 of 2021 (eKLR citation not given) where the court cited the case of Eliud Waweru Wambui vs Republic[2019]eKLR where it was held that if the law should impose on the process of “growing up” fixed limits where nature knows only continuous process, the price would be artificially and lack of realism in an area where the law must be sensitive to human development and social change.

36. He submitted that in England, only sex with person less than the age of sixteen (16) which was the age of consent was criminalised and the sentences were much less stiff. In that regard, he relied on the book, Archbold Criminal Pleading Evidence and Practice (2002) p 1720 without highlighting the part of the book that he was relying upon.

37. He argued that Kenyan prisons were full of young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent had been held to have been immaterial because they were under the age of eighteen (18) years. He pointed out that the sentence that was imposed on him on the basis of mandatory and minimum was harsh and excessive as was also considered in the case of Evans Wanjala Siibi vs Republic [2019] eKLR.

38. He urged this court to borrow a leaf from England and other jurisdictions and mete upon him a least severe sentence preferably time already served. He also urged the court to order that his sentence run from the date of arrest.

39. On its part, the Respondent submitted that the Appellant’s sentence was lawful and should be upheld.

40. The Appellant herein was sentenced under Section 8(4) of the Sexual Offences Act. The same provides as follows: -“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”

41. This court could not therefore fault the Trial Court for having sentenced him to fifteen (15) years imprisonment as that was lawful.

42. Prior to the directions of the Supreme Court in Francis Karioko Muruatetu and Another vs Republic [2017] eKLR on 6th July 2021 that emphasised that the said case was only applicable to murder cases, courts re-sentenced applicants for different offences, including sexual offences.

43. Notably, in the case of Joshua Gichuki Mwangi vs Republic [2022] eKLR, the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence.

44. Bearing in mind that the High Court was bound by the decisions of the Court of Appeal as far as sentencing in defilement cases was concerned, this court had been exercising its discretion to reduce the sentences for those who had been sentenced under the Sexual Offences Act.

45. However, in a decision that was delivered on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic (Supra) and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. The Supreme Court directed the relevant organs to abide by its decision noting that the appellant therein had since been released from prison.

46. As this court was bound by the decisions of courts superior to it, its hands were tied as regards the exercising of its discretion to reduce the Appellant’s sentence. It had no option but to leave the said sentence that was meted against the Appellant herein undisturbed.

47. Having said so, this court was mandated to consider the period he spent in remand while his trial was on going as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).

48. The said Section 333(2) of the Criminal Procedure Code stipulates that:-“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this CodeProvided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody” (emphasis court).

49. Further, the Judiciary Sentencing Policy Guidelines provide that:-“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”

50. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR.

51. The Appellant was arrested on 4th May 2021. His bond was approved on 19th August 2021. He was convicted on 25th May 2022 and remanded in custody. He was sentenced on 6th July 2022. He therefore spent three (3) months and fifteen (15) days in custody before he was released on bond and one (1) month and ten (10) days before his sentencing.

52. A perusal of the record showed that the Trial Court did not take into account the said period while sentencing him. This period therefore ought to be taken into consideration while computing his sentence.

Disposition 53. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 18th July August 2022 (sic) and lodged on 14th August 2023 and his Supplementary Grounds of Appeal dated 14th March 2024 and filed on 19th March 2024 were not merited and the same be and are hereby dismissed. His conviction and sentence be and are hereby upheld as they were both safe.

54. However, for the avoidance of doubt, the period between 4th May 2021 and 19th August 2021 and the period between 25th May 2022 and 5th July 2022 be and is hereby taken into account while computing his sentence in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).

55. It is so ordered.

DATED AND DELIVERED AT VIHIGA THIS 18TH DAY OF DECEMBER 2024J. KAMAUJUDGE