[2022] KEHC 12980 (KLR)

Baraza v Republic (Criminal Appeal E097 of 2021) [2022] KEHC 12980 (KLR) (19 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12980 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E097 of 2021

LN Mutende, J

September 19, 2022

Between

Evans Maikuma Baraza

Appellant

and

Republic

Respondent

(Appeal against the original conviction and sentence in S.O. Case No. 131 of 2021 at the Senior Principal Magistrate’s Court Kimilili by Hon. G. Adhiambo - PM on 27/9/2021)

Judgment

1. Evans Maikuma Baraza, the appellant, was arraigned following allegations of having defiled RNM. a minor aged 17 years old contrary to the provisions of section 8 (1) as read with Section 8(4) of the Sexual Offences Act. The alleged act was stated to have been committed on February 23, 2019.

2. In the alternative, he faced a charge of committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. Particulars being that on the 23rd day of February, 2019 at [Particulars Withheld] village, Kimilili sub-county within Bungoma county, unlawfully and intentionally did cause his penis to come in contact with the vagina of RNM a child aged 17 years.

3. Having denied the charge, he was taken through full trial, found guilty, convicted for the main count of defilement and sentenced to serve ten (10) years imprisonment.

4. Aggrieved, the appellant appeals against the decision of the trial court on grounds that his rights were violated and that evidence tendered was full of contradictions; and extraneous factors were taken into consideration.

5. Evidence adduced was that RNM left her home going with the appellant herein to his house to purportedly collect her set book. He locked her inside the house and they had penetrative sex. While inside the house they heard her grandfather talking from outside, threatening to cut someone into pieces. She managed to sneak out but on reaching home their house was locked. The appellant went after her and they returned to his house. He could not let her go hence she stayed with him from Saturday to Monday, and she did not go to school. Thereafter, she managed to escape. She went home and sought forgiveness from her grandfather who caned her. The following day she went to school and learnt that her grandmother had reported the incident to the school. She divulged what transpired and the school administrator referred them to the police where they recorded statement and a warrant of arrest was issued.

6. Subsequently, the complainant was found to be pregnant. PW4 CWM, her father, who lived in Mombasa was notified of the occurrence. He travelled home and joined in the search of the appellant. Eventually, the appellant was arrested. After the complainant was delivered of the child, a DNA test was conducted. It turned out that the appellant was the biological father of the child.

7. Upon being placed on his defence, the appellant recounted how he was found on the farm and arrested by two individuals who asked him to accompany them to the police station. He complied and on reaching the police station they found a lady who alleged that he owed her Ksh 10,000/- She asked to be given for Ksh 200,000/- which he did not have. The lady gave the police Ksh 2000/-. They assaulted him, took his techno spark 5 phone and Ksh 1200/- then caused him to be charged.

8. The trial court considered evidence adduced, the credibility of prosecution witnesses and the defence put up which it disregarded and convicted the appellant, hence the appeal.

9. The appeal was canvassed through written submissions. It was urged by the appellant that the trial court erred by failing to appreciate that he could have been deceived by the complainant that she was above the age of eighteen (18) years; therefore, section 8(5) of the Sexual Offences Act was applicable so that he can be set at liberty to go and provide for his family, namely the child sired and his mother.

10. Further, he submitted that he was rehabilitated and sought reduction of the sentence imposed.

11. The respondent submitted that the appellant failed to point out the alleged inconsistences; and, that all ingredients of the offence had been established.

12. This being a first appellate court, it has the duty to re-evaluate evidence adduced before the trial court and come up with its independent conclusions bearing in mind that it did not have the opportunity of seeing or hearing witnesses who testified. This was well stated by the Court of Appeal in the case of Okeno Vs Republic(1972) EA 32, as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted afresh and exhaustive examination (Pandya versus Republic [1957] EA 336) and the appellate court’s own decision on evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M Ruwala versus Republic [1957] EA 570) . It is not a function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.(see Peter versus Sunday Post [1958] EA 424).”

13. Ingredients of the offence of defilement are captured underSection 8(1) of the Sexual Offences Act that provides thus:A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

14. Proof of the stated ingredients was well captured in the case of Charles Wamukoya Karani Vs Republic, Criminal Appeal No 72 of 2013, where the court stated thus:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

15. On the question of age it was held in the case of fappytonMutuku Ngui Vs Republic (2012) eKLR that:“….That “conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean that there has to be a formal age assessment report or the production of a birth certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases.”

16. The age of the complainant herein was proved by evidence of a birth certificate. According to the document RNM was born on the February 12, 2002. This evidence that was not in dispute proved that at the time of the act, the complainant was seventeen (17) years old. Section 2 of the Children Act defines a child as:Any human being under the age of eighteen years.

17. Evidence adduced therefore proved that the complainant was achild.

18. Penetration is defined by section 2 of the Sexual Offences Actas:The partial or complete insertion of the genital organs of a person into the genital organs of another person;

19. It was the complainant’s evidence that they engaged in penetrative sex. She conceived and bore a child. This corroborated the fact of having engaged in penetrative sex which was proof beyond doubt of the fact of complete insertion of the male genital organ into that of the complaint’s genetalia.

20. It is urged by the appellant that the complainant deceived him to believe that she was an adult. He accepts being the biological father of the child and pleads to be set at liberty. Section 8(5) of the Sexual Offences Act provides that:It is a defence to a charge under this section if - ­ (a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and ­ (b) the accused reasonably believed that the child was over the age of eighteen years.

21. When the appellant subjected the complainant to cross- examination he did not suggest the allegations of having been deceived. Similarly, in his defence, the appellant who chose to state how he was arrested and allegedly told to settle a non-existent debt, failed to suggest that the complainant deceived him.

22. In determining whether the appellant could have been made to believe that the complainant was above eighteen (18) years old, the belief must be a reasonable one. Secondly, all circumstances and the step the appellant took into consideration must be established.

23. Evidence adduced was that the complainant was a school-going child. She allegedly went to the house of the appellant to collect a set book. This fact perse should have made the appellant interrogate the age of the complainant but he did not do it. In the premises the defence put up cannot be available to the appellant. The act that he committed was unlawful and intentional and the complainant had no capacity to consent to the act.

24. On sentence, section 8(4) of the Sexual Offences Act provides thus: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.

25. The sentence meted out at the time was not harsh. In the upshot, the appeal lacks merit. Accordingly, it is dismissed.

26. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLYTHROUGH MICROSOFT TEAMS AT NAIROBI,THIS 19TH DAY OF SEPTEMBER, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Court Assistant – BrendaAppellantMr. Ayekha for ODPP