[2022] KEHC 10450 (KLR)

Benard v Republic (Criminal Appeal E049 of 2021) [2022] KEHC 10450 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10450 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E049 of 2021

LM Njuguna, J

May 18, 2022

Between

Vijesu Kinyua Benard

Appellant

and

Republic

Respondent

(Being an appeal against the sentence and conviction by Hon. Ouko in SPM’s Runyenjes Criminal Case (Sexual Offence) No.06 of 2020 delivered on 12. 10. 2021)

Judgment

1. The appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act in Sexual Offence Case No. 06 of 2020 at the Senior Principal Magistrate’s court at Runyenjes. He was charged with an alternative count to the main count, of Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 (as per the charge sheet).

2. The trial court convicted the appellant of the offence of defilement contrary to section 8(1) as read together with Section 8(3) of the Sexual Offences Act No. 3 of 2006 and sentenced him to serve Twenty (20) years imprisonment.

3. He was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal as per the petition of appeal are as hereunder; -1. That the learned trial magistrate erred in law and fact by not taking into cognisance that the prosecution failed to prove its case beyond reasonable doubt as stipulated by law.2. That the honourable trial magistrate erred in law and fact by not realizing that the prosecution case was full of inconsistencies and contradictions hence discrediting the prosecution witnesses.3. That the learned magistrate erred in law and fact by failing to critically evaluate the evidence adduced by the prosecution witnesses and find that the appellant was set up and there was a vendetta against the appellant.4. The learned trial magistrate erred in law and fact by not realizing that the medical report did not link the appellant to the charges he is convicted of.5. The learned trial magistrate erred in law and fact by rejecting the appellant’s defence without giving reasons.

4. When the appeal came up for hearing on 21. 02. 2022, the court gave directions on filing of submissions which directions both parties failed to comply with.

5. I have considered the grounds of appeal before me and as already indicated, the appellant faults the trial magistrate for his conviction and sentence and as such, the court will have to determine whether the prosecution proved its case beyond reasonable doubt.

6. In determining this appeal, this court being a first appellate court, is alive to and takes into account the principles laid down in the case of Okeno v Republic [1972] EA 32 where the court stated that: -“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v Republic 1975) EA 336 and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court to merely 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.”

7. The appellant herein was charged with the offence of defilement and the same is provided for under Section 8(1) of the Sexual Offences Act.1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than 20 years.

8. In the case of George Opondo Olunga v Republic[2016] eKLR, it was stated that the ingredients of an offence of defilement are: -1. Identification or recognition of the offender2. Penetration3. Age of victim

9. For the offence of defilement to be proved, the prosecution must prove each of the above ingredients beyond reasonable doubt. [See the case ofJohn Mutua Munyoki v Republic [2017] eKLR].

10. In regards to the first ground of appeal, the appellant contends that the prosecution did not prove its case beyond any reasonable case.

11. On the age of the complainant, there was no documentary evidence that was produced before the court to determine the exact age of the minor but nonetheless, the trial court conducted a voir dire on the complainant in as much as the complainant was later declared a hostile witness. The complainant stated that he was aged 14 years old while however, according to the other evidence adduced by other prosecution witnesses, the age of the complainant was given as 13 years. At the time of the hearing, the complainant was in class six. I therefore adopt the age of the complainant to be 13 years of age given the fact that, the same was never controverted in any way. In any event, whether the complainant was aged 13 or 14, it does not make a difference in the sentence to be meted out to him under Section 8(1) of the Sexual Offences Act thus, no prejudice was accessioned to him.

12. 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…..

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

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

15. PW1 testified that at the material time, she was a neighbour to the appellant herein and that on 25. 04. 2020, as she had gone to pour dirty mopping water, she heard the complainant crying in their house saying ‘acha kunikunja vile unanikunja’ and so she raised alarm and that PW2 joined her and they heard the complainant moan like people do, when having sex. The same allegations were corroborated by PW2, PW5 and PW6. PW3 testified and further produced a P3 medical form as Exhibit 1. It was his evidence that: “On the physical, the minor had no injuries except for anal region. That the anal skin had a scar formation; the injuries had stayed for long. He had lacerations that were tender and fresh faecal matter was coming from the rectum. The muscle had been compromised hence it was free flowing.’’ He thus formed the view that the complainant had been sodomized and that the same had been happening for a long time.

16. PW4 denied that the appellant had defiled him and to the contrary, stated that two women who had come to their door (Mama Brayo and Irene) told him that they had heard him talk at night. He continued to state that they promised to give him Kshs. 50. 00 each Sunday to lie about his father (the appellant). This question thus becomes more crucial considering that the complainant retracted his statement during the trial. That leads me to the law on recanted testimony.

17. The Court of Appeal in the case of Daniel Odhiambo Koyo v Republic [2011] eKLR had this to say on the probative valve of evidence of a refractory and hostile witness;“… The law on such witnesses is clear. The probative value of his evidence is negligible. It may be relied upon in clear cases to support the prosecution or defence case. In Maghenda v. Republic [1986] KLR 255 at P. 257, this Court remarked thus regarding the evidence of a hostile witness:“The evidence of a hostile witness must be evaluated, in particular if it tends to favour the accused though it may not necessarily be acted upon by the Court.”There is a thin line between a hostile and refractory witness. Both are people who display reluctance in giving evidence as required of them.Normally a court will take a perverse view of the credibility of the hostile or refractory witness in view of his shift in position regarding his statement to the police regarding the case against the accused or is reluctance to testify…

18. The Court of Appeal also summarized the applicable law in Abel Monari Nyanamba & 4 others v Republic [1996] eKLR as follows: “In Coles v Coles, (1866) L.R. 1P. &D. 70, 71, Sir J.P. Wilde said:-“A hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court.’

19. In Alowo v Republic [1972] EA at page 324 the predecessor of the Court said:-“The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible.’

20. Again in Batala v Uganda [1974] E.A. 402 the court at page 405 said“The giving of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable. It enables the party calling the witness to cross-examine him and destroy his evidence. If a witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile, and it can be given little, if any, weight.”The evidence of a hostile witness is indeed evidence in the case although generally of little value. Obviously, no court could found a conviction solely on the evidence of a hostile witness because his unreliability must itself introduce an element of reasonable doubt….

21. My understanding would then be that once a witness is declared hostile his evidence becomes almost worthless and is of no value to either the prosecution or the defence. The act of recanting before the court the evidence given to the police only goes to show that the witness is unreliable. In such a situation, this court is called upon to look elsewhere in search for the truth.

22. PW1 testified that on 25. 04. 2020, as she had gone to pour dirty mopping water, she heard the complainant crying that ‘acha kunikunja vile unanikunja’ and so she raised alarm and that PW2 joined her and they heard the complainant moan like people do when having sex. They went to call the sub area who told them to go and listen out for it again and call him. They did not hear it again and they went to sub-area the following day. This evidence was corroborated by PW1, PW5 and PW6. PW3 who examined the complainant testified and further produced a P3 form as Exhibit 1. It was his evidence that: “on physical examination, the minor had no injuries except for anal region. That the anal skin had a scar formation; the injuries had stayed for long.He had lacerations that were tender and fresh faecal matter was coming from the rectum. The muscle had been compromised hence it was free flowing.’’ He thus formed the view that the complainant had been sodomized and that the same had been happening for a long time.

23. PW2 together with other three ladies joined PW1 after she raised alarm on the night of 25. 04. 2020. They banged on the door of the appellant where he used to live with the complainant and he opened the door after he finished. They asked him what he was doing and he told them to stop asking the complainant what his father did to him and he said it was not the first time that the appellant was doing it and that the complainant said he needed help. PW2 went to the chief and told him who took action.

24. The evidence of the complainant cannot be considered in isolation. Although he recorded his statement and his evidence is thus of little probative value, it is important to consider it alongside that other witnesses in order to determine whether the prosecution proved the case against the appellant.

25. I have considered the appellant’s case as purportedly supported by the evidence of the complainant and find the same unbelievable. The appellant and the complainant were engaged in unlawful sexual relationship. The complainant was coached in an attempt to save the appellant since sex is an activity that ordinarily takes place in secluded areas and in the absence of prying eyes. In the case at hand, the evidence that was adduced established that the complainant and the appellant who were living in the same house had sex on the diverse dates. The trial magistrate was therefore correct in finding that the appellant had defiled the complainant.

26. The complainant identified the appellant to be his father in that, he confirmed that he had been living with him prior to him going to live with his aunt. In the same breadth, the other prosecution witnesses (PW1 and PW2), identified the accused since he was well known to them. On the other hand, the appellant never denied that the complainant was his son and as such, the legal requirement was met.

27. In view of the foregoing, the conviction of the appellant was proper given that the ingredients forming the offence of defilement were proved.

28. The appellant did submit that the prosecution evidence was full of contradictions and inconsistencies thus discrediting the prosecution’s case. In the Uganda Court of Appeal in Twehangane Alfred v Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 quoted with approval by the Court of Appeal of Kenya in Erick Onyango Ondeng’ v Republic [2014] eKLR. The Uganda Court of Appeal held:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

29. Further, in Joseph Maina Mwangi v RepublicCA No. 73 of 1992 (Nairobi) Tunoi, Lakha & Bosire JJA held: -“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.”

30. Therefore, each case must be considered on its own particular circumstances. There are cases where the inconsistency is so minor that, clearly, it will be of little effect and certainly would not necessarily mean that the witness is lying or that his/her testimony cannot be relied on. The court must take all the evidence and all the circumstances of the case into account in deciding whether to accept a witness’s evidence or any part of his testimony. [See Nyakisia v R. E. A. C. A. Crim. App. 35-D-71; -/5/71; Duffus P., Spry v. P. & Lutta J. A., in the East African Court of Appeal].

31. This court has subjected the evidence adduced before the trial court to a fresh scrutiny and though it is true that there were inconsistencies in the evidence of the witnesses more so the complainant, I find that the complainant having positively identified the accused and the fact that PW3 confirmed the injuries on the complainant, the prosecution proved the case against the appellant. Though the complainant was declared a hostile witness, I have looked at the statement that he gave the police and I note that it contains graphic details of what happened on the night of 25. 04. 2020. The contents of the said statement were confirmed by PW5 who testified that after interrogation the complainant (PW4), he admitted that the appellant was defiling him.

32. In regard to the fourth contention by the appellant that there was no link (medical Report) between him and the charges he was convicted of; in Kassim Ali v Republic[2006] eKLR it was held:“… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

33. This was reaffirmed in the case of George Kioji v R NyeriCriminal Appeal No. 270 of 2012 (unreported) 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.”

34. In this case, the weight of evidence adduced by the prosecution weighed against that adduced by the appellant and it is outright that the appellant was responsible for the sexual abuse on the complainant (PW4). His defence was a mere denial. The trial court thus was satisfied, on the evidence given before it that the appellant herein was responsible for the sexual abuse and injuries the complainant suffered.

35. On the ground that his defence was rejected, the trial magistrate noted that she had carefully analysed the evidence adduced by the appellant against that of the prosecution but the court was not convinced that his defence was water tight; and to the contrary, she formed the view that the same was devoid of any truth. As such, the appellant cannot claim that his defence was never considered by the trial court. On the issue that he was framed up, the trial magistrate was of the view that the witnesses (PW1 and PW2) were only neighbours where they were living at the material time, and that they all lived in their respective rented houses and the claim that he was set up was found to be without any basis. The trial magistrate who heard and saw PW1 and PW2 held the view that the duo did not strike her as being insincere.

36. On sentence, it is trite that sentence is a matter that rests in the discretion of the trial court and it must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless, the sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. [See Bernard Kimani Gacheru v Republic [2002] eKLR and Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR].

37. 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(3) of the Sexual Offences Act No. 3 of 2006. The sentence provided under section 8(3) is as stipulated hereunder:A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

38. The complainant herein was 13 years of age at the time the offence was committed. The appellant was sentenced to 20 (Twenty years) imprisonment for the said offence. It is my view that the same is not only lawful but also legal. The sentence imposed is the minimum provided for under the Sexual Offences Act.

39. In view of the foregoing, I find the appeal both on conviction and sentence devoid of any merit and I hereby dismiss it.

40. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF MAY, 2022. L. NJUGUNAJUDGE………………………………….………..for the Appellant……………………………………..…..for the Respondent