[2022] KEHC 13925 (KLR)

BM v Republic (Criminal Appeal E006 of 2022) [2022] KEHC 13925 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13925 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E006 of 2022

TW Cherere, J

October 13, 2022

Between

BM

Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence in Criminal S.O No. E025 of 2021 in the Principal Magistrate’s Court at Tigania by Hon. P.M. Wechuli (SRM) on 30. 12. 2021)

Judgment

1. BM (appellant) was charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006 (the Act). The offence was allegedly committed on diverse dates between 29th and May 30, 2021 against AK a child aged 12 years.

2. appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No 3 of 2006. It was alleged that on the same day and place, he unlawfully and intentionally touched the vagina of AK a girl aged 12 years.

3. AK, the complainant testified that PW1 was her sister and confirmed that appellant was married to her other sister M. She stated that she had spent a night with appellant on May 29, 2021 and he had defiled her. She also recalled that he had previously defiled in April of the same year. Complainant confirmed that she and appellant were arrested from appellant’s house. PW1 IK AK’s sister stated that her sister M was married to appellant. She recalled that on May 29, 2021, she was attending a function where appellant insisted to be served food AK and no other person. That after they left the function, they realized that AK could not be traced. That the following morning, AK was found in appellant’s and both appellant and AK were arrested by the area senior chief PW2 who was in company of PW3 an assistant chief and handed over to police officer PW5 who caused appellant to be charged. PW6, a clinician examined complainant on May 31, 2021 and found her with torn hymen but not freshly torn from which it was concluded that complainant had been defiled as shown on the P3 form PXH.1. The witness also tendered complainant’s age assessment report which shows that her age was assessed at 12 years old on May 31, 2021.

4. appellant in his sworn defence denied the offence. He stated he was at Meru hospital visiting his wife when PW1 tricked him that he wanted him to take her to Isiolo and when he went where she was was arrested and subsequently charged.

5. After considering both the prosecution and defence cases, the learned trial magistrate found the prosecution case proved and on December 30, 2021 convicted and sentenced appellant to serve 20 years’ imprisonment

6. Dissatisfied with both the conviction and sentence, appellant lodged the instant appeal mainly on grounds that:i.Broken hymen is not proof of penetrationii.Defence was not given due consideration.

7. This being a first appeal, the court is expected to analyze and evaluated afresh all the evidence adduced before the lower court and draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno v Republic [1972] EA 32,Pandya v Republic [1957] EA 336 and Kiilu &anotherv Republic[2005]1 KLR 174.

8. The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant (See CWK v Republic [2015] eKLR).

Age of complainant 9. It is trite that the age of a minor is a critical component of a defilement charge and that it is an element which must be proved by the prosecution beyond reasonable doubt. (See Kaingu Kasomo v Republic Criminal Appeal No 504 of 2010).

10. Proof of the age of a victim of defilement is crucial because the prescribed sentence is dependent on the age of victim. (SeeHadson Ali Mwachongo vs Republic Criminal Appeal No 65 of 2015 [2016] eKLR &Alfayo Gombe Okello v RepublicCr App No 203 of 2009[2010] eKLR).

11. Complainant’s age was assessed to be 12 years as shown on an assessment report dated May 31, 2021 which was only a day after she was allegedly defiled.

Penetration 12. Section 2 of the actdefines penetration to entail: -“partial or complete insertion of a genital organ of a person into the genital organ of another person.”

13. The P3 form PEXH 1 reveals that complainant had an old tear on her hymen and and I find that the trial magistrate correctly found that penetration was proved.

appellant’s culpability 14. In the case of Stephen Nguli Mulili v Republic[2014] eKLR the Court of Appeal had this to say regarding reliance on section 124 of the Evidence Act to convict:“as a general rule of evidence embodied in section 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section makes an exception in sexual offences and provides as follows:“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 added).

15. appellant is complainant’s brother in law. Complainant testified that she was defied on the night of May 29, 2021 after she spent a night with appellant in his house. That complainant was on the morning of May 30, 2021 found in appellant’s house and the finding by the trial magistrate that PW1, 2 and 3 corroborated complainant’s evidence was therefore well founded. The finding by the trial magistrate that complainant’s evidence that appellant had previously defiled her in April of the same year was well corroborated that the tear on her hymen was not fresh was similarly well grounded on the evidence on record.

16. On the ground that evidence that appellant was arrested from his house was well corroborated by complainant. PW1, 2 and 3, I find that the trial magistrate rightly rejected the defence which he ruled was an afterthought.

17. From the foregoing, I find that the prosecution case was proved beyond any reasonable doubt and that the defence was duly considered and rightly rejected and the well founded.

18. Concerning sentence, to the extent that the Sexual Offences Act prescribes minimum mandatory sentences with no discretion to the trial court to determine the appropriate sentence to impose, I am guided by the decisions of the Court of Appeal in Christopher Ochieng v Republic[2018] eKLR, Jared Koita Injiri v Republic [2019] eKLR andEvans Wanyonyi v Republic [2019] eKLR where in each instance, the court interfered with the mandatory sentences imposed on the basis that the mandatory nature of the sentences was unconstitutional. In Criminal Appeal No 84 of 2015 Joshua Gichuki Mwangi v Republic, the Court of Appeal sitting in Nyeri stated that the ratio decidendi of Muruatetu 1 applies to the unconstitutionality of mandatory sentences mutatis mutandis to the mandatory nature of the sentences provided for in the SOA.

19. From the foregoing, I confirm the conviction. The 20 years’ sentence is however set aside and substituted with a 10 years’ imprisonment term from the date of arrest on May 30, 2021.

DELIVERED AT MERU THIS 13TH DAY OF OCTOBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - Present in personFor the State - Ms. Mwaniki (PPC)