[2023] KEHC 24781 (KLR)

CKL v Republic (Criminal Appeal E037 of 2021) [2023] KEHC 24781 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24781 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal E037 of 2021

JR Karanja, J

November 2, 2023

Between

CKL

Appellant

and

Republic

Respondent

Judgment

1. The Appellant, CKL, appeared before the Resident Magistrate at Kericho charged with defilement, contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, in that on the 2nd December 2018 at about 1500 hours in Belgut Kericho County he intentionally and unlawfully caused his penis to penetrate the vagina of SC, a girl aged thirteen (13) years.

2. After trial, the appellant was convicted and sentenced to ten (10) years imprisonment. Being dissatisfied with that outcome the appellant preferred the present appeal on the basis of the grounds contained in the petition of appeal filed herein on 9th December 2021 which grounds were amended and substituted with the fresh grounds contained in the amended petition of appeal filed herein on 17th July 2023 together with the appellant’s submission which were presented at the hearing of the appeal when the appellant appeared in person.

3. The Learned Prosecution Counsel, M/s Aseda, appeared for the state/respondent and opposed the appeal by submitting that the “voire dire” examination was properly conducted by the trial court which found that the minor appreciated the value of telling the truth and was allowed to take oath. The Learned Prosecution Counsel further submitted that the age assessment report (P.Ex2) was sufficient proof of the minors age and its production was not objected by the appellant.On sentence, Learned Prosecution Counsel submitted that it was lawful and lenient and urged this court to dismiss the appeal.

4. The appellant contended in his submissions that the voire-dire examination was improperly conducted and that the age of the complainant was not proved. He prayed that this court finds merit in the appeal.

5. In its judgment the trial court found that the complainant’s age had been proved and that the complainant had indeed been defiled by the appellant.This court as was duty bound considered the evidence afresh and being alive to the fact that it did not have the advantage of hearing and seeing the witnesses as was the trial court; nonetheless finds that the evidence by the complainant (PW 1) as corroborated by that of Kenneth Koech (PW 4), a Clinical Officer at Kabianga health centre was credible and sufficient enough to prove that the complainant was indeed defiled.

6. The complainant’s evidence further established and proved that the appellant was the person responsible for defiling her. He was very well known to her and her family being a neighbour and a cousin. He was thus positively recognized by her.The complainant’s mother, NB (PW 2), indicated that the complainant was of the age of thirteen (13) at the material time. This fact was confirmed and proved by the age-assessment report (P. Ex 2) from the Ministry of Medical Services made on 15th May 2019 after the complainant was examined by a medical officer.

7. In the absence of a birth certificate, the age assessment report was sufficient and credible documentary evidence of the complainant’s age.The prosecution’s evidence viewed wholesomely was cogent and credible enough in establishing the material ingredients of the offence of defilement against the appellant thereby proving beyond reasonable doubt the case against him and rendering his defence lacking in credibility.

8. This court is therefore satisfied that the appellant’s conviction by the trial court was proper and is hereby affirmed.On the sentence, section 8(3) of the Sexual Offences Act provides for imprisonment for a period of not less than twenty (20) years for a person who defiles a child between the age of twelve (12) and fifteen (15) years.The appellant was handed down a sentence of ten (10) years imprisonment far below the prescribed minimum period of twenty (20) years.

9. In that regard, it would have been appropriate for this court to alter the sentence upwards but because the state/respondent did not apply for enhancement thereof it will remain as it is.

10. In sum, the present appeal is lacking on merit and is hereby dismissed in its entirety.

Ordered accordingly.

DATED AND DELIVERED THIS 2ND DAY OF NOVEMBER, 2023. J. R KARANJAHJUDGE