[2015] KEHC 2248 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO. 158 OF 2011

D M K……………………………….…….…………….APPELLANT

VERSUS

REPUBLIC…………………….…………..…………RESPONDENT

(Appeal against Judgement, conviction and sentence in Criminal Case Number 246 of 2010, Republic versus D M K at Othaya, delivered by F. W. Macharia, S. R.M, delivered on 19. 7.2011).

JUDGEMENT

D M K(hereinafter referred to as the appellant) seeks to quash the conviction and sentence passed against him by the Learned Resident Magistrate in criminal case number 246 of 2010, Republic vs. D M K delivered on 8. 2.2013 at Othaya Resident Magistrates Court. In the said case the appellant was convicted of the offence of incest contrary to Section 20 (1) of the Sexual Offences Act No. 3 of 2006.

The particulars of the offence were that on diverse dates between 10thday of May in Mukuruweini District of the central province being a male person caused his penis to penetrate the vagina of J W M, a female person who was to his knowledge his daughter.

The prosecution called a total of eight (8) witnesses whose evidence is summarized below. In determining this appeal, this court fully understands its duty. The question what is the duty of a court of first appeal was answered in the case of Okeno v. R[1] where the court of appeal for East Africa stated the duty of an appellate court on first appeal as follows:-

“An appellant on a first appeal is entitled to expect, the evidence as a whole to be submitted to a fresh and exhaustive examination[2] 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.[3]It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts 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.[4]”

I now turn to the evidence adduced before the trial court with a view to treating it to fresh and exhaustive scrutiny. The evidence of all the prosecution witnesses is summarized below:-

PW1, J W was the complainant and as the law commands, the learned Magistrate conducted a voir dire examination and was satisfied that the minor did not understand the meaning of taking an oath and directed that the minor to give unsworn testimony which proceeded as testified as follows:-

“…….I know the accused in the dock. He is my father. He did bad things to me. …I had not gone to church. My mother was not in. My father was there. He called in the house. He removed my clothes after closing the door. He took a stick and he beat me up……………..When he removed my clothes, he removed his. He lay on me. He put saliva in my mouth. (Complainant demonstrates to court how he did it which amount to kissing).

At this point the complainant broke down and the court adjourned to enable the court to get a doll and a picture showing human anatomy (male) to aid the complainant in giving her evidence.

The minor continued with her testimony on 21. 9. 2010 as follows:-

…………………..he removed his thing…………………He inserted it in me…………I told my grandmother. I told Dedan and the chief what my father had done to me…..I

It was the minor’s evidence on cross examination that even though she had told her grandmother they did nothing and after school opened she informed her teacher a one Miss M.

PW2 Stephen Maina Dedan the area Assistant Chief testified that he received a call from the area chief a one Maingi Muturi on 7. 5.10 who instructed him to proceed to [particulars withheld] Primary School. He complied and the head teacher who informed him that the minor herein was telling other children that she was sleeping with her father. He advised the Head teacher to have the child taken to school. On 12. 5.10 he accompanied some police officers the appellants’ place of work where he was arrested.

PW3a teacher at [particulars withheld] Primary School testified how the complainant reported to her that she as being abused sexually. She passed the information to the head teacher. She testified that the minor had informed her that the father had defiled her several times. Later he minor also narrated the story to police officers.

PW4 D K N, the head teacher of the school testified how the minor confirmed to him and a colleague that her father was defiling her. He identified the appellant in the dock. On cross-examination the witness recalled that he had received similar reports in 2008 before and that the appellant had been arrest recover the same offence in the past.

PW5 No. 88355 PC Prsicah Matuu, was attached at the Mukuruweini Police Station manning the children and gender desk. She accompanied the minor to hospital where she was examined and the P3 form completed.

PW6 No. 62061 PC Benjamin Mwangi, a CID office testified visited the school after receiving the report and interviewed the minor with the help of teachers, and recorded statements. He testified that the complainant informed them that her father, the appellant herein had been defiling her. They searched for the accused person who was arrested and charged with the offence.

PW8 Dr. Salome Wangui Wanjohitestified that she examined the complainant on 14. 5.10. Her hymen was broken and had pus discharge on her vagina. She concluded a probability of sexual assault.

After evaluating the above evidence, the trial magistrate was satisfied that a prima facie case had been established and put the accused on his defence and complied with the provisions of section 211 CPC. The accused elected to give un sworn evidence and opted not to call witnesses in support of his defence.

In his brief testimony the appellant denied ever defiling his daughter and added that he had a wife whom was always with him.

DW2was H N the appellants’ wife. Her evidence was that on the material day the children went to school at 7am. His husband left early to work in the shamba and came back at 6pm.He was arrested on 12. 5.2011. She testified that the minor has never complained to her about the alleged defilement not had she ever seen it happen.

DW3 H N testified that on 10. 5.10 the accused was at her home from 9am and worked in the shamba until 5pm. She insisted she was with him the whole day.

The learned magistrate convicted the appellant and sentenced him to serve 15 years imprisonment. Aggrieved by the said verdict, the appellant appealed to this court seeking to quash the conviction and sentence and has advanced three grounds, which in my view can be reduced to one, namely, whether or not there was sufficient evidence to support the conviction.

The appellant handed in written submissions which he adopted at the hearing of this appeal while the learned State Counsel Miss Maundu urged the court to uphold the conviction and submitted that there was overwhelming evidence to support both the conviction and sentence.

I have carefully considered the submissions made by the appellant and the state counsel. I have also reviewed the evidence on record and the relevant law. Section 20 (1) of the sexual offences Act no. 3 of 2006 provides that:-

20 (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years.

Provided that, if it is alleged in the information or charge and proved that the female is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

To establish a case under the above section, the prosecution must prove the elements of the offence. For instance, there must be an indecent act or an act which causes penetration. Further, the victim must be a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother.

It is therefore imperative that the prosecution must prove the existence of a father/daughter relationship between the appellant and the complainant. The complainant herself severally referred to the appellant as her father. DW2 the complainant’s mother shed more light on the relationship when she told the court that she was married to the appellant and she further testified that the appellant was not the biological father of the child. The implication therefore is that the appellant was not the biological father of the child, but having married the child’s mother, he was in actual fact her ‘step-father’. Does this fact that no biological or blood ties exist between the two negate a charge of incest? The answer is to be found in section 22 of the Sexual Offences Act which deals with ‘Test of relationship’. Section 22 (1)provides as follows:-

22(1) In cases of the offences of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not …”

22(3) A accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.

My own understanding is that ‘half father’ is a term which means exactly the same as ‘step-father’ – it means one who is not a biological father of the child but has married the child’s mother as in the present case or has adopted the child. Therefore by dint of this Section 22(1) of the Act the appellant being a step-father of the complainant and one who stood in ‘loquo parenthis’ can legally be charged and indeed convicted of the crime of Incest with her.

I find no difficulty in believing that the complainant is a female person within the above definition and that the appellant is her father and that the appellant knew her to be her daughter. These basic truths which are essential ingredients of the offence of incest were not contested at all.

An indecent act is also defined in Section 2 of the Act as follows:-

‘ indecent act’ means an unlawful intentional act which causes:-

(a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act of penetration.

(b) ……….………………….…………………………………………….

‘ Act which causes penetration’ means an act contemplated under this Act.’

It is also necessary to bear in mind the definition of penetration which is defined in the act at ‘the partial or complete insertion of the genital organs of a person into the genital organs of another person.’

The prosecution bears the onus of proving that an “indecent act” or “act which causes penetration” has been committed in addition to proving the relationship between the accused/appellant and the complainant as well as the age of the complainant. I need to emphasize here that consent is not an issue in an offence of incest. Section 20 (1) above, makes it clear that whether consent was given or not, once the ingredients of incest have been proved, the accused/appellant is found guilty consent notwithstanding.

In determining this appeal, this court will be considering whether the above ingredients have been proved beyond reasonable doubt. In support of “indecent act” and “act which causes penetration” is the evidence of PW1 who told the court that her father defiled her and her clear testimony referred to one night while the evidence of PW2 & PW3 suggested several incidents of sexual assault. PW8, the Doctor who completed the medical report testified that her hymen was broken raising a possibility that the child may have been sexually assaulted.

My conclusion based on the above evidence is that there is proof that the complainant had been sexually molested. The evidence on record to me proves beyond reasonable doubt that there was an act which caused penetration and the next issue is the identity of the person who did it and the relationship with the complainant. I have already dealt with the relationship and identity above hence I proceed to connect the appellant with the offence.

In support of the indecent act and the act of penetration is the evidence of the complainant who narrated how the appellant removed her clothes and laid on her. She reported to her grandmother but no action was taken prompting her to report to her teacher and this ultimately led the arrest of the appellant.

The learned magistrate who had the benefit of seeing the witnesses testify believed the above evidence. The proviso to section 124of the Evidence Act, Cap 80, Laws of Kenya provides:-

“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”

No direct evidence on the age of the minor was adduced in court and the learned Magistrate after considering the evidence and having seen the minor testify in court was of the view that the minor was not an adult, i.e even 18 years. In defilement cases, the age of the complainant is an important factor especially when sentence is being considered. In the case of Dominic Kibet Mwareng –vs- Republic[5]it washeld thus:-

“The critical ingredients forming the offence of defilement are:- the age of the complainant, proof of penetration and positive identification of the assailant. …….Mr. Chebii, Counsel for the Appellant submitted that none of these ingredients was established. On the age of the Complainant, he submitted that failure to conduct an age assessment on the Complainant was fatal to the Complainant’s case. He referred the Court to the case of Hilary Nyongesa Vs Republic[6]where Mwilu J (as she then was) stated that:-

“Age is such a critical aspect in Sexual Offences that it has to be conclusively proved…And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.”

I agree and add that while the Court may in certain circumstances rely on evidence other than an age assessment report, the onus of proving the age of the victim resides with the Prosecution and a simple statement by the Complainant as to their age does not in my view, constitute such proof.”

The question that follows is whether failure by the prosecution to adduce evidence on the age of a complainant like in the present case meant that an important ingredient of the charge had not been proved. This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced before the trial court so as to reach its own independent determination whether or not to uphold the conviction of the Appellant. As was held by the Court of Appeal in Njoroge -Vs- Republic[7]that:-

“ As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of the first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect”[8]

Regarding the age of the victim in this case, the P3 shows that the minor was aged 13 years. The trial magistrate who had the benefit of seeing the minor testify concluded that she was certainly not an adult, i.e. even 18 years. At the time of giving evidence she was in class three. No documentary evidence was adduced to support the age of 13 years. This court agrees with the appellant that it was imperative that the prosecution establishes the age of the complainant. This is material because the age of the complainant in defilement cases determines the custodial sentence that shall be meted on the appellant. In John Cardon Wagner –vs- Republic,[9] Warsame J (as he then was) held that:-

“In defilement cases, the age of the complainant is proved by either medical evidence or through other evidence since the sexual offences act has different categories of ages and sentences of different ages…”

Mutende J in Musyoki Mwakavi –vs- Republic Machakos[10] held that:_

“…apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense…”.

In the case of Francis Omuroni versus Uganda,[11] it was held thus:-

“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”

In the present case, the learned Magistrate after evaluating the evidence adduced, the age as disclosed in the P3 form and the courts own observation concluded that the child was not an adult. I find no basis to dispute or vary the learned Magistrates findings on this issue.

The upshot of the above reasons is that the appeal lodged by the appellant lacks merit and is hereby dismissed. The prosecution established its case to the required standard of proof that indeed the appellant sexually assaulted the complainant. The custodial sentence meted on the Appellant is legal. Under Section 20 (1) of the Sexual Offences Act, any person who commits an offence of incest shall upon conviction be sentenced to a period of not less than ten years. The Appellant was sentenced to serve fifteen years imprisonment.

I have considered the minimum sentence prescribed under the law, the nature of the offence and the mitigation offered on behalf of the accused and I hereby reduce the sentence to ten years.

The upshot is the appeal against conviction is hereby dismissed and the sentence imposed by the learned magistrate is hereby reduced to ten (10) years. Sentence to run from the date of conviction by the lower court.

It is so ordered.

Dated at Nyeri this 1stday of October2015

John M. Mativo

Judge

[1] {1972) E.A, 32at page 36

[2] See Pandya vs Republic {1957}EA 336

[3] See Shantilal M. Ruwala vs Republic {1957} EA 570

[4] See Peter vs Sunday Post {1958}EA 424

[5] {2013}eKLR

[6] High Court Cr Appeal No. 123 of 2009, Eldoret

[7] {1987} KLR at page 22

[8] Pandya vs Republic {1957} E.A 336 & Ruwala vs Republic {1957} E.A. 570

[9] High Court Criminal Appeal No. 404 of 2009 ( Nairobi)

[10] High Court Criminal Appeal No. 172 of 2012

[11] Criminal Appeal no 2 of 2000- Court of Appeal