[2019] KEHC 5787 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 1 OF 2019

DMM................................................APPELLANT

-VERSUS-

REPUBLIC...................................RESPONDENT

(Being an Appeal from the Original Conviction and Sentence by Hon. A. Lorot (Senior Principal Magistrate)in Machakos Chief Magistrate’s Court Criminal Case No 19 of 2016)

JUDGEMENT

1. The appellant was convicted with defilement contrary to section 8(1) read together with section (8) (2) of the Sexual Offences Act, 2006. There was also an alternative charge of indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The appellant was sentenced to life imprisonment.

2. Briefly, the evidence was as follows: Pw1 was BWM, a farmer aged 70 years and the grandmother of the victim. She testified that on 5/7/2016, she was at Konza Chief’s meeting and when she went home she met a girl who told her that M did bad manners to her granddaughter. She identified the girl as P aged about three years. She went and picked the young child and placed her on a bed in her house and checked the victim and she found that her private parts looked okay. She took the child to Chief’s Baraza and when they went back home, the girl sought to go to the toilet and asked for tissue. It was then that she noticed her faeces had blood. She took the child to hospital at Konza and was referred to Machakos. The child was treated at Machakos Level five and she tendered the P3 marked as MFI – 1 as well as the birth certificate No. [Particulars withheld] in name of PM whose mother is indicated as RMM while the father is indicated as FMM and date of birth is 29/1/2013. The birth certificate was marked as MFI 2. She also had a Post Rape Care Form (PRCF) dated 5/8/2016 where the date of birth is indicated as 26/8/2013 in name of PMM and observations were: stain noted on trouser, mucus like and diagram shows where stain is coming from and it indicated that the injury was on her anus. The form was marked as MFI 3. She testified that Muema who was alleged to have attacked the child was accused in court and that the matter was reported at Kyumbi Police Station. On cross-examination, she testified that the appellant was left with the child and on re-examination she testified that JK told her that the appellant defiled the child.

3. Pw2 was JK. The court found that the child was too young to comprehend the meaning of an oath and directed that she gives an unsworn statement and be cross-examined by the appellant. She testified that on 9/7/2016, she was playing with the victim when the appellant seized her and did “tabia mbaya” with her. She testified that the appellant carried P on a bicycle and entered the house of Mwanza who is the herdsman of their cattle. She told the appellant to open the door but he refused. She stated that she could hear the victim crying and she alerted the mother of Mwanza that P was crying and that P was with the appellant who was doing bad manners to P. She stated that when she peeped through the window, she saw a naked P.

4. Pw3 was Jonathan Musyoka Kamia, aged 50 years and the Assistant Chief at Konza sub location. He testified that on 5/7/2016 at 3. 00 pm, he was at Konza and got a call from Esther Muendo who was a leader of the Nyumba Kumi initiative who informed him that a child had been defiled. He rushed to the home and found the appellant and called APs to come and assist him to arrest the appellant who claimed that he was being disturbed by libido and asked for forgiveness for he had defiled a child called P. The members of the public wanted to lynch him but he was rushed to Kyumbi Police Station. He wrote a statement later.

5. Pw4 was APC David Njoroge Ng’ang’a stationed at Konza Administration Police Post. He testified that on 5/7/2016, he was at AP Post and got a call from area Assistant Chief Mr. Jonathan Musyoka Kamia who informed him that there was a young man by the name D M M who had defiled a three year old minor by the name P M (P). He rushed to the scene and found the appellant and arrested him. The Assistant Chief called the OCS of Kyumbi who instructed the Chief to take the appellant to the Kyumbi Police Station and he escorted him where he was booked in and he was put in custody awaiting to answer charges.

6. Pw5 was No. 81127 PC Patrick Ngugi currently attached to Kyumbi Police Station who testified that on 5/7/2016, he was at the crime office when he was called by the OCS Chief Inspector Oduor who informed him about a defilement case reported at the station by assistant chief Jonathan Musyoka of Konza area and that victim was one PM aged three years. He testified that when he read the report from the OB, he found that the child was in the custody of her grandmother BW aged about 70 years and that at around 11. 00 am, there was a Chief’s Baraza at Konza and so the grandmother had left to attend the Chief’s Baraza (meeting) and when she came at 1. 00 pm, she was informed by JK (a child) that the uncle of P, D M had done “tabia mbaya” to P and so he talked to the grandmother of the child who informed him that J had informed her that D had locked himself with the child in his bedroom and that D had taken P away using a bicycle and had taken her to his bedroom. This prompted J to follow D and went up to his house and saw him enter his house. He gathered that the said J had found that D had locked himself in his house and shortly, she heard P crying had requested the appellant to open the door in vain. This forced her to peep through the window and she saw that D’s trouser was lowered and P’s pant had been lowered too and D was on top of P. He went on to add that the child informed her grandmother that she wanted to go for a long call as she felt in pain from the anal area. The grandmother thus got suspicious that perhaps the child might have been defiled from the anus and had found that the faeces the child was passing had blood and there was a wound. He testified that he took statements of witnesses and wrote a P3 form which was filled after the child got treatment. He later found that the victim was aged three years after he got the birth certificate marked as P Ex 4 and requested for the age assessment of appellant and the same showed appellant was aged 17 years. He did not take a statement from the child’s mother as the child was under the custody of the grandmother and after investigations, he had appellant charged.

7. Pw6 was Dr. John Mutunga MBCHB (University of Nairobi) (1993) based at Machakos Level 5 Hospital. He had a P3 form in respect of a minor initials PMM, age three years who was said to have been sexually assaulted by a known person. He examined the girl on the 8/7/2016. The sexual assault was alleged to have occurred on 5/7/2016. He filled the P3 form on 8/7/2016. His observations on examination of the other systems was normal. Examination of the genitalia revealed that there was a normal genitalia. Her anal orifice was tender with fresh lacerations. She was in pain and one could not examine inside. He concluded that the minor PMM was sexually assaulted. He assessed the degree of injury as “grievous”. He checked the Post Rape Care Form of PMM which reflected the same history and treatment for the same injuries he also observed. He noted that the clothing of the child, specifically the pants had some stains which were mucus-like, and bloody. The Post Rape Care Form was filed on 5/7/2016 and bears the official stamp of Machakos Level 5 Hospital and tendered the same as an exhibit. The appellant was found to have a case to answer and put on his defence.

8. D M M testified that he was a casual worker/labourer and on Wednesday, 5/7/2016, he woke up as usual and made tea and went to work until 12 noon and went back home where he found his grandmother at home with the child. He took lunch and took a hoe and began tending to trees when he saw the chief and his officers approaching who handcuffed him and asked him why he sodomized the victim. He informed them that he knew nothing about the allegation and they took him to Konza Kyumbi Police Station where he was kept in cells for three weeks and later brought to court. He denied knowledge of the case and denied having sodomized the victim. On cross-examination, he testified that he is a cousin to the victim and lives with his grandmother, BW. He stated that he has known the child since she was born and as at July 2016, the child was three years old. He testified that J and P were playing together as he saw them on 5/7/2016 when he came back from work at noon. He was not in good terms with P's mother who chased him about three times, but he came back. However he did not find P's mother at home on the material day. He stated in mitigation that he was born in 1998 but didn’t recall the month. The court observed that the offence carried a life sentence. However the appellant was sentenced to serve 20 years imprisonment.

9. The petition of appeal is not on record but the grounds as indicated in the application for leave are that the appellant was a minor aged 16 years at the time of commission of the offence. In his submissions, he maintained that he was sentenced to life imprisonment and sought a review of the sentence to take into account the time already served and that he be given a non-custodial sentence. The Respondent conceded to the appeal and sought that the conviction be quashed because the appellant was a minor and ought not to have been detained in the first place because he was a minor at the time of commission of the offence. Counsel submitted that the trial proceedings were irregular because there was no bail report sought. He urged the court that the sentence be set aside as the proceedings were irregular, the conviction unsafe and the sentence irregular.

10. From the evidence on record, the trial court heard and saw the witness and saw their demeanour – that is their outward behaviour and formed a view. The trial court appreciated the evidence. That view was expressed in the learned Magistrates judgment that appreciated the law and sentenced the appellant to 20 years imprisonment instead of life imprisonment. The trial court was satisfied that the complainant had been penetrated in the buttocks in terms of section 8(1) of the Sexual Offences Act. This was corroborated by medical evidence that was availed by PW 6 who produced a P3 form and Post Rape Care Report. The reports show that the complainant was sexually abused and describes in detail injuries to the anus. There was evidence that the minor had been left with the appellant by Pw1 who had gone for a meeting. Pw3 was the eyewitness who saw the appellant on top of the victim and the complainants own account was to the effect that the appellant was responsible. The age of the victim was proven by the birth certificate and the identification of the appellant was more of recognition because he was a relative. The appellant did not question penetration or the evidence that was levelled against him. Taking all this evidence together, I am satisfied that the offence of defilement was established and am unable to find anything to the contrary.

11. With regards to the sentence, Section 382 of the Criminal Procedure Code which provides:

“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

12. It is not disputed, as the record shows, that the Appellant was aged 17 years at the time he committed the offence. He challenges the decision of the trial court in imposing a twenty year sentence on him despite the fact that he was a child at the time the offence was committed. In his submissions, he challenges a life sentence that was meted against him but however this position is not correct because he was sentenced to twenty years. He argues that such sentence was in contravention of Article 53 of the Constitution in that: the best interests of a child were not considered as paramount; and that his incarceration ought to have been for the shortest appropriate period of time in line with Article 53(1)(f)(i).

13. Section 8(2) of the Sexual Offences Act, under which the trial court ought to have passed the sentence provides as follows:

“(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life”(Emphasis supplied)

14. I note, that the trial magistrate took into account the question of the age of the appellant at the time of commission of the offence in determining the sentence but however did not make reference to Section 191 of the Children’s Act. That provision reads as follows:

“(1) In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways—

(a) By discharging the offender under section 35(1) of the Penal Code (Cap. 63);

(b) by discharging the offender on his entering into a recognisance, with or without sureties;

(c) by making a probation order against the offender under the provisions of the Probation of Offenders Act (Cap. 64);

(d) by committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;

(e) if the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;

(f) by ordering the offender to pay a fine, compensation or costs, or any or all of them;

(g) in the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for the establishment and regulation of borstal institutions;

(h) by placing the offender under the care of a qualified counsellor;

(i) by ordering him to be placed in an educational institution or a vocational training programme;

(j) by ordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act (Cap. 64);

(k) by making a community service order; or

(l) in any other lawful manner. [emphasis supplied].

15. What then would the trial court do in respect of minors who commit offences but attain the age of majority before they are sentenced?. The statutory scheme stipulates that a child above sixteen years old can only be held in a borstal institution for a maximum period not exceeding three years. However, Section 191(1)(l) Childrens Act provides for an offender to be dealt with in any other lawful manner and help may be obtained from, the judgment in the recent case of Daniel Langat Kiprotich v State [2018] eKLR, where the court stated as follows:

“Since the statutory scheme provides that such a child cannot be sent to prison and since the law further provides that such a child can only be sent to a boarstal institution for no more than three years, the options are limited to trial Courts even where on analysis and evidence such a Court might be persuaded that the almost-adult it is dealing with is a danger to society; and has failed to acknowledge or come to terms with his or her errors.

A similar dilemma is created when the offender has already turned eighteen at the time of conviction or at the time of appeal as is the case here. Where the offence committed was a particularly vicious or serious one, the option of releasing such an offender back to the society is not an attractive one. It may even be downright dangerous for the society. Further, it might deny the individual offender a true opportunity to reflect on his actions in a custodial setting and take the rehabilitative turn.

While these dilemmas call for a reform to our juvenile justice system to provide a more nuanced statutory scheme, I am persuaded, in following the Court of Appeal in the Dennis Cheruiyot Case and the JKK Case, that when faced with the situation such as the one we have in this case, the solution lies in section 191(1)(l) of the Children’s Act: to deal with the offender in question in any other lawful manner. In this case, I have followed these two precedents regarding the right approach to sentencing in such cases. In addition, I have taken into consideration the following particular factors in the case at hand namely:

a. the fact that the Petitioner was accompanied by five other people during the commission of the robbery;

b. the fact that the assailants were armed – one with a gun and the rest with pangas and clubs;

c. the fact that the Petitioner committed two separate offences of armed robbery;

d. the fact that the offences took place on the highway which poses particular threat to road users; and

e. the fact that the only mitigating circumstances are the fact that the Petitioner was a minor and that he was a first offender.”

16. In R v Dennis Kirui Cheruiyot [2014] eKLR, the Appellant was aged 20 years at the time of sentencing, but was 15 years when the offence was committed. He was convicted of murder. The court sentenced him to life imprisonment. On appeal, the Court of Appeal reduced the sentence to 10 years imprisonment after noting the dilemma a court faces in sentencing an offender who was a minor turned into an adult at the time of sentencing or at the time of an appeal.

17. The Court of Appeal in R v Dennis Kirui (supra) relied on JKK vs Republic (2013) eKLR, a decision of the Court of Appeal sitting in Nyeri. There, a minor charged with murder was convicted and sentenced to death. The Court found that the Appellant was under 18 years of age at the time of committing the offence although at the time of the sentence four years had elapsed making him about 21 years of age. The Court reduced the sentenced from the death penalty to a custodial sentence of 12 years. The Court reasoned as follows:

“The purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender, i.e. any person below the age of 18 years while taking into account the overarching objective is the preservation of the life of the child and his best interest. A death sentence or a life imprisonment are not provided for but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. The offence committed by the appellant is very serious, an innocent life was lost, the appellant though probably a minor when he committed the offence must serve a custodial sentence so that he can be brought to bear the weight and responsibility of his omission or lack of judgment, by serving a custodial sentence. We are of the view that the appellant who is now of the age of majority cannot be released to the society before he is helped to understand the consequences of his mistakes, which can only happen after serving a custodial sentence”

18. I have perused the appellant’s mitigation in the proceedings. All he said was that he was born in 1998 and wanted to continue with his education. The appellant was seventeen years in 2016, and is therefore presently 20 years old. Applying the principles from these authorities, I would see no reason to interfere with the appellant’s sentence.

19. Having considered all the appellant’s grounds of appeal, and also having carefully reviewed the evidence on record, I find nothing to suggest that the learned magistrate was in error in convicting the appellant on the evidence available. I see no irregularity in the proceedings, save that the trial Magistrate ought to have pointed out the provisions of section 191(1)(g) and (l)of the Children’s Act. The authorities herein cited persuade me to find that the appellant requires to undergo rehabilitation before joining the society. I find that no injustice has been occasioned to the appellant as the conviction was based on sound evidence. The trial magistrate duly considered the appellant’s mitigation and sentenced him to twenty years and pointed out that he requires rehabilitation. I have no reason to disturb the same.

20. In the result it is my finding that the Appellant’s appeal lacks merit. The same is dismissed. The conviction and sentence is upheld.

It is so ordered.

Dated and delivered at Machakos this 10th day of July, 2019.

D. K. KEMEI

JUDGE