[2023] KEHC 25235 (KLR)

DMK v Republic (Criminal Appeal E056 of 2022) [2023] KEHC 25235 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25235 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E056 of 2022

AK Ndung'u, J

November 9, 2023

Between

DMK

Appellant

and

Republic

Respondent

(From original Conviction and Sentence in Kaloleni PM Sexual Offences Case No E037 of 2021– R. Amwayi, SRM)

Judgment

1. The Appellant in this appeal, DMK was convicted after trial of defilement contrary to section 8(1) as read with section 8 (3) of the Sexual Offences Act, No 3 of 2006. On 17/10/2022, he was sentenced to twenty (20) years imprisonment. The particulars were that on 04/09/2021 at around 1800hrs in Rabai Sub-County within Kilifi County unlawfully and intentionally caused his penis to penetrate into the female genital organ namely vagina of BNK a child aged 13 years.

2. The Appellant appealed to this court challenging the conviction and the sentence vide memorandum of appeal filed on 26/10/2022. The conviction and the sentence are being challenged on the following grounds;i.The learned magistrate failed to consider that the conviction was against the weight of the evidence adduced by the prosecution hence the sentence was harsh and manifestly excessive.ii.The learned magistrate failed to consider sharp contradictions in the prosecution case.iii.The learned magistrate failed to consider that section 8(2) of Sexual Offences Act fetters judicial power not to consider the mitigating factors hence the sentence imposed was unlawful and in violation of Article 27 and 50 of the Constitution.ivThe learned magistrate failed to adequately consider the defence evidence.

3. The appeal was canvassed by way of written submissions. In his written submissions, the Appellant argued that the prosecution was wrong to form an opinion that the family members were sympathetic to the Appellant which shows that the prosecution had formed an opinion that the Appellant was guilty. That forcing the complainant to testify against her will was in violation of his rights under Article 50(4) of the Constitution. That even after the complainant was placed at a children’s home, she was still reluctant to testify begging the question whether the complainant was lured and enticed to give evidence. Therefore, the evidence was obtained in a manner that violated his rights under the aforesaid Article.

4. Further, the learned magistrate misdirected himself by not recording the questions and the answers put across the complainant and then failed to record the terms in which he was persuaded and satisfied that the child witness understood the duty of telling the truth. Therefore, voir dire was not properly done. Reliance was placed on the case of John Muiriru v R (1983) KLR 445. That the complainant mentioned S who reported the matter to the chief but S was not called as a witness being a crucial witness failure to which was a miscarriage of justice. Therefore, the tendered evidence was insufficient and unreliable. On the sentence, he urged the court to consider his mitigation and reduce the same in line with developing jurisprudence on mandatory sentences in sexual offences.

5. The Respondent’s counsel in opposing the appeal submitted that the sentence was legal and proper since section 8(3) provides for a mandatory sentence of 20 years. Further, the Supreme Court clarified in Muruatetu 2 that the decision in Muruatetu 1 only applied to murder cases and did not invalidate minimum sentences under the Sexual Offences Act or the Penal Code. On contradictions, the counsel submitted that there were no discrepancies and irregularities in the evidence against the Appellant. The evidence adduced was cogent, consistent and corroborative and proved the elements of the offence beyond reasonable doubt. On failure by the trial court to consider the Appellant’s defence, counsel submitted that the Appellant’s defence was a mere denial and introduced matters that the prosecution’s witnesses were not cross examined on. That the marital issues raised during the defence case and did not dislodge the prosecution’s evidence. That the evidence of DW2 confirmed the Appellant’s presence at the scene of the incident. Finally, that the trial court considered the Appellant’s defence and rightfully dismissed it.

6. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. See Okeno v Republic [1972] EA 32.

7. I have considered the evidence as recorded at the trial court. As required of this court, I have re-evaluated the same with a view to reaching my own independent findings thereon. In doing so, I have taken cognizance that I neither saw nor heard the witnesses testify and I have given due allowance for that fact. I have considered the grounds of appeal and the submissions by learned counsel.

8. The Appellant in his submissions raised a preliminary point of law. He claimed that voir dire was not conducted according to the procedure as the trial magistrate failed to record the questions he asked the complainant. That the trial magistrate failed to lay a basis on how he was persuaded and satisfied that the child witness understood the duty of telling the truth.

9. From the trial court record, the trial magistrate recorded as follows;Court- ‘I have orally examined the complainant minor who informs me she is 13 years old and in grade 4 at (particulars withheld) Primary School. She is aware of her court environment. She is an intelligent girl who has answered all my questions satisfactorily. She is aware that she must tell the truth in court and that lying is a sin. She therefore understands the importance of telling the truth in court and appreciates the meaning of taking oath. She shall be sworn.’

10. It is clear that the trial magistrate indeed did not record the questions put across the complainant during voir dire. The court however noted that the complainant was intelligent and she was aware that she was to tell the truth in court and lying is a sin. The court was therefore satisfied that she understood the meaning of taking the oath and importance of telling the truth.

11. Section 19 (1) of the Oaths and Statutory Declaration Act is the provision under which voir dire examinations are underpinned to determine the child’s understanding of the nature of an oath. The provision states:“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure”

12. The question that begs therefore is whether failure to record the questions and answers of the minors is fatal to the prosecution case. I find the answer in the Court of Appeal decision in D W M v Republic [2016] eKLR where the court held that;“It is evident from the above that the learned trial magistrate did not reflect in the record the questions put to HW during the voir dire administration but reflected her responses to those questions. The need for the administration of voir dire on minor witnesses before reception of their testimonies especially in criminal trials is entrenched in Section 19 of the Oaths and Statutory Declarations Act Cap 15 Laws of Kenya. This provision does not of itself provide for the format to be applied in the course of such administration. The format used has basically evolved through case law. In Sula v Uganda[2001] 2EA 556 the Supreme Court of Uganda approved two formats. The first one is where the trial court can write down the questions put to the witness and the answer of the witness in the first person in the words spoken by the witness in a dialogue form and then make its conclusion after the dialogue. In the second format the court may omit to record the questions put to the witness but record the answers verbatim in the first person and then make his conclusion thereafter. In Patrick Kathurima v Republic Nyeri CRA 137 of 2014 this Court after reviewing case law on the subject observed thus:-“It is best, though not mandatory, in our context that the questions put and the answers given by the child during voir dire examination be recorded verbatim as opined by the English Court of Appeal in Regina v Compell (Times) December 20, 1982 and Republic v Lalkhan[1981] 73 CA 190 for the benefit of the appellate court which must satisfy itself on whether that important procedure was properly followed.”On account of the above observation this court in the Kathurima casevitiated the prosecution case totally on account of it having been anchored on the minor’s contradictory evidence and on that account allowed the appeal in its entirety. There was however no hard and fast rule laid down by this Court in the Kathurima case (supra) that in all cases where voir dire procedure had not been strictly administered the prosecution case stood vitiated. Each case has to depend on its own set of facts and that is why the court observed thus:-“It is best though not mandatory in our context that the question put and the answers given by the child during the voir dire examination be recorded...”The trial magistrates’ failure to reflect on the record the questions put to HW during the voir dire examination was not therefore per se fatal to the prosecution case. The sustainability or otherwise of the prosecutions’ case solely depended on whether the evidence on which it was anchored met the thresh hold of proof beyond reasonable doubt. (emphasis added)……In this appeal, in response to a questions put to HW. during the voir dire examination, she responded that she would answer all questions put to her correctly. She was five (5) years old. Her testimony was coherent. When the appellant stood to cross-examine her she at first broke down. She was stood down for a while. After she composed herself and then took the witness stand again, she was cross-examined at length by the appellant but never faltered in her responses to questions put to her by the appellant. She was coherent. All the answers she gave were sensible. This is a clear indication that HW was intelligent, she had a good grasp of the events that occurred during the defilement and was obviously truthful in what she was telling the court. Both courts below believed HW was truthful. We find no justification to interfere with that finding. The appellant’s trial was therefore not vitiated by the learned trial magistrate’s failure to conduct the voir dire examination of HW in a particular manner, as asserted by the appellant.”

13. It therefore follows that failure to record the questions was not fatal to the prosecution case.

14. As to whether the charge was proved to the required standard, it is trite that for the charge of defilement to stand, the Prosecution must prove the age of the victim (must be a minor), that there must be penetration and a clear identification of the perpetrator. This is provided for under Section 8(1) of the Sexual Offences Act.

15. Having established the ingredients of the charges, the question that this court should therefore determine is whether those ingredients were proved to the required standard.

16. Proof of age is important in a sexual offence. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”

17. In the present appeal, it was not in dispute that the complainant was a minor. Her birth certificate was produced as Pexhibit 5 that indicated that she was born on 01/01/2008. The offence was committed on 04/09/2021 hence she was 13 years old at the time and this remained uncontroverted by the Appellant.

18. What is in dispute is identity and penetration. To prove their case, the prosecution called a total of four witnesses. PW3 was however declared a hostile witness upon application by the prosecution.

19. The law in respect to hostile witness evidence is that their evidence is unreliable and the evidence should be rejected as untrustworthy as was held by the Court of Appeal in Abel Monari Nyanamba v R (1996)eKLR thus;“The inevitable conclusion after PW4 had been declared a hostile witness was that he became an unreliable witness, whose evidence would be rejected as untrustworthy. He was discredited completely. In our view, PW4 was substantially an unreliable witness and all parts of his evidence should have been rejected.”

20. I will therefore ignore the evidence of PW3. PW1 was the clinical officer. He testified that he examined the complainant on 06/09/2021. His findings were that her hymen was broken, she had loose vaginal sphincter, the lab tests were negative. He treated her and filled the P3 and PRC form. He produced the P3 as Pexhibit 1, PRC form Pexhibit 2, treatment notes as Pexhibit3 and Lab tests results as Pexhibit4. He stated his conclusion was that it was a confirmed defilement case. On cross examination by the Appellant, he testified that the complainant was walking. He confirmed that the complainant was defiled but could not tell who defiled her.

21. PW2 was the complainant. She testified under oath after the court was satisfied that she understood the importance of telling the truth and the meaning of taking oath. She stated that she was 13 years old and in grade 4. She testified that on the material day she had gone to church when her sister M informed her that the Appellant was calling her. She testified that she was living with her grandmother and her brother D (the Appellant). She lived in the same house with her grandmother but the Appellant was living in a separate house but in the same compound. She informed the court that the Appellant’s mother and her late mother were sisters.

22. She got home at around 6:00pm and went to the Appellant’s house. She found the Appellant in his bedroom. He ordered her to remove her pants. She stated that she was wearing a skirt and a blouse and pants. She removed her pants as ordered and the Appellant asked her to lie on his bed. She lied on his bed facing upward. The Appellant removed his clothes and then inserted his penis into her vagina. She felt pain but she did not cry. When the Appellant was done, he warned her not to tell anyone. He left her in the bedroom and he went to the sitting room. She testified that the Appellant’s wife, S found her in the bedroom and asked her what she was doing there and she informed S that she was looking for her clothes. An argument ensued between the Appellant and S and she overheard S asking the Appellant what the complainant was doing in their room naked. S informed the complainant’s grandmother but the grandmother did not do anything. S reported to the chief and they were summoned by the chief and the matter was reported to the police. Thereafter she was taken to hospital.

23. On cross examination by the Appellant, she testified that her grandmother was seated outside not far from the Appellant’s house. That S did not beat her and she did not tell her grandmother what the Appellant had done to her. She testified that she was not questioned by the chief and the Appellant was not questioned as well. On re-examination, she testified that S grabbed her neck to tell the truth. That she informed the police what the Appellant had done to her and she recorded her statement with the police.

24. PW4 testified on behalf of the investigating officer who was on transfer. She reported what the former investigating officer had recorded. She stated that the complainant went to the police station accompanied by the Appellant’s wife. The complainant reported that she was watching TV when her cousin informed her that the Appellant was calling her. She went to his house and found him alone. The Appellant undressed her and defiled her and after a short while, the Appellant’s wife got into the house and found the Appellant in the sitting room in a leso while the complainant appeared so confused. That she found the complainant’s panty on the floor. The complainant did not say anything. She interrogated the complainant the next day and she told her that the Appellant had defiled her. The Appellant was arrested after the matter was reported to the chief.

25. On cross examination by the Appellant, she stated that the complainant was taken to the police by her mother and the Appellant’s wife on the following day after the incidence. That the Appellant’s wife recorded a statement and she did not mention any dispute between her and the Appellant.

26. The Appellant in his sworn defence denied defiling the complainant. He attributed the offence to a grudge between him and his first wife S whom he claimed had threatened him with dire consequences when she learnt that the Appellant had married a second wife. He stated that he was informed that he had defiled a child when he was called back home. The village elder called his mother and informed her that they go to police station. He stated that at the police station, he was not given a chance to talk. On cross examination he maintained that the genesis of the case was the dispute between him and his wife S.

27. DW2 testified that the complainant was her sister and the Appellant was his uncle. She testified that the complainant was told by Sophia to lie that the Appellant had defiled her. She testified that she found her sister in law in a room with the complainant and then the sister in law informed her that the complainant had been defiled by the Appellant. She then asked the complainant who informed her that she was forced to lie.

28. On cross examination, she testified that she overheard the complainant saying ‘leave me alone. She went to the room and found the complainant and the sister in law who said that the complainant had been defiled. She stated that it was the complainant who informed the sister in law that the Appellant had defiled her. She testified that she never interrogated the complainant since she was taken to the chief’s and while she was at home, she never talked to her.

29. DW3 testified that she was a neighbour and Nyumba Kumi elder. She learnt of the case when the report was made to the chief and the police. She had advised them to settle the matter but since it was a defilement case, it was not possible. She testified that she did not interrogate the complainant. She testified on cross examination that she interrogated the Appellant who denied committing the offence and they had a discussion on what to tell the court. That S was the one who reported the matter to the police and they decided that S had implicated the Appellant although they had not heard anything from the complainant.

30. That was the totality of evidence before the trial court. The complainant’s evidence was that the Appellant defiled her in his house. There was evidence from the clinical officer who confirmed that indeed the complainant was defiled. The clinical officer corroborated the evidence of the complainant as he stated that the hymen was broken and the vagina Sphincter was loose. He examined the complainant two days after the incidence. It is therefore my view that there was indeed proof of penetration.

31. The Appellant denied committing the offence. He attributed the charge to a marital dispute between him and his first wife S. He stated that he was implicated by S who had threatened him with dire consequences when S learnt that the Appellant had married a second wife. That the matter was reported by Sophia and this speaks volume that he was implicated.

32. In his submissions before this court, he claimed that the complainant was compelled to testify against her will which was in violation of his rights under Article 50(4) of the Constitution. That even after the complainant was placed at a children’s home, she was still reluctant to testify begging the question whether the complainant was lured and enticed to give evidence. He further submitted that S crucial witness in the matter.

33. The record shows that on 08/11/2021 when the complainant was meant to testify, the prosecution informed the court that the complainant was reluctant to testify. The prosecution counsel informed the court that the Appellant and the complainant were related and the complainant was living with the Appellant’s mother. The prosecution further informed the court that it seemed like the Appellant’s family were interfering with the complainant to change her evidence. He made an application for the complainant to be placed in a children’s home. A children’s report was ordered and the prosecution informed the court that he disagreed with the children officer’s report since if the complainant continued to stay with the Appellant’s relatives, she will still be reluctant to testify.

34. The children’s officer was summoned and he told the court that he was in agreement with the prosecution’s sentiments and prayed for the complainant to be placed in a children’s home for she needed counselling since she had been refusing to talk. The court committed the complainant to a children’s home and barred the Appellant and his mother from visiting the complainant. On 31/01/2022, the matter was slated for a mention and the prosecution counsel informed the court that the complainant was committed to the children’s home but her progress was slow and the matter was slated for hearing on 28/03/2022 when the complainant testified.

35. It is clear that indeed the complainant was hesitant and did not want to testify. At some point she had even refused to talk and the court ordered for counselling. It was after three or four months after she was committed to a children’s home when she agreed to open up and testify in court.

36. It is also on record that the Appellant and the complainant were living in the same compound. Indeed, the complainant was staying with the Appellant’s mother. The Appellant’s mother was a prosecution witness but she was declared hostile after she changed her statement in favour of the Appellant. It therefore follows that the Appellant’s family might have tried to interfere with the complainant to change her evidence.

37. I have examined the complainant’s evidence it was very clear and cogent on what transpired on the material day. She did not name anyone else but the Appellant as her defiler. What was reported to the police as PW4 testified was also similar to what the complainant’s told the court. It is also clear that the complainant was not compelled to testify against the Appellant but did testify on her own volition. The prosecution or the children’s officer would not have compelled her to testify since they would not have gained anything.

38. The Appellant further complained that his wife S who was a crucial witness was not called to testify. It appears that S was a witness since the prosecution had applied for her to be summoned on 05/05/2022. On the hearing date of 20/06/2022, the prosecution informed the court that she had left for South Arabia. The Appellant in his defence had stated that S used to work in South Arabia. It appears therefore her absence was beyond the control of the prosecution.

39. Furthermore, it is trite law that the prosecution is not bound to call numerous witnesses to prove a fact. This is in line with section 143 of the Evidence Act which provides that;“In the absence of a provision of the law, no particular number of witnesses is required to prove a fact.”

40. In Bukenya And Others v Uganda [1972] EA 349 it was held that;“While the Director is not required to call a superfluity of witnesses, if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled, under the general law of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.”

41. There is no requirement that the prosecution has to call a number of witnesses to prove a fact. But, if he fails to call crucial witnesses, an inference can be made that their evidence would have been adverse to their case. However, as per the above case, the inference can only be made where the evidence is barely adequate. I do not think that the evidence was barely adequate to quash a conviction on this ground.

42. The Appellant further attributed the charge to marital squabbles with S his wife. S is said to have implicated the Appellant and was using the complainant. DW2 testified in exam in chief that she talked to the complainant who informed her that she had been forced to lie. That she was informed by her sister in law that the complainant had been defiled. However, in cross examination, she testified that she was informed by her sister in law that the complainant was defiled. That it was the complainant who informed her sister in law that the Appellant defiled her. She further testified that she never interrogated the complainant since she was taken to the chief’s office and even when she was at home, she never talked to her.

43. This therefore means that she lied when she said that the complainant informed her that she was forced to lie since in cross examination, she said she never interrogated the complainant and she never talked to her when she was at home.

44. The Appellant did not cross examine the complainant on the marital squabbles between him and S. It also beats logic that the complainant would be involved in such a matter. I do not see the reason why the complainant would have implicated the Appellant due to his marital squabbles.

45. On my own evaluation of the evidence, am satisfied that the prosecution proved all the ingredients of the offence beyond reasonable doubt.

46. As to the sentence, the Appellant was sentenced to 20 years imprisonment as provided in law. While sentencing the Appellant, the trial court considered the Appellant’s mitigation and the circumstances of the case. It is trite law that sentencing is a discretion of the trial court and an appellate court will not easily interfere with the discretion of the trial court on sentence unless it is shown that in exercising its discretion, the court acted on a wrong principle; failed to take into account relevant matters; took into account irrelevant considerations; imposed an illegal sentence; acted capriciously or that the sentence imposed was harsh and excessive. (Ogolla S/o Owuor v R {1954} EACA 270).

47. The Appellant did not demonstrate any of the above factors. There is no basis at all upon which this court can interfere with the sentence.

48. The result is that the appeal herein lacks merit and is dismissed in its entirety.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF NOVEMBER 2023A.K. NDUNG’UJUDGE