[2022] KEHC 16687 (KLR)

EMN v Republic (Criminal Appeal E043 of 2022) [2022] KEHC 16687 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16687 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E043 of 2022

LM Njuguna, J

December 14, 2022

Between

EMN

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence by Hon Ouko S. (R.M.) in Runyenjes Sexual Offences Case No. E006 of 2021 delivered on 29. 06. 2022)

Judgment

1. This appeal arises from the judgment of the learned trial magistrate aforementioned. The appeal filed via an amended petition of appeal amended on November 15, 2022 seeks to nullify the said determination on the grounds as set out here below that:i.The trial court erred in law and fact by admitting the evidence of an intermediary without considering that the same was bad in law.ii.The charge of defilement was made up and the medical evidence is doubtful.iii.The learned trial magistrate erred in law and facts by taking into consideration contradicting evidence by the prosecution witnesses thereby leading to a miscarriage of justice.iv.The trial magistrate erred in law and fact by considering the medical report and the doctor’s evidence on record.v.The prosecution did not prove its case beyond reasonable doubt.vi.The trial court erred in law and fact by failing to consider the defence by the appellant.

2. The case against the appellant was one of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act, 2006 .The particulars of the main charge being that the appellant on May 15, 2021 at around 1400hrs at [Particulars Withheld] village in Embu County, intentionally and unlawfully caused his penis to penetrate the vagina of SZ, a child aged 10 years.

3. The appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, 2006 whose particulars were that on May 15, 2021 at around 1400hrs at [Particulars Withheld] village in Embu County, intentionally touched the vagina of SZ, a child aged 10 years with his penis.

4. At the conclusion of the trial, the trial magistrate convicted the appellant in the main charge of defilement contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act, 2006 and sentenced him to life imprisonment, as provided under the Act.

5. It is the said conviction and sentence that forms the basis of the instant appeal.

6. The court directed that the appeal be canvassed by way of written submissions which directions the parties complied with.

7. The appellant submitted that the case was not proved beyond any reasonable doubt by the prosecution and further, the credibility of the complainant as a truthful witness was doubted. That the medical evidence did not corroborate the complainant’s testimony to the extent that she was sexually assaulted by the appellant herein. It was his case that the complainant and the appellant were the only witnesses to the alleged defilement, yet, the trial court declined to consider the defence by the appellant. Further, the appellant contended that a court can only convict on the evidence of children of tender age only if the court is convinced that the child is telling the truth. That in the obtaining circumstances, the court ought not to have relied on the evidence of the complainant. Reliance was placed on section 124 of the Evidence Act.

8. It was the appellant’s contention that the learned magistrate who thereafter took conduct of the case herein did not have the opportunity to observe the complainant’s demeanour to authoritatively determine whether the complainant was a believable witness or not. That the trial magistrate convicted the appellant herein based on uncorroborated evidence of the complainant. That the trial magistrate failed to record the reasons why she believed the complainant was telling the truth and thus reliance was placed on the case of Casper Wakanzo Shibia v Republic Criminal appeal No 195 of 2019.

9. On sentence, the appellant faulted the trial court for having meted out a mandatory sentence yet the appellant herein allegedly was a first offender. That mandatory sentences are no longer mandatory as was set out in the case of Jared Njiiri Koita v Republic [2019] eKLR. In the end, it was prayed that this court allows the appeal herein or order a retrial.

10. The respondent submitted that upon evaluation of the five witnesses, the trial court convicted the appellant herein of the main charge of defilement and sentenced him to serve life imprisonment, a determination it fully supported. That the appeal herein is devoid of any merit. It was submitted that the court may appoint an intermediary in accordance with section 31 of the SOA if a request is made and evidence is shown that the witness is vulnerable. That the only duty of an intermediary is to support the vulnerable witness in testifying and not speak in witness’s place. The respondent contended that although PW1 was a minor of tender years, the court’s voire dire determined that she was intelligent to give a sworn testimony. That the complainant gave her evidence without the use of an intermediary and further, there was no need for such a request and therefore, the ground of appeal as submitted by the appellant is clearly misleading.

11. Further that, the appellant was justifiably convicted in that, section 2(1) of the SOA correctly defines penetration as partial or complete insertion of a person’s genital organs of another; that PW1, described vividly what ensued on the fateful day and further, PW4 who examined her also testified on the findings of his examination produced the P3 Form. The respondent supported the conviction of the appellant by submitting that the trial court after reviewing all the evidence presented by PW1,PW4 and the P3 Form, found that there was a partial penetration which under section 2 of the SOA, amounted to penetration. In the same breadth, in reference to whether the complainant’s age was established, the respondent relied on the case ofFaustine Mchanga v Republic[2012] eKLR in that PW1 testified that she was 10 years old. A birth certificate was also presented as exhibit which corroborated the complainant’s evidence that indeed, she was 10 years old.

12. On identification, the respondent submitted that PW1’s testimony denoted that the appellant herein was a person well known to her, to be precise, her uncle and as such, identification was by recognition. While on sentence, it was its case that the same is provided for by the law as the minimum and mandatory sentence and as such, the court was urged to find that the grounds raised are not merited in as far as the contest of the decision of the trial magistrate to convict and thereafter sentence the appellant to life imprisonment is concerned.

13. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu v Republic [2010] eKLR where the Court of Appeal stated:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

14. The elements of the offence of defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:a.Age of the complainant;b.Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; andc.Positive identification of the assailant.

15. On these elements; “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” (Charles Wamukoya Karani v Republic, Criminal Appeal No 72 of 2013).

16. On the age of the complainant, the Sexual Offences Act defines “Child” within the meaning of the Children’s ActNo 8 of 2001 which defines a “Child” as “........any human being under the age of eighteen years.”

17. In the case of Martin Okello Alogo v Republic [2018] eKLR the court stated that:-“On the issue of whether the age of complainant was proved, the importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. The age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. See Alfayo Gombe Okello -vs- Republic Cr Appeal No 203 of 2009 (KSM) where the Court of Appeal stated:-“In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim as necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under Section 8 (1).....”

18. PW1 in her testimony stated that she was 10 years old while PW2 produced the complainant’s birth certificate. Having perused the same, I note that the complainant was born on May 14, 2011 and the offence herein was allegedly perpetrated on May 15, 2021. As such, the same shows that the complainant was aged 10 years at the time when she was allegedly defiled. I am therefore convinced that the age of the complainant was determined appropriately.

19. In the case herein, PW1 testified that on the material day, as she came from her grandmother’s house, the appellant pulled her and took her to his house. That he removed her clothes and then lay on her; it was her statement that the appellant was not dressed. Further, she stated that the appellant slept on her with his thing for urinating, (kitu ya kukojoa) and put it between her legs which made her feel pain and struggled to free herself as she shouted when the grandmother called her. That at that time, the appellant let her to dress and then left the house; it was her evidence that this was the third time that the appellant assaulted her sexually and had warned her of dire consequences should she tell anyone. PW4 also testified that upon examining the complainant, he found no physical injuries except that the genitalia had bruises; the external tissue was reddened, pus was oozing from the injuries and that hymen was intact and so he concluded that it was an attempted defilement. The appellant has submitted that the medical evidence did corroborate the complainant’s testimony to the extent that she was sexually assaulted by the appellant herein.

20. On penetration, the Sexual Offences Act defines “penetration” as“3“the partial or complete insertion of the genital organs of a person into the genital organs of another person”

21. Further, the Court of Appeal, in the case ofSahali Omar v Republic [2017] eKLR, noted that:“.....penetration whether by use of fingers, penis or any other gadget is still penetration as provided for under the Sexual Offences Act.”

22. The appellant has contested the finding of the trial court citing the finding of PW4, whereby it was found that the hymen of the complainant was intact. He averred that the evidence of the complainant was not supported by that of PW4 who examined her. The court has perused the evidence of PW4, on examination he found no physical injuries except that the genitalia had bruises, the external tissue was reddened, pus was oozing from the injuries and that the hymen was intact. He concluded that there was attempted defilement. This court is alive to the fact that, to establish defilement, it is not necessary that the hymen must be broken and that the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be raptured. (See the case ofEric Onyango Odeng Vs Republic).

23. However, this being a court of facts and the law, PW4 was very categorical in his evidence that there was attempted defilement as opposed to defilement. I am alive to the fact that in sexual offences cases, medical evidence is not a requirement for the offence to be proven, but that notwithstanding where the prosecution offers medical evidence, the court cannot ignore it and especially if it creates some doubts in the mind of the court. Such evidence must be considered alongside the other available evidence and if there is any doubt, the benefit given to the accused person/appellant as the law requires. It is for that reason that I am prepared to find and I hereby do, that the evidence adduced by the prosecution did not disclose the offence of defilement but a lesser charge of attempted defilement for which, I hereby convict the appellant and set aside the conviction for the offence of defilement.

24. On the same breath, I hereby set aside the life imprisonment and it its place, sentence the appellant to serve ten (10) years imprisonment being the minimum sentence for the substituted charge of attempted defilement.

25. On identification, PW1 stated that the appellant herein was her uncle and therefore a person well known to her. The same is not controverted by any of the witnesses herein and in that regard, I am guided by the decision herein below on the way to approach the evidence of visual identification as was succinctly stated by Lord Widgery, CJ in the well-known case of Republic v Turnbull [1976] 3 All ER 549 at page 552 where he said:-“Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone who he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

26. It is my finding that the appellant in the instant case was properly and positively identified by recognition based on the testimony of the prosecution witnesses including SZ in that he is her uncle. The appellant was someone well known to SZ in any case, the incident happened around 1400 hrs.

27. On the ground that the trial magistrate did not appreciate the appellant’s defence, the trial magistrate in her judgement noted that the prosecution’s evidence proved all the ingredients of the offence and further that, the defence did not raise or cast doubt on the prosecution evidence and as such, the ground is hereby rejected.

28. On the ground that the court erred by admitting the evidence of an intermediary without considering that the same was bad in law, Section 2 of the Sexual Offences Act defines an intermediary as –“…a person authorized by a court, on account of his or her expertise or experience, to give evidence on behalf of a vulnerable witness and may include a parent, relative, psychologist, counsellor, guardian, children’s officer or social worker”.[Also see MMV v Republic[2004] eKLR].

29. In this case, having perused the record, I find that there was no intermediary used as the court conducted a voir dire and wherein the court formed the view that the complainant was intelligent and understood the meaning and importance of speaking the truth under oath; thereby, the complainant testified under oath. Therefore, the ground herein as submitted by the appellant would be misleading given that the same did not form part of the record.

30. On the ground that the evidence adduced by the prosecution witnesses was contradictory thus leading to miscarriage of justice; I rely on the case of John Mutua Musyoki v Republic, (2017) Criminal Appeal No 11 of 2016 where the court was of the view that it must consider such contradictions to determine if they go to the root of the case. In the case ofJoseph Maina Mwangi v Republic(2000) eKLR, the court considered this issue and held that:“in any trial, there are bound to be discrepancies. An appellate court in considering these discrepancies must be guided by the wording of section 382 of the Criminal Procedure Code whether such discrepancies are such as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence”.

31. In the end, and after re-evaluating the entire evidence, I find that this appeal partially succeeds as analyzed herein above.

32. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE……………………………………...for the Applicant……………………………………for the Respondent