[2020] KECA 853 (KLR)

IN THE COURT OF APPEA

AT NAIROBI

[CORAM: NAMBUYE, KOOME & SICHALE, JA]

CRIMINAL APPEAL NO. 25 OF 2018

GEORGE ONSELIO MOKADU....................... APPELLANT

AND

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

(An appeal against the judgment of the High Court of Kenya at Nairobi, (G.W. Ngenye) dated 10th May, 2016)

IN

HC. CRA NO. 71 OF 2015

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JUDGMENT OF THE COURT

The appeal herein is against the judgment of G.W. Ngenye-Macharia dated10thMay, 2016. A brief background to this appeal is thatGeorge Onselio Mokadu(the appellant herein) was charged with the offence of defilement contrary tosection 8(1) as read with subsection (3) of the Sexual Offences Act No. 3 of 2006.

The particulars of the offence were that on22ndOctober, 2014, at [particulars withheld] area in Lari District within Kiambu County intentionally and unlawfully committed an act which caused penetration of his penis into the vagina of JWK, (name withheld), a child aged fourteen (14) years.

To support their case, the prosecution called a total of six (6) witnesses.

JWK was subjected to avoire direexamination and the court found that she didnot understand the nature of an oath. However, as she was possessed of sufficientintelligence, P.W. 1 gave her testimony after being affirmed. She stated that on22ndOctober, 2014at about 10. 00 a.m, she left school to go and collect a book fromhome; that on her way home, she met the appellant who asked her to accompanyhim to Red Rock; that she followed him toKareithi’shouse; that while inside thehouse, the appellant asked her to remove her clothes (blouse, skirt, sweater andpanty); that the appellant also removed his clothes; that the appellant used acondom to have sex with her after which he left her to go home; that she arrivedhome at 2. 00 p.m. and lied to her mother,MMK, P.W.2that shehad been sent home from school to collect a book; that at 6. 00 pm, P.W.3 came toher home and informed her mother that JWK had been seen in their plot withthe appellant whom she knew well as they lived in the same area; that she fearedbeing beaten by her mother and she escaped to sleep in the forest; that thefollowing morning on23rdOctober, 2014, she came back home and her mothertook her to Tigoni District Hospital where she was attended to byJames Kabue,(P.W.5), a clinical officer, who found that there was no hymen and no discharge.HIV test was administered on her and she was found to be negative. (She had beentreated at Lari Health Centre with analgesics). P.W.5 filled the P.3 form which heproduced in evidence together with treatment notes. On cross-examination, heconfirmed that JWK’s hymen was perforated. P.W.2 (mother to JWK) laterreported the matter at Uplands Police Station and investigations were carried outby No. 97414P.C Agnes Mutiso(P.W.6) of Lari Police Station. P.W.2 identifiedthe appellant as the person who she was informed had defiled her daughter. Sheknew the appellant before the incident.

On22ndOctober, 2015, at about 11. 10 p.m., APC No.2009022148, GeorgeNdungu(P.W.4), of Kinale Administration Police Post, while at the road unitcamp heard screams and when he moved near, he found people preparing to lynchthe appellant on allegation of defiling a minor. He arrested the appellant and tookhim to Lari Police Station for further investigations.

In his defence, the appellant gave unsworn evidence and stated that on22ndOctober, 2014at about 10. 00 a.m, as he headed toKareithi’shome, he met with P.W.1, who is his neighbour at the junction of Nyarangi School. P.W.1 informedthe appellant that she had been chased from school and they walked together asthey headed to the same direction. That they met oneKareithiwho told him togo and wait for him in his house; that P.W.1 went away; that he got intoKareithi’shouse and did not see P.W.1 until 10. 00 p.m. when P.W.1’s parents came to hishouse alleging that he had defiled P.W.1. The appellant denied committing theoffence alleging that there was no eye witness and that even the owner of thehouse did not record any statement. He denied any knowledge of the allegationslevelled against him.

In a judgment dated7thMay, 2015,the trial court found the appellant guiltyand sentenced him to twenty (20) years imprisonment.

Aggrieved with the conviction and sentence of the trial court, the appellantfiled an appeal to the High Court which was also dismissed byNgenye-Macharia,J on10thMay, 2016. Undeterred, the appellant filed this appeal before us.

In his amended Grounds of Appeal dated18thFebruary, 2019, the learnedjudge was faulted for failing to accord the appellant a fair trial contrary to Article25(c) and 50 (2) (a) of the Constitution; erred in affirming the conviction andfailing to find that section 211 of the CPC was not adequately complied with; forfailing to consider that vital witnesses were not availed to adduce evidence before the trial; for failing to consider that the prosecution’s case was not proved beyondreasonable doubt; and finally, for failing to evaluate and analyze the entire record.

On29thOctober, 2019, the appeal came up before us for plenary hearing.

The appellant appeared in person whileMr. Gitonga, learned Senior PublicProsecution Counsel appeared for the respondent. The appellant wholly relied onhis submissions filed on18thFebruary, 2019and29thOctober, 2019. In hissubmissions, the appellant alleged that penetration, a key element in a charge ofdefilement was not proved; that the conduct of P.W.1 was consistent with that ofan adult; that the prosecution evidence was riddled with contradictions andfinally, that the charge against him was not proved beyond reasonable doubt.

In response to the appellant’s contention that there was a violation of hisConstitutional rights to a fair trial and non-compliance withSection 211of theCPC,Mr. Gitongastated thatSection 211of theCPCwas complied with andindeed, the appellant chose to make an unsworn statement of defence; that theappellant knew the charges he was facing and hence suffered no prejudice. Onthe appellant’s assertion that he was of the impression that P.W.1 was of the ageof majority, counsel’s position was that this defence was not available to theappellant as P.W.1 was a school girl coming from school. On the failure to callvital witnesses,Mr. Gitongastated that it was within the prosecutions’ power tocall witnesses to prove the charge against the appellant and the two courts belowwere satisfied that the evidence upon which the appellant was convicted wassufficient; that in any event, section 143 of the Evidence Act provides:

“143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact”

On failure to prove the age of P.W.1, counsel contended that P.W.1’s agewas proved through the production of P.W.1’s birth certificate. On sentence,counsel submitted that the sentence meted out and affirmed by the High Courtwas the minimum mandatory term then.

In a brief rejoinder, the appellant stated that he had reformed, he wastwenty (20) years old at the time of commission of the offence and is now twentyfive (25) years old. He asked the Court to reduce his sentence.

We have considered the record, the oral and written submissions, theauthorities cited and the law. This is a second appeal and our mandate is asstipulated for inSection 361(I) (a)of theCriminal Procedure Code. It provides:

“361 (I) A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section:

(a) on a matter of fact, and severity of sentence is a matter of fact; or

(b) against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section7 to pass that sentence.”

In so far as case law is concerned, the decision ofDavid Njoroge Machariavs. Republic [2011] eKLRsums up the said mandate. In the said decision, it wasstated:

“Only matters of law fall for consideration and the court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings. (see alsoChemagong vs. Republic [1984] KLR 213).”

Similarly, inKaringo versus Republic [1982] KLR 213it was held as follows:

“A second appeal must be confined to points of law and this Court willnot interfere with concurrent findings of fact arrived at in the twocourts below unless based on no evidence. The test to be applied onsecond appeal is whether there was any evidence on which the trialcourt could find as it did (Reuben Karari S/O Karanja versus Republic[1956 17 EALA 146].”

For a start, the appellant and P.W.1are persons who were known to eachother. P.W.3 also knew the appellant as they lived in the same neighbourhood.

The evidence of P.W.1 was that she followed the appellant into the house of oneKareithiand they had sexual intercourse. The Clinical officer found that P.W.1’shymen was perforated. It may be possible that P.W.1 was not a virgin but it isnot a condition precedent that before a charge of defilement is proved, the victimmust be a virgin. In our view, the judge considered the ingredients of the offenceof defilement and stated:

“For the offence of defilement to be proved, three (3) succinct ingredients must be proved, these are: age of the victim, identification of the appellant and penetration.

The ingredient of age was proved by the complainant’s birth certificate serial number F.No. 145031 which indicated her date of birth as 5thFebruary, 2000. This brought her age to 14 years as at the time of the incident. .... a simple application of the evidence on record shows thaton the date of her testimony, 3rdFebruary, 2015, she was indeed 15 years old while on the date of her defilement, 22ndOctober, 2014, she was 14 years. There are therefore no inconsistencies in this respect, since the complainant’s age was adequately proved and fell within the ambit of section 8(3) of the Sexual Offences Act.

On identification, the appellant and the complainant knew each other before the day in question. The complainant testified that she knew the appellant before and that they were friends. This fact is further buttressed by the appellant who stated that he knew the complainant as they were neighbours. This statements leave no doubt in this court’s mind that JWK knew the appellant before the incident occurred andas such identified him based on this knowledge. This court is thus satisfied that the ingredient of identification was sufficiently proved.

The third ingredient that must be proved is that of penetration. On this issue, the appellant contended that the trial court erred in convicting him based only on the evidence of the complainant. ……..

Further that there was no hymen but that there was an old hymenal tear. That statement presupposes that the hymen was torn long before the date of the examination. This in my view was not inconsistent with the evidence on record as the charge clearly stated that the complainant was defiled on 22ndOctober, 2014 which was a week before the examination. The conclusion of the clinical officer is that this was a case of defilement”

We agree

On the contention that there was no eye witness, again, the judgeconsidered this and rendered herself as follows:

“There was no doubt from the testimony of the complainant that the appellant had sex with her and that she was telling the truth. I have no reason, accordingly, to doubt her evidence not withstanding that there is no eye witness. Moreover, the proviso to section 124 of the Evidence Act empowers a court to convict an accused person in a case involving a sexual offence on the evidence of the victim alone if the court believes in it. The entire section provides that:

‘124. Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him’.

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.

…….the statement by the medical officer is a clear corroboration ofthe complainant’s evidence that she was defiled. In any case, flowing from the medical records, I make a finding that the appellant did not advance a defence that he reasonably believed that the girl was of mature age when he had sex with her. Accordingly, the medical evidence of P.W.5 sufficiently corroborated the evidence of the complainant”.

We are satisfied that the charge against the appellant was proved to therequired standard.

However, as regards sentence, we note that the Supreme Court in itsdecision ofFrancis Karioko Muruatetu & another vs. Republic [2017] eKLR S.C.Petition No. 16 of 2015didaway with the mandatory nature of sentencing. Theappellant herein was twenty (20) years old at the time of the commission of theoffence. P.W.1 as stated by the appellant appears to have been a wayward girl.

She agreed to follow the appellant into the house ofKareithi.She had sex withthe appellant in circumstances that tend to show there was no force or coercion,but for the age of the victim, that did not permit her to give consent therebymaking the act one of defilement.

Taking the totality of the circumstances, we set aside the sentence of twenty(20) years imprisonment and reduce it to a term of ten (10) years.

It is so ordered.

Dated and delivered at Nairobi this 6thDay of March, 2020.

R.N. NAMBUYE

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JUDGE OF APPEAL

M. KOOME

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JUDGE OF APPEAL

F. SICHALE

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JUDGE OF APPEAL

I certify that this is atrue copy of the original.

DEPUTY REGISTRAR