[2022] KEHC 10100 (KLR)

Gichuhi v Republic (Criminal Appeal 33 of 2019) [2022] KEHC 10100 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10100 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal 33 of 2019

HPG Waweru, J

July 7, 2022

Between

Antony Munene Gichuhi

Appellant

and

Republic

Respondent

(Appeal from original Conviction and Sentence in Nanyuki CM Sexual Offence Case No 19 of 2016 – L Mutai, CM)

Judgment

1. The Appellant herein, Antony Munene Gichuhi, was convicted after trial in count I of defilement contrary to section 8(1) and (3) of the Sexual Offences Act, 2006 (the Act). It was alleged that on 30/10/2015 in Nanyuki Town within Laikipia County, he intentionally and unlawfully caused his penis to penetrate the vagina of one VW, a child aged nine (9) years. He was also convicted in Count II of indecent act with a child contrary to section 11(1) of the same Act. Here it was alleged that on the same date, time and place he unlawfully and intentionally touched the buttocks of one MW, a child aged nine (9) years. He was acquitted in count III of another charge of indecent act with a child.

2. On 30/07/2019 the Appellant was sentenced to life imprisonment in count I and to ten (10) years imprisonment in count II. He appealed against both conviction and sentence. The petition (wrongly called memorandum) of appeal discloses the following grounds –i.That the charge sheet was defective.ii.That the charges were not proved in all their elements beyond reasonable doubt.iii.That the trial court failed to properly consider the Appellant’s defence and casually rejected the same.iv.That in sentencing the Appellant the trial court erred in principle.

3. The Appellant also filed a long document he called “Additional Provisional Information to the Submissions on Appeal No 33 of 2019”. I have perused the same. It is a mixture of submissions and an attempt to testify afresh. I have considered from it what I deemed relevant.

4. Learned counsel for the Respondent has supported both convictions. He submitted that the main ingredients of the offence – penetration; age of the complainants; and identification of the perpetrator were proved beyond reasonable doubt.

5. I have read through the record of the trial court in order to evaluate the evidence placed there and arrive at my own conclusions regarding the same. This is my duty as the first appellate court. I have borne in mind however, that I neither saw nor heard the witnesses and I have given due allowance for that fact.

6. The Appellant has complained that the charge sheet was defective. Let us look at count I, where the offence is laid under section 8(1) and (3) of the Act. Subsection (1) creates the offence of defilement of a child. Subsections (2), (3) and (4) provide for various punishments for defilement depending on the age of the child defiled. For a child aged 11 years and below the punishment is mandatory life imprisonment; for a child aged between 12 and 15 years the punishment could be imprisonment for a term of not less than 20 years; and for a child aged between 16 and 18 years the punishment could be imprisonment for a term of not less than 15 years.

7. All those terms of imprisonment are long, ranging from 15 years to life imprisonment. An accused person is entitled to know exactly what to expect should he be convicted.

8. The Appellant was charged in count I under subsections (1) and (3) of section 8; so he would have expected if convicted, at worst a jail term of twenty years imprisonment. However, he was given life imprisonment under subsection (2)! I have checked the record of the trial court. The charge in count I was never amended to read subsection (2) instead of subsection (3).

9. Although, as already seen, subsections (2), (3) and (4) of section 8 are essentially punishment subsections, there ought to be amendment of the charge once the age of the child complainant becomes apparent from the evidence tendered. This is because the age of the child is one of the ingredients of the offence as it determines the punishment to be meted out.

10. In the present case there was no amendment of the charge in count I. The Appellant was tried for an offence under section 8(1) and (3) of the Act. He was convicted of that offence; but he was punished for an offence under subsection (2), a far more serious offence carrying mandatory life imprisonment.

11. Now let us look at the charge in Count II. The complainant here as per the charge is MW. However, the person who testified as the complainant in this count (PW3) was MW. I have checked in the original handwritten record of the trial court, and it is so. I have also checked to see if there was amendment of the charge in count II after the complainant in that count gave her name as MW and not MW as appeared in the charge. I did not see any amendment.

12. The Appellant has complained about the manner in which the trial court dealt with his defence. This is what the trial court said in part -“The accused also alluded to the fact he was too busy to have committed the crime as the head of the library was absent and he was the one left in-charge. He however, has no witnesses to support these claims and therefore the court finds it hard to be convinced by this. Had he procured witnesses to attest to this then the court would have considered.The accused additionally produced a letter where he denies all the allegations made toward him. However, he had produced no evidence to back up what is contained in the letter. He has procured no witnesses; therefore it is difficult for the court to be swayed by this evidence. His evidence is therefore not plausible.”The trial court clearly shifted the burden of proof to the Appellant. In a criminal trial the accused is never under any obligation to prove his innocence. It is always the burden of the prosecution to prove his guilt beyond reasonable doubt, even where the accused elects to say nothing at all in his own defence, let alone not call witnesses. When a trial court displays a frame of mind to the effect that the accused is under some obligation to prove his innocence, where no such obligation is required by law (for instance in offences of strict liability), the appellate court must give a hard look at the conviction to see if the appellant was prejudiced by such mindset of the trial court.

13. In the present case the Appellant was facing very serious charges. Upon all that is stated above in this judgment, I hold that the convictions are not safe at all and should not be allowed to stand. They are hereby quashed and the sentences meted out set aside. The Appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 6TH DAY OF JULY 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 7TH DAY OF JULY 2022