[2023] KEHC 26451 (KLR)

Gitau v Republic (Criminal Appeal E005 of 2023) [2023] KEHC 26451 (KLR) (5 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26451 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Appeal E005 of 2023

KW Kiarie, J

December 5, 2023

Between

Nicholas Onyando Gitau

Appellant

and

Republic

Respondent

(From the original conviction and sentence in S.O.A case NO. E067 of 2021 of the Chief Magistrate’s Court at Kisii by Hon. C. A. Ocharo-Senior Principal Magistrate)

Judgment

1. Nicholas Onyando Gitau, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act No. 3 0f 2006.

2. The particulars of the offence are that on the night of the 1st day of October 2021 at Kitutu Central sub-County within Kisii County, he intentionally and unlawfully caused his penis to penetrate the vagina of PBA, a child aged seventeen years.

3. The appellant was sentenced to ten years’ imprisonment. He was aggrieved and filed this appeal against both conviction and sentence. He was represented by the firm of Job Obure & Company Advocates. He raised the following grounds of appeal:a.That the Honourable trial court erred both in law and fact in its evaluation and analysis of the evidence tendered in court by the prosecution and by not taking note that prosecution evidence was unbelievable, shaky, and insufficient, in the circumstances, to warrant the appellant’s conviction and sentence.b.That the Honourable trial magistrate erred both in law and fact by failing to properly consider and/or evaluate and analyze expert evidence tendered in the court which exonerated the appellant and by proceeding to convict him on sufficient evidence tendered by the prosecution.c.That the Honourable trial court erred both in law and fact by not finding that the Prosecution failed to prove their case beyond any reasonable doubt in accordance with the law and that there were glaring flaws, contradictions, discrepancies, and inconsistencies in the prosecution’s case.d.That the Honourable trial court erred both in law and fact by not finding that the particulars of the offence were not proofed as required by law.e.That the Honourable trial court erred both in law and fact by failing to properly reckon the underlying motive and/or antecedents of the matter before the court as purely a set-up or fabrication against the appellant.f.That the Honourable trial court erred both in law and fact by meting a manifestly harsh and cruel sentence against the Appellant considering the circumstances of the matter.

4. The appeal was opposed by the state through Mr. Justus Ochengo, learned counsel on grounds that:a.The ingredients of the offence were established.b.The defence of the appellant was an afterthought.c.The sentence was reasonable.

5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

6. An offence of defilement is established against an accused person when the prosecution has proved the following ingredients:a.That there was penetration of the complainant’s genitalia;b.That the accused was the perpetrator; andc.The age of the victim must be below eighteen years.This position was echoed in the case of Fappyton Mutuku Ngui vs. Republic [2012] eKLR. Ngugi J. (as he was then) said:"Going by this definition of defilement… the issues which the court needs to determine…first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.These, therefore, are the issues I will endeavour to establish whether the prosecution proved to the required standards."

7. The complainant herein PBA, (PW1) testified that she was 17. A copy of the Certificate of Birth that was produced as prosecution exhibit 4 indicates that she was born on the 24th day of August 2004. She was therefore 17 years and five weeks at the time of the alleged offence. Her age, for the purposes of Section 8(4) of the Sexual Offences Act, was therefore proved.

8. Section 8(4) of the Sexual Offences Act provides:A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

9. The evidence of PBA (PW1), was that the appellant was her boyfriend for about a year. On the material day, she visited the appellant at his home but his mother disproved the visit. She therefore returned to her home. The appellant’s mother followed her and reported to her mother. Her father beat her after the report and she went out where she met the appellant. They had consensual sex. The appellant conceded that they indeed had a sexual congress that night.

10. Penetration, after the admission, did not require any other evidence to prove the same. However, the evidence of Lorna Moraa Nyabena (PW4) a clinical officer was that upon examination of the high vaginal swab, the presence of spermatozoa was established. This conclusively proved that there was penetration into the genitalia of the complainant.

11. In his defence, the appellant contended that he believed that he believed that the complainant was over the age of 18 years. Section 8 of the Sexual Offences Act provides:(5)It is a defence to a charge under this section if—(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.

12. The Court of Appeal while addressing the defence under section 8 (5) of the Sexual Offence had the following to say in the case of Eliud Waweru Wambui v Republic [2019] eKLR:35. We think also that it stands to reason that a person is more likely to be deceived into believing that a child is over the age of 18 years if the said child is in the age bracket of 16 to 18 years old, and that the closer to 18 years the child is, the more likely the deception, and the more likely the belief that he or she is over the age of 18 years.I fully agree with these observations by the superior court.

13. In the instant case, though the age of the appellant was not given, it would appear that the appellant and the complainant were more or less agemates and the more reason the learned trial magistrate should not have dismissed his defence as unreasonable.

14. The learned trial magistrate did not indicate the appearance of the complainant on the record. Had she done so, this could have been of assistance to this court to find if the belief of the appellant about her age was reasonable. The Court of Appeal in the case of Meshack Nyongesa vs. Republic [2016] eKLR stated:9. Although his age is not stated, the appellant is obviously a young man. At the material time, the complainant was about 17 years old. There is nothing on record about her appearance. She may very well have appeared an adult as the appellant claimed before us.10. Section 8(5) of the Sexual Offences Act provides a complete defence to a charge of defilement if it is shown that the accused believed that the child was 18 years or above.

15. The upshot of the foregoing analysis of evidence is that the defence raised by the appellant was plausible. I therefore quash the conviction and set aside the sentence. The appellant is at liberty unless otherwise lawfully held.

DELIVERED AND SIGNED AT KISII THIS 5TH DAY OF DECEMBER 2023KIARIE WAWERU KIARIEJUDGE