[2023] KEHC 26318 (KLR)

GKW v Republic (Criminal Appeal E122 of 2023) [2023] KEHC 26318 (KLR) (Crim) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26318 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E122 of 2023

DR Kavedza, J

December 8, 2023

Between

GKW

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence delivered by Hon A. Mwangi (P.M) on 21st July 2022 at Makadara Chief Magistrates Court Sexual Offence case no. 167 of 2019 Republic vs Geoffrey Kamau Wambugu)

Judgment

1. The appellant was charged and convicted for the offence of defilement contrary to section 8 (1) as read with 8(2) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve life imprisonment. Being dissatisfied with the conviction and sentence, he filed a petition of appeal raising 4 grounds.

2. In ground one, the appellant challenged his conviction on the basis that the charges as laid out were defective, particularly on the diverse dates of the alleged offence. In grounds 2 and 3, the appellant challenged the totality of the prosecution's evidence as hearsay and not sufficient to warrant a conviction. In ground four, he faulted the trial magistrate for rejecting his defence even though it was not challenged by the prosecution as per Section 212 of the Criminal Procedure Code.

3. As this is the Appellant's first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno vs. Republic [1972] EA 32, and further in the Court of Appeal case of Mark Oruri Mose vs. R [2013] e-KLR, that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

4. IE (name withheld) (Pw 1) after voir dire examination, testified that on the 3rd May 2029, her mother was in the hospital with her younger sister, while she remained at home with her younger brother, S (name withheld) and her father, who she referred to as K.

5. She was playing outside when her father called her into the house. He directed her to lie on the bed, removed her panty, and in PW1's words, did ‘tabia mbaya’ to her, which this court understands as inserting his penis into her vagina. She further testified that in the evening while sleeping, he again picked her up and inserted his penis into her vagina. PW1 called her younger brother, S, and told him that the father had defiled her. S also told him that he had been defiled. Later, the father took them to their grandmother’s home. Later when PW1’s mum (PW2) came back, PW1 reported what had transpired.

6. GN (Pw 2) testified that she had indeed taken her youngest child to the hospital, when she called her husband, the appellant, to pick up the children from town. She told the court that the appellant was not the biological father of the complainant. Upon her return from the hospital, PW1 reported that the appellant had defiled her. She took Pw1 to the hospital where she was examined. She later reported the matter to the Jogoo Road Police station and the appellant was arrested.

7. Doris Kerubo (Pw 3) from MSF testified that he examined the complainant on 27th June 2019. She was brought by her mother on allegations of being sexually assaulted. On examination, there were no physical injuries. Both the external and internal genitalia were normal, with no injuries noted. The vagina had a whitish discharge with no injuries. The hymen had an old tear at 3 o’clock. The anus was normal. He signed the MSF medical report which was produced in court.

8. On cross-examination, she testified that tears on the hymen could be caused by riding bicycles or trauma and that in this case, he could not state with specificity what caused the tear. She added that he was not 100% certain whether defilement occurred or not.

9. No. 69102, Corporal Nahashon Muamba (Pw4) is the investigation officer in this matter. He told the court that the case was reported on 29th June 2019 by the wife of the appellant, GN (Pw2). Pw4 referred them to MSF where they were given a report. He later learnt that on 1st April 2019, the appellant and Pw2 had differed at Pw2 left with the three children, until when the youngest was admitted, that was when the appellant took the other two children to his house, but later to their grandmother’s place.

10. He further told the court that he was unable to get the complainant’s birth certificate, but he got her immunization card. He gave evidence that the p3 form was not filled because, at the time, there were problems with filling p3 forms, and when he asked the complainant's mother to go back later to fill the same, she did not go. He produced the nutrition card as an exhibit. He also produced the discharge summary, to show that the complainant's mother was at the hospital due to the youngest child's admission.

11. After the close of the prosecution’s case, the trial court that the appellant had a case to answer and he was put on his defence. In his defence he gave sworn evidence and he did not call any witnesses. He denied ever defiling the complainant. The accused described how he met his wife in Nairobi and detailed her mother's interference in their marriage. He mentioned instances when his wife left their home following disagreements, once leaving their youngest child unattended for three days, resulting in the child falling ill and being hospitalized for a month with the mother.

12. The accused also recounted an incident where his wife messaged him about their other children being stranded on the streets, prompting him to search for and find them there. He, along with the MCA's daughter and two elders, took the children to their grandmother's house and informed her that their mother was hospitalized. Later, he was arrested at work, allegedly due to his wife and mother's involvement. He asserted that their disagreements stemmed from his objections to his wife's actions, such as taking the children to the city to beg.

Analysis and determination. 13. In ground one on defective charges, the appellant submitted that the appellant submitted that the particulars of the offence were indicated as "on diverse dates between 3rd May 2019 and 29th May 2019", whereas the complainant only gave an account of the events of the 29th May 2019. He further submitted that the prosecution did not attempt to amend the charge sheet contrary to section 241 of the Criminal Procedure Code. Additionally, the appellant submitted that since he was the father to the complainant, he should have been charged with the offence of incest contrary to section 20 of the Sexual offences act, and not the offence of defilement.

14. It is an undisputed fact that the appellant is the complainant’s step-father and as correctly submitted by the appellant the proper charge would have been incest. In view of the provisions of section 179 of the Criminal Procedure Code, an accused person can be convicted with an offence which he or she was not originally charged with. The said section provides as follows:“(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.(2)When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.”

15. The conviction on the substituted charge is in effect of the said section based on the fact that the particulars of the main charge have not been proved and the evidence points to a minor offence. The essence thereof is that an accused person benefits from being convicted of a lesser offence and consequently lesser sentence. The appellant was charged with defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act, No. 3 of 2006 rather than incest. The latter section provides that an accused shall upon conviction be sentenced to imprisonment for life and section 20 (1) of the Sexual Offences Act which is the proviso for incest provides that an accused if found guilty shall be liable to imprisonment for life where the complainant is below the age of 18 years.

16. Bearing in mind the fact that section 179 of the Criminal Procedure Act presupposes that substitution should lead to a lesser sentence, the said section was not available in view of the circumstances of this case since both charges resulted to imprisonment for life or rather substitution would have not resulted to a lesser charge bearing in mind the age of the complainant in this case. The trial court was thereby right in not substituting the charge.

17. Additionally, I find that the charge sheet disclosed an offence known in law which the appellant understood and participated in the trial and was not prejudiced. I am guided in this issue by Yosefu v. Uganda [1969] E.A. 236 and Sigilani v. Republic [2004] 2 KLR 480 where assessment of fatality or otherwise of a charge sheet was discussed. In the end, I find that there was no defect in the charge sheet and that ground fails.

18. In his submissions, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. He argued that the complainant did not mention which genital organ was penetrated, not which appellant's genital organ penetrated her; and that she only referenced the act as 'tabia mbaya'. He further submitted that the medical evidence was not conclusive as to whether there was penetration, as the medical doctor did not note any injuries.

19. The appellant also challenged the credibility of the witness testimonies; he argued that the testimonies were marred by contradictions and inconsistencies. Particularly, he highlighted that while on one hand, PW4 stated that the case was reported on 29th June 2019 by PW2 following which they were referred to MSF for treatment, the date on which the clinical officer attended Pw1 was on 27th June 2019, and not 29th June 2019.

20. On their part, the respondent submitted that the case was proven to the required standard and maintained that the appellant’s conviction and sentence imposed by the trial court should be upheld.

21. Section 2 (1) of the Sexual Offences Act, No. 3 of 2006 defines penetration as follows:‘Penetration’ means the partial or complete insertion of the genital organs of a person into the genital organs of another person.Further, section 8(1) and (2) of the Sexual Offences Act, No. 3 of 2006 provides thus: -8. Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

22. Bearing in mind the above provisions, I will now analyse the evidence on record to ascertain whether the essential ingredients of the offence preferred against the appellant were established to the required standard of proof. Regarding proof of age, I wish to state at the outset that the importance of proving the age of a victim, proof of penetration, and positive identification of the assailant in sexual offences is paramount.

23. The complainant’s mother (Pw 2) indicated that the complainant was 8 years old at the alleged incident. The investigating officer told the court that she was unable to get the birth certificate from the complainant's mother but produced an immunization card. It is important to note that the immunization card indicated that she was born 30th September 2010 and was eight and half years old at the time of the alleged incident. The prosecution, therefore, adduced credible evidence to prove that indeed the complainant was a child at the time the offence was allegedly committed.

24. The question I must now grapple with is whether the prosecution adduced sufficient evidence to prove that the appellant defiled the child victim as alleged. PW 1 after a voir dire examination gave an unsworn statement in which she narrated how the appellant who was her stepfather forcefully defiled her in their home when her mother was away. it was her evidence that the incident took place during the day and at night. That the appellant removed his penis and inserted it into her vagina.

25. The medical evidence presented confirmed that the vagina had a whitish discharge with no injuries. The hymen had an old tear at 3 o'clock which was not normal for a child aged 8 years old. This was evidence of penetration. The conclusion by PW 2 was that the complainant was likely to have been sexually assaulted. There is no other possible explanation of what could have happened to the minor’s genitals besides evidence that she was defiled.

26. Regarding the identity of the perpetrator, the complainant knew the appellant as her stepfather and identified him as the one who sexually assaulted her. The identification was therefore by recognition. From the evidence, the complainant was very clear on the events that took place and the identity of the perpetrator.

27. After my appraisal of the evidence on record, I am unable to fault the finding of the learned trial magistrate. The prosecution evidence leaves no doubt in my mind that the appellant defiled the complainant and the elements of the offence have been proven.

28. In ground four, the appellant faulted the trial magistrate for rejecting his defence even though it was not challenged by the prosecution as per Section 212 of the Criminal Procedure Code. The claim by the appellant that the charge was a fabrication by the complainant’s mother is found to have no basis. The issue was considered by the trial court and found to be baseless. For the foregoing reasons, I have come to the same conclusion as the learned trial magistrate that in this case, the prosecution proved its case against the appellant beyond any reasonable doubt. I am thus satisfied that the appellant was properly convicted.

29. Regarding the sentence imposed by the trial court, the appellant did not specify his grievance regarding his sentence in his grounds of appeal. However, during the sentence, the trial court noted the mandatory nature of the sentences under the Sexual Offences Act, No. 3 of 2006. He then proceeded to sentence the appellant to life imprisonment.

30. It is trite law that although sentencing is at the discretion of the trial court, that discretion must be exercised judiciously in accordance with the law taking into account the facts and circumstances of each case. The punishment prescribed by law for the offence of defilement for a child below the age of 11 years is a minimum of life imprisonment..

31. Although sentences are intended, inter alia, to punish an offender for his wrongdoing, they also aim to rehabilitate offenders to renounce their criminal tendencies and become law-abiding citizens. I have no doubt that the sentence imposed by the trial court, in this case, was lawful but considering that the appellant was a first offender, I am satisfied that the sentence was harsh and manifestly excessive.

32. For the above reason, I hereby set aside the sentence passed by the trial court and substitute it with a sentence of twenty (20) years imprisonment. The sentence shall take effect from the date of the appellant’s conviction.

Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023. ......................D. KAVEDZAJUDGEIn the presence of:Kiragu for the StateAppellant presentNaomi/Nelson C/A