[2023] KEHC 26949 (KLR)

GNM v Republic (Criminal Appeal E033 of 2021) [2023] KEHC 26949 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26949 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E033 of 2021

DR Kavedza, J

December 8, 2023

Between

GNM

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence imposed by Hon. N. Caroline (R.M) on 13th April 2021 in Sexual Offence No. 10 of 2018; Republic vs Gideon Nduva Mutua)

Judgment

1. The appellant was charged, convicted and sentenced for the offence of defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act. He was convicted to serve 10 years imprisonment. Being dissatisfied with the sentence, the appellant filed 5 grounds of appeal.

2. In ground 1 and 2 the appellant contended that the trial court erred in convicting him without taking into consideration the grudge that existed between him and the complainant’s parents. In ground 3 to 5 the appellant averred that his defence was not taken into consideration and that the sentence was harsh.

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, analyze 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 demeanor of the witnesses and hearing them give evidence and give allowance for that.

4. PW1 CMG [name withheld] testified that on 25/2/2019 when she was coming from school she met the appellant, she then went with him to his house and took her hand, he then told her not to fear him and that she should not scream for no one would hear. He put her on his bed removed her skirt and her inner wear. He then removed his trousers and defiled with her. She stated that she did not consent to it and that he forced himself on her. She stated that it was her first time and she felt pain and bled. After he threatened her he threw her clothes and books outside and told her to leave.

5. She put on her clothes and went home. She did not tell her grandmother and did not go to school the following week for she was in a lot of pain. Her mother was called and she told her what had happened. They reported the offence and she was taken to hospital when upon testing she was found to be pregnant. She recorded her statement. On cross examination she confirmed to not having known the appellant before that day. She also stated that she was not framing him. Upon being recalled on cross examination she stated that she did not stay with the appellant for four months and that she was not married to him.

6. PW2 SN the mother to PWl. She stated that her daughter was almost 16 years old. She stated that in March 2019 she was called by PWl's grandmother who informed her that PWl had stopped going to school. She went to Rombo and asked PWl why she was not going to school. PWl told her that she was not feeling well and she took her to hospital. She was examined and tested and found to be pregnant. They went to the police station where she said the child belonged to the appellant and that she only came to know him when he defiled her. She stated that they went looking for him but found he had gone to Nairobi. She recorded her statement and she was informed that the appellant was arrested. She and her mother went to the police station and the mother identified him. On Cross examination she stated that she was the one who made the initial report. She stated that she did not sit with his parents and also that she received information from the police informing her that the appellant had been arrested trying to break in. She stated that the child's grandmother used to see the appellant at his place of employment. She also stated that PWl did not live with him for 4 months and that she did not discuss any marriage between him and her daughter. Upon being recalled, she reiterated her evidence and added that Pwl was a child and she would not have allowed her to visit her boyfriend.

7. PW3, LM. She stated that was staying with Pwl and that in March,2019 she noted that PWl was not feeling well. She called her mother who came and talked to her. The mother told her to go back to school and they went to the police station. She had been informed that PWl was seen with a young man. She went to see the Father who advised them to go to Rombo police station. At the police station they were told to go to hospital and at the hospital they were told PWl was pregnant. On cross-examination she stated that she did not know the appellant well.

8. PW4, Emily Okworo a government Analyst produced a DNA report confirming that the appellant was PW1’s child’s father.

9. PW5 PC NO. 92491 Lucy Naishinta attached to Rombo police post confirmed that the members of public are the ones who took the appellant to the police station when he had been found with stolen goods. From her investigation there was a relationship between the complainant and the appellant and the complainant had passed by the appellant’s house. It was her testimony that the appellant and the complainant knew each other well. She produced the P3form as well as a birth certificate of the complainant.

10. PW6 Tipape Saneti a medical officer attached to Loitoktok Sub county Hospital. He stated that he was to testify on behalf of Abdi Hussein who had ceased being an employee of the said hospital. He produced the P3 form in respect to Pwl, which stated that Pwl was found to be pregnant when she was examined. On cross examination he stated that once a p3 form was signed it was stamped in a different office. He stated that he could not confirm the age of the pregnancy but the pregnancy was proof enough of defilement

11. The appellant was found to have a case to answer and was placed on his defence. He stated that on 1/10/2019 he and the complainant’s family met at the Catholic Church where he was to pay dowry of Kshs 150,000/- at 9. 00am. He stated that he would only be able to pay dowry on 6/8/2020 but the complainant's family disagreed completely and stated that they wished to stay with their daughter until he paid the dowry. The complainant was forced to go with her family and later that day PW2 called him and asked for 30,000/= but he told them he could only pay the amount on 6/8/2020. He stated that PW2 persistently called him that he had to switch off his phone. Later that day he stated that he received a letter from Rombo police post requesting him to go to the said station. He went to the police post and he was surprised to see PWl, PW2 and PW3 there. He was surprised to hear them shout for him to be arrested that he had defiled PWl. He tried to explain but was placed in custody he stated that he did not know that PWl was a student. On cross - examination he stated that he was alone and that his mother and sisters were aware that he would marry the complainant. He did not call them as witnesses.

Analysis of the Evidence and Determination. 12. The accused person is charged with the offence of Defilement Contrary to section (8) (1) (3) of the sexual offences act. The key ingredients forming the offence of defilement are: the age of the complainant, proof of penetration and positive identification of the assailant as highlighted in the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013.

13. With regards to the age of the complainant. The birth certificate produced indicated that she was 15years of old. Her evidence was corroborated by PW2 who stated that she was almost 16 years old. The age of the complainant was therefore proved. She was a child within the provisions of the law.

14. Penetration is defined under section 2 of the Sexual Offences Act to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. The complainant in her testimony stated that she was lured then threatened by the appellant before she was defiled. This was corroborated by the report of the medical officer who stated that the complainant was found pregnant and the DNA carried out indicated that the appellant was the father of the unborn child. Penetration was therefore proved.

15. I will now address the issue of identification. It was the evidence of the minor that she had known the appellant for sometime. The investigating officer in her testimony stated that upon inquiry she got to know that the appellant and the complainant had known each other and that they were in a relationship. She further stated that there were plans to marry off the complainant and marriage negotiations were already underway. This was equally stated by the appellant in his defence as he explained how far the negotiations had gotten too and the reason as to why they failed to agree.

16. I take into consideration the fact that the complainant and the appellant were in the same age bracket and that they were actually in a relationship that would have led to a possible marriage. I cannot underestimate the fact that the act brought forth a child who is now close to 2 years.

17. A strict application of some of the provisions of the sexual offences Act may cause injustice. This was appreciated by the Court of Appeal in Evans Wanjala Siibi v Republic [2019]EKLR where it was stated that:“Once again unfair consequences of a skewed application of that statute predominantly against the male adolescent is quite apparent; two youths caught enagaging in sex receive diametrically opposite treatment. The girl is branded a victim and guided to turn against her youthful paramour while the boy, Juliet’s Romeo is branded the villain, hauled before the courts and visited with a lengthy jail term. We very much doubt that it conduces to good sense, policy and our own conceptions of justice and fairness that the law should be deployed in a manner so disparative and discriminative in effect. A supposed justice resting on the shaky foundation of injustice against young boys hardly warrants the term.”

18. However, in this case, the appellant lured the complainant to her home and defiled her. There was no relationship between the two. The conviction was by the trial court was therefore safe.

19. On sentence, the appellant was sentenced to serve 10 years imprisonment. 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. However, I am satisfied that the sentence was harsh and manifestly excessive.

20. For the above reason, I hereby set aside the sentence of ten (10) years imposed by the trial court and substitute it with a sentence of five (5) 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: