[2022] KEHC 18127 (KLR)

Gunga v Republic (Criminal Appeal E027 of 2021) [2022] KEHC 18127 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 18127 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E027 of 2021

SM Githinji, J

December 14, 2022

Between

Wilson Kahindi Gunga

Appellant

and

Republic

Respondent

(Appeal from Original Conviction and Sentence in S.O No. 51 of 2020 of the Senior Principal Magistrate’s Court at Kilifi -Hon. D.Sitati, RM dated 10th August 2021)

Judgment

CORAM:Hon. Justice S. M GithinjiMr. Kinaro for the appellantMr. Mwangi for the State 1. The Appellant was charged in the lower court with the offence of defilement contrary to Section 8(1) as read with subsection (3) of the Sexual Offences Act No 3 of 2006. The particulars of the offence being that on diverse dates in the months of December 2019 and January 2020 in Kilifi County he intentionally and unlawfully caused his penis to penetrate the vagina of NC a child aged 16 years.

2. The accused also faced an alternative charge of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006.

3. The particulars of this offence are that on diverse dates in the months of December 2019 and January 2020 in Kilifi County he intentionally and unlawfully touched the vagina of NC a child aged 16 years.

4. The accused was convicted on the main count and sentenced to serve 20 years imprisonment. Aggrieved by the said conviction and the sentence of the trial court, he lodged an appeal on the following grounds:

1. That honourable trial magistrate erred in law and in fact in failing to notice that the ingredients of the offence charged were not proved beyond reasonable doubt.

2. The honourable trial Magistrate erred in law and in fact in failing to find that there were key witnesses that were not called to prove the prosecution case.

3. The trial magistrate erred in law and in fact by failing to notice that the appellant reasonably believed that the complainant had granted her consent and she had capacity to grant the said consent and he reasonably believed she was of full age.

4. The honourable trial magistrate erred in law and in fact in finding that the appellant was guilty of the offence charged and failing to order a conduct of DNA test on the issue alleged to be sired by the appellant.

5. That the honourable trial magistrate erred in law and in fact by only explaining the need to have an advocate but failing to mention/explain how grave the offence he was charged with was.

6. That the honourable trial magistrate erred in law and in fact in rendering a very harsh and excessive sentence on the appellant.

7. That the learned trial magistrate erred in law and in fact by convicting the appellant on contradictory evidence.

8. That the learned trial magistrate was biased against the appellant.

9. That the learned trial magistrate failed to consider the mitigation offered by the appellant.

10. That the learned trial magistrate erred in law in amending the age of the victim in his judgment thereby causing grave injustice to the appellant. 5. In light of the above grounds, the appellant prays that the appeal be allowed, conviction quashed and sentence set aside.

Background 6. The prosecution called to the stand four witnesses during the trial.

7. PW1 NC the victim gave sworn testimony and stated that on 8/11/2019 she went to a hair salon and afterwards the salonist told her that someone had footed her salon bills. She went back later and the salonist gave her a dress and told her someone had bought it for her. The salonist (Mariam) told her that the accused had send her to link him up with her but she told Mariam that she was still a student. She told the court that later, the accused called her on phone to meet him at Mnarani petrol station where he urged her to be in a relationship with him to which she declined. A week later, the accused called her again and asked to meet her at the station where he promised to take her on vacation. She declined and told him that she was still a student. He then called for a matatu which they boarded, only for her to discover later that they were in Malindi town. In Malindi, he took her to his friend’s wife’s house where he left her and took her phone.

8. It is her testimony that she stayed there the whole of December 2019. On the first day of their stay there, he forcefully had sex with her and left. He would then come in the evenings and have sex with her daily for the entire month of December. She used to spend her days in the house and never went out. She further testified that on 2/01/2020, he took her to Mnarani stage but refused to let her go home. She then lied to him that she wanted to go buy something and he gave her money. She travelled back home where she informed her parents. They reported the matter at Kilifi Police Station and she was taken to Kilifi general hospital where it was confirmed that she was two months pregnant. The accused was summoned and arrested at the police station. The complainant was born in April 2004.

9. PW2 ERC the victim’s mother told the court that one day her husband called her and told her that the complainant had not gone back home at 9:00 pm. She told him to report at the police station. It is her testimony that her husband had gotten the accused’s number from someone who had seen the accused and the complainant together. Her husband tried calling the accused but he had blocked his number. She asked for the number and called the accused and begged him to return the child as she was still in school. The following morning, her husband told her that the complainant had returned home. After two weeks, she disappeared again and was traced in March 2020. In March 2020 when she got back, the complainant told her that the accused had hidden her at his friend’s house in Malindi and she had no money or phone. She then took her to Wananchi clinic for examination where they discovered she was pregnant having conceived in January. She then reported the matter to the police station and later took her to Kilifi General Hospital. The accused was arrested. She told the court that the complainant was born in April 2004 and produced as PEX1 a copy of birth certificate.

10. PW3 Henderson Karingu a health reproductive Clinician at Kilifi County referral hospital told the court that he examined the complainant which examination revealed that she had missed her periods since 28/12/2019. She was about 28 weeks pregnant, her hymen was broken, she had had sex severally and there was no blood stains or discharge. She was also free of STDs and HIV/AIDS. He filled a PRC form on 7/7/2020.

11. PW4 force number 236852 PC Charity Kambe from Kilifi Police station, gender Based Violence desk and the investigating officer in this case, told the court that when she took over the case on 7/7/2020, she escorted the complainant to Kilifi County referral hospital. She then recorded her statement. She informed the court that the circumstances of the case are that while the victim wanted to pay salon bill she was told that it had been paid by someone unknown to her. Later she was given clothes. The appellant took her to Malindi. She also told the court that a report of her missing had been made at the police station.

12. The appellant was placed on his defence and elected to give unsworn evidence. He did not call witnesses.

13. He testified that on 7/7/2020 he was called by one Charity Kambe at 4:05 pm and asked to go to the police station. He went the next day at 9:00 am and he was locked up in the cells. He was then taken to court. He denied the charges.

Analysis and Determination 14. This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, reevaluate and analyze it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and can therefore only make due allowance for that. The task of the 1st appellate Court on first appeal from a conviction or acquittal, was declared in the decision of the Court in Pandya v R [1957] EA 336 at pg 337 where the Court held as follows:“On first appeal from a conviction by a Judge or Magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the materials before the Judge or Magistrate with such other materials as it may have decided to admit. The appellate court must then make up its mind not disregarding the Judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or Magistrate who saw the witnesses, but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant the court in differing from the Judge or Magistrate even on a question of fact turning on the credibility of witnesses whom the appellate Court has not seen. On second appeal it becomes a question of Law as to whether the first appellate Court in approaching its tasks, applied or failed to apply such principles.” …… (See also Shantilal M. Ruwala v R [1957] E.A 570).”

15. From the grounds of appeal and submissions by the parties, the issue for determination is whether the appeal is merited.

16. The Appellant is accused of committing the offence of defilement. Section 8 (1) defines defilement as“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”Three ingredients must be established for one to be convicted of defilement, which are:1. Age of the Complainant2. Proof of penetration3. Proof that the perpetrator of the offence is the Accused person.See Charles Wamukoya Karani v Republic Criminal Appeal No72 of 2013.

17. On the element of age, it is trite that in sexual offences the age of the complainant be established for two purposes. Firstly, it is meant to prove that the complainant was below 18 years and therefore a child and secondly it establishes the age of the complainant for purposes of sentencing. See Moses Nato Rapheal v Republic [2015] eKLR.

18. It has been held that the age of the victim in sexual offences can be proved by the direct evidence of the victim, birth certificate, medical evidence, victim’s parents or guardian, or by observation by the court and common sense. In Thomas Mwambu Wenyi v Republic [2017] e KLR cited with approval Francis Omuromi v Uganda, Court of Appeal Criminal Appeal No 2 of 2000 it was held that:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who would professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.”

19. In Richard Wahome Chege v Republic [2014] eKLR the Court of Appeal sitting in Nyeri pronounced itself thus:“On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate.PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant, and the complainant herself”

20. Turning to the present case, the complainant stated that she was sixteen years old at the time of testifying. Pw2 the complainant’s mother produced PEX -1 a copy of birth certificate which shows that the complainant was born on 24/4/2004 and by calculation she was 15 years old during the period in which the alleged offence took place. I therefore find that the prosecution proved beyond reasonable doubt that the complainant was a child.

21. On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as:“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

22. The prosecution has a duty to establish that the Appellant penetrated the victim. In determining the issue on penetration, courts mainly rely on the evidence of the complainant which is corroborated by medical evidence as was held in Dominic Kibet Mwareng v Republic [2013] eKLR where the court stated that:“In cases of defilement, the court will rely mainly on the evidence of the complainant which must be corroborated by medical evidence…”

23. In the present case, the complainant maintains that she had sex with the appellant on diverse dates in December 2019. From medical records, there was established that the complainant was expectant. It is common knowledge that the complainant must have conceived through a process that involved penetration of her genital organ by a male genital organ. Further, the medical report shows that the victim’s hymen was broken which is consistent with penetration. I find that the prosecution sufficiently proved the element of penetration.

24. Identification is based on Recognition, as the complainant knew the accused. Such has been held to be more reliable than identification of a stranger. The Court of Appeal in Francis Muchiri Joseph v Republic [2014] eKLR held that:“In Lesarau v R, 1988 KLR 783, this court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name”.

25. In this case, the appellant was well known to the complainant. She testified that she met the appellant twice at a petrol station. The appellant does not deny knowing the victim. The appellant in his defence only denies the charges. Further, from his grounds of appeal, he alleges that he had belief that the complainant had granted him consent and she had capacity to do so. I am convinced that the prosecution successfully proved the appellant to be the culprit. That said, it is my finding that the prosecution established the three ingredients of defilement beyond reasonable doubt and the conviction by the trial court is sound.

26. On sentencing, as hereinabove established, the victim was 15 years old at the time the offence was committed. It is thus clear that the age was within the relevant age bracket of between 12 and 15 years as contemplated by section 8(1) as read with section 8(3) of the Sexual Offences Act in which the minimum sentence is 20 years imprisonment.

27. In the case Shadrack Kipkoech Kogo v R., Eldoret Criminal Appeal No253 of 2003 the Court of Appeal stated thus: -“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle …………….”

28. Section 8 (1), (3) of the Sexual Offences Act provides that;-“(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits am offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”

29. The Appellant was 38 years old at the time of committing the offence and obviously took advantage of a 15-years-old school going girl. He impregnated her and perhaps jeopardized her ambition for further studies and career. The effect of the offence on the minor are long lasting and the psychological effect is even worse.

30. The Appellant deserved the meted sentence if not more. I find no reasonable cause to interfere with the sentence. The appeal fails in it’s entirety.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 14TH DAY OF DECEMBER, 2022…………………………………………………S.M.GITHINJIJUDGEIn the Presence of; -1. Mr. Kinaro for the appellant2. Mr. Mwangi for the State