[2016] KEHC 1695 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT VOI

CRIMINAL APPEAL NO 82 OF 2016

HAMISI MOHAMED ABUBAKAR......................................APPELLANT

VERSUS

REPUBLIC.........................................................................RESPONDENT

(From original conviction and sentence in Criminal CaseNumber

119 of 2008 in theResident Magistrate’s Court at Wundanyi

delivered by Hon F. K. Munyi (RM) on 22nd September 2008)

JUDGMENT

INTRODUCTION

1. The Appellant herein, Hamisi Mohamed Abubakar,was convicted by Hon F.K. Munyi (RM) for the offence of attempted defilement of a girl contrary to Section 9(2) of the Sexual Offences Act No 3 of 2006. He was sentenced to serve fifteen (15) years’ imprisonment. He had been charged with an alternative charge of indecent assault of a female contrary to Section 11(1) of the Sexual Offences Act.

2. The particulars of the charges were as follows:-

“On the 5thday of April 2008 in Taita Taveta District within Coast Province attempted to have unlawful carnal knowledge of N M a girl aged 9 years and 6 months.”

ALTERNATIVE CHARGE

“On the 5th day of April 2008 in Taita Taveta District within Coast Province, unlawfully and indecently assaulted N M by touching her private part(sic)namely Vagina.”

3. Being dissatisfied with the said judgment, on 22nd September 2008, the Appellant lodged the Appeal herein at High Court of Kenya at Mombasa. The Memorandum of Grounds Appeal were THAT:-

1. The Learned Trial Magistrate erred in law and fact by not considering that the complainant was being forced by her sister to cheat the court that he did the incident.

2. The Learned Trial Magistrate erred in law and fact by failing to consider that there was no eye witness or anykind(sic)of screaming that was heard.

3. The Learned Trial Magistrate erred in law and fact to consider the doctors(sic)evidence whereby the Doctor didn’t appear before the court personally(sic).

4. The Appeal herein was transferred to the High Court of Kenya at Voi on 6th May 2016. On 9th May 2016, the Appellant was directed to file his Written Submissions within fourteen (14) days. However, he did not do so and on 27th June 2016, the court granted him a further fourteen (14) days to file and serve the said Written Submissions.

5. On 11th July 2016, the Appellant filed a Notice of Motion application of even date seeking to Amend his Grounds of Appeal. The same was allowed. The Amended Grounds of Appeal were as follows:-

1. THAT the Learned Trial Magistrate erred in law and facts by failing to consider that the Prosecution’s evidence contradicted each other c/s 163 (1) (c) of the Evidence Act.

2. THAT the Learned Trial Magistrate erred in law and facts by failing to consider the conviction and sentence was founded on the evidence of a single witness which would(sic)or is insufficient to sustain the conviction.

3. THAT the Learned Trial Magistrate erred in law and facts by failing to consider that no age assessment was prepared and a copy of a Birth Certificate produced for purposes of sentencing.

4. THAT the Learned Trial Magistrate erred in law and facts by failing to produce evidence putting him at the alleged case(sic).

5. THAT the Pundit Trial Magistrate erred in law and facts by failing to consider that there was no medical doctor to give evidence on the P3 Form hence PW 4 violated Section 77 and Section 33 of the Evidence Act.

6. THAT the Pundit Trial Magistrate erred in law and facts by failing to consider that the sentence imposed was harsh and excessive in all the circumstances c/s 354 (6) of the CPC(sic).

7. THAT the Pundit Trial Magistrate erred in law and facts by failing to adequately consider his defence.

6. The State filed its Written Submissions dated 20th July 2016 on 21st July 2016. When the matter came up on 21st July 2016, both parties asked this court to deliver judgment based on their respective Written Submissions which they did not highlight. The Judgment herein is therefore based on the said Written Submissions.

LEGAL ANALYSIS

7. As this is a first appeal, this court analysed and re-evaluated the evidence afresh in line with the holding in the case of Odhiambo vs Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that:-

“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour”.

8. It did appear to this court that all the issues that had been raised in the Memorandum Grounds of Appeal were related. After a careful perusal of the parties’ respective Written Submissions, the court concluded that the issue that had been placed before it for determination was whether or not the Prosecution had proved its case beyond reasonable doubt. However, as the Appellant had raised specific issues, the court deemed it prudent to address the same under the following heads.

I. PROOF OF THE PROSECUTION’S CASE

A. EVIDENCE BY A SINGLE WITNESS

9. The Appellant asked this court to warn itself of the dangers of relying on the evidence of a single witness. He placed reliance on the case of CRA No 1 of 2014 Ogeto vs Republiche said that where the court therein held that it was trite law that a fact could be proved by the evidence of a single witness if care and caution was exercised while placing reliance of such single witnesses’ evidence.

10. He did not provide any citation of the above case and this court was not certain if he was referring to Ogeto v Republic [2004] eKLRwhich was also CRA No 1 of 2004where a similar conclusion was arrived at. As he did not furnish this court with a copy of the said case, this court found it prudent not to consider the said submission.

11. He submitted that in relying on the proviso of Section 124 of the Evidence Act Cap 80 (Laws of Kenya), which the Learned Trial Magistrate invoked, a court is enjoined to record in the proceedings reasons to show its satisfaction that that single witness is telling the truth. It was his contention that the demeanour of Nelisa Manga (hereinafter referred to as PW 1) ought to have been consistent with the findings of the medical doctor which was not the case herein.

12. On its part, the State submitted that PW 1, who was aged nine (9) years at the time, testified that the Appellant lured her into his house and after giving her biscuits, he inserted his penis into her vagina. It said that after the Learned Trial Magistrate did not address the issue of the evidence by a single witness but ideally found that the evidence that was adduced by the Prosecution witnesses was consistent and corroborated.

13. The Learned Trial Magistrate conducted voire dire enquiry by asking PW 1 what her name was, where she lived, where she went to school, where she went to Church, whether she knew what taking an oath meant, whether she knew what it meant to tell the truth and whether she knew the consequences of telling a lie. Having found that PW 1 did not understand the meaning of an oath, the Learned Trial Magistrate directed that PW 1 give unsworn evidence. For all purposes and intent, the Learned Trial Magistrate conducted a proper voire dire enquiry.

14. The said Learned Trial Magistrate noted in the proceedings that PW 1 cried throughout her testimony. In her evidence, she was categorical that on 5th April 2008 at about 2. 00pm, the Appellant, who was a herdsman in their home, lured her into his house and gave her some biscuits. He told her to sleep on the bed. He removed her trouser and pant until they were at the level of her thighs. He then removed his trouser and inserted his penis into her vagina.

15. She stated that as he went to lock the door, he met her cousin Angelica Mughanga (hereinafter referred to as “PW 2”). She said that she hid under his bed as she was scared of having been found in the Appellant’s house.She further testified that as she came from Church later on that day, PW 2 who had seen her going to the Appellant’s house asked her what she was doing there whereupon she explained how he had lured her into his house and did bad things to her. Subsequently, PW 2 asked her if she would tell her mother what had happened. She did in fact repeat exactly what had transpired to her mother.

16. Clearly, PW 1’s evidence was cogent and believable. She was honest and was very clear about what exactly transpired. Her complaint that she felt pain when the Appellant inserted his penis in her vagina was consistent with what she would have expected to feel during such an action with an adult. Bearing in mind the Proviso of Section 124 of the Evidence Act that stipulates “Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth” this court was satisfied that PW 1’s sole evidence would ordinarily have been sufficient to prove that the Appellant had committed the offence herein.

17. However, her evidence had to be corroborated for the reason that she had tendered unsworn evidence which was not subjected to Cross-Examination. While addressing the question of sworn and unsworn evidence of minor, in the case of Johnson Muiruri vs Republic [2013] eKLR, the Court of Appeal rendered itself as follows:-

“…In Peter Kariga Kiune, Criminal Appeal No 77 of 1982(unreported) we said:

“…“Where in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination , whether the child understands the nature of an oath in which even his sworn evidence may be received. If the court is not so satisfied his unsworn evidence may be received if it is the opinion of the court he is possessed of sufficient intelligence and understands the duty of talking the truth. In the latter event an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him (sec.19, Oaths and Statutory Declarations Act, cap 15. The Evidence Act (section 124, cap 80)…”

18. For all purposes and intent, the Appellant could not be found to have been liable for the offence he had been charged with unless PW 1’s evidence was corroborated. However, as will be seen hereinabove, PW 2 testified that she saw PW I in the Appellant’s house. PW 1 could not therefore have been said to have been a single witness.

19. For the foregoing reasons, this court found Amended Ground of Appeal No (2) not to have been merited and the same is hereby dismissed.

B. ASSESSMENT OF PW 1’S AGE

20. The Appellant submitted that Article 27 (1), (2) and (3) of the Constitution of Kenya, 2010 provided that every person was equal before the law and had the right to equal protection and equal benefit of the law. It was his contention that the Prosecution was required to prove the ingredients of attempted defilement which he said were inter alia proof of the age of the victim and the fact that the act was done with or without consent of a victim who was under the age of eighteen (18) years. He averred that failure by the prosecution to prove either of the said ingredients could sustain a conviction (sic).

21. This court found the Appellant’s conclusion in respect of the aforesaid submissions may have been a typographical error. This is because, following his argument, the logical conclusion could only have been that a failure to prove either of the two (2) ingredients was not sufficient to sustain a conviction.

22. Be that as it may, the gist of the Appellant’s argument was that the Learned Trial Magistrate proceeded on the wrong principles of the law as PW 1’s age was not proven which caused him to suffer prejudice. He stated that there was no Birth Certificate or an Age Assessment Report. He contended that the fact that a complainant was said to have been in class four (4) was not be conclusive of the fact that such a complainant was a minor as there are some communities that take their children to school very late. He referred this court to the case of Cheruto Mumba vs Republic [2014] eKLR where the Court of Appeal allowed an appeal as there had been no Age Assessment Report.

23. The State submitted that PW 1’s age was determined at the time the voire dire enquiry was conducted. It referred the court to the case of Francis Muriithi Musa vs Republic [2015] eKLR where Limo J found that the voire dire enquiry was sufficient to have established the age of the complainant therein.

24. This court was, however, respectfully hesitant to completely agree with the holding of the said learned judge that the age of a complainant given during a voire dire enquiry wassufficient to prove a complainant’s age. The said learned judge had propositioned that the trial court therein must have been clear in his mind that the complainant therein was aged ten (10) years as the said complainant had during the voire dire examination told the trial court that she was ten (10) years of age.

25. Appreciably, a difference of a few days, weeks, months or year could mean the difference between a convicted person being handed down a life imprisonment or imprisonment of fifteen (15) or twenty (20) years for offences under Section 8 of the Sexual Offences Act.It was the considered view of this court that as the liberty of a person would be at stake, proof of a complainant’s age ought not be a matter of estimation or guess work but must be an actual age as the same determines the sentence that will be meted out to a convicted person.

26. In this regard, this court agreed with the Appellant who correctly argued that the purpose of setting out the ages of victims in the Sexual Offences Act was because the sentence would be based on the proved age of a victim. However, it is clear from the provisions of Section 9(2) of the Sexual Offences Act that age is not really a factor at the time of sentencing provided that the victim is eighteen (18) years and below.

27. The said Section provides as follows :-

“A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.”

28. Evidently, PW 3 testified during her Examination-in-chief that PW 1 was aged nine and a half (9 ½) years at the time of the alleged offence. The Appellant did not contest PW 1’s age when he Cross-examined PW 2. He could not therefore raise the issue of her age at the appellate stage as it was presumed that PW 2’s evidence in respect of PW 1’s age remained unrebutted and for all purposes and intent, PW 1 was a minor. The learned judge in the case of Francis Muriithi Musa vs Republic (Supra) made a similar observation when he stated that:-

“The ages of the complainant and the evidence in my view were not contested and cannot form a good basis for this appeal for the reasons aforesaid.”

29. Consequently, while this court agreed with the Appellant’s submissions on the importance of age of a complainant in sexual offences, it found that the same was not material and/or relevant in the circumstances of this case as the sentence was not determinant on the exact age of the complainant so long as he or she was eighteen (18) years and below.

30. This court did not therefore find merit in the Appellant’s Ground of Appeal No (3) and the same is hereby dismissed.

C. PRODUCTION OF MEDICAL EVIDENCE

31. It was the Appellant’s argument that the tendering of the Medical Report by No 56984 PC Guyo Galgalo (hereinafter referred to as “PW 4”) was contrary to the provisions of Sections 33 and 77 of the Evidence Act as he was not a medical doctor. He submitted that that PW 4 could only have presented the said report if he was a medical doctor.

32. On its part, the State contended that failure by a medical doctor to produce the medical report did not weaken the Prosecution’s case or evidence as the Appellant had been charged with attempted defilement and not defilement. In relying on the case of Fappyton Mutuku Ngugi vs Republic [2014] eKLR, the State averred that the attempted defilement in this case was not proved by way of a P3 Form but rather by way of evidence by PW 1 and PW 2.

33. The court could not comment on the contents of the P3 Form as it was not in the court file. Suffice it to state that as the offence was said to have been attempted defilement where no visible injuries would have been expected, the P3 Form was not material and relevant in the circumstances of this case.

34. In this regard, this court did not find any merit in Amended Ground of Appeal No (5) and the same is hereby dismissed.

D. CONTRADICTION OF EVIDENCE BY PROSECUTION WITNESSES

35. The court dealt with Amended Grounds of Appeal Nos (1) and (4) together as it found the same to have been related.

36. The Appellant submitted that Sections 109 and 110 of the Evidence Act Cap 80 (Laws of Kenya) provided that any party who asserts a fact has the burden to prove the same. He referred the court to the definition of an assertion given in the 21st Century Dictionary Revised Edition where an assertion was defined as “a positive or strong statement or claim or the act of making such a claim or statement, an assertion would need to be proved by evidence(sic).”

37. He also placed reliance on the case of Criminal Appeal No 115 of 1982 Muiruri Njoroge vs Republic where he stated it was held that:-

“It is a well established rule of practice that a court of law does not act on mere assertions, not unless such assertions is proved by evidence beyond the court(sic).”

38. While the court noted his reliance on the case of Cr Appeal No 1 of 1994 Stephen Mungai Macharia vs Republic to the effect that an accused person is under no obligation to prove his own innocence as the burden on proof remained with the prosecution, the burden shifted to him by virtue of Section 109 of the Evidence Act that provides as follows:-

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

39. Indeed, he did suggest in his submissions that PW 2 may have seen PW 1 entering his house but he did not actually see him defile PW 1. This was a very telling submission. On this point alone, he placed himself at the scene of the offence. He did not proffer any plausible reason to explain what PW 1 could have been doing in his house at the material time.

40. A careful perusal of the proceedings shows that PW 1 testified that the Appellant first indecently assaulted her and after peeping outside the window, he went to close the door. She said that this is when he met PW 2 and she hid under the bed.

41. On her part, PW 2 stated that she peeped through the window and saw PW 1 lying on her back on the bed while the Appellant had removed his trouser upto the knees. However, she was able to see his penis. She said that she decided to go through the door but when he saw her, he wore his trousers and PW 1 slid under the bed. There was nothing contradictory about this evidence as PW 1 testified that when the Appellant met PW 2 at the door, she went under the bed.

42. It was immaterial that PW 3 did not see any blood stains as the Appellant had contended because this was a case of an attempted defilement. The Medical Report would also not have added any value in the circumstances of the case for the same reason.

43. His argument that the evidence by PW 1, PW 2, PW 3 and PW 4 contradicted each other and that the Learned Trial Magistrate erred in convicting him based on their said evidence had to be taken with a pinch of salt as it was misleading. His analysis of the sequence of when the door was closed, the questions why PW 1 did not make noise of at all if she had felt pain or why PW 2 did not scream on seeing him in action was intended to make the matter look more complicated than really it was. Indeed, his presence at the scene of the offence was corroborated by both PW 1 and PW 2.

44. This court thus agreed with the State’s submissions that the evidence by the Prosecution witnesses was cogent, consistent and was not contradictory to each other as the Appellant had contended and in the circumstances Amended Grounds of Appeal Nos (1) and (4 ) had no merit and are hereby dismissed.

II. DEFENCE OF ALIBI

45. The Appellant gave unsworn evidence. Although it is the constitutional right of an accused person to adduce unsworn evidence, the same has no probative value as he is not subjected to cross-examination to test the veracity of the same. His submissions that the circumstances he found himself in was a result of a grudge between him and his employer who had not paid him for ten (10) months could not save him as he was not cross-examined on the same so as to give credence to his claims.

46. Further as was submitted by the State, he failed to give evidence on his whereabouts on 5th April 2008. He only addressed himself to the date of 6th April 2008 when he was arrested. He was fully aware from the facts in the Charge Sheet that the date in question was 5th April 2008 where he ought to have concentrated his energies. He failed to do so and must therefore face the consequences of his omission.

47. For the reason that this court found that the Appellant had placed himself at the scene of the offence on the material date and time and the fact that it found the evidence of all the Prosecution witnesses to have been consistent, it had no option but to find that his defence of alibi was an afterthought that was given to show that he had absolutely no idea why he was before the Trial Court.

48. In this respect, the court found Amended Ground of Appeal No (7) to have been unmeritorious and the same is hereby dismissed.

III. SENTENCE

49. The Appellant averred that the sentence that was meted on him was harsh and arbitrarily unlawful and in breach of Section 354(6) of the Criminal Procedure Code and that he was entitled to benefit from the minimum sentence as provided by the law which he submitted ought to have been ten (10) years.

50. Evidently, the penalty prescribed in Section 9(2) of the Sexual Offences Act is the minimum. This means that a trial court can mete out a sentence over and above then ten (10) years imprisonment. Provided that a trial court does not proceed on wrong principles such as meting out an unlawful or manifestly excessive penalty, an appellate court ought not to interfere with its discretion even if it was of the view that it would have given a lesser penalty.

51. The issue of the Appellant herein been given the benefit of the minimum sentence would not hold water. He was aged twenty (20) years at the time while PW 1 was a child of tender years. From PW 1’s evidence, the Appellant appeared to have penetrated her as she stated that he inserted his penis in her vagina. In the mind of this court, that was not attempted defilement. Rather, it was defilement. He therefore ought to have counted his blessings for not having been charged with defilement as if he would have been handed down a life imprisonment.

52. Having said so, there was there was no medical evidence to show that the Appellant actually penetrated PW 1. This court was thus persuaded to accept the Prosecution’s evidence that this was a case of an attempted defilement and that this court ought not to come to a different finding from that of the Learned Trial Magistrate made.

53. Accordingly, having considered the evidence that was adduced in the Trial Court afresh, the Written Submissions and the case law in support of the respective parties’ cases, this court came to the firm conclusion that the Prosecution proved its case beyond reasonable doubt and that the conviction and sentence against the Appellant herein were lawful and fitting.

54. The Appellant’s Amended Ground of Appeal No (6) was not successful and the same is hereby dismissed.

DISPOSITION

55. In a nutshell, this court’s Judgment was that the Appellant’s Petition of Appeal that was lodged on 23rd September 2008 was not merited and the same is hereby dismissed.The court therefore hereby declines to quash the conviction and/or set aside the sentence that was meted out to the Appellant but instead affirms the same.

56. Notably, the Learned Trial Magistrate did not address her mind to the Alternative Charge which the prosecution normally sets out as a safety net in the event it does not prove the main charge. For the completeness of record, the penalty for the offence of the Alternative Charge is hereby kept in abeyance as the offence was intertwined with that of attempted defilement.

57. It is so ordered.

DATED and DELIVERED at VOI this 13THday of SEPTEMBER2016

J. KAMAU

JUDGE

In the presence of:-

Hamisi Mohammed Abubakar……….. Appellant

Miss Anyumba……….…………………..for State

Ruth Kituva– Court Clerk