[2023] KEHC 25725 (KLR)

HSM v Republic (Criminal Appeal E056 of 2021) [2023] KEHC 25725 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25725 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E056 of 2021

A. Ong’injo, J

November 9, 2023

Between

HSM

Appellant

and

Republic

Respondent

(Being an appeal against the judgment of Hon. R.M. Amwayi SRM delivered on 30th June 2021 in Mombasa Chief Magistrate’s Court S. O. Case No. E013 of 2020, Republic v HSM)

Judgment

Background 1. The Appellant HSM was charged and convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.

2. The particulars were that HSM on diverse dates between the month of June 2020 and 5th day of October 2020 in Likoni Sub-County within Mombasa County, unlawfully and intentionally caused your penis to penetrate the vagina of MJ a child aged 13 years.

3. The Appellant was sentenced to serve 20 years imprisonment.

Prosecution’s Case 4. The Appellant, a step father to the complainant, was caught red handed in the kitchen which is also used as the children bedroom defiling the complainant. It is complainant’s brother aged 9 years, MS, who found the Appellant dressing up while the complainant was naked in bed.

5. PW2 reported what he saw to his brother K and also to his mother and the complainant was taken to hospital and treated. PW3, the mother of PW1 & PW2, testified that when she returned home and found the children had not eaten, the appellant explained that it was because the children had disrespected him as PW2 claimed that he had sexual intercourse with PW1.

6. PW3 confirmed from PW2 what happened. That the following day on 6. 10. 2020 appellant went to work but did not return home and instead send a text message saying he was not ready for marriage. PW3 took PW1 to hospital where she was examined and treated. They subsequently went and reported to police.

7. PW4, the Clinical Officer Stephen Kalai, examined the complainant on 7. 10. 2020 on allegations of having been defiled severally by a person well known to her from their house. He found her hymen was broken with an old scar which was an indication of repeated penetration by blunt object.

8. PW5, P.C. Mwanaisha Ibrahim from Shelly Beach Police Station testified that she investigated the matter. She said she interrogated the child who said her step father had been defiling her and that the incident had taken place severally. That on 5. 10. 2020 the step father forcefully had penetrative sexual intercourse and in the process the younger brother saw them and reported to the mother.

9. PW5 testified that the child was taken to hospital where she was examined and it was confirmed she had been defiled. A report was made to police and statements recorded and the appellant was arrested by members of public and escorted to the police where he was rearrested and charged. PW5 said she visited the scene which was a two roomed house.

Defence Case 10. The Appellant in his defence said that the evidence against him was fabricated. He said that on 8. 10. 2020 he received a phone call from his in-laws who told him to go home. That when he went home he did not find them. That the following day when he went home he found a group of people in his house who started beating him up and he was taken to police station and charged with an offence he did not commit.

11. The Appellant was aggrieved by conviction and sentence and he preferred the Petition of Appeal herein on the following amended grounds of appeal filed on 13th June 2023: -i.That the learned trial Magistrate erred in law and fact by not considering his age during sentencing.ii.That the learned trial Magistrate erred in law and facts by failing to see that the trial court mis-construed the relevant penal law as minimum mandatory provision.iii.That the learned trial Magistrate erred in law and facts by failing to consider mitigation address that the Appellant was a 1st offender.

12. This appeal was canvassed by way of written submissions

Analysis and Determination 13. This being the first appellate court, this court guided by the principles in David Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: -“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

14. After considering the grounds of appeal, proceedings of the trial court and submissions, this court has established that the issues for determination are related to sentence of the Appellant and not conviction.

15. Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides: -A person who commits an 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.

16. The trial Magistrate exercised discretion in passing this sentence. The offence is not only rampant in Likoni area and required deterrent sentence but the appellant, a step father to the Complainant, had made the habit of sneaking and defiling her when he stood in position of how a parent is to her, his age of 54 years notwithstanding.

17. My view is that if there was a more severe punishment than 20 years then the Appellant deserved a more severe sentence. He breached the responsibility bestowed upon him. He dis-respected his own children by forcing himself on one of them in their bed.

18. The Appeal on sentence lacks merit and is dismissed.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 9TH DAY OF NOVEMBER, 2023. HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the RespondentAppellant present in personHON. LADY JUSTICE A. ONG’INJOJUDGE