[2023] KEHC 27372 (KLR)

Ismail v Republic (Criminal Appeal E035 of 2022) [2023] KEHC 27372 (KLR) (28 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27372 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Appeal E035 of 2022

JN Onyiego, J

December 28, 2023

Between

Abdinasir Mohamed Ismail

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence of Hon. J.J Masiga P.M. delivered on 05. 06. 2022 at the PM’s Court at Daadab)

Judgment

1. This appeal arises from the judgment and sentence of the learned trial magistrate Hon.J.J Masiga delivered on 5. 06. 2022. The appeal by the appellant challenges the said determination on the grounds as set out on the amended petition of appeal filed in court on 21. 08. 2023. The said grounds were listed as here below:i.That the trial magistrate erred in matters of law and facts in convicting him and thereafter sentencing him while relying on a defective charge sheet.ii.That the trial magistrate erred in matters of law and facts in convicting him and thereafter sentencing him and yet the prosecution did not prove its case beyond any reasonable doubt.iii.That the trial magistrate erred in matters of law and facts in convicting him and thereafter sentencing him and yet the prosecution’s evidence was riddled with inconsistencies.iv.That the trial conducted by the trial magistrate prejudiced the appellant for the reason that the same did not consider articles 25(c), 28,47(1),50(4), 157(11) and 159(2)(e) of the constitution.v.That the trial magistrate erred in law and facts by awarding a disproportionate sentence in total disregard to the circumstances of the case and the Judiciary Sentencing Policy Guidelines.

2. The case against the appellant is one of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act, 2006. The particulars of the main charge were that, on 06. 11. 2021 in Fafi Sub-County within Garissa County, intentionally caused his penis to penetrate the vagina of S.H.S., a child aged 12 years.

3. He also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006 with particulars being that on 06. 11. 2021 in Fafi Sub-County within Garissa County, he intentionally and unlawfully touched the vagina of S.H.S. a child aged 12 years with his genital organ namely penis.

4. At the conclusion of the trial, the trial magistrate convicted the appellant in the main charge of defilement contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act, 2006 and sentenced him to serve 40 years’ imprisonment. It is the said conviction and sentence that form the basis of the instant appeal.

5. The court directed that the appeal be canvassed by way of written submissions and parties complied with the said directions.

6. The appellant in his submissions stated that the charge sheet herein was defective as the evidence adduced pointed towards the offence of attempted defilement as provided for under section 9(1) of the SOA No. 3 of 2006. That the aspect of penetration was not proved to the required standards. Further, the appellant decried the fact that he was not served with the witness statements to assist him during the trial process despite the court granting the order on the same.

7. It was his contention that the P3 Form showed that there was no bleeding reported and that the finding by the medical officer was that the hymen of the complainant was intact implying that there was no partial or full penetration on the complainant. He contended that the testimony of the complainant cannot be considered to be sufficient under section 124 of the Evidence Act as her evidence was not the only evidence tendered before the court.

8. That the PRC Form was not stamped hence shrouding its authenticity. That the same was prepared from the P3 Form meaning that it could not be treated as an independent examination report. This court was therefore urged to expunge the said document from the proceedings herein.

9. He further contended that the prosecution evidence was at variance for the reason that PW2 stated that the appellant allegedly defiled the complainant in an open compound in broad daylight while PW5 testified that the said act was done inside a house. That the investigating officer produced the medical report and yet he is not a medical doctor. That the same contravened the provisions of sections 48 and 77 of the evidence Act on expert evidence.

10. He urged this court that the prosecution did not shift the burden of proof as he relied inter alia on the case of R v Summers (1974) All ER 372 where it was held that in criminal proceedings, the burden of proof always lie with the prosecution. He faulted the trial magistrate for having failed to warn himself in regards to the quality of evidence as adduced by the prosecution witnesses. It is against that backdrop that he urged this court to quash his conviction, set aside his sentence and thereafter set him free.

11. Mr. Kihara for the respondent relied on his submissions filed on 20. 07. 2023 thus stating that to prove the offence herein, it was required of the respondent to establish the age of the victim, penetration and identity of the perpetrator. On age, it was submitted that the age of the victim was a crucial element that determines the sentence of a perpetrator of a sexual offence. The respondent relied interalia on the case of Hudson Ali Mwachongo v Republic [2016] eKLR whereby it was held that the age of the victim of defilement cannot be gainsaid and that apart from medical evidence, age may also be proved by a birth certificate, the victim’s parents or guardian, by observation and common sense.

12. On penetration, it was submitted that the same meant the partial or complete insertion of the genital organs of a person into the genital organs of another person. That in the case of Erick Onyango Ondeng’ v Republic (2014) eKLR, it was held that: In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. That it is not necessary that the hymen be ruptured. He urged that the evidence adduced by the prosecution was outright that penetration occurred.

13. Regarding identification, it was submitted that the appellant was identified by the complainant as the same happened during the day and further, the appellant being a neighbour was a person well known to the complainant as ‘Idante’.

14. On sentence, the respondent contended that the trial court properly exercised its discretion and sentenced the appellant to life imprisonment having considered the circumstances of the case. The court was therefore urged to dismiss the appeal in its entirety and uphold the sentence by the trial court.

15. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu v Republic [2010] eKLR where the Court of Appeal stated: -“The duty of the first appellate court is to analyse 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 appellate 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.”

16. PW1, S.H.S testified that she was thirteen years of age and that on 06. 11. 2021, she was alone in the house when ‘Idante’, the appellant herein entered the said house and started touching her breasts, removed her clothes and thereafter defiled her. That she tried to scream but the appellant threatened her as he was also armed with a knife. She stated that the appellant having defiled her went his way but later returned. That upon seeing him, she locked the door, put on her clothes and went to inform her grandmother of what had ensued. She stated that she was later taken to the hospital where she was treated.

17. PW2, SYM testified that on the material day, he arrived home from school when he found the appellant naked and on a bending position towards PW1. That the complainant struggled to free herself as the appellant knelt on top of the complainant. That the appellant’s pants were rolled up to his knees while the complainant was laid on her back. He stated that the complainant managed to wiggle out of the appellant’s hands and thereafter ran to their grandmother’s place. It was his evidence that the appellant was a person well known to him as he knew him as ‘Idante’. On cross examination, he testified that he did not scream as the appellant was armed with a knife.

18. PW3, Dr. Marvin Ngao testified on behalf of Dr. Winston who examined the complainant. He stated that there was bruising and inflammation in the vagina and that the approximate age of the bruises was 6 hours. It was his case that the complainant had suffered a sexual assault. He produced the P3 Form as Pex 1.

19. PW4, NM testified that on the material day, she had left PW1 in the house for a period of about one hour. That when she went back home, she came and found PW1 crying as she reported to her that she had been defiled. She stated that the person who allegedly defiled PW1 was ‘Idante’ and so she reported the matter to the police. It was her evidence that the appellant was her neighbour.

20. PW5, Flova Maina, the investigating officer herein reiterated the evidence of PW1, PW2 and pw4. She testified that PW4 reported that she had left PW1 at home as she went to fetch water. That upon returning, she found PW2 crying and on asking her, PW2 told her that a neighbour by the name of ‘Idante’ had defiled the complainant.

21. She stated that she recorded the statements of the witnesses and thereafter referred the complainant to I.R.C rescue centre. It was her evidence that the complainant had positively identified the appellant as the person responsible for her injuries and as a result, she issued her with a P3 Form for filling. That she visited the scene in the course of her investigations. She produced a manifest to prove that the complainant was aged 12 years.

22. The prosecution closed its case and the trial court put the appellant on his defence upon finding that a prima facie case had been established against him.

23. DW1, Abdinasir Mohamed Ismail alias Idante in his sworn testimony denied committing the offence herein. He stated that on the day he was arrested, he was looking for a job as a cook and further, that he is mentally disturbed in as much as he had no evidence to prove the same. That he was wrongfully accused for an offence he did not commit. On cross examination, he stated that indeed his nickname is Idante and that he knew PW1 by appearance. He stated that PW1 lived in Block K-3 while he worked next to the said block. According to him, PW1 and PW2 were coached to frame him.

24. I have considered the record and grounds of appeal herein. The appellant has raised several grounds of appeal which I will endeavor to address. It is trite that in any criminal offence, the prosecution has an onerous duty to prove its case beyond any reasonable doubt and that the same does not shift. From the definition of the relevant statute, and case law, the critical ingredients constituting the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant. See Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013].

25. On the age of the complainant, the Sexual Offences Act defines “Child” within the meaning of the Children’s Act No. 8 of 2001 which defines a “Child” as “... any human being under the age of eighteen years.”

26. In the case of Martin Okello Alogo v Republic [2018] eKLR the court stated thus:-“On the issue of whether the age of complainant was proved, the importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. The age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. See Alfayo Gombe Okello v Republic Cr. Appeal No. 203 of 2009 (KSM) where the Court of Appeal stated: -“In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim as necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under Section 8 (1)...”

27. The complainant stated in her testimony that she was 13 years old while PW5, the investigating officer stated that PW1 was 12 years and further produced the manifest as Pex 3. This court has since perused the said manifest and noted that indeed the same is indicated that the PW1 was born on 01. 03. 2009 while the offence herein was allegedly committed on 06. 11. 2021. As such, the same shows that the complainant was 12 years 7 months at the time when she was allegedly defiled. I am therefore convinced that the age of the complainant was determined appropriately.

28. On penetration, the Sexual Offences Act defines “penetration” as3“the partial or complete insertion of the genital organs of a person into the genital organs of another person”

29. Further, the Court of Appeal, in the case of Sahali Omar v Republic [2017] eKLR, noted that:“...penetration whether by use of fingers, penis or any other gadget is still penetration as provided for under the Sexual Offences Act.”

30. In the instant case, the complainant testified how the appellant forced her to have sex with him. That on the fateful day, the complainant was left alone in the house as PW4 had gone to fetch water. In the same breadth, PW3 who examined the complainant also testified that PW1 was sexually assaulted. From the P3 Form filled by Dr. Winston, it was noted that there was bruising and inflammation noted on the vaginal introitus at 9 O’clock and 11 O’clock. It was further noted that there was presence of a whitish discharge from PW1’s genitals. The prosecution urged that the physical findings implied that the hymen was still intact meaning that there was partial penetration as required under sections 2 and 8 of the SOA No. 2 of 2006.

31. From the medically discernible presence of bruises and inflammation on the complainant’s genetaria, one would safely conclude that there was partial penetration. Penetration therefore does not strictly connote full penetration but also partial penetration. See the Court of Appeal’s holding in the case of Williamson Sowa Mbwanga v Republic (2016) e KLR;“…As the Court of Appeal of Uganda rightly stated, in the Sexual Offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and it is not necessary that the hymen be raptured…It is partly for this reason that Section 36 (1) of the SOA is couched in permissive rather than mandatory terms, allowing the Court, if it deems it necessary for purpose of gathering evidence to determine whether or not the accused person committed the offence, to order that samples be taken from him for forensic, scientific or DNA testing.”

32. From the testimony of Pw1 and the medical evidence, am convinced that the prosecution did prove penetration.

33. On identification, the complainant stated that the appellant herein was a person known to her even prior to the alleged incident herein. PW1 stated that the appellant was a neighbour who was known by the name of ‘Idante’. The offence was committed during the day hence positive identification through recognition. The appellant in his defence did not deny that his nickname was ‘Idante’, he further reiterated that he knew PW1 as he worked next to the said Block K-3 a fact that confirms that he was well known in the locality.

34. It is my finding that the appellant in the instant case was properly and positively identified by recognition based on the testimony of the prosecution witnesses who confirmed that indeed the appellant was known to them. The witnesses corroborated each other very well hence no reason to doubt their testimony. It follows therefore that grounds 2 and 4 are baseless.

35. The appellant urged that the trial magistrate erred in matters of law and facts in convicting him and thereafter sentencing him while relying on a defective charge sheet.

36. The court in JMA v R [2009] KLR 671 held that not all defects in a charge sheet will render a conviction thereunder invalid. Over time, the test of determining whether a charge is fatally defective so as to render any conviction a nullity has been established, both in our jurisdiction and other jurisdictions. In that regard, the Supreme Court of India in Willie (William) Slaney vs. State of Madhya Pradesh [A.I.R. 1956 Madras Weekly Notes 391], held that;“Whatever the irregularity, it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in the labyrinth of insubstantial technicalities.”[Also see the case of Isaac Nyoro Kimita & another v R [2014] eKLR].

37. In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence. The appellant did not specify the defect and how it affected his defence or prejudiced his case.

38. Looking at the record and the evidence as a whole it cannot be said that the charge herein was defective. To the contrary, the said charge was in consonance with the evidence adduced by the prosecution. I therefore find that the appellant’s allegation that the charge preferred was not supported by the evidence by the prosecution is unfounded.

39. On the ground that the prosecution evidence was riddled with material contradictions, the alleged contradictions must be substantive materially. It is trite that contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial.

40. It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. The correct approach is to read the evidence tendered holistically. It is only when inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court that they can necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from.

41. In the case herein, there is no evidence that was presented before this court to show any form of contradiction and/or inconsistencies in the record which apparently led to or infringed the appellant’s rights.

42. Regarding the issue of sentence, the appellant did not submit on the aspect of sentence. However, that notwithstanding, I note that he urged this court to quash his conviction and thereafter set aside the 40 year imprisonment. But of importance to note is the fact that the appellant herein was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act 2006 which provides that upon conviction the offender shall be sentenced to imprisonment for a term of not less than twenty years.

43. It was incumbent upon the trial court to state the aggravating factors that forced him not to give the less punitive penalty in favour of a more punitive sentence. In my view, 40years was excessive in the circumstances considering that the appellant was a first offender. Secondly, the court of appeal having recently set a 30-year imprisonment term as the period signifying life imprisonment, it implies that no amount of sentence in a sexual related offence can go beyond 30 years which is the imprisonment term for life sentence. See Evans Nyamari Ayieko v Republic criminal appeal no. 22 of 2018 kisumu court of appeal.

44. In light of the above, this court affirms the conviction by the trial court but sets aside the 40-year sentence and substitute the same with a term of 15 years from the date of sentencing.ROA

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF DECEMBER 2023J. N. ONYIEGOJUDGE