[2022] KEHC 12858 (KLR)

Jefa v Republic (Criminal Appeal E019 of 2021) [2022] KEHC 12858 (KLR) (15 March 2022) (Judgment)

Neutral citation: [2022] KEHC 12858 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E019 of 2021

SM Githinji, J

March 15, 2022

Between

Kamaki Kalume Jefa

Appellant

and

Republic

Respondent

(Appeal from Original Conviction and Sentence in Criminal Case No. 7 of 2019 of the Resident Magistrate’s Court at Kaloleni-Hon. Wanjiru Njuguna, RM dated 3rd February 2020)

Judgment

1The appellant was charged in the lower court with the offence of defilement contrary to section 8(1) as read with subsection (4) of the Sexual Offences Act No 3 of 2006. The particulars of the offence are that on April 18, 2019 at Kaloleni Sub-county within Kilifi County, the accused intentionally and unlawfully caused his male genital organ namely penis to penetrate the female genital organ namely vagina of PZK a minor aged 16 years.

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

3The particulars of the offence hereof being that on April 18, 2019 at Kaloleni Sub-county within Kilifi County, the accused intentionally and unlawfully touched the vagina of PZK a minor aged 16 years, using his penis.

4Aggrieved by the sentence and the conviction of the trial court, the appellant lodged an appeal on the following grounds: 1. That the learned trial Magistrate erred in law and fact by failing to consider that the prosecution did not prove their case beyond reasonable doubt as required by the law in breach of section 109 and 110 of the Evidence Act.

2. That the learned trial magistrate erred in law and facts by failing to consider sharp contradictions in the prosecution case, in breach of section 163 (i) (c) of the Evidence Act.

3. That the learned trial magistrate erred in law and fact by failing to consider both conviction and sentence were against the weight of the evidence adduced by the prosecution.

4. That the learned trial magistrate erred in law and fact by failing to adequately consider the defence evidence.

Background 5PW - 1 PZK, the complainant was sworn after a voire dire examination. She informed the court that at the time of testifying she was 16 years old and in class eight. She recounted that she was on her way home on the material day together with two of her friends namely H and S. They met the accused on a motorbike by the roadside who left the motorbike and joined them. On their way, the two friends ran away leaving her with the accused. She testified that the accused requested to have sex with her to which she declined. However, soon thereafter she had sex with the accused beside the road on the grass.

6She informed the court that when she got home, her brother beat her and locked her up in the house. The brother then called S to ask her where she had left Pw-1. S responded that she had left her (PW-1) with her husband.

7She was immediately taken to the area chief where she spent the night and to Kizurini police station the following morning where she recorded her statement. Thereafter she was taken to a hospital in Mariakani together with the accused.

8Upon being cross examined, she stated that she knew the accused but had not planned to have sex with him. In re-examination, she stated the accused was called by Husna on their way home and that the accused derailed her.

9PW 2 HK was equally sworn after a voire dire examination. She informed the court that at the time of testifying she was 14 years old and was in class seven. She told the court that the accused was PW1’s boyfriend. That on the material day, they met the accused on their way home. The accused then asked her to advise PW1 to use a different route which had a forest ahead. She did as asked and PW1 indeed followed that route. The accused followed PW1 while Stella trailed behind. When they got to a certain place identified as Nyuma ya Gandu, they [Stella and PW2] stopped for Stella to relieve herself. Thereafter, they turned back and went home.

10PW3 DKB, the complainant’s mother told the court that she did not know the complainant’s age. She did not have her birth certificate. She testified that on the material day, she left PW1 preparing supper while she attended a funeral gathering. Later that evening his son called her back home to inform her that PW1 had returned home late. They went to the chief who referred them to the police station.

11Upon being cross examined, she told the court that she only got to know in court that PW1 was defiled.

12PW4 PC Mark Sohele, of force No 111811 based at Kaloleni police station informed the court that the complainant reported on April 19, 2019 and alleged to have been defiled by the accused. He testified that the complainant went to the hospital and her P3 was filled and she recorded a statement. He produced a copy of the complainant’s birth certificate.

13PW5 Mwangolo Chigulu a clinician based at Mariakani Sub County Hospital informed the court that on 19/4/2019 he examined PK a minor and filled in her P3 form. He stated that on examination he found no injury on her physical body and her clothes were intact. That she had a normal unkempt external genitalia, no bruises and no hymen. That she had loose vaginal muscles, whitish discharge and presence of pus cells in her urine showing infection. He added that she was 15 years old. He explained that loose vaginal muscles could only mean that penetration had previously happened several times. He concluded that the complainant had been defiled.

14Upon being cross examined, he told the court that the complainant had gonorrhea but he could not tell who caused the infection. He added that he did not find sperms.

15Upon the close of the prosecution case, the trial court found that a prima facie case had been established and the appellant was placed on his defence. He elected to give sworn testimony. In his defence he stated that he did not know the complainant and that he was 17 years old. He testified that on 19/4/2019, he had taken his boss to Kaloleni from Chanagande on a motorbike. On his way back, he was stopped by police officers who asked for his identity card which he did not have. The police officers advised him to call his boss. On arrival, the motorbike was released to his boss and he was arrested and taken to Kizurini Police Station. He was not told why he was arrested until when he was arraigned in court.

Analysis and Determination 16This being a first appeal, this court has a duty to revisit the evidence on record, re-evaluate and analyse 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 rely on the evidence that is on record. See Okeno V R (1972) EA 32, Eric Onyango Odeng’ V R (2014) eKLR.

17I have considered the grounds of appeal, the submissions filed by the respondent and the record, and the only issue for determination is whether the prosecution proved its case against the appellant beyond reasonable doubt.

18In order for the offence of defilement to be established, the prosecution must prove the three elements of defilement which are the age of the complainant, penetration and the identification of the perpetrator. See Charles Wamukoya Karani v Republic Criminal Appeal No72 of 2013.

19On the issue of age, in sexual offences the age of the complainant is relevant for two purposes; - Firstly, it is meant to distinguish the offence of rape from that of defilement depending on whether the victim is a child or an adult, and secondly the age of the complainant guides on the sentence. See Moses Nato Rapheal V Republic (2015) eKLR.

20The age of the victim in sexual offences, where a birth certificate is not available, can be proved by the evidence of parents or a guardian or by observation by the court. In Thomas Mwambu Wenyi V Republic (2017)eKLR the court cited with approval the case Francis Omuromi v Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 which 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.”

21In 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”

22In the instant case, the complainant stated that she was 16 years old at the time of testifying. This was corroborated by the birth certificate which was produced as PEX-1. There is no dispute as to the age of the complainant and I hold that it was satisfactorily established that she was a child at the time of the alleged offence.

23On 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.”

24Section 8 (1) of the Sexual Offences Act provides as follows;“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”

25The prosecution has a duty to establish that the appellant defiled the victim. In determining penetration, courts do rely on the evidence of the complainant which is usually 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…”

26In the present case, the victim clearly recounted how the appellant requested to have sex with her, then proceeded to lay her on the grass by the road side where they had sex. It is well settled that penetration can be proved by the evidence of PW-1 alone as provided for by section 124 of the Evidence Act, which provides that:“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.”

27This position was succinctly held by the Court of Appeal in Williamson Sowa Mbwanga v Republic (2016) eKLR, where it stated that:“The import of the provision to section 124 of the Evidence Act is that the trial court can convict an accused facing a charge of defilement solely on the evidence of the victim, if for reasons to be recorded, the court is satisfied that the victim is telling the truth. Medical evidence is not mandatory under that proviso, a position which was reiterated in George Kioji V Republic CR APP No 270 of 2012 (Nyeri): “where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and record the reason for such belief”

28In the instant appeal, the evidence of PW1 was corroborated by the medical evidence adduced by PW5 whose conclusion was that penetration was achieved. I have analysed the evidence on record and I am satisfied that penetration was proved beyond reasonable doubt.

29On identification, where identification is based on recognition, it 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 Lesarauv 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”.

30In the instant case, the complainant informed the court that she knew the appellant. That she met him while in the company of her friends, on their way home. She told the court that the appellant told her that he wanted to have sex with her. There is no doubt that the complainant did identify the appellant. Besides, the appellant talked about one Amani Kenga, identified by PW2 and PW3 as the complainant’s brother. The appellant testified that the said Amani was his co-employee and implied that he [Amani] was jealous of him for being their boss’ favourite.

31Further, PW2 identified the accused as the complainant’s boyfriend. There is no doubt that the appellant was known by the key witnesses.

32As matters stand, all essential elements of the offence in the main count, were proved by the prosecution beyond reasonable doubt.

33On sentence, it is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. The court on appeal cannot alter a sentence unless the trial court has acted upon wrong principles or overlooked some material factors. [See Ogolla s/o Owuor Vs Republic,[1954] EACA 270 and Bernard Kimani Gacheru vs Republic [2002] eKLR.

34Section 8 (4) of the Sexual Offences Act provides as follows:“A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”

35Upon considering the appellant’s mitigation, the then land mark case of Muruatetu, and the fact that the two were teenagers in a relationship, the trial court proceed to sentence the appellant to serve 3 years in prison. Muruatetu case was however later revisited by the Supreme Court and guidelines given on it’s applicability in other matters. It was made vivid that it is only applicable in murder cases and not any other case. As such the appellant herein would have rightly been sentenced to serve not less than 15 years imprisonment. He was lucky to get a 3 years imprisonment. I would have been inclined to push it upward to the right mark, but given the circumstances I would let it remain as it is. However, the appellant should learn that luck like lightening, only strikes once. He should be careful in trying to push it too far. The bottom line is that the appeal lacks merit and is hereby dismissed.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 15THDAY OF MARCH, 2022. S.M.GITHINJIJUDGEIn the presence of; -Mr Mwangi for the StateThe Appellant in person