[2022] KEHC 14925 (KLR)

JM v Republic (Criminal Appeal E034 of 2021) [2022] KEHC 14925 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14925 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E034 of 2021

LM Njuguna, J

November 2, 2022

Between

JM

Appellant

and

Republic

Respondent

(Being an appeal against the sentence and conviction by Hon. W. Ngumi - PM in Siakago SPM Criminal Case No. 42 of 2018 delivered on 06. 09. 2021)

Judgment

1. The appellant herein filed the memorandum of appeal dated September 9, 2021 wherein he has challenged both the conviction and sentence of the trial court in the Sexual Offences Case No 42 of 2018 at Siakago. The trial court convicted the appellant of the offence of defilement contrary to section 8(1) as read with 8(4) of the Sexual Offences Act No 3 of 2006 and sentenced him to serve 20 years imprisonment.

2. It is that conviction and the sentence that has necessitated the appeal herein wherein the appellant has raised the following grounds of appeal;1. That the learned trial magistrate erred in law and in fact by sentencing the appellant to 20 years which sentence is manifestly excessive in the circumstances.2. The learned trial magistrate erred in law and in fact by sentencing the appellant to 20 years in jail against the tenets of fair trial and which is contrary to article 25 of the Constitution.3. The learned trial magistrate erred in law and in fact by failing to take into consideration the appellant’s defence and mitigation.4. The learned trial magistrate erred in law and in fact by imposing a harsh and excessive sentence.

3. When the appeal came up for hearing, the court gave directions on disposal of the same by way of written submissions which directions were complied with by both parties.

4. In his submissions, the appellant contended that the trial court based its conviction on uncorroborated evidence as the medical report was not produced by the clinical officer who examined the complainant; that the complainant admitted that she had a prior sexual encounter with her father; that the court relied on hearsay evidence from PW1 and the alleged eye witness was not called as a witness.

5. He further submitted that there was no proper identification of the perpetrator as the complainant stated that she did not know the appellant or the other youngsters who claimed to have seen him. He averred that his constitutional rights were infringed on, as he was not supplied with certified copies of the proceedings to enable him prepare his defence as such, he was denied his right to a fair trial under article 50(2)(c). Further that the sentence imposed by the trial court was harsh and excessive and the trial magistrate failed to consider his mitigation and the pre-sentence report before pronouncing the sentence.

6. It was also his submission that the court disregarded the Judiciary Sentencing Policy Guidelines (2014) which set out the factors that should guide the court in determining the nature of the sentence to impose on an accused person and in his case, the court failed to take into account his advanced age.

7. On its part, the respondent submitted that the evidence by the prosecution witnesses was cogent; it was corroborated and was sufficient in proving the case against the appellant; that there was no contradiction in the testimony of the witnesses and therefore, the trial court was justified in sentencing the appellant to twenty (20) years imprisonment; that the trial court had the benefit of looking at the demeanour of the witnesses; considered the appellant’s defence and found it unsuitable. It urged the court to dismiss the appeal as the same is frivolous.

8. I have considered the grounds of appeal and the written submissions by both parties. The appeal is on both the conviction and sentence.

9. The duty of this court as the first appellate court was set out in the case of Okeno v Republic (1972) EA 32 and re-stated in Kiilu & another v Republic [2005] 1 KLR 174 where it was held that the evidence as a whole is to be exposed to a fresh and exhaustive examination and thereafter, the court should draw its own conclusion. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses. Further, the court should be alive to the principle that a finding of fact made by the trial court shall not be interfered with unless it is based on no evidence or on a misapprehension of the evidence or that the trial court acted on the wrong principles (see Gunga Baya & another v Republic [2015] eKLR).

10. This being a criminal case, the prosecution was under a duty to prove the case against the appellant beyond any reasonable doubt as required under section 107 of the Evidence Act. This was buttressed in the principle in the case of Woolming ton v DPP [1935] AC 465 and Miller v Ministry of Pensions [1947] 2 All ER 372 – 373.

11. In the case herein, the appellant was charged with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No 3 of 2006. The critical ingredients forming the offence of defilement are;1. Age of the complainant2. Proof of penetration;3. Positive identification of the assailant.

12. As to the age of the complainant, she was examined at Siakago District Hospital for age assessment and she was found to be 13 years old. From the record, the learned magistrate noted that the complainant appeared to be a minor by her appearance and she had no doubt in her mind that she was aged approximately 13 years old at the time of the alleged offence.

13. On the second ingredient, it was the complainant’s evidence that on the September 15, 2018, she went to untie the cows and as she was in the process of doing so, the appellant herein fell her down, removed her clothes and her panty, laid her down and inserted his thing for urinating in her thing for urinating.

14. As he did so, some children came and found him lying on her and when they said they would reveal what they had seen, he threatened to cut them with a panga but the complainant went home and told her grandmother who took her to hospital at Kiritiri and later reported the matter at the police station.

15. PW1 NMM who was the complainant’s guardian testified that on the material day she sent the complainant and her daughter to go and untether the cows at the fields. They drove the cows home and the complainant reported to her that she had been defiled by M whom she referred to as “Umau”. She examined the complainant and informed his husband who accompanied him to the home of the appellant who, though, he denied having had a sexual encounter with the minor, it was alleged that he was recorded as he spoke. She then reported the matter to the police.

16. PW3 was the investigating officer in the case. It was her evidence that, in the course of her investigations, she got the P3 and PRC forms, age assessment report and the treatment notes for the minor. She produced the said documents under section 77 of the Evidence Act after the prosecution made an application for her to produce the same as the doctors were on a national countrywide strike. The appellant did not object to the production of the said documents by the witness.

17. According to the results of the examination that was done by Dr Runji, the minor was not a virgin as the hymen was found to be absent in keeping with penetration. There was foul smell and some discharge. The laboratory tests showed that trichomonas yeast was seen and some pus cells on HVS.

18. The minor on cross examination stated that she was defiled by her father after the mother separated with the father. As rightly observed by the learned magistrate the P3 and the PRC forms did not indicate the state of the genetalia save for the fact that the hymen was absent. Though the examination was done on September 16, 2018, the time it was done is not indicated. If, indeed, the minor had been defiled as allegedly, there could have been some signs which appear not to have been noted. The hymen could have been tampered with, following the previous defilement by her father which appeared to have been before the current incident. I concur with the learned trial magistrate in that regard and find that penetration was not proved. However, I find that there was an encounter between the appellant and the minor where the appellant unlawfully touched the vagina of the minor BM aged 13 years.

19. On identification, the minor gave a good account of what transpired on the September 15, 2018. She stated how the appellant herein ambushed her as she was in the field untying the cows and defiled her. It was 5. 00 pm which means that it was during the day and darkness had not set in and the minor was in a position to see her aggressor. When she reached home she reported to PW1 that she had been defiled and she identified the appellant as the person who defiled her.

20. In the company of the minor they went to the home of the appellant and though the appellant stated that they demanded for Kshs 100,000/= from him, this was denied by PW1 in cross-examination and his claim was unsubstantiated. The minor in cross examination testified that the appellant had even told her to get Kshs 300/= from him and not to tell anyone. The learned magistrate stated that she believed the evidence of the minor when she testified.

21. As the appellate court, I am alive to the fact that the trial magistrate had an advantage of hearing and seeing the witnesses and give that benefit to the learned magistrate in forming the opinion on the credibility of the evidence of the minor, as she did. I therefore find that the appellant was positively identified as the person who unlawfully touched the vagina of the complainant.

22. The appellant contended that the court did not consider his defence. In this regard, the court has looked at the defence that he tendered before the trial court. The same was a mere denial with no material substance and therefore the trial court had nothing useful to consider in it.

23. On whether the sentence was excessive, the legal position on sentencing was stated succinctly by the Court of Appeal for East Africa in the case of Ogola s/o Owoura v Reginum (1954) 21270 as follows;“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James v Republic (1950) 18 EACA 147. “It is evident that the judge has acted upon some wrong principle or overlooked some material factor”.To this, we would add a third criterion, namely that, the sentence is manifestly excessive in view of the circumstances of the case R v Shershewkky (1912) CCA 28 TLR 364.

24. In the instant case, the appellant was convicted and sentenced for the alternative charge of indecent act with a child under section 11(1) of the Sexual Offences Act. It provides for a sentence of not less than 10 years. The appellant herein was sentenced to twenty (20) years imprisonment which was within the law and the discretion of the trial court. The appellant has not justified why the court should interfere with the said sentence.

25. In my view, the learned magistrate did not err in principle when she imposed the said sentence.

26. In the end, I find that the appeal has no merit and it is hereby dismissed.

27. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF NOVEMBER, 2022. L NJUGUNAJUDGE………………………………..…for the appellant.………………………………. for the respondent.