[2022] KEHC 11983 (KLR)

JNM v Republic (Criminal Appeal 46 of 2019) [2022] KEHC 11983 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11983 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Appeal 46 of 2019

F Gikonyo, J

June 8, 2022

Between

JNM

Appellant

and

Republic

Respondent

(From the conviction and sentence of Hon. W. Juma (C.M) in Narok SOA No. 32 of 2019 on 17th December 2019)

Judgment

Defilement 1. This appeal is challenging conviction and sentence to serve 20 years’ imprisonment for defilement meted out the appellant on December 17, 2019.

Amendment of petition of appeal 2. He however, sought in his written submissions, leave under Section 350 (2) (v) of the CPC, to amend earlier grounds of appeal cited in the Memorandum of Appeal dated December 23, 2019. The new grounds were set out as follows: -i.That he is not opposing the sentence nor challenging the conviction but praying the hon court to reduce the sentence as it is too harsh and excessive in all circumstances.ii.That he begs the court to find that the mother to complainant was after the payback of the grudge.iii.That he prays that the court finds that the complainant was not truthful in terms of Section 124 CPC.iv.That he urges the court to evaluate the whole proceedings and find that the complainant’s mother was not brought to the court to testify as she has claimed to have caught the appellant red-handed.v.That the pundit trial magistrate did not consider the appellant’s alibi defense in failing to advance any cogent reason for not believing the defense and go on convicting on the weakness in his defense rather than in strength of the prosecution case which was an erroneous approach in a criminal trial.

3. Accordingly, the foregoing constitutes the grounds of appeal herein. The short and long of these grounds is a challenge to conviction and sentence herein.

Submissions 4. The matter was canvassed by way of written submissions.

Appellant’s submissions. 5. The appellant filed written submissions which are considered in the judgment below. They also relied on the following authorities;i.Articles 23 (i), 50(2), 27(1) and 165(b) of the Constitution.ii.Saitoti Ole NgoingonivRepublic Cr App 17 of 2016. iii.David Ochieng OketchvRepublic[2015] eKLR App No 30 of 2015. iv.Bukenya v Uganda [1973] EA 549v.Kenga v Republic Ca Criminal No 1126/84 Originally Cr 110, 1171/84 Nairobi.vi.Policy Directions 2015 7:10. vii.Ahamad Abolfathi Mohamed in Criminal Appeal 1350 of 2016.

The respondent’s submissions. 6. The respondent submitted that it is not clear the orders the appellant seeks. The respondent prays that the appellant should clarify by filing a fresh petition or clarifies what exactly he is seeking.

Analysis and determination. Court’s duty 7. As a first appellate court, I will re-evaluate the evidence and make own conclusions, except, bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno v. Republic [1972] E.A 32

8. I have considered the grounds of appeal, evidence adduced in the lower court and the respective parties’ submissions. I find the main issues for determination are;i.Whether the prosecution proved its case beyond reasonable doubt.ii.Whether there was a grudge.iii.Whether the appellant’s alibi defense was considered.iv.Whether PW1 was truthful in terms of Section 124 and whether failure to call key witnesses was fatal to the prosecution’s case.v.Whether the sentence was manifestly harsh and excessive

Elements of offence of defilement 9. The appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides:“8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.8(2) a person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to imprisonment for life.”

10. The specific elements of the offence defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:1)Age of the complainant;2)Proof of penetration in accordance with Section 2(1) of the Sexual Offences Act; and3)Positive identification of the assailant.

11. See the case of Charles Wamukoya Karani v Republic, Criminal Appeal No 72 of 2013 where it was stated that:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

Age of the complainant 12. As defilement is committed against a child, the age of the victim is important. Age of the child has also been used as an aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence.

13. PW1 testified that she was aged 12 years and in class 6 at [Particulars Withheld] Primary School.

14. PW3- a clinical officer in his evidence confirmed that PW1 was 12 years old as indicated in P3 form (P Exh1).

15. PW4-an investigating officer stated that he requested for age assessment to be done on PW1. She was found to be 12 years old. He produced the age assessment report as P Exh 5.

16. On the basis of evidence, I find that the prosecution proved to the required standard that the complainant was a child aged 12 years.

Penetration 17. Penetration is defined under Section 2(1) of the Sexual Offences Act as: -“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

18. Penetration was explained further iIn the case ofMark Oiruri Mose v R[2013] eKLR by the Court of Appeal, thus: -“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.” (Emphasis added).

19. What does the evidence showeth?

20. PW1 testified that on March 23, 2019, she went to the forest where they prepare charcoal to take tea to her ‘father’. The ‘father’ held her and started to question her if she does play sex with boys. She answered No The appellant held her in the forest, removed her pant as he removed his. He had carnal knowledge of her without protection. He ordered her not to tell anybody.

21. Two days later; March 25, 2019, the appellant defiled her at home. She woke up early to prepare for school and at that time her ‘father’ was also up. He laid her in the kitchen and had sexual intercourse with her.PW1 again did not tell anybody.

22. On March 26, 2019 the appellant was at it again at PW1’S mother’s kitchen. This time PW1’S mother caught them red-handed.

23. PW3, a clinical officer testified that he was given the history of what happened on diverse date. He checked her private parts. The labia majora and labia minora were normal; no cuts. The hymen was long standing broken. Urine showed epithelial cells and there was blood stains in the urine. Syphilis, hepatitis and pregnancy were negative. The P3 form, post rape care forms, lab tests, and treatment notes as P Exh1, 4, 2 and 3 respectively. He did not detect any injuries. The officer did not examine the appellant.

24. PW3 was very clear that penetration did occur. The inevitable conclusion from the analysis of the evidence is that there was ample evidence to prove that penetration did occur. I accordingly find that the medical evidence supports there was penetration of the child. But by whom?

Was the appellant the perpetrator? 25. PW1 testified that the appellant was well known to her. It was her evidence that the appellant was her step- father. He had lived with her mother for about 6 months.

26. PW1 testified that on March 26, 2019, her mother caught the appellant red handed defiling her in her mother’s kitchen. Her mother screamed and her brother and his wife and mama Judy came. Then the appellant was arrested by the village elder.

27. PW2 testified that he is an assistant chief. He stated that he rearrested the appellant who was claimed to have defiled a girl. PW4, an investigating officer reiterated what PW1 had told him concerning the incident.

28. There was no mistaken identity. The victim and the appellant spent considerable amount of time together and they had lived together as a family. She gave such succinct details on how the appellant defiled her in several occasions.

29. In his unsworn testimony, the appellant did not dispute he knew the victim.

30. There was no element of mistaken identity of the Appellant as the person who penetrated her genitalia. The evidence by the prosecution leaves no doubt that the appellant caused penetration of the complainant.

31. In the upshot, I find that the Appellant was positively identified as the assailant herein; there was no mistaken identity or error. Accordingly, I find that the prosecution proved their case beyond reasonable doubt and that the trial court did not error in convicting the appellant for defilement. The appeal on conviction therefore lacks merit and is hereby dismissed.

Whether there existed a grudge. 32. The appellant submitted that the trial magistrate did not take into consideration that there was a grudge between the complainant’s mother and the appellant. The complainant’s mother did not avail herself to testify yet she claimed had caught him red-handed.

33. The appellant testified that the complainant’s mother could not explain where she had taken some of the harvested maize. On March 21, 2019 the appellant was out to divide the maize between himself and the father to the complainant’s mother when his wife started screaming that he had defiled the girl. That PW1 was taken to the hospital and all was normal according to him.

34. An account of a grudge should be clear and founded on details of the reason and manifestation which makes it likely that the charges herein were a revenge or pay-back element of the grudge. Such past incident or injury or insult which produces persistent feeling of ill will or resentment on the part of the other party must be shown to exist for a grudge to hold as the motive to hurt the appellant. No such evidence is available here to show a grudge between the appellant and the mother of the complainant. The appellant merely alleged that they had differed with the complainant’s mother over missing maize and on the particular date he was trying to divide the maize with the father to the complainant’s mother.

35. The defence is, therefore, a mere afterthought. I dismiss this ground of appeal.

Was alibi defence considered? 36. The appellant submitted that the learned trial magistrate did not consider the appellant’s defense by failing to advance any cogent reason for not believing his defense and went on to convict him on the strength of the prosecution’s case

37. The appellant gave unsworn statement. It bears repeating that he alleged that they had differed with the complainant’s mother over missing maize and on the particular date he was trying to divide the maize with the father to the complainant’s mother.

38. I have noted that the issues which was raised by the appellant in his defence were never raised during cross examination.

39. The trial court analyzed the defense raised by the appellant and found that the issue of maize is neither here or there.

40. I therefore find that the trial court considered the defense of the appellant and dismiss this ground of appeal.Section 124 of the Evidence Act and failure to call key witnesses

41. The appellant submitted that PW1 was not truthful in terms of Section 124 CPC.

42. The appellant also submitted that failure by the prosecution to avail key witnesses (complainant’s mother) who claimed to have caught the appellant having sexual intercourse with PW1 red-handed was detrimental to the prosecution’s case.

43. Section 124 of the Evidence Act which provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.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.”

44. Accordingly, where sexual offence is involved, corroboration is not a mandatory requirement to evidence by the victim as long as the Court is satisfied that the victim is telling the truth and records the reasons for believing the victim.

45. The complainant narrated to the court the events and how they occurred and she was categorical that the appellant removed his penis, removed her clothes and had carnal knowledge of her on diverse dates. She identified him as his step- father. Her evidence was cogent, gave a picturesque of the incident with such succinct details of the manner it happened and the identity of the assailant. The testimony of the complainant was corroborated by PW2, PW3 and PW4. The evidence leaves no doubt that the appellant caused penetration of her. The trial court was better placed to observe demeanor of the witness and establish whether the witness is truthful or not. The trial court found her to be truthful. The evidence analyzed supports such observation and inference. I so find and hold.

On sentence 46. The appellant submitted that the trial court did not consider the provisions of the Supreme Court judgment dated July 6, 2021 that declared the provisions of mandatory sentences unconstitutional. Therefore, the sentence of 20 years is too harsh and excessive in all circumstances.

47. Of this submission, I state only that in so far as he is referring to Muruatetu decisional law, it does not apply in these proceedings.

48. The foregoing notwithstanding, notably, the penalty clause here is Section 8 (3) of the Sexual Offences Act which 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.”

49. The trial court stated, thus: -‘…….mitigation noted, gravity of offence is obvious. I know that there is the findings in the case of Muruatetu & others but due to the circumstances of the case, the accused is sentenced to serve 20 years, the case has not stayed beyond 8 months in court.’’

50. The trial magistrate was aware of Muruatetu decisional law. The trial magistrate was not laboring under any self-imposed or statutory fetter; she exercised discretion in sentencing the appellant. I take into account that the accused is first offender. I also take into account that he showed remorse at the trial as was observed by the trial court. The offence is, however, serious and a deterrent sentence is necessary. In the circumstances, 20 years’ imprisonment is not excessive but appropriate sentence. I see no reason of interfering with the sentence imposed by the trial court. His appeal on sentence fails.Section 333(2) CPC.

51. The appellant urged this court to take into consideration the time spent in custody prior to conviction.

52. Section 333(2) of the Criminal Procedure Code prevents arbitrary and unlawful detention of a person (Art 29), violation of the right to; (i) a less severe sentence (Art 50 (2) (q)); and (ii) equal protection and benefit of law (Art 27(1) & (2)) of the Constitution. Section 333(2) of the CPCtherefore, pertains to fair trial and justice.

53. There is new strength; the Constitution; of which courts must be prepared to break free from the bindings of narrow interpretation of the law, and always favour the path which protects or promotes rights and fundamental freedoms in the Bill of Rights. For instance, section 333(2) of the CPCshould take fight under the Constitution and be given full effect by courts of law.

54. Consequently, the sentence herein shall commence from the date of arraignment in court that is; M2019. His appeal succeeds only to the extent expressly stated above. It is so ordered. Right of appeal explained.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 8TH DAY OF JUNE 2022F. GIKONYO MJUDGEIn the Presence of :The AppellantMs. Torosi for DPPMr. Kasaso - CA