[2018] KEHC 5064 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL APPEAL NO. 26 OF 2017

JOHN GITONGA MUGO..........................APPELLANT

VERSUS

REPUBLIC................................................RESPONDENT

J U D G M E N T

1. The appellant was convicted by Siakago Resident Magistrate in SPM Criminal Case No. 1083 of 2013 of the offence defilement contrary to Section 8(1) of the Sexual Offences Act and sentenced to serve life imprisonment.

2. Being dissatisfied with the judgment, the appellant lodged this appeal relying on the following grounds:-

(a) That the age of the complainant was not established.

(b) That the prosecution’s evidence was contradictory and uncorroborated.

(c) That the alibi defence of the appellant was not considered.

3. The appeal was argued by way of written submissions. The appellant was represented by Mr. Momanyi Gichuki & Co. Advocates while Ms. Mati was for the respondent.

4. The appellant contended that the prosecution’s evidence on the age of the complainant was contradictory. In her evidence PW1 said she was aged 12 years at the time she gave her testimony. Dr. Njiru assessed the age of the complainant as 11 years while the birth certificate showed that the complainant was born on 11/11/2002. The appellant argued that a conclusion may be drawn that at the time of commission of the offence the complainant was aged 12 years.

5. Section 8(2) of the Sexual Offences Act deals with defilement of a child of 11 years or less and provides for a sentence of life imprisonment. The appellant argues that the sentence imposed was based on the wrong age of the victim and was therefore not within the law.

6. It was further submitted that the appellant was denied his right to a fair trial under Article 50(2) of the Constitution for the reason that the magistrate found him guilty even before the trial began. The statement was not explained and neither did the appellant explain how his constitutional right was denied. As such, the court was not presented with any material to determine the merit of this ground and I therefore find it baseless.

7. The appellant submitted that the evidence of PW1 and her mother PW2 was contradictory and was not supported by medical evidence. It was further argued that Dr. Njiru’s evidence was not conclusive on whether or not there was penetration. It was further argued that she examined the complainant and stated that she saw sperms and blood on her private parts but the doctor found no existence of any sperms. The doctor said that PW1 had a broken hymen which is not evidence of penetration considering that there could be many causes to a broken hymen.

8. On the alibi defence the appellant submitted that his defence was not considered and that the burden of proof was shifted to him.

9. The respondent conceded to the request for review of sentence due to the disparity on the age of the child.

10. In regard to corroboration, the defence submitted that Section 124 of the Evidence Act does not require corroboration of the complainant’s evidence with that of another witness. The provision is to the effect that medical evidence sufficiently corroborates the victim’s evidence.

11. The duty of the first appellate court was explained in the case of NJOROGE VS REPUBLIC [1987] KLR 19:-

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect (see Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570.

12. PW1 was a minor who gave sworn evidence after the court through a voire dire test, found that the child understood the nature of oath. She testified that on the 17/12/2013 she was sent to go to the farm to take food to the appellant who was their shamba boy. As she was picking fire wood in a house at the farm, the appellant found her inside and knocked her down, removed her clothes and undressed her. When she attempted to scream the appellant covered her mouth with his hand. The appellant had canal knowledge of her and thereafter tore a piece of cloth from a mattress which he used to wipe her private parts.

13. The complainant went home and informed her mother and one Christine of what had transpired. She was taken to Kiritiri police station who referred her to Tenri hospital where she received treatment and was examined.

14. PW2 testified that she arrived home at around 7 p.m. and was informed by PW1 that she had been defiled by their shamba boy one Gitonga. She took the girl to the police station where she was given a treatment note to take the girl to Tenri hospital. The P3 form was filled at a later date and returned to the police station.

15. The investigating officer PW3 received the defilement report at Kiritiri police station and sent PW1 to hospital where she was treated and the P3 form filled. PW3 further testified that she recorded the statements of witnesses, arrested the appellant and later charged him with the offence.

16. The appellant raised the issue of contradiction of the age of the complainant. It is the duty of this court to analyze the evidence and reach a conclusion as to whether there was a contradiction.

17. The birth certificate was produced in evidence and it showed that PW1 was born on 7/11/2002. The offence allegedly took place on 17/12/2013. The complainant was therefore aged 11 years and one month at the date of the offence. On the request for pathological investigation dated 17/12/2013, the doctor indicated the age of the complainant as 11 years. The Post Rape Care report indicated that the estimated age of the complainant was 11 years.

18. At the time of her testimony, PW1 said the evidence of PW1 was that she was aged 12 years. She testified on 13/05/2014 which was about six months after the date of the offence. Going by the birth certificate, PW1 was aged 11 years and 7 months at the time of her testimony. The date in the birth certificate was 7/11/2002 which supports the evidence of the doctor that PW1 was aged 11 years at the date of the offence.

19. The issue is whether the difference of one month in age justifies the review of the sentence. Section 8(2) of the Sexual Offences Act under which the appellant is charged provides the age bracket of the child to be “eleven years and less”. The sentence provided for herein is life imprisonment. Section 8(3) of the Act covers the age bracket of “twelve and fifteen years”. The sentence proved herein is imprisonment for a term of “not less than twenty years”.

20. It is imperative to state that the law left the age gap of between eleven to twelve years. The child in this case was aged eleven years and one (1) month. In dealing with this situation the court must look as near as possible to the age provided by the law which is eleven (11) years. The State conceded to the review of the sentence but I believe the counsel had in mind the age of twelve (12) years.

21. The fact that the Sexual Offences Act, 2006 limits the discretion of the court is not in dispute. In the Supreme Court case of FRANCIS KARIOKO MURUATETU, Petition No. 15 of 2015. It was held any law that limits the discretion of the court in sentencing is in itself unconstitutional.

22. Following the MURUATETUdecision, the trend of courts in Kenya is to promote the spirit of discretion in sentencing. It is in the interest of justice that this court ought to exercises its discretion in this case to review the sentence imposed for the foregoing reasons.

23. It was alleged that the evidence of PW2 contradicted the medical evidence on whether or not the complainant had blood stains or sperms in her private parts. Although PW2 said that she saw sperms, the witness is not an expert in clinical medicine as to tell whether what she saw was sperms in the real sense. I take judicial notice that sperms may not be visible with the naked eye and its existence can only be established through a laboratory test. PW4 the doctor relied on the laboratory test results to confirm that the complainant had no spermatozoa. It is the evidence of the doctor that counts in this regard.

24. Dr. Henry Njiru of Tenri hospital PW4 is the one who examined the complainant and produced the P3 form. He testified that the hymen was freshly broken and that there were lacerations on the vagina walls. There was evidence of a bacterial infection that presented itself in form of pus cells. The doctor reached a conclusion that there was penetration which cannot be disputed unless the appellant produces further medical evidence to the contrary.

25. I have perused the defence of the appellant in which he denied the offence and alleged that he was framed by PW2 after they disagreed on terms of employment. His defence was contradicted by his own witness DW2. The appellant said that he was not working for PW2 on the material day but DW2 said that the appellant and himself were working for PW2 on 17/12/2013.

26. It is my considered opinion that if the appellant was telling the truth in his defence, he ought to have raised the issue of the alleged framing up during his cross-examination of his employer PW2 which he failed to do. There was no reason why DW2 would contradict the appellant. In his defence and it follows that the said defence was not true. Due to this contradiction the magistrate did not believe the defence of the appellant. From the foregoing analysis, I am of the considered view that the defence was made up and designed to exonerate the appellant.

27. The defence of the appellant did not amount to an alibi for lack of details as to where the appellant was at the time of the alleged offence. It was therefore not worthy of the prosecution taking the trouble of confirming its truth or otherwise. In the absence of the necessary details as to where the appellant was on the material day and time, the prosecution would not have managed to do the verification. In my view, the allegation of the appellant that his defence was disregarded without reason has no basis.

28. The defence relied on the case of BUKENYA VS UGANDA [1972] EA in its argument that the evidence of the witnesses who were not called to testify would have been adverse to the prosecution’s case. This allegation was not based on any facts but on an assumption. The prosecution has the right to call any number of witnesses they wish in proof of their case. The failure to call a particular witness is not fatal to the prosecution’s case. It is the duty of the court to analyze the evidence before it and come to a conclusion on whether the burden of proof has been satisfied.

29. It is my considered opinion that the age of the complainant was established to be slightly over eleven (11) years. It has been proved that PW1 positively identified the appellant. Her evidence was clear and detailed on how the appellant had canal knowledge of her. Section 124 of the Evidence Act does not require corroboration of the victim’s evidence by evidence of another witness. Dr. Njiru’s evidence was conclusive that there was penetration.

30. I find the evidence of the prosecution overwhelming and proved the case against the appellant beyond any reasonable doubt. The conviction was therefore based oncogent evidence and it is hereby upheld.

31. As for the sentence, I hereby set aside the life imprisonment sentence and substitute it with twenty (20) years imprisonment effective from the date of judgment in the SPM Criminal Case No. 1083 of 2013.

32. The appeal is only partly successful.

33. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 25TH DAY OF JULY, 2018.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Momanyi for Appellant

Ms. Mate for State

Appellant present