[2022] KEHC 1738 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIVASHA

CRIMINAL APPEAL NO 12 OF 2019

JOSEPH MWANGI KARIUKI.............................................APPELLANT

VERSUS

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

(Being an appeal from the original conviction and sentence in the Principal Magistrate’s Court at Naivasha Sexual Offence Case No.8 of by Hon. E. KIMILU (PM) on12th April 2019).

JUDGMENT

Background

1. The appeal is from a judgment of Naivasha Principal Magistrate Hon. E. Kimilu delivered on 12th April, 2019 in Sexual Offence Case No.8 of 2018. The Appellant was the Accused whereas the Respondent was the Prosecution in the said suit.

2. Joseph Mwangi Kariuki,the Appellant herein was charged in the main with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006. The particulars were that between the 1st day of December, 2017 and the 1st day of January, 2018 at [particulars withheld] Estate in Naivasha sub-county within Nakuru County, intentionally and unlawfully caused his genital organ namely penis to penetrate the genital organ namely vagina of LWK., a girl aged 7 years’ old.

3. In the alternative, the Appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 in that on diverse dates between 1st day of December, 2017 and the 1st day of January, 2018 at [particulars withheld] Estate in Naivasha sub-county within Nakuru County, intentionally and unlawfully did cause his genital organ namely penis to come into contact with the genital organ namely vagina of LWK, a girl aged 7 years’ old.

4. The Appellant pleaded not guilty to all counts. Upon trial, he was convicted of defilement. He was sentenced to life imprisonment under Section 8 (2) of the Sexual Offences Act. Aggrieved by both his conviction and sentence, he preferred the instant appeal.

5. He filed a Petition of Appeal on 15th April, 2019 and later an Amended Grounds of Appeal received into court on 27th July, 2021 raising five (5) grounds of appeal as follows:

a. THAT the learned trial magistrate erred in law and facts by failing to appreciate that the prosecution did not discharge its duty of disclosure as provided for in Article 50 (2)(j) of the Constitution of Kenya 2010.

b. THAT the learned trial magistrate erred in law and facts by failing to appreciate that the appellant was not accorded adequate time and facilities to prepare a defence as stipulated by Article 50 (2) (c) of the Constitution of Kenya 2010.

c. THAT the learned trial magistrate erred in law and facts by failing to find that there were crucial witnesses who were never called upon to testify by the prosecution.

d. THAT the learned trial magistrate erred in law and fact by failing to appreciate that the confession evidence adduced in court was obtained unlawfully without following the laid down procedures and guidelines of recording a confession statement.

e.THAT, the learned trial magistrate erred in law and fact by imposing a mandatory sentence as stipulated by the statute and failing to consider the appellant’s mitigation yet such sentences have been declared unconstitutional by the Supreme Court.

Summary of Evidence

6. The prosecution called a total of four (4) witnesses. PW2, MW, when preparing the complainant, LWK, PW1 to go to school noticed a whitish discharge in her inner wear and after school took her to hospital. She was the mother to PW1, the complainant in the case. PW1 then disclosed to PW2 that the Appellant defiled her three times. PW2 had housed the Appellant who was her cousin over to live with them for a short period. PW2 testified that she further learnt from a neighbor that the Appellant had defiled PW1. PW2 identified PRC and P3 Forms issued to PW1 after treatment.

7. PW1, the complainant gave a sworn statement in evidence. She consistently stated that the Appellant defiled her on three occasions when her mother was away. On the first incident the Appellant took her to the visitor’s room. He laid her on the sofa set, removed his penis and asked her to touch it. He defiled her after unzipping an apron she was wearing and told her that he would do something to stop her wetting the bed. The second incident also took place on a sofa and the third on the bed.

8. PW1 stated that this always happened when PW2 was away. She disclosed that the accused threatened to stab her with a knife if she disclosed what happened. She eventually disclosed to PW2 when PW2 noticed whitish discharge.

9. PW3, a Faith Wanjiku a Clinical Officer from Naivasha County Hospital produced PW1’s P3 and PRC Forms as exhibits which she filled on 16th January, 2018 and 15th January, 2018 respectively, two weeks after the incident. She stated that PW1 aged 7 years presented a broken hymen and a whitish discharge and after urinalysis pus and red blood cells were noted. She opined that PW1 had been defiled.

10. PW4, PC Rhodah Yator, the investigating officer began the investigations on 16/1/2018 when the case was minuted to her. She summed the evidence of the prosecution witnesses and preferred the charges against the Appellant.

11. In his defence, the Appellant gave an unsworn statement in evidence. He stated that he had travelled to their rural home at [particulars withheld] where he met PW2 who asked him to accompany her to Kayole to help her sell charcoal and water. He stayed with PW2 for one week and thereafter returned to [particulars withheld]. He stated that after two weeks, he was eventually taken to Naivasha Police Station and charged with the instant offence to which he denied. He maintained his innocence.

Appellant’s submissions

12. The Appellant relied on written submissions filed on 27th July, 2021. On ground one and two of his appeal, he submitted that he was not provided with the prosecution witness statements having first requested for them on 11/10/2018 and received them on 21/02/2019. He argued that it was prejudicial for him to receive witness statements so late into the trial in contravention of Article 50(2) (c)of the Constitution. He placed reliance on H.C. Nyeri Criminal Appeal 69 of 2012Joseph Ndungu Kagiri vs Republic [2016] eKLR where the Court adjudged itself as the custodian of law and thus ought to be expeditious in fulfilling its role in observing the rights of an accused under Article 50 of the Constitution. He argued that it was the role of the prosecution to deliver the witness statements and not himself.

13. Further reliance was put on the International Covenant on Civil and Political Rightsciting Article 14which guarantees the right to life and liberty which is echoed in Article 25 (c)of the Kenyan Constitution. He opined that Article 50 (2) (j) affords an accused person the right to be supplied with witness statements and exhibits which the prosecution intends to rely on to enable an accused person have adequate time to prepare for his defence.

14. On ground three and four of his appeal, the Appellant submitted that some crucial witnesses were not called, namely the neighbor who was confided in by PW1. He submitted that by not calling her testimony, it implied that her evidence would have been adverse to the prosecution case as was held in Bukenya & another vs Uganda [1972] E.A. 549.

15. It was the case for the Appellant that no independent witness was called and as such reliance only on the evidence of relatives to the victim lessened the credibility of the prosecution case. In that case, that the failure to call such a crucial witness meant that the prosecution was motivated by ulterior motives. In this regard, he cited an excerpt from J. Heydon on Evidence: Cases and material 2nd Edition Butterworths London 1984 where it was held that a child’s power of observation and memory are less reliable than adults and tend to exaggerate events they witnessed. Thus, it was his contention that had the uncalled witnesses been present, there would have been independent corroborative evidence.

16. The Appellant faulted PW4’s evidence when she stated that he admitted the offence. He submitted that such admission was taken irregularly as she was not a qualified police officer capable of recording a confession. He stated that a police officer in the rank of a Constable cannot record a confession. The Appellant relied on the Court of Appeal case of Nairobi Criminal Appeal 238 of 2007 Kanini Muli vs Republic [2014] eKLR where the Court stated that a confession must be procured voluntarily and it is the duty of every trial judge and magistrate to scrutinize all circumstances under which a confession is made to ensure its reliability, adding that the scrutiny also applies to extra-judicial confessions. Furthermore, that there was no evidence that he was cautioned before the confession was taken and that the evidence in admission was neither taken regularly nor voluntarily.

17. The Appellant further faulted the minimum mandatory sentence imposed on him submitting that such sentence was declared unconstitutional, not only by the High Court and the Court of Appeal, but also the Supreme Court in Petition No 15 of 2015-Francis Karioko Muruatetu & Another vs Republic (2017)e KLR. He submitted that mandatory sentences fettered a court’s discretion in sentencing depending on the peculiar circumstances of each case. The Appellant relied on, amongst other cases, that of Criminal Appeal 262 of 2012 Hamisi Mwangeka Mwero vs Republic to ventilate that courts should exercise objectivity in sentencing having regard to the peculiar circumstances of each case.

Respondent’s submissions

18. Learned State Counsel, Ms. Maingi relied on her written submissions dated 5th November, 2021 and filed on 1st December, 2021. She submitted that all the elements for the offence of defilement were established. Whilst reiterating the evidence of PW1, she submitted that she gave an account of how the Appellant three times defiled her on a sofa and in bed and warned her not to tell anybody. That one day when her mother, PW2 was bathing her, she noted some whitish discharge from her private parts. She took her to hospital and was discovered that she had been defiled. PW1 then revealed that the assailant was the Appellant.

19. Counsel submitted that PW1 very well knew the Appellant with whom they had stayed with in the same house. Penetration was further corroborated by the medical evidence of PW3, a Clinical Officer from Naivasha County Hospital. She established puss cells and broken hymen as evidence of forceful penetration and concluded that PW1 had been defiled.

20. As for the age of PW1, counsel submitted that it was established by the birth certificate adduced by PW2 in evidence which showed the date of birth as 06/06/2011.

21. In opposition to the ground that there was non-disclosure of evidence by not being supplied with witness statements on time, she submitted that the Appellant understood the charges was always ready to proceed with the case and participated fully in his trial.

22. On the Appellant’s submission that some witnesses were not called to testify, counsel cited Section 143 of the Evidence Act which provides that no specific number of witnesses are required to prove a fact. The prosecution deemed the evidence of the uncalled witnesses as hearsay evidence. She relied on the Court of Appeal decision of Criminal Appeal No.31 of 2015 Julius Kalewa Mutunga v Republic [2006] eKLR to show that there was no oblique motive on their part in exercising discretion in not calling PW1’s neighbor as a witness.

23. In opposition to the Appellant’s submission that a confession was taken from him in an improper manner, Ms. Maingi submitted neither the prosecution nor the trial court relied on the statements allegedly made by the accused in convicting him or advancing its case. Learned counsel stated that the prosecution provided enough evidence to secure a conviction against him based on positive identification, proof of penetration and the age of the minor.

24. On Sentence, counsel submitted that the life imprisonment was legal. She added that a stringent sentence was deserved as the Appellant breached family trust and was, as such, not entitled to a more lenient sentence under the new guidelines in the Francis Muruatetu case which were only applicable in murder cases.

Analysis and determination

25. This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced and the submissions made in the trial court so as to arrive at its own independent conclusion. In so doing, this court is required to always bear in mind that it neither saw nor heard the witnesses as they testified and must therefore give due allowance in that regard. These provisions have been underscored in numerous decisions by the superior courts among them the Court of Appeal in Civil Appeal 79 of 2012 Peter M. Kariuki –vs- Attorney General [2014] eKLR Nairobiwhere the court held inter alia as follows: -

“We have also, as we are duty bound to do as a first appellate court [to] reconsider the evidence adduced before the trial court and re-evaluate it to draw our own independent conclusions and to satisfy ourselves that he conclusions reached by the trial judge are consistent with the evidence’’

26. I have accordingly considered the evidence and the respective rival submissions. I have deduced that the issues arising for determination are:

a) Whether the ingredients of the offence of defilement were proved beyond a reasonable doubt.

b) Whether the Appellant was given sufficient time to prepare for his defence.

c) Whether the prosecution failed to call a crucial witness.

d) Whether the Appellant’s statement to the police was a proper confession taken in accordance with the law.

e) Whether the Appellant’s defence was considered.

f) Whether the sentence imposed was illegal.

Whether the ingredients of defilement were met.

27. The key ingredients of the offence of defilement include proof of the age of the complainant, proof of penetration and identification of the perpetrator.

28. The age of a victim in a case of defilement is crucial because under Section 8 of the Sexual Offences Act, age determines the sentence. It must therefore be proved to the satisfaction of the court. The age of the complainant was not contested in this appeal. The prosecution relied on PW2, the mother of the complainant who produced her birth certificate as P. Exhibit 1. The said birth certificate confirmed that the victim was born 06/06/2011 and she was therefore seven (7) years old as at the time of the offence.

29. As regards 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 organ of another person.’In this case, the complainant narrated how the ordeal unfolded. She partly stated as follows:

‘‘…he locked doors after giving me food for lunch. He forced me to touch his part used to urinate. He laid me on sofa set and told me he would do something to help stop urinating. I had worn an apron. He zipped out and inserted his part used to urinate inside my part used to urinate while lying on sofa set. He did bad manners on me while on the bed and sofa set…’’

30. This narration points to nothing else other than that the Appellant inserted his penis into the vagina of PW1. I have also previously expressed that more often than not, children will refer to sex as ‘bad manners’ for obvious reasons; that it is a bad thing that offends them and meted against their will. It is also unpalatable to them to state what sex is in literal terms. They therefore look for softer words by which they refer to sex. PW1 clearly narrated that defilement took place thrice, twice on a sofa seat and once on a bed. She narrated the same events to her mother, PW2.

31. The evidence of PW1 and PW3 was further corroborated by that of PW3, a Clinical Officer at Naivasha County Hospital. In her evidence, the minor’s hymen was broken. She had vaginal discharge. A swab test showed both red blood and pus cells. She deduced that the minor had been defiled. The medical evidence reasserted the fact that PW1 had been defiled. PW3 adduced both the P3 and Post Care Forms into evidence.

32. From the foregoing, I have no doubt that PW1 was defiled. What now remains for determination is whether it is the Appellant who committed the heinous offence.

33. As regards identification of the perpetrator, PW1 was candid that it was the Appellant who defiled her. She gave an account that he had come to stay in their house and in the three instances he defiled her, he took advantage of the absence of her mother. She reflected that the Appellant visited them after she and her mother had gone to visit their grandmother and then tagged himself alongside on their return journey. According to PW2, the Appellant was her cousin and she is the one who requested him to go to her house to help her sell charcoal.

34. PW1 candidly stated that the Appellant defiled her on the three occasion, an issue she never contradicted herself on. She further pointed at him in court just to reassert that he was the offender. This is the same thing he told the police who then formed an opinion to charge him. She was well known to the Appellant and as such, the identification of the Appellant was by way of recognition which is more convincing and assuring.

Whether the Appellant was given sufficient time to prepare for his defence.

35. On the ground that the trial court failed to appreciate that the prosecution did not discharge its duty of disclosure and that the court did not afford the appellant adequate time to prepare, the Appellant cited that he was provided with prosecution witness statements too late into the trial which then violated his right to a fair trial.

36. Under the Constitution, the right to a fair trial is non-derogable under Article 25 (c). The Appellant specifically referenced the failure to be furnished with witness statements which is provided for under Article 50 (2)(c)and (j) which read:

“Every accused person has the right to a fair trial, which includes the right-

(c) to have adequate time and facilities to prepare a defence.

(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.”

37. According to the Appellant, both PW1 and PW2 testified without him being supplied with the statements. There is no doubt that that is the position. What is in issue is whether the failure to furnish him with the witness statements earlier violated his right to a fair trial.

38. A thorough perusal of the trial court proceedings do show that the Appellant did not request for the statements until after PW2 testified. The court too did not accede to proceeding with any other witness before the statements were supplied to the Appellant. The record does also show that only two answers were recorded from the cross examination of PW1 and no question were asked to PW2. So then, did this position change after the statements were supplied?

39. The statements were supplied to the Appellant on 21/2/2019 after which the evidence of PW3 and PW4 was called. The same modus operandi in cross examination was witnessed. The Appellant asked PW3 only one question and four questions to PW4. What this implies is that the Appellant cannot claim that he failed to adequately cross examine PW1 and PW2 because he was not supplied with prosecution witness statements. He cannot assert that his right to a fair trial was violated. He was accorded an opportunity to cross examine the prosecution witnesses based on the evidence they gave. In any case, given the overwhelming evidence adduced by the prosecution, nothing turns in that more questions to PW1 and PW2 would have changed the verdict. I therefore dismiss the submission that he was not accorded a right to a fair trial because he was not furnished with the statements on time.

Whether the prosecution failed to call crucial witnesses.

40. On the ground that crucial witnesses was not called to give evidence, the Appellant submitted that the first persons that PW1 informed about the incident were women who were their neighbours and that the said women were not called to testify. Citing the case of Bukenya V Republic (1971) E.A. 549,he submitted that the failure to call such neighbours meant that their evidence would have been adverse to the prosecution case.

41. Also citing J. Heydon Evidence; Cases and materials 2nd Ed ButterworthsLondon1984 at 84, the Appellant submitted that children not only tend to exaggerate/magnify incidents that happen to them but that their power of observation and memory are less reliable than adults.

42. On this, I state that there is no legal provision that the prosecution should call a particular number of witnesses. This is reiterated by Section 143 of the Evidence Act which provides that “Noparticular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any act.”What is paramount is that the prosecution calls a number of witnesses that is sufficient to establish their case.

43. In the present case, the four witnesses the prosecution called sufficiently established their case. I would however agree with the Appellant that the failure to call a crucial witness would lead to an inference that such evidence, if called would be adverse to the prosecution case. See Bukenya v Uganda (1972) E.A., 549. However, in this case, PW1 gave her testimony in a manner that the court could not doubt it. The same was thereafter sufficiently corroborated by PW2, 3 and 4. Hence, even if other witnesses testified, they would have adduced repetitive evidence which would have been of no probative value.

Whether the Appellant’s statement to the police was a proper confession taken in accordance with the law.

44. This ground of appeal then fails,

45. On this ground, the Appellant submitted that the investigating officer testified that he had admitted that he committed the offence after the devil misled him. He then said that that admission was deemed a confession and should have been taken and adduced in court as such. That in any case, since it was an admission, it should have been taken in a proper manner.

46. As submitted by the Miss Maingi for the Respondent, neither the trial court nor the prosecution relied on the statement recorded from the Appellant as evidence recorded as a confession pursuant to Evidence (Out of Court Confessions) Rules, 2009. The trial court as well as the prosecution purely relied on the evidence adduced before the court to arrive at the verdict and ventilate their case respectively. The submission by the Appellant in this regard is baseless and unmerited.

Whether the Appellant’s defence was considered.

47. I have looked at proceedings. I have noted that the learned trial magistrate ably summarized the Appellant’s defence. She then dismissed it on the ground that it did not challenge the prosecution’s case. I equally find no merit on this ground of appeal.

Whether the sentence imposed was proper and legal.

48. The main ground on which the Appellant challenged the sentence was that, according to him the minimum mandatory sentence provided under the Sexual Offences Act is unconstitutional, more so because the trial court failed to consider his mitigation. He cited an avalanche of case law amongst them the Supreme Court decision in Petition No 15 of 2015-Francis Karioko Muruatetu & Another vs Republic [2017] eKLR.It is important to state that the Supreme Court has since clarified the decision in guidelines delivered on 21st July, 2021 that its judgment in the case applies only to murder cases.

49. Under Section8 (2)of theSexual Offences Act, a person convicted for the offence of defilement of a child aged 11 years and below shall be sentenced to life imprisonment. The provision is couched in mandatory terms and so the learned trial magistrate could not vary the same. I would have no reason to upset the sentence.

50. In sum, I find that the prosecution proved its case beyond a reasonable doubt. The appeal lacks merit. I uphold both the conviction and sentence.

Dated and Delivered at Naivasha this 3rd Day of February, 2022.

G. W. NGENYE-MACHARIA

JUDGE

1. Appellant in person.

2. Ms. Maingi for the Respondent.