[2023] KEHC 25099 (KLR)

Juma v Republic (Criminal Appeal E014 of 2023) [2023] KEHC 25099 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25099 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Appeal E014 of 2023

RN Nyakundi, J

November 9, 2023

Between

Charles Juma

Appellant

and

Republic

Respondent

(Being An Appeal against conviction and Sentence meted by the Appellant in the Criminal Case Number E033 of 2022 at Kakuma Law Courts by Honourable I.K Rono (RM)

Judgment

Coram: Before Justice R. NyakundiMr.Okaka for ODPP 1. The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 17th November, 2022 in Turkana West Sub- County, intentionally caused his penis to penetrate the vagina of F.N a child aged 16 years. 2. He was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 17th November, 2022 in Turkana West Sub-County within Turkana County, intentionally touched the Vagina of F.N using his penis, a child aged 16 years.

3. The appellant was convicted on the main charge and sentenced to serve fifteen (15) years imprisonment.

4. Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:i.That the learned trial magistrate failed to substantiate the authenticity of the birth certificate of the victim.ii.That the appellant was arrested and arraigned in court on the fourth day hence his constitutional rights as enshrined in article 49(1)(f)(I) were violated.iii.That the court failed to consider article 50(5)(b) of the constitution hence prejudiced the accused rights by not providing him with witness statement fill the closure of the case.iv.That the investigating officer failed to visit and conduct investigation at the scene of crime, he failed outrightly to link the accused with the charges against him.v.That the victim’s clothing had no stains, tears on her clothes.vi.That the appellant was framed up as there existed discrepancies in identifying the accused person.Parties filed written submissions in support of their arguments.Appellant’s Submissions

5. The appellant submitted that he was not accorded a fair hearing as he was tried without being given a copy of the records of the statements as well as the court proceedings. That he was arraigned in court three days later after his arrest.

6. The appellant submitted that he had no sexual intercourse with the victim as the victim’s room was crowded. That he was framed up and it was a conspiration plotted by PW3. He further argued that the victim had procured an abortion, which explains the presence of a whitish discharge and the broken hymen.

7. On the issue of age, he submitted that the birth certificate produced was not genuine. That the victim was over 18 years. He prayed that the appeal be allowed and the sentence set aside.Respondent’s Submissions

8. Mr. Edward Kakoi, prosecution counsel in opposing the appeal submitted that the issue of age was sufficiently proven. He relied on her birth certificate which was produced as Exhibit 3.

9. On the issue of penetration, counsel submitted that the appellant in his defence confirmed having a sexual intercourse with the complainant ad that according to the clinical officer, the vagina was reddish showing that there was a recent activity.

10. Counsel submitted that the appellant was positively identified since the appellant and the complainant knew each other. The fact is confirmed by the appellant in his defence.

11. On sentence, the prosecution submitted that the appellant was sentenced to 15 years imprisonment as provided for under the sexual offences act. He urged the court to exercise its discretion and review the sentence downwards but not less than ten years given the circumstances.

Analysis and Determination 12. I have considered the appeal and submissions by both parties. I have also read the record of the trial court and the judgment. As a first appellate court, this court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial court had the advantage of hearing and observing the demeanour of the witnesses. See Okeno vs. Republic [1972] E.A 32. The issues that arise for determination in this appeal are;i.Whether the prosecution proved its case to the desired threshold;ii.Whether the sentence meted upon the appellant was lawful.Elements of offence of defilement

13. The appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) 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(4)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.

14. 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.

15. In the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 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.”What does the evidence portend?Age of the complainant

16. In a charge of defilement, the age of the victim is important for two reasons: i) defilement is a sexual offence against a child; and ii) 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.

17. A child is defined as a person under the age of eighteen years. Is the victim herein a child?

18. The appellant herein submitted that the birth certificate produced in evidence was fabricated and that the victim was over 18 years. In my view, it is a mere allegation that cannot hold water. A birth certificate is prima facie evidence in proving the age of the minor. The trial court rightly found that the complainant was sixteen years old at the time.I find the age of the victim was 16 years old.PenetrationSection 2(1) 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.”

19. In the case of Mark Oiruri Mose v R [2013] eKLR the Court of Appeal stated that:“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.”

20. In light thereof, the appellant argued that the victim had already procured an abortion hence the white discharge. PW1 on the other hand testified that he examined PW2 and filled her P3 form on 18th November, 2022 which he marked as P.Exh 1. It was his testimony that PW1’s vaginal area did not have any injury but there was some discharge. He noted that her vagina was reddish, showing that there was some recent sexual activity. He also noted that the hymen was torn. His conclusion due to the broken hymen and the presence of a whitish discharge, there was penetration.

21. The inevitable conclusion from the analysis of the evidence is that there was ample evidence to prove that penetration did occur. I find that the medical evidence supports there was penetration of the child.Was the appellant the perpetrator?

22. The Appellant was a person known to the complainant. There was no element of mistaken identity of the Appellant as the person who penetrated her genitalia. In the cases of R vs Turbull and Others (1976) 3 ALL ER 549. Lord Widgery C.J had this to say:- “First , wherever the case against an accused depends wholly or substantially on the correctness of one or more identification of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance to the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be convincing one and that a number of such witness can all be mistaken. Secondly the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation ” At what distance” In what light” was the observation impended in any way, as for example by passing traffic or press of people. Had the witness ever seen the accused before” How often” if only occasionally, had he any special reason for remembering the accused” How long elapsed between original observation and the reason for remembering the accused” How long elapsed between original observation and the subsequent identification to the police” was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and the actual appearance.”

23. The evidence by the prosecution leaves no doubt that the appellant caused penetration of the complainant. Accordingly, I find that the elements of defilement namely, penetration and minority age of the victim were proved beyond doubt. The conviction was therefore proper.

24. 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.On sentence

25. The appellant argued that he was convicted on unsound evidence and prayed that the appeal be allowed. Section 8 (3) of the Sexual Offences Act to convict provides as follows:8(4) 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.

26. Mandatory minimum sentences place a bar on the trial court ability to set a sentence lower than the one prescribed by the statute. It kind of stripes the Judge or magistrate’s power to exercise judicial discretion on a case to case specifics. Sometimes I consider it as an intrusion by the legislature with regard with the sentencing discretion of Judges and Magistrates. The courts merely becomes rubber stamps. It would seem in this case discretion was fettered for the appellant to be sentenced to the very minimum period of fifteen (15)years imprisonment. In contrast to the above given the guidelines in the Benard Kimani V Republic “ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” the 15 years custodial sentence be and is hereby interfered with a lesser sentence of ten (10) years imprisonment. The court in arriving at this decision, has taken into account the aggravating factors, mitigation, that the appellant is a 1st offender and there is a likelihood of subsequent rehabilitation upon release from prison.

27. In the upshot, the appeal partially succeeds on sentence whereas the order on conviction is affirmed.

DATED AND SIGNED AT LODWAR THIS 9TH DAY OF NOVEMBER, 2023. ........................R. NYAKUNDIJUDGE