[2022] KEHC 3285 (KLR)

K v Republic (Criminal Appeal 16 of 2020) [2022] KEHC 3285 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3285 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Appeal 16 of 2020

JM Ngugi, J

July 14, 2022

Between

MKK

Appellant

and

Republic

Respondent

(Being an Appeal against the Judgment, conviction and sentence of the Chief Magistrates Court at Nakuru (F. Munyi.- Principal Magistrate) delivered on 12/05/2020 in ACR No. 84 of 2016)

Judgment

1. The appellant was charged with two counts of the offence of incest contrary to section 20(1) of the Sexual Offences Act. In the first count, it was alleged that on April 28, 2016 in Njoro Subcounty within Nakuru County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of MW a child aged 10 years who, to his knowledge, was his stepdaughter.

2. The appellant was also charged with a second count of incest, where it was alleged that the appellant had on diverse dates between April 1, 2016 and April 30, 2016 in Njoro Subcounty within Nakuru County, unlawfully and intentionally caused his penis to penetrate the vagina of FN a child aged 7 years who, to his knowledge, was his stepdaughter.

3. The appellant was also charged with two alternative charges of an indecent act with a child contrary to section 11(1) of the same Act.

4. The appellant denied all the charges and the case proceeded to full trial. The case had initially proceeded before Hon. D. Kemei who had heard three witnesses, but could not hear the matter to its conclusion. When the matter came up before Hon. G. H. Oduor, the appellant exercised his right to have the case start de novo as provided for under section 200(3) of the Criminal Procedure Code

5. The Prosecution called a total of 8 witnesses. FN testified as PW1. She gave an unsworn testimony after the Trial Court concluded that she did not understand the meaning of an oath. Her recollection was that in April 2016, she was at home with other children when the appellant called her and MW to the bedroom and defiled them. She later told the court that she had gone outside to wash dishes when the Appellant called M.W and also defiled her, but that she did not see him defiling MW. She testified that their mother had caned them because they refused to explain why they were ‘walking badly’. According to her, MW had later told their mother who took them to hospital the next morning together with Aunty M. According to her, they were given medication at the hospital and the appellant later arrested. She testified that the incident had only happened once.

6. On cross examination, P.W1 said that it was MW who had been taken to hospital and not her and that she had lived at her grandmother’s place until her grandmother died on May 22, 2016.

7. PW2 was MW who gave a sworn testimony. She recalled that she was at home on April 28, 2016. She was playing with other children, including FN when the appellant called them towards the evening. She testified that she served food to the appellant after which he called her to his bedroom and defiled her, before threatening to kill her if she told anyone. She had then put on her clothes and gone to sleep.

8. She told the court that her mother came from the market later in the evening and called her to open the door, but she did not respond. She testified that when she was about to rise, she saw that the door had been opened. Her mother had then inquired why she was walking like ‘someone sick’ but she told her mother there was no problem although she was in pain. She testified that her mother had later taken her to hospital that night where she was treated, and that she slept at the neighbour’s when she returned. Her and her mother then went to report to the police station the next morning. She later told the court that the appellant had only defiled once and that the other children had been asleep at the time.

9. On cross examination, P.W.2 testified that FN had lived at home but later went to their grandmother’s, although she could not remember when FN went to their grandmother’s. She also told thecourt that FN had been defiled.

10. When questioned about her written statement indicating that she had gone back to hospital the next day, she recalled that she had gone to the hospital only once on the night of the incident and to the police station the next day.

11. She further recalled that she had initially hesitated to reveal that the appellant had defiled her because the appellant had threatened to kill her. She could however not recall if she told the neighbour what had happened or if there was any light when her mother entered the house. She also told thecourt that her mother had examined her injuries and she had gone to the hospital with the same clothes, which were not stained.

12. PW3 was AWK. She is the mother of the two complainants. She testified that on April 28, 2016 she had gone to the market and returned home at about 7:20pm to find the door locked. She knocked and called out MW who usually opened the door for her but there was no response. She forced the door open, went to where MW was and realised that MW seemed to have been crying. She also found the appellant awake in the bedroom she shared with him, but he did not respond to why he had not opened the door for her.

13. She testified that she had then gone back to MW and noticed she was walking differently after asking her to get out of bed. According to her, MW initially said there was no problem, but later told her that the appellant had defiled her. She examined MW and then took her to hospital that night, where she was treated, samples taken, and they were asked to return the next morning. They had then slept at a neighbour’s that night out of fear, and she washed the MW’s clothes so that she could wear them the following day.

14. PW3 further told the court that the appellant had followed them to the hospital the next day where MW was examined at the lab and later to the Police station where MW pointed out the appellant who was arrested. They then went back to the hospital together with the appellant where both MW and the appellant were examined. She testified that they remained at home while the appellant remained in custody but he was later released on bail.

15. PW3 further testified that after the incident, her brothers had beaten her for neglecting her children and also claimed that the Appellant had defiled FN, but that she was not aware of the latter allegation. She told the court that the issue of FN’s alleged defilement was dealt with by JN who took all the children to hospital. She had later been arrested and locked up at Njoro and the appellant rearrested.

16. On cross-examination, she testified that FN had spent some time at her grandmother’s and at home in the period between April 1, 2016 and April 29, 2016. She maintained that she was not aware of FN being defiled but had later heard that FN had confided in her grandmother that she had been defiled. She also testified that theappellant would at times get angry and beat the children and that at one point she left their home and rented a house when they separated.

17. When recalled, later, PW3 testified that FN was at her grandmother’s on the material day and that on the material date she had taken MW to hospital, but that MW was not examined on April 28, 2016 since the lab was not open. Further, according to her, the matter was not recorded in the OB until April 29, 2016.

18. PW4, JN testified that he had learnt from his mother that the appellant had defiled MW According to him, the minors later spoke with their aunties and revealed that they had indeed been defiled by the appellant. He then lodged a complaint at the Police Station, leading to the arrest of PW3 and the appellant. On cross examination, he denied having previously disagreed with the appellant or that the case had been brought to separate the Appellant and PW3. He also denied being unhappy with the appellant for preventing PW3 from going to stay with their ailing mother.

19. PW5 was No. 42272, Senior Sergeant Justus Kasusia. He testified that on May 2, 2016 he read the OB and Call Register and noticed that the appellant had stayed in the cells for a long time. He recalled that one Corporal Leah had told the mother of the minors to avail the minors so that the appellant could be charged but that their mother never availed the minors, and he therefore released the appellant on the promise that he would return on a later date. He testified that he together with another officer later re-arrested the appellant on May 22, 2016 but upon cross-examination he denied being the Investigating Officer in the case.

20. PW6 was Jacob Cherimo, a clinical officer at Njoro Subcounty. His testimony was that he had received a defilement complaint relating to FN, while MW was examined by a Mr. Mutahi. He testified that at the time of examining FN, she had changed clothes and looked normal, but that she had pain on her nose. He told the Court that the incident had occurred 2 weeks ago but that his conclusion upon examining FN, was that she had been defiled.

21. On cross examination, he testified that while penetration could break the hymen, there were other factors that could cause breakage. He told the Court that he was not sure why the incident was not reported immediately but he had concluded that FN had been defiled many times.

22. PW 7 was Mutahi Kiplasoi Manndanya, a clinical officer at Njoro Subcounty who testified that he had examined MW on April 29, 2016. On cross examination, his testimony was that MW had been brought to hospital on April 28, 2016 but was asked to return the next day when lab tests were done. It was also his testimony that when he saw MW the next day, she had changed her clothes but that upon examining her, he noticed bruises and lacerations on her genitalia and concluded that she had been defiled. He also testified that he did not examine the appellant and could not tell whether it was theappellant who had defiled the MW since they could not carry out DNA testing due to limited facilities.

23. PW8 was No. 79598 Corporal Leah Mbaja, the Investigating Officer in the case. She testified that she started her investigations upon a report made on April 29, 2016 by PW3, who reported that her daughter MW had been defiled by the appellant. She recalled that they found the appellant at a shop about 100 metres from the Station and he agreed to accompany them to the Police Station. It was her testimony that she took MW and theappellant to the Njoro Health Centre where both were examined. They then went back to the Police Station where she took a statement from MW.

24. According to her, the information she gathered from MW was that the appellant had returned home on the evening of April 28, 2016 and prepared food for the children. He then told the younger children to go to bed but called MW to his bedroom where he defiled her.

25. She told the court that she had then filed a P3 Form and taken MW back to Njoro Health Centre and she subsequently charged the appellant with defilement. She later learnt that another case had arose relating to FN and which was investigated by a PC Nalkano.

26. On cross-examination, she maintained that the appellant had undergone examination. She further testified that while at the station, MW’s mother had wanted the matter referred for discussion and had been charged with conspiracy to defeat justice. It was also her testimony that the appellant had been arrested and later released with instructions to report to the Police Station but that the appellant had been re-arrested due to public outcry.

27. At the close of the prosecution’s case and upon the appellant having been put on his defence, theappellant chose to give a sworn testimony in his defence. The appellant’s account was that he had differed with his wife - PW3 - in November 2015, as a result of which she left and rented a house at Ngandu Village. According to him, they met again in February 2016 at Egerton when she asked him to go see the children and invited him to her rented premises.

28. He narrated that on April 24, 2016he had been planning to sell some plots to help PW3 with her business, but PW3 informed him that the plots could not be sold due to a restriction. He said that PW3 later informed him that her brother PW4 had informed her their mother was sick and that PW3 was needed to go take care of their mother.

29. It was his testimony that FN had been away at her grandmother’s since February 2016 and that they had quarrelled with PW3 after he asked her to go live in his father’s farm, with PW3 insisting on living in the rented house.

30. As to the material day -April 28, 2016, the appellant testified that at about 7. 00pm, his friend Peter Thiongo asked him to accompany him to a pub after which they left for home at 8. 00pm. According to the Appellant, when he got home at about 9. 00pm, he found the door locked. He found his son K. at home who informed him that their mother PW3 had gone with MW to their grandmother’s place. K. then informed him that the children had eaten so he lit the jiko and cooked for himself.

31. He testified further that the next morning he had heard PW3 tell a neighbour- Mama Blessing that she had left because he-the appellant had defiled MW He testified that he had heard the said Mama Blessings saying that she had not noticed anything amiss. It was his testimony that he had then asked PW3 to accompany him to the police station and when they alighted at Njoro Police Station, she changed her mind and said she was going to the hospital instead. He opted to wait at the Police Station for PW3 and MW but PW3 did not come.

32. He was instead approached by two female police officers, to whom he introduced himself and learnt that PW3 and MW were already inside the Police Station. Thereafter, the appellant testified that he gave his urine and blood samples. He however said that no samples were taken from MW and it was alleged that the same had been done the previous day.

33. The appellant told thecourt that he was in custody from April 29, 2016 but released on May 3, 2016upon giving an undertaking that he would not assault his family but was rearrested on May 22, 2016. Theappellant maintained that he had not seen FN since February 2016 when he went to live with PW3.

34. The trial concluded before Hon. Oduor. However, Hon. Oduor went on a long medical leave immediately thereafter and could not write a judgment. He was also transferred out of the station (and he was, unfortunately, called to eternity shortly thereafter). The Trial file was re-allocated to Hon. F. Munyi to write a judgment. Both the appellant and the prosecution agreed that Hon. Munyi should proceed to write the judgment based on the proceedings before Hon. Oduor. In her judgment, Hon. Munyi acquitted the accused ofCount II and its alternative but convicted him of count I. The Learned Magistrate concluded thus:I find that the prosecution has not proved its case as required incount II and the alternative thereof. He shall enjoy the benefit of doubt. He is acquitted thereof undersection 215 of the Criminal Procedure Code.However, there is sufficient evidence to warrant a conviction of the accused in Count 1. The Defence has not raised a reasonable doubt on the prosecution’s witnesses’ evidence. Theaccused is found guilty of incest contrary tosection 20(1) of the sexual Offences Act. No. 3 of 2006 and he is convicted accordingly under Section 215 of the Criminal Procedure Code. Right of Appeal within 14 days.

35. The Trial Court then sentenced the appellant to serve life imprisonment.

36. The appellant, dissatisfied with the whole conviction and sentence of the Trial Court preferred the instant appeal vide the Petition of Appeal dated May 13, 2020. The Appeal is supported by the undated Amended Grounds of Appeal as follows: 1. Thatthe learned trial magistrate erred in law and fact by convicting the Appellant yet failed to appreciate that the prosecution did not prove its case to the required standard of beyond reasonable doubt.

2. Thatthe learned trial magistrate erred in law and fact by failing to appreciate that the prosecution’s case was marred with numerous contradictions and inconsistencies.

3. Thatthe learned trial magistrate erred in law and fact by failing to find that the medical evidence adduced was not cogent enough to found a conviction or corroborate that charge.

4. That the learned trial magistrate erred in law and fact by failing to consider the appellant’s defence yet the same was cogent and believable.

5. Thatthe enhanced sentence imposed was harsh and excessive and not informed by the facts and circumstances of the offence nor supported by the evidence on record.

37. The Appeal was argued by way of written submissions. Theappellant argues that the Prosecution’s case was marred with contradictions and inconsistencies. First, as to the sequence of events on the alleged day of the offence. Particularly, he points to the evidence of PW1 and PW2 wherein he says that it is not clear why PW1 would change her evidence upon re-examination to say that it was PW2 who was defiled first yet she had been categorical during cross-examination that PW2 had been defiled after her-PW1. This he says puts doubt on the veracity of PW2’s evidence.

38. The second inconsistency alluded to by the appellant is that PW1 had in re-examination alleged that the offence was committed once, yet under the Particulars of the Offence it was indicated that the offence had been committed on diverse dates between April 1, 2016 and April 30, 2016. This he says is proof of the prosecution groping in the dark without sufficient evidence and hoping to land a conviction.

39. The other inconsistencies alluded to by the appellant are that PW2’s evidence revealed that PW1 was mostly away at their grandmother’s house during the month of April, PW2’s evidence that she never saw PW1 being defiled, PW1 being asleep at the time of PW2’s defilement, and PW2’s assertion that the offence was committed against her once.

40. Theappellant contends that the contradictions in the evidence of PW1 and PW2’s on how the offence was committed points to a fallacy and their evidence is thus questionable. The Appellant thus relies on the Indian case of State of Punjab v Jagir Singh[1974] 3 SCC 277. He argues that an Accused person should only be convicted on the prosecution’s case and not the weakness of his defence and relies on Sekitoleko v Uganda[1967] EA 531 in support of this argument.

41. As to the contradictions he has highlighted, the appellant cites the case of Twehangane Alfred v UgandaCrim. Application No 139 of 2001, [2003] UGCA, 6, for the proposition that not every contradiction warrants rejection of evidence. He further cites the cases of Uganda v Rutaro(1976) HCB 162 and Uganda v. George W Yiga[1977] HCB 217 and submits that the contradictions in the instant case are grave, point to deliberate untruthfulness and affect the substance of the charge.

42. The appellant further relies on the meaning of contradiction given in David Ojeabuo v Federal Republic of Nigeria[2014] LPELR-22555(CA) and the finding therein that the Accused is entitled to benefit where contradictions are fundamental and substantial so as to create doubt in the mind of the court. He also cites Theophilus v The State (1996) 1 NWLR and urges the court to find that the inconsistencies create doubt in the mind of the court.

43. The appellant argues that the evidence tendered falls short of proving penetration, which he says is a key ingredient of the offence. This he contends is because the evidence of PW1 and PW2 does not disclose what was done to them. He relies on the case of Julius Kioko Kivuva v Republic [2015] eKLR where the court found that the specificity of such evidence, though traumatic strengthens the credibility of any witness testimony.

44. The appellant further submits that medical evidence of PW6 did not corroborate that penetration occurred, but rather demonstrated that other factors other than sex could lead to breakage of the hymen. He contends further that PW 6’s testimony that PW1 had been defiled more than once was contradictory to PW1’s own testimony that she had only been defiled once. He contends that PW7 could also not provide a nexus between the Appellant and the commission of the offence for the reason that other factors other than penetration could cause breakage of the hymen.

45. The Appellant thus points to his acquittal in Count II as proof of inconsistencies in the Prosecution’s case and argues that the Trial Court ought to have reached the same conclusion for Count I. He relies on the case of Woolmington v DPP [1935] AC 462 for the proposition that the burden of proof constantly remains upon the prosecution. This burden, he submits is for the Prosecution to establish its case beyond a reasonable doubt as held inJOO v Republic[2015] eKLR.

46. The appellant contends that the trial court first considered the Prosecution’s case and reached a finding before considering the defence’s case. This he says amounts to the trial court analysing the Prosecution’s case separately from the defence’s case. The appellant argues that his defence before the trial courtraised enough doubt as to the Prosecution’s case. He relies on the case of Ndege Maragwe v Republicfor the argument that the Prosecution’s and defence’s case should not be looked at separately.

47. Theappellant thus contends that the trial court failed to look at the defence or refer to the alleged feud between him and his brother and thus invites this court to look at the evidence before thetrial courtand find that the conviction and sentence was not founded on safe evidence.

48. In response, the State urges the court, being the first appellate court to revisit the evidence before the Trial Court, evaluate it, analyse it, and come to its own conclusion as held inOkemo v R. [1977] EALR and Mark Oiruri Mose v Republic[2013] eKLR.

49. The State submits that the ingredients for the offence of incest were uncontested. These are: an indecent act or an act which causes penetration and the victim being a female person who to the perpetrator’s knowledge is his daughter, granddaughter, sister, mother, niece, aunt, or grandmother. The state also cites the definition of an indecent act undersection 2 of the Sexual Offences Act and argues that the evidence adduced established the act of penetration, through the account of PW2 as corroborated by PW3 and PW7. The State relies on the provisions of section 124 of the Evidence Act and submits further that the age of the minor was undisputed. It contends that the defence offered by the Appellant was too shallow and did not cast any doubts in the Prosecution’s case.

50. On the issue of sentencing, the State argues that sentencing is discretionary, and that the Appellate Court would only be entitled to interfere with the sentence if it is demonstrated that the sentence is illegal or is so harsh and excessive as to amount to a miscarriage of justice. In this case, the State contends that the victim was 7 years and relies onsection 20(1) of the Sexual Offences Act, which prescribes a sentence of imprisonment for life where the victim of the offence of incest in a minor. The State’s position therefore is that given the circumstances of this case, the sentence imposed by the Trial Court was justifiable and fair and urges the Court to dismiss the instant appeal.

51. As observed from the Judgment of the trial court,the appellant was acquitted of the second count and only convicted of the first count. For the avoidance of doubt, the appellant was only convicted for the offence committed against MW, which is the subject of this appeal.

52. The required ingredients for the offence of incest are as set out under section 20 (1) of the sexual Offences Act. As follows:(1)Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:

53. `The proviso to that section then provides for a sentence of life imprisonment where the Complainant is a minor (as is in this case) as follows:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person

54. In this case, it is not disputed that MW was a minor at the time of the offence. The relationship between MW and the Appellant is also not contested. The Appellant was at the time M. W’s half father under the meaning of section 22 of the Sexual Offences Act. Accordingly, the only ingredients left to be proven by the Prosecution were, first the act of penetration and secondly, that it is that Appellant who committed the act.

55. From the foregoing, the issue for determination is whether the Prosecution adduced sufficient evidence to prove the two residual ingredients. differently put, is whether the inconsistencies, if any, in the Prosecution’s case are sufficient to overturn the conviction of the appellant.

56. Theappellant claims that the evidence tendered was not sufficient to prove the act of penetration. In my view, PW2 sufficiently and precisely described the Appellant’s act of penetration. (See page 38 of the Proceedings). As to whether it was necessary for the evidence of PW.2 be corroborated, it is trite that the evidence of one witness is sufficient in sustaining a conviction for sexual offences. In Geoffrey Kionyi v. Republic, Cr. App. No. 270 of 2012 (Nyeri), the Court of Appeal expressed itself on proof of a sexual offence as follows:Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”

57. This is also in line with the provisions ofsection 143 of the Evidence Act which states that:No particular number of witnesses shall, in the absence of any provision of law to the contrary be required for the proof of any fact.

58. The above notwithstanding, the evidence of PW2 was corroborated by that of P.W.7, who examined P.W.2 and indicated in his report that PW2 had fresh bruises and lacerations and concluded that she had been defiled. This coupled with PW2’s own testimony was clear proof of the ingredient of penetration. As for identification, the Appellant was well known to PW2 as her stepfather, and she consistently maintained that it is the Appellant who defiled her.

59. What about the alleged inconsistencies raised by the appellant? Theappellant argues that the fact that the particulars in Count I speak of the offence occurring on a single day while those in Count II speak of diverse days; and further that the testimony of both minors tended to speak of a single day. I find nothing availing to the Appellant on this score because, as pointed out above, he was acquitted of the alleged incest in Count II. The only relevant evidence is that relating to Count I.

60. The appellant further point to an “inconsistency” between the evidence of the two minors as to who was defiled first – and the fact that MW seemed to vacillate on whether she or her sister was defiled first. I do find this discrepancy to be minor and one that does not indicate untruthfulness on the part of the witness. In doing so, I have considered not only that the witnesses were minors who had been badly traumatized by the sexual assault but who testified to a history of physical abuse by the appellant. I also consider that the minors were re-traumatized by having to recall the events of their sexual assault by their father not once but twice after the Appellant demanded that trial begins afresh when a new magistrate took over. Further, I have taken into consideration that the two minors testified more than a year after the sexual assault.

61. Another issue raised by the appellant is that the trial court did not consider his defence. The essence of the appellant’s defence before the trial court was that the charges were brought about as a result of differences between himself and his wife (PW3), which differences extended to her family. In my view, this defence is inconsequential to the offence and did not raise any doubts as regards the commission of the offence by the appellant. Accordingly, in my view, the Learned Magistrate considered the correct factors in convicting the Appellant for the first Count and I hereby uphold that conviction.

62. Turning to the issue of the sentence, the trial court in its reasons for the sentence indicated that it had considered the appellant’s mitigation and the fact that he was a first-time offender, but also reasoned that the appellant had committed an offence against a minor who trusted him. It also considered that the act committed against the Complainant was a serious one and underscored the need for a deterrent sentence.

63. The above in my view, were proper considerations in issuing a sentence. I am cognisant of the raging debate around the Constitutionality of a life sentence. While I agree that the life sentence imposed was lawful I also agree with the sentiments of the Supreme Court in in Francis Karioko Muruatetu & another v Republic[2017] eKLR that a life sentence should not necessarily mean the natural life of the prisoner, but rather, it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation, and recidivism. I firmly believe that sentences should be definite; and that indefinite sentences are inhumane and possibly unconstitutional. In the present circumstances, all considered, I believe that imprisonment for thirty (30) years is proportionate to the horrors of the appellant’s offence.

64. In view of the foregoing, I make the following orders:I.The Appeal against conviction is hereby dismissed. The conviction of theappellant on Count I if hereby upheld.II.The life sentence imposed on the appellant is hereby set aside and substituted with a determinate sentence of thirty (30) years imprisonment.III.The sentence shall run from the time when the appellant was first arraigned in Court i.e. June 2, 2016since he remained in custody throughout.

65. Orders accordingly.

DATED AND DELIVERED AT NAKURU THIS 14THDAY OF JULY, 2022. ......................JOEL NGUGIJUDGE