[2023] KEHC 26516 (KLR)

Kamau v Republic (Criminal Appeal E004 of 2023) [2023] KEHC 26516 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26516 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E004 of 2023

DR Kavedza, J

December 8, 2023

Between

Simon Waweru Kamau

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence delivered by Hon. N Ruguru (P.M) on 25th August 2022 in Ngong Chief Magistrate’s Court sexual offence case no. 36 of 2017 Republic vs Simon Waweru Kamau)

Judgment

1. This is an appeal against the conviction and sentence of 50 years imprisonment imposed by the trial court for the offence of defilement contrary to section 8 (1) (2) of the Sexual Offences Act, No. 3 of 2006. In his petition of appeal, the appellant has raised seven (7) grounds of appeal challenging his conviction and sentence.

2. The main grounds raised are that the trial magistrate erred in law and fact in convicting the appellant when the weight of the evidence did not prove the elements of the offence of defilement. The court erred in convicting the appellant where there was no sufficient evidence to prove the charges and support the conviction. The trial magistrate erred by relying on a medical report notwithstanding that the complainant was examined two weeks after the alleged offence. The sentence meted was manifestly excessive considering the circumstances of the case.

3. As this is the Appellant's first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno vs. Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oiruri Mose vs. R [2013] e-KLR that this court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

4. VG (name withheld) PW1 told the court that she is 9 years old and a pupil at [Particulars Withheld] Primary school. On 1/7/2016 at around 2:00pm she was walking home from school, when appellant called her and asked whether her thing was big or small. She did not exactly know what he meant but said it was small. The appellant then took her to a nearby forest where he removed her dress, stockings and panty. He also removed his trousers then inserted his penis into her vagina and anus.

5. After the incident, PW1 told the appellant that she had to go home because her mom was waiting for her to look after the baby. They both put on their clothes and the appellant told her to return the following day. She testified that she left appellant at the forest and went home crying. Her mother, MWN (PW2) asked her why she was crying and it is then that she revealed the appellant had defiled her. Her mother sent her to call her elder brother K who was in his house and shortly after, both K and her mother left to search for the appellant and she was left with her young siblings.

6. PW1 further stated that her mother returned and took her where a group of men had been arrested by members of the public and asked whether she could identify her assailant. She identified the appellant by pointing at him. She told the court that it was day time and she could properly identify the appellant. The appellant was then arrested and taken to the police station where they all went and recorded their statements. She was later taken to Nairobi women hospital for examination and treatment. The complainant also identified her white stockings, pink flowered panty and white and maroon striped dress which she had worn during the incident in court.

7. MWN (PW2) testified that she is the mother of PW1 who was born on 3/3/2011 and identified her birth certificate in court. She told the court that on 1/7/2016, at around 2pm, she was at home when the complainant returned from school while crying and screaming. She noticed that her clothes were stained with blood. She inquired what had happened and the complainant told her that a man had been pulled her into a forest while she was on her way home and defiled her.

8. She described the man as tall, dark and slim. In the company of her son, she left to look for the assailant in the forest but they did not find anyone. However, on reaching Medithi road, they saw a crowd which appeared as though they were beating someone. On approaching the crowd, she overheard a school girl say that someone had tried to grab three girls from [Particulars Withheld] primary school. She also found the appellant among five other men seated on the ground and surrounded by the crowd. She informed them that her daughter, PW1, had been defiled. She then left and returned with the complainant who identified the appellant as her assailant by pointing at him.

9. Her son, K, told her that the appellant’s name was Simon Waweru as he was his former classmate. She then went with the complainant to Ngong Police Station where they recorded their statements and later to Nairobi Women’s Hospital where the complainant was examined and treated. She also told the court that the complainant was later taken to Kenyatta National Hospital where she was hospitalized for a week.

10. Ms. Emily Okworo (PW3), an analyst based at Nairobi Government Chemist, produced the government analyst report on behalf of her colleague, Nelly Maureen Papa. She stated that on 11/7/2016, they received at the chemist the following items: an under-pant that was red, yellow and green in colour marked 'B'; white-and-maroon-checked school uniform marked 'C' and a white trouser marked 'D', all belonging to the complainant. On that same day, they obtained buccal swabs from both the complainant and the appellant. It was desired to examine the items listed above and determine the presence of spermatozoa and DNA.

11. It was found that: the underpant marked 'B' had light human blood stains with no stains of semen; the uniform marked 'C' and the trouser marked 'D' had no stains of semen nor blood. The DNA profile from the items was done and the analyst concluded that the DNA profile present in underpant 'B' matched with those from the buccal swab from the complainant. PW3 produced the Government Analyst report dated 15/1/2018 as PEXB 8 and exhibit memo form as MF1 -P9.

12. Dr. Kizzie Shako (PW4), a forensic medical doctor at the Ministry of Health, told the court that on 11/7/2016 she examined the complainant aged 7 years old having reported a case of being defiled. On examination, she had normal female genitals. She had tenderness on the hymen with tear at 7 o'clock. There were abrasions around the anus, a stitched tear at 12 o'clock, tenderness and pain in the anus. The victim had been treated at the Nairobi Women's Hospital. She also relied on the discharge summary and PRC form from Nairobi Women’s Hospital to fill the P3 form, she concluded that the injuries sustained were highly suggestive of sexual abuse. She produced complainant’s PRC Form, discharge summary and P3 form as exhibits 4, 5 and 6 respectively. PW4 also examined the appellant and found no injuries on him and his genitals were normal. She produced his P3 form as exhibit10.

13. Martin Mwiti (PW5), the Investigating officer told the court that he took over the matter from his former colleague P.C Maureen Akinyi. He stated that on 1/7/2016, the complainant in the company of her mother reported a case of defilement. It was his evidence that the complainant while going home from school at around 2:00pm, met a man who called her, held her hand and dragged her into a forest. The assailant then forced her to remove her clothes and he also removed his. He then forced the complainant to lie down and he penetrated her through the vagina severally. He then made her lie on her stomach and proceeded to penetrate her anus.

14. The man forced her to put her clothes back on, and told her not to leave the scene, until he leaves. The complainant went home and reported the incident to her mother who left with his brother to look for the assailant. The complainant’s mother and brother found the appellant among other persons arrested by members of the public and the complainant identified him as her assailant. The appellant was immediately escorted by members of the public to Ngong Police Station where he was rearrested.

15. He further told the court that the complainant was taken to Nairobi Women's Hospital where she was examined, treated and a P3 form subsequently filled. Samples were also taken to the Government Analyst and the Government Analyst report was produced as evidence. The complainant brought the clothes she was wearing on that day; a checked school uniform dress, white leggings with purple stripes and a pink panty with dots that was bloodstained. The doctor confirmed that the blood was the complainant’s. The complainant was 7 years old at the time of the incident, having been born on 3/3/2009, PW5 produced the birth certificate as an exhibit. PW5 identified the accused present in court as the person who was arrested for the offence.

16. The appellant was found to have a case to answer and put to his defence where he opted to give sworn testimony. He testified that he was arrested in 2016 while heading home from school after being chased for lack of school fees. He was arrested by unknown people, beaten up and taken to Ngong police station where he stayed for one week and later charged with the offence. He denied defiling PW1 insisting that he did not have faith in the medical report.

Analysis and Determination 17. This court in determining this appeal is to satisfy itself that the ingredients of the offence of defilement were proved as required in law, beyond any reasonable doubt. Needless to say, I have carefully read and understood the proceedings and the judgment of the trial court as well as the record before this Court and also the submissions by the parties. The key ingredients of the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator of the offence. On looking at those aspects in this judgment, this Court shall consider each of them singly.

Proof Of Age 18. Proof of a victim’s age is a key ingredient to prove an offence of defilement given that the penalty is dependent on the complainant’s age. Rule 4 of the Sexual Offences Rules, 2014 provides that:-“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar documents.”

19. In this case, the prosecution produced in court the complainant’s birth certificate indicating that she was born on 3/3/2009. The offence is alleged to have occurred on 1/7/2016 meaning that PW1 was 7 years and 3 months at the time of the incident. I therefore find that the first ingredient was proved.

Proof Of Penetration 20. Penetration is defined under section 2 of the Sexual Offences Act No. 3 of 2006 as:-“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;.”

21. The complainant (PW1) testified that the appellant took her to the forest, removed her stocking and panty, and inserted his penis into her vagina. She also stated that when he was done, he also penetrated her anus. The complainant’s evidence that she was defiled was corroborated by PW4’s evidence, Dr Shakko, who produced the P3 forms, discharge summary, and PRC form as exhibits. She told the court that the complainant’s hymen had tenderness and a tear at 7:00 o’clock. The complainant also had abrasions around the anus and a stitched tear at 12 o’clock. The anus also had tenderness and was painful. It was her conclusion that there was sufficient evidence of sexual abuse.

22. From the above medical evidence and coupled with the victim’s testimony, it is not in doubt that the victim had been penetrated on the material date. Despite the appellants allegation that the medical evidence was not reliable, the same was not controverted on cross-examination of the prosecution witnesses. I am therefore satisfied that the second ingredient was sufficiently proven.

Whether The Appellant Was Sufficiently Identified 23. The complainant told the court that at first she did not know her assailant but could recognize his face. PW2 testified that immediately after the complainant had informed her of the incident, she left home with the complainant’s brother to search for the assailant. She found several men arrested by members of the public and seated by the roadside, approximately a 10-minute walk from the scene of the incident. She returned home to get the complainant, who identified the appellant from the crowd.

24. In my view, the circumstances of identification in this case were favourable as the appellant was identified shortly after the incident. Furthermore, the incident occurred during the day, making it easy for the complainant to see her assailant. This court is therefore satisfied that the identification of the appellant as the assailant was positive. Lastly, the trial court did not find any reasons to doubt whether the complainant was telling the truth as she was truthful in her evidence and consistent on cross-examination. I therefore affirm the conviction.

25. On sentence, the appellant raised the ground that the sentence imposed was manifestly excessive considering the circumstances of the case. The appellant was sentenced to fifty (50) years imprisonment. It is trite that although sentencing is at the discretion of the trial court, that discretion must be exercised judiciously in accordance with the law taking into account the facts and circumstances of each case. The punishment prescribed by the law for the offence of defilement of a child of less than 11 years is life imprisonment. The sentenced imposed by the trial court was therefore lawful.

26. However, I find that the sentence for 50 years imprisonment for a first offender appears unduly severe and shatters all the hopes of the appellant for rehabilitation or having any other chance to start afresh.

27. Consequently, the appeal on the sentence succeeds. The sentence of 50 years imprisonment is hereby set aside and substituted with a sentence of twenty (20) years imprisonment effective from the date of his arrest, being 1/7/2016.

It is so ordered.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8THDAY OF DECEMBER 2023D. KAVEDZAJUDGEIn the presence of:Nyaroita for the StateAppellant presentMateli C/A