[2022] KEHC 11872 (KLR)

KB & another v Republic (Criminal Appeal EO14 & E015 of 2021 (Consolidated)) [2022] KEHC 11872 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11872 (KLR)

Republic of Kenya

In the High Court at Marsabit

Criminal Appeal EO14 & E015 of 2021 (Consolidated)

JN Njagi, J

June 8, 2022

Between

KB

1st Appellant

Boru Barako Kaiyo

2nd Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in Marsabit PM`s Court SOA Case No.05 of 2021 delivered by Hon. Mbayaki Wafula, SRM, on 18/10/2021)

Judgment

1. The two appellants were convicted for the offence of gang defilement contrary to section 10 of the Sexual Offences Act No.3 of 2006 and each was sentenced to serve 15 years imprisonment. The particulars of the offence were that on the 25th January 2020 at North Horr township within Marsabit County intentionally caused their penis to penetrate the vagina of DJ, a child aged 3 years and 9 months.

2. The appellants were aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are:1. That the learned trial magistrate erred in law and fact by failing to note that there was a grudge between the appellants and the relatives of the complaint.2. That the learned trial magistrate erred in law and fact by failing to note that a broken hymen is not proof of defilement.3. That the learned trial magistrate erred in law and fact by failing to note that key witnesses were not invited to adduce testimony against the appellants.4. That the learned trial magistrate erred in law and fact by failing to take into account the period spent in custody as envisaged in section 333(2) of the Criminal Procedure Code chapter 75 laws of Kenya.5. That the learned trial magistrate erred in both law and fact by relying on uncorroborated and contradictory evidence tendered by the prosecution witnesses.6. That the learned trial magistrate erred in both law and fact by failing to exercise prudence thus relied on hearsay rather than facts based on factual findings.7. That the learned trial magistrate failed to consider the mitigation tendered by the appellants.8. That the learned trial magistrate erred in matters of law and fact by failing to consider the defenses’ of the appellants.

3. The brief facts of the case as stated by the prosecution witnesses is that the victim herein was a three-year-old girl. She was staying with her father Pw1. That on the night of 24/25th January 2021 PW1 was sleeping with his 3 minor children outside his home. That later in the night he was woken up by a neighbour, PW2, who told him that his child had been attacked by a hyena. He woke up and found his child missing from where they were sleeping. PW2 took the child to him. The child was bleeding from her vagina. He took her to hospital.

4. PW2 on her part testified that on the material night around midnight she had taken her child out of her house to relief herself when she heard a child crying about 500 meters from her house. She went to the place. She found it was the child of a neighbour, PW1. The child was bleeding from the vagina. She screamed. Some men went to the place. They saw footsteps and followed them. She accompanied the child to hospital.

5. Issak Elema PW4 stated in his evidence that he was sleeping in the open when he heard noice from children. He and another person went to check. They found a child bleeding from her private parts. They saw footprints at the place. A small red torch was found at the place. It was identified to belong to the 1st appellant. They went in search of him. They found him sleeping outside his sister`s house. He was wearing a T-shirt that was blood stained at the back. They arrested him. He mentioned Boru, the 2nd appellant. They went and arrested him at his home. He was wearing a jeans trouser that was blood stained. They escorted the two suspects and the victim to North Horr Mission Hospital.

6. Dibo Godana PW5 stated that after the red torch was recovered she identified it to belong to the 1st appellant. That on the previous night he had been to her house while carrying the said torch.

7. The Police Officer who investigated the case, Shadrack Mbithi PW8 testified that on the material night he was at his house within North Horr Police Station when he was instructed to attend to a case of defilement at North Horr Catholic Hospital. He went to the place and found the two appellants having been handed over to Sgt Mulwa. He re-arrested them. Members of the public handed over to him a red torch P.exh 1, that was recovered at the scene and was said to belong to the 1st appellant. The 1st appellant was wearing an orange trouser, a pink T-shirt and a black under-wear, Pexh. 4(a) – (c), that were blood stained. The 2nd appellant was wearing a navy-blue jeans trouser and a black T-shirt, P.exh. 2(a) and (b), that were also blood stained. PW8 took possession of the clothes. He escorted the appellants and the victim to North Horr Police Station. He issued a P3 form to the victim.

8. PW8 escorted the victim and the appellants to Marsabit County Referral Hospital where the victim was examined by Dr. Jaldesa PW3 who found her with a tear on the labia minora on the left side measuring 1. 5cm, vaginal laceration and perineal tear extending but not through anal sphincter of the anus. The doctor formed a conclusion that there was evidence of defilement with grade 3 perenial tear. He filled a P3 form and a Post Rape Care Form to that effect, P.exh. 3 and 5 respectively. The victim was examined by a dentist, PW6 of the same hospital and her age assessed at three years and some months. The dentist produced the age assessment report as exhibit, Pexh6(a). Blood samples of the appellants and the victim were taken at the hospital.

9. The dentist PW6 also did age assessment on the appellants and estimated the age of the 1st appellant at 17 years while that of the 2nd appellant at above 18 years. Their age assessment reports were produced as exhibits. P.exh.6(b) and (c) respectively.

10. The Investigating officer PW8 took the blood-stained clothes and the blood samples taken from the appellants and the victim to the Government Analyst, Nairobi. A Government Analyst PW7 conducted a DNA profile on the items and found that the T-shirt belonging to the 1st Appellant had the DNA of both the 1st appellant and the complainant. That the navy-blue jeans belonging to the 2nd appellant had a mixture of both the 2nd appellant`s profile and that of the complainant. That the black under wear from the 1st appellant and the T-shirt from the 2nd appellant did not have blood. That DNA profile on blood stain on the 1st appellant`s T-shirt and trouser and the 2nd appellant`s jeans trouser marched the complainant`s blood sample. That the blood on the 2nd appellant`s jeans trouser matched partially the blood sample from the 2nd appellant. The Government Analyst`s report was produced as exhibit 7(b).

11. In his defence the 1st appellant stated in a sworn statement that he was not at North Horr on the day the offence is said to have been committed. That he was at Durkana. That he was arrested on the same evening that he arrived at North Horr from Durkana. That he was with his brother when he was arrested. He denied that he defiled the victim herein. He said that he does not know her.

12. The 2nd appellant stated in a sworn statement that he was arrested while at home at 5am on allegations that he had defiled a child. That it was alleged that his clothes were blood stained but he does not know how this came about. He said that he does not know the victim.

13. The 1st appellant called his brother, DW3 as his witness. DW3 testified that on the material day the 1st appellant was working at home. That he left their home at 6pm and returned at midnight. They were sleeping in the same house. The appellant went to bed. At that particular time there were shouts that a child had been attacked by a hyena. After about 20 minutes some people went to their house and arrested the 1st appellant. They said that his clothes were blood stained. He confirmed that there were blood stains on his T-shirt. The witness said that the victim is their neighbour about 100m away.

14. The 2nd appellant called a relative as a witness, DW4, who testified that he and the 2nd appellant were on the material night at home. That they slept at 8pm. They were sleeping outside their home. The appellant was sleeping about 5 meters from him. He did not hear the 2nd appellant waking up during the night. Neither did he hear any screams. That at 2 am they were woken up by a group of people who were accompanied by the 1st appellant. They arrested the 2nd appellant and took him away. He later heard that the victim herein had been defiled. He said that the victim`s home is about 1km away from their home.

Submissions– 15. The appeal was canvassed by way of written submissions of the appellants and those of the Prosecution Counsel, Mr. Allan Magero. The appellants submitted that none of the witnesses who testified in the case placed them at the scene of the crime. That though the witnesses mentioned a torch that was being linked to the 1st appellant the torch could have belonged to anyone.

16. The appellants attacked the evidence on identification and submitted that the case was not proved beyond reasonable doubt. Further that the evidence in sexual related offences requires corroboration which was lacking in this case.

17. It was submitted that the only evidence that placed them at the scene was that of the Government Analyst relating to DNA profile.

18. The appellants submitted that the age assessment report of the 1st appellant showed that he was 17 years while that of the 2nd appellant showed that he was merely 18 years. That the Investigating officer had stated that the 1st appellant was a first offender. That the trial court should have considered their mitigation and given them a lesser sentence.

19. The prosecution counsel on the other hand submitted that the victim was found naked and bleeding from the vagina. That the doctor who examined her confirmed injuries in her vagina. That the state at which the child was found by PW2 and the medical evidence adduced by the doctor were sufficient to prove penetration. The case of G.O.A. v Republic (2018)eKLR was cited in this respect.

20. The state submitted that the appellants raised defences of alibi. That it is trite law that a defence of alibi has to be raised at the earliest instance so that the prosecution is able to investigate its veracity. That when raised late in the course of the trial, it is to be considered against the weight of the evidence adduced by the prosecution and may risk raising doubt as being an afterthought. This was supported by the proposition in the case of Elias Mwenda Kiruo v Republic (2021)eKLR where the court considered the manner the alibi was raised in the case and held that:The manner in which the defence of alibi was raised by the appellant clearly suggest that it was an afterthought after realizing the burden unfolding before him. It would have been prudent for the appellant herein to have notified the prosecution at the earliest possible opportunity and more so when cross-examining the witnesses and especially the complainant who placed him at the scene as the one who committed the offence.

21. It was submitted that the trial court considered the appellants` defences and mitigation. That the trial court erred in imposing a sentence of 15 years imprisonment when section 10 of the Sexual Offences Act prescribes a mandatory sentence of not less than 15 years.

Analysis and Determination – 22. This being a first appeal, this court is guided by principles set out by the Court of Appeal that govern the hearing of appeals by a first appellate court. In the case of David Njuguna Wairimu vs Republic (2010)eKLR the Court stated that:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.

23. Similarly in the case of Okeno vs Republic (1972) EA 32 the Court set out the duties as follows:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958]EA 424. ”

24. The appellants challenged the prosecution evidence on the ground that it was contradictory. They also alleged that there were grudges between them and the relatives of the victim. The appellants however did not point out any evidence that was contradictory. I have perused the record of the lower court and I do no find any evidence that is contradictory. The appellants did not raise the issue of grudges when they were cross-examining the prosecution witnesses, neither did they raise it in their defence. In their evidence they stated that they did not know the complainant. There cannot have been a grudge with the relatives of the victim when the appellants did not know the victim.

25. The appellants argued that the prosecution evidence was not corroborated. Guidance on the issue of corroboration in sexual offence cases is to be found in the Ugandan case of Bassita v Uganda S. C. Criminal Appeal No. 35 of 1995 where the Supreme Court held that:“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim`s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim`s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”

26. The witnesses who testified in the case said that the girl was bleeding from her vagina. This was corroborated by the doctor who examined her and found her with tears in her vagina. The fact that the victim had tears on her vagina can only mean that she had been penetrated on. Penetration was therefore sufficiently proved.

27. There was no doubt from the evidence adduced before the court that the T-shirt that the 1st appellant wore when he was arrested was blood stained. So was the jeans trouser that the 2nd appellant was wearing. A DNA profile was done on the blood stains on the said clothes with blood samples of the victim and it was found that the blood on the appellants clothes matched the DNA profile of the victim. The appellants did not give an explanation on how their clothes came to be stained with the victim`s blood. It can only mean that they had come into contact with the victim herein as the victim was left bleeding from the vagina. The DNA profile thereby placed the appellants as the perpetrators of the offence. The argument by the appellants that the evidence was uncorroborated was far from the evidence adduced before the court.

28. The appellants argued that the trial magistrate did not consider their defence. However, this is far from the truth as the magistrate considered the evidence of PW1 and PW2 that the two appellants had visited their respective homes on the material night between 8 and 10pm whereby they spent some time chewing miraa together. The court also considered the defence of the 1st appellant that he was on the evening of the material night at Durkana and dismissed the evidence on the ground that the appellant did not raise the issue when he cross-examined the prosecution witnesses. The trial court therefore considered the defence evidence and dismissed it. There was actually no truth in the defences of the appellants. The 1st appellant`s witness, his brother DW3 gave evidence that the 1st appellant was working at home on the material day. That he left the home at 6pm and returned at mid night during which time there were shouts in the village. That he was arrested a few minutes after arrival. The defence that the 1st appellant was at Durkana was therefore a lie. His own brother cannot have lied against him.

29. It was apparent that the 2nd appellant`s witness, DW4, was only protecting the 2nd appellant when he does not know whether he left their compound after they slept, if his evidence were to be believed. There was no reason for PW1 and PW2 to lie that the 2nd appellant was at their homes on the evening of 24/1/2019. The trial court rightly dismissed the defences of the appellants.

30. There was credible evidence that the victim herein was 3 years old. The age assessment report of the dentist PW6 proved the age of the minor. On my own analysis of the evidence I find that the evidence adduced against the appellants was overwhelming. The prosecution did prove that the appellants gang raped the victim herein who was aged 3 years. The conviction on the appellants is thereby upheld.

Sentence – 31. The sentence for the offence of gang rape as provided by section 10 of the Sexual Offences Act is imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life. The appellants were sentenced to serve the minimum sentence of 15 years.

32. The dentist PW6 estimated the age of the 1st appellant at about 17 years on the basis that his 3rd molars had not fully erupted. That the 3rd molars of the 2nd appellant had fully erupted and he thereby concluded that he was above the age of 18 years. The age of the appellants was thereby proved.

33. A “child” under section 2 of the Children Act is defined to mean “any human being under the age of 18 years.” Section 190 (1) of the said Act provides that-No child shall be ordered to imprisonment or to be placed in a detention camp.

34. Section 191 of the said Act provides the various methods of dealing with young offenders in the following terms:“(1)In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways—(a)By discharging the offender under section 35(1) of the Penal Code (Cap. 63);(b)by discharging the offender on his entering into a recognisance, with or without sureties;(c)by making a probation order against the offender under the provisions of the Probation of Offenders Act (Cap. 64);(d)by committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;(e)if the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;(f)by ordering the offender to pay a fine, compensation or costs, or any or all of them;(g)in the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for the establishment and regulation of borstal institutions;(h)by placing the offender under the care of a qualified counsellor;(i)by ordering him to be placed in an educational institution or a vocational training programme;(j)by ordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act (Cap. 64);(k)by making a community service order; or(l)in any other lawful manner.”

35. The Court of Appeal in the case of JKK vs Republic (2013)eKLR interpreted section 191 of the Children Act to mean that where the child who has attained the age of 16 years has committed a very serious offence, the court may sentence him in any lawful manner. Said the court:“The purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender, i.e. any person below the age of 18 years while taking into account the overarching objective is the preservation of the life of the child and his best interest. A death sentence or a life imprisonment are not provided for but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. The offence committed by the appellant is very serious, an innocent life was lost, the appellant though probably a minor when he committed the offence must serve a custodial sentence so that he can be brought to bear the weight and responsibility of his omission or lack of judgment, by serving a custodial sentence. We are of the view that the appellant who is now of the age of majority cannot be released to the society before he is helped to understand the consequences of his mistakes, which can only happen after serving a custodial sentence.”

36. The 1st appellant herein was above the age of 16 years when he joined the 2nd appellant in gang raping a 3-year old child. Though he was at the time a child under the age of 18 years, I am of the considered view that the offence committed was very serious and a custodial sentence was deserved in his case. He has already attained the age of 18 years and he should continue serving the sentence meted out by the trial court. The 2nd appellant was above the age of 18 years when he committed the offence. A custodial sentence was deserved in his case.

37. The upshot is that there is no merit in the appeal by both the appellants. The conviction is thereby upheld and the sentences of 15 years’ imprisonment on each of the appellants are hereby confirmed. For clarity, the commencement date of the sentence shall be the date of arrest, i.e. on 25th January 2020.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 8TH DAY OF JUNE 2022. J.N. NJAGIJUDGEIn the presence of:Mr. Magero for RespondentAppellants:- Present in personCourt Assistant:- Peter14 days Right of Appeal.