[2022] KEHC 13476 (KLR)

Kemei v Republic (Criminal Appeal 130 of 2018) [2022] KEHC 13476 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13476 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 130 of 2018

RN Nyakundi, J

October 5, 2022

Between

Gilbert Kipchumba Kemei

Appellant

and

Republic

Respondent

(An appeal against both conviction and sentence from the judgment of Hon. Kigen (RM) in Eldoret Criminal Case No. 6349 of 2015 delivered on 7th December, 2018)

Judgment

1. The appellant herein, Gilbert Kipchumba Kemei, was charged with the offence of gang defilement contrary to section 10 Sexual Offences Act No 3 of 2006. 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.

2. The particulars thereof are; that on the November 10, 2015 at [particulars withheld] village in Eldoret East Sub-County within Uasin Gishu County in association with another not before court, caused his genitalia organ (penis) to penetrate into the genitalia organ (vagina) of FR a girl aged 13 years.

3. He was tried and convicted by Hon E Kigen, Senior Resident Magistrate and sentenced to serve fifteen (20) years imprisonment for the offence of defilement.

4. Being dissatisfied with the said judgement, on August 27, 2021 he lodged the appeal herein setting out six (6) grounds of appeal challenging both conviction and sentence.

5. The appellant wants the appeal allowed, conviction and sentence set aside and he be set at liberty.

The Evidence 6. The prosecution called six (6) witnesses in support of the charges.

7. PW1 FR, testified that she is 13 years old having been born on February 25, 2001 and lives with her grandmother. She told the court that she knows the appellant who worked as a gardener and herds boy for their neighbour known as M. She further testified that on the material day being November 10, 2015 she had gone to the posho mill with one of her neighbours M and on their way back at about 7:00pm, they passed through a footpath that was on a maize plantation. She testified that there was moonlight but darkness had not fallen totally. She also told court that at the time, the appellant and another man called Maasai emerged and chased M and begun pulling her. She was dressed in a skirt and a short, while the appellant had a white shirt and black leather jacket whereas Maasai had a longer trouser and a black jumper. She testified that she begun screaming but they threatened to kill. She told the court Maasai held her hands while the appellant removed his clothes, removed his penis and inserted to her vagina. She told the court that it was then that her grandmother R appeared with M and on lighting the same, the appellant together with Maasai ran away. She further testified that her grandmother then picked up the accused’s jacket and slipper that were left when he fled the scene. They went home and the following day her uncle went to the appellant, whom she had identified. She told the court that on interrogation, the appellant admitted the charges and she was then taken to Iten Hospital where she was treated and the matter was reported to Iten Police Station.

8. PW2 MK, told court that PW1 is his neighbour and that they used be in the same school. He told the court that he knows the appellant who worked as a herd boy for M. On the material day he told the court that they went to the posho mill together with PW1 and on their way back at about 7:00pm the appellant emerged from the maize plantation, grabbed the PW1, drugged her to the maize planation and removed her clothes. He told the court that the appellant instructed him to leave and that’s when he rushed home and called PW1’s grandmother. He testified that the accused was in company of another person but he could not recall his name. He also told court that PW1’s grandmother had picked a delight before returning to the scene of the incident and on approaching there, the appellant ran and left behind his slippers and jacket.

9. PW3 RK, told court that PW1 is her granddaughter and that she lives with her. She told the court that she knows the appellant who worked as a herd boy for her neighbour M. She testified that on the material she had sent PW1 and PW2 at the posho mill when at about 7:00pm, PW2 came back home running and informed her that the appellant had drugged PW1 to the maize plantation. She told the court that PW2 had informed them that they had chased him away. She told the court that she then picked her delight and PW2 took her to the scene where they found PW1 and saw that the appellant was lying on PW1. She testified that she screamed and the appellant ran leaving behind his slippers and jacket. She further testified that she then assisted PW1 to her feet and they went home. She told the court that she did not see anyone else at the scene. She told the court that her son later on brought the accused to her home who was then escorted by the village elder to the police station. She also told court that at the police station they hand over the appellant’s jacket to the police and were then referred to hospital.

10. PW4 EKC, an uncle to the complainant, testified that the appellant works for their neighbour and on the material date he had gone to the centre and on returning home he found a lot of commotion. He told the court that PW3 informed him that PW1 had been defiled and also showed him the jacket and slippers recovered from the scene of the incident. The following day he went looking for the appellant and when interrogated him, he was with Maasai. He told the court that they both apologized and the appellant disputed that Maasai was at the scene of the incident with him. He further testified that he then took PW1 to hospital and the appellant was reported at Iten Police station.

11. PW5 CB, a clinician at Iten County Referral Hospital testified that he was the one who had examined the complainant and filled the p3 form. He testified that upon the examination of the complainant, both labia minora and majora were normal, presence of whitish discharge, left vagina wall had tears and the hymen was broken. He added that there was, no spermatozoa, no pus cells, no yeast cells and the that the HIV test was negative. He added that at the time of examination the complainant had taken a shower.

12. PW6 PC HK, testified that on November 11, 2015 when this case was reported Moiben Police Station it was assigned to JK who was the original investigating officer and has since been transferred to Kitui. He told the court that his colleague had issued the complainant with the P3 form and he had also recorded their respective statements. He told the court that appellant was then arrested, remanded and charged.

13. When placed to his defence the appellant gave a sworn statement and did not call any witness. He told the court that he operates a 'boda boda' and that on the material day in the morning, he was called by PW3 to take her son to Seysa Polythenic with instructions that she would pay him later. He also told the court that the following day PW3 called her and asked him to take her to hospital and she was in the company of the complainant and PW4. He testified they later went to Iten Police station and the police officers took him to Iten Hospital for examination. He was later taken to Moiben Police station and was charged the following day with defilement. He denied committing the offence.

The appellant’s submissions 14. The appellant submitted that his right to a fair trial was violated in light of the provisions of article 50 of the Constitution. His main contention was that the trial took a long period to begin and that he was forced to confess against his will. Regarding the credibility of witnesses, the appellant submitted that they were not credible as the clinical card produced in court indicates that PW1 was born on February 25, 2001 meaning that she was 15 years at the time and not 13 years as alleged. He also argued that it was PW1 and PW2 testimonies that at the scene of the incident there three (3) people whereas PW3 testified that she only saw the appellant and the complainant at the scene of the incident. The appellant also submitted that the investigations were shambolic and shoddy. It was his contention that the medical evidence was inconclusive as the findings therefore did not link him to the offence.

The Respondent’s Submissions 15. The respondent submitted that there was sufficient evidence to prove that there was penetration. This was done by way of documentary evidence and viva voce evidence given by PW5 the clinical officer that had examined the complainant. On positive identification, the respondent submitted that complainant had testified that she knew the appellant as he was a former employee of their neighbour called M. On proof that the appellant was is company of another, the respondent relied on the testimony of PW2 who testified that on the material day he was in company of the complainant when the appellant in company of another accosted the complainant. On the appellant’s defence, the respondent submitted that the appellant was given the opportunity to defend himself but he merely denied committing the offence and therefore should not be heard to complain that he wasn’t accorded the opportunity to defend himself. On the sentence meted, the respondent submitted that the appellant was sentenced to serve 20 years imprisonment. The respondent further submitted that section 10 of the Sexual Offences Act stipulates that a person convicted for the offence of gang defilement is liable to imprisonment for a term of not less than 15 years but this may be enhanced to life imprisonment. The respondent maintains that at the time of the commission of the offence the complainant was 13 years old as illustrated by the child immunisation card.

Determination 16. This being a first appeal, it is the duty of this court to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.

17. This was aptly stated in the cases ofSelle vs Associated Motor Boat Company Ltd [1968] EA 123 and [1985] EA 424where in the latter case, the court therein rendered itself as follows: -'It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…'

18. The appellant was charged with the offence of gang defilement contrary to section 10 of the Sexual Offences Act which provide as follows: -'Any person who commits the offence of rape or defilement under this act in association with another or others, or any person who with common intention is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less the fifteen years but which may be enhanced to imprisonment to life.'

19. It is worth nothing that a person may not have engaged in the sexual act of defilement but is guilty of gang rape or defilement if he was in company of another or others who commit the offence with common intention of committing the offence.

20. For gang defilement to be proved besides the above, the three ingredients of defilement being age of complainant, penetration and identification of assailant must be proved.

21. The case of Francis Omuroni v Uganda Court of Appeal; Criminal Appeal No 2 of 2000, is explicit on proof of age of the sexual victim that:'In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense.'

22. In the instant case PW1 testified that she was 13 years old at the time of the incident. The appellant contends that the complainant was 15 years as the clinical card produce in court indicates that she was born on February 25, 2001.

23. I have keenly looked at the chid immunisation card on record marked as PExh1 and the same indicates that the complainant was born on February 25, 2001. The incident herein from the charged sheet occurred on November 10, 2015. From the above it is evidence before court it is clear that the complainant was 14 years old at the time of the incident.

24. 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.'

25. PW1 testified that on the said February 11, 2018 while in the company of PW2 they had gone to the posho mill and on their way back home, the appellant in company of another person called Maasai appeared and drugged her into the maize plantation where he defiled her. She told the court that the appellant had removed her clothes and inserted his penis into her vagina while the said Maasai held her hands.

26. PW2 corroborated the evidence by PW1 when he told the court that he was in company of PW1 when the appellant in company of another man accosted her. He also told court that the appellant chased him away when he drugged the complainant into the maize plantation. PW2’s evidence is also corroborated by PW3 who testified that she had sent the complainant in company of PW2 to the posho mill when at around 7:00 pm or thereabouts when PW2 came back home running and informed her that the appellant had drugged the complainant into the maize. It was also her testimony that on arrival at the scene of the incident she saw the appellant lying on the complainant. It was also her testimony that she had a delight with her that helped to shine light at the scene.

27. The evidence of PW1, PW2 and PW3 was also corroborated by the medical evidence produced in court by PW5 who testified that he examined PW1 and noted that both labia minora and majora were normal, the was presence of whitish discharge and the left vaginal wall had tears and broken hymen. On cross-examination PW5 told the court that there was penetration.

28. The essential element of gang defilement is defilement committed in association with two or more persons. Having found that penetration was proven. I will determine whether it was the appellant who caused penetration or the party who is not before this court.

29. PW1 and PW2 have been very consistent that it was the appellant who was in the company of Maasai who accosted the complainant on the date of the incident. PW1 was categorical that it was the appellant who inserted his penis into her vagina while the said Maasai held her hands. The appellant was caught during the act by PW3. The appellant was also well known to the complainant, PW2 and PW3 as he worked as a herdsboy and gardener or their neighbour called M. The appellant also testified that he works as 'boda boda operator and was known to PW3.

30. This matter is therefore one of identification by recognition, which makes the identification of the appellant as the perpetrator of the offence safer. In my view the prosecution evidence on identification was watertight.

31. On the ground on sentence, the appellant challenged the sentence imposed by the learned magistrate on the basis that it is harsh and excessive. The appellant was sentenced to serve twenty (20) years imprisonment.

32. The Sexual Offences Act, No 3 of 2006 prescribes different punishments for victims of different ages. For victims aged 11 years or less, the punishment is imprisonment for life. For victims aged between 12 and 15 years, the punishment is imprisonment for a term not less than 20 years. For victims aged between 16 and 18 years, the punishment is imprisonment for a term not less than 15 years.

33. The victim in this case was aged 14 years at the time of the incident. The law is clear that for victims aged between 12 and 15 years, the punishment is imprisonment for a term not less than 20 years. The trial court sentenced the appellant to 20 years imprisonment. In the end I do not find a reason to disturb the same.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5TH DAY OF OCTOBER, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:Mr Mugun for DPPThe appellant