[2023] KECA 1349 (KLR)

Keter v Republic (Criminal Appeal 292 of 2018) [2023] KECA 1349 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KECA 1349 (KLR)

Republic of Kenya

In the Court of Appeal at Eldoret

Criminal Appeal 292 of 2018

F Sichale, FA Ochieng & WK Korir, JJA

November 10, 2023

Between

Nicodemus Kiplagat Keter

Appellant

and

Republic

Respondent

(An appeal against the judgment of the High Court of Kenya at Eldoret (G. K. Kimondo, J.) delivered on 13th September, 2016 in H.C.CR.A. No. 102 of 2013 Criminal Appeal 102 of 2013 )

Judgment

1. The appellant was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act.

2. The particulars of the charge were that on 17th December, 2012 within Nandi County, of the then Rift Valley Province, the appellant intentionally caused his penis to penetrate the vagina of Q.J (name withheld), a girl aged five years.

3. The appellant denied the charges and trial commenced soon thereafter. The prosecution called seven witnesses who testified as follows:

4. The complainant informed the court that she knew the appellant as Kiplagat. She narrated to the court that the appellant took her near the store, inside a house and removed her pants. The appellant then removed his penis and urinated on her.

5. PW2 was the complainant’s brother. He was 12 years old. He told the court that on the material day at about 1pm when he returned home, he was asked of the whereabouts of the complainant. Since he did not know, he went to look for her. He then saw the complainant limping. She was accompanied by the appellant, who was wearing a black shirt and jeans. The complainant informed him that the appellant had done bad manners to her. He followed the appellant to his house with the intention of locking him up. However, the appellant slapped him. PW2 ran and informed his parents. He saw the complainant’s panties, they had a whitish liquid which was also visible on the front part of the complainant’s vagina.

6. PW3 was the complainant’s mother. She informed the court that the complainant was crying when she approached home. The complainant told her that the appellant had urinated on her. She inspected the complainant and saw some sperms coming out of her vagina. She went with the complainant to her school where PW4 advised her to take the complainant to hospital. She then took the complainant to Kabiyet District Hospital. She had known the appellant for about three months, as he had been employed as a herdsman by her mother in law. She produced the complainant’s birth certificate.

7. PW5 told the court that the appellant was arrested by members of the public, about 300 meters from his place of employment and frog marched to Kabiyet police station.

8. PW6 was the clinical officer who examined the complainant. He told the court that he found a cut wound on the labia majora and a tear on the lower end of the left labia minora of the complainant. There was discharge. He formed the opinion that there was partial penetration.

9. PW7 was the investigating officer. He informed the court that he accompanied the complainant and her mother to hospital. He then recorded witness statements and collected exhibits.

10. Put to his defence, the appellant told the court that on the material day, there was a power outage. He was at the trading center until 3pm. When he went to collect milk from his employer, he was assaulted by three people who alighted from a motor cycle. A crowd gathered. He was then put on the motor cycle and taken to the police station. The police took him to hospital.

11. DW2 informed the court that she was not with the appellant at Kaplamai village. She only received a call informing her that the appellant was injured.

12. The trial court found the appellant guilty of the charges against him. He was convicted and sentenced to life imprisonment.

13. Being dissatisfied with both the conviction and the sentence, the appellant preferred an appeal at the High Court.

14. The learned Judge was of the considered view that the trial court fully complied with the procedure for taking evidence of both minors. He proceeded to hold that the distinction between a house and a store was immaterial as the complainant was only five years old and she could not describe sexual acts in a graphic manner. He observed that PW2 saw the complainant in the company of the appellant and that the complainant disclosed the name of the appellant immediately after the incident to PW2 and PW3. The learned Judge held that the identification of the appellant was beyond question; it was evidence of recognition.

15. The learned Judge held that the evidence of the complainant as regards penetration was corroborated by that of PW2 who saw a whitish substance on her parties; PW3 who saw sperms flowing from her vagina; and PW6 who examined her and concluded that there was partial penetration. He was of the view that penetration was proved beyond any reasonable doubt.

16. The learned Judge was satisfied that the complainant was five years old at the time of the offence; the birth certificate indicated that she was born on 8th February, 2007.

17. The learned Judge observed that the investigating officer should have been a little more thorough but held that the evidence of PW1, PW2, PW3 and PW6 was sufficient, and established the culpability of the appellant.

18. The learned Judge did not find the error in the amended charge sheet referring to Section 8(1)(2) of the Act to be material or prejudicial to the appellant. The error was curable under Section 382 of the Criminal Procedure Code. He found that the offence was properly framed, and the particulars were clear. The learned Judge was of the view that the court followed the correct procedure in admitting the fresh charge, as the appellant pleaded to the new charge. There was no infringement on Section 214 of the Criminal Procedure Code ; the prosecution offered to recall witness but the appellant protested that they would delay his trial.

19. The learned Judge was satisfied that the appellant was afforded a fair trial and the claim that the appellant did not follow the proceedings was never brought to the attention of the court. The appellant actively took part in the trial; cross-examined witnesses, testified in his defence and called a witness.

20. The learned Judge held that the defence mounted by the appellant was hollow and unbelievable. The burden of proof did not shift to the appellant at any point during trial. The learned Judge held that the conviction was safe and upheld the sentence.

21. In a judgment delivered on 13th September 2016, the High Court dismissed the appeal in its totality. As the appellant was dissatisfied with the decision of the High Court, he lodged an appeal before this Court.

22. The following are the grounds of appeal, as cited by the appellant;“1. That the learned Judge erred in law and fact by upholding the appellant’s conviction and sentence but failed to note that the age of the complainant was not conclusively proved.

2. That the learned Judge erred in law and fact by upholding my conviction but failed to note that the identification of the accused person did not meet the required standard.

3. That the learned Judge erred in law and fact by upholding the appellant’s conviction without considering that penetration was not conclusively proved.

4. That the learned Judge erred in law and fact when he upheld my conviction yet failed to appreciate the applicant’s defence which exonerated him from the commission of the offence.”1. Just before the appeal came up for hearing, the appellant filed supplementary grounds of appeal. He reiterated therein that penetration was not proved, and that his defence was not given consideration. The appellant also asserted that the prosecution’s case was marred with contradictions and inconsistencies. Finally, the appellant faulted the first appellate court for upholding a life sentence, which had, by its said mandatory nature been rendered unconstitutional.2. At the hearing of the appeal, on 18th July 2023, the appellant appeared in person whereas Ms. Kirenge, learned prosecution counsel appeared for the state. Parties canvassed the appeal by written submissions.3. This is a second appeal. Section 361(1) of the Criminal Procedure Code enjoins us to consider only questions of law. In the case of Karani v Republic [2010] 1 KLR 73 the court stated thus:“This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.”

26. We have carefully considered the record of appeal, the written submissions by both parties, authorities cited and the law. The issues for determination are: whether or not the age of the complainant was conclusively proved; there was sufficient evidence to prove the identity of the person who committed the offence; there was sufficient proof of penetration; the appellant’s defence was taken into consideration; and whether or not the court was justified in imposing a life sentence which is mandatory in nature.

27. According to the appellant, the fact that the complainant told the court that the assailant had “urinated” on her, was not sufficient proof of penetration.

28. Secondly, the appellant submitted that there were inconsistencies about the place where the offence was committed. He pointed out that the complainant testified about an incident inside the house; yet her brother (PW2) testified that he saw the appellant together with the complainant along a bush.

29. We have carefully re-evaluated the said evidence. We find that PW2 did not say that he saw the appellant committing the offence. By the time PW2 saw the complainant together with the appellant, the offence had already been committed. That is the reason why when questioned by the appellant about what had transpired, the complainant told him that;“Kiplagat had done bad manners to her.”

30. We further note that PW2 was prompted to ask the complainant about what had happened by virtue of the fact that the complainant was, at the said time, limping.

31. The appellant invited this Court to disbelieve the evidence of the complainant because she had said that;“He removed my clothes in the house …. He removed my inner pant. I was with Kiplagat. I did not do anything after that, I went home.”

32. The said testimony led the appellant to submit that it was not possible for a child of 5 years to be defiled and not feel anything. Perhaps it was lost on the appellant that after the complainant was defiled, she walked with a limp. Surely, the complainant could not have been limping unless the encounter with the appellant had left a mark upon her. The impact upon the complainant was so pronounced that immediately after PW2 saw her, he inquired from her about what had transpired. It was thus inaccurate for the appellant to suggest that the complainant “did not feel anything”.

33. As regards the age of the complainant, the evidence was tendered by her mother. There cannot be any more direct evidence than that of a mother, when there is a need to establish the age of her child. In this case the complainant’s mother testified that the child was 5 years old. The said evidence was corroborated by the complainant’s Birth Certificate, which indicated that she was born on 8th February 2007. Evidently, the age of the complainant was proved beyond any doubt.

34. On the issue penetration, it is noted that PW6 examined the complainant. He noted that the complainant had bruises and a cut wound on the labia majora on the left. There was also a tear on the lower end left lower labia minora.

35. PW6 testified that there was mucosal vaginal discharge which was not foul smelling. A high vaginal swab revealed a lot of pus cells, which meant that the complainant had an infection. Luckily, when the blood samples were screened, the tests for syphilis and for HIV were negative.

36. Having examined the complainant, the Clinical Officer concluded that there had been penetration, albeit partial.

37. When he was being cross-examined, PW6 said“… the injuries confirmed that she was defiled.”

38. We find that there was no doubt that the evidence tendered by the prosecution, proved that the complainant was defiled.

39. The remaining question for determination is whether or not there was sufficient evidence to prove the identity of the person who committed the offence.

40. The complainant testified that she knew the appellant and that it is he who had defiled her.

41. PW2 is a brother of the complainant. His mother sent him from home to go and search for the complainant. As he was searching, PW2 saw the complainant walking; she was limping.

42. The complainant was in the company of the appellant. And when PW2 asked the complainant what was wrong, she told him that the appellant had done bad manners to her.

43. He followed the complainant, with the aim of locking him inside his house. However, he did not manage to do so, as the appellant slapped him, causing him to run away. It was the evidence of PW2 that he had known the appellant for 2 years.

44. PW3 is the mother of the complainant. She testified that she had known the appellant for 3 months. She also said that the appellant was employed by her mother-in-law, as a herdsman.

45. PW5 testified that he was a neighbor to the family of the complainant. He had known the appellant for one month. He knew the appellant as the herdsman for the teacher whose daughter had been defiled.

46. In the light of the differences in the length of time which PW2, PW3 and PW5 had known him, the appellant submitted that this Court should resolve the contradictions and inconsistencies in his favour.

47. It was the appellant’s submission that the evidence was not cogent, credible and trustworthy.

48. We have given due consideration to the evidence, and note that the appellant did not dispute the evidence concerning the job he was doing. He was a herdsman, employed by the mother-in-law to the complainant’s mother.

49. The fact that the neighbour had known the appellant for one month, whilst the complainant’s mother had known him for 3 months is not material.

50. The differences as to the length of time when the 3 witnesses had known the appellant were not of a fundamental nature, as to impact on the substance of the prosecution case.

51. The complainant recognized the appellant as the person who defiled her. The incident took place in broad daylight.

52. Shortly after the incident, the complainant’s brother saw the appellant in the company of the complainant. Upon inquiry about what had transpired, PW2 was informed by the complainant that the appellant had defiled her.

53. We are satisfied beyond any reasonable doubt, that the appellant was properly identified as the perpetrator of the offence.

54. On the question of the sentence, the appellant submitted that the court ought not to allow itself to function as a rubber-stamp for a mandatory sentence which had been imposed by the legislature.

55. It is now settled that the legislative imposition of a mandatory sentence tends to undermine the independence of the courts, as the courts find themselves unable to hand down appropriate sentences, which were in tandem with the circumstances of the offence and of the offender.

56. The Kenya Judiciary Sentencing Policy Guidelines acknowledges that:“Whereas mandatory and minimum sentences reduce sentencing disparities, they however fetter the discretion of courts, sometimes resulting in grave injustice particularly for juvenile offenders.”

57. When handing down the sentence in this case, the learned trial Magistrate noted that Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides for a mandatory sentence of life imprisonment.

58. When the learned Judge delivered his judgment on the appellant’s appeal at the High Court, he said;“Under Section 8(2) of the Sexual Offences Act, defilement of a child of eleven years or below attracts life imprisonment. The sentence is mandatory. The complainant was five years at the time of the offence. I am unable to disturb the sentence.”

59. Both the trial court and the first appellate court held the view that they were obliged to hand down the mandatory sentence. The said courts cannot be faulted for their said decisions, as the same reflects the Kenyan jurisprudence at the material time.

60. However, subsequent to the decision by the Supreme Court in Francis Karioko Muruatetu & Another vs Republic [2017] eKLR, it is now accepted that the mandatory nature of a sentence, as prescribed by the legislature, deprives the court of the discretion that would enable the said court to pass an appropriate sentence as determined by the circumstances prevailing in the particular case.

61. Accordingly, as the appellant was sentenced to life imprisonment simply because the said sentence was mandatory, we are inclined to interfere with the sentence, in line with the current jurisprudential position prevailing in Kenya. We therefore set aside the sentence of life imprisonment.

62. The complainant was 5 years old at the time when she was defiled.Ordinarily, the tender age of a complainant constitutes an aggravating factor, when the court is handing down a sentence for the offence of defilement.

63. When the trial court was contemplating a sentence that was appropriate, it expressed the view that;“… The accused deserves to be rehabilitated.It is disheartening to see how the accused; a young citizen had decided to change the course of his life by engaging in the offence of defiling a minor.”

64. It is apparent to us that the trial court appreciated the need to have the appellant rehabilitated. Therefore, the sentence of life imprisonment was handed down only because the trial court believed that it had no option but to impose the mandatory sentence.

65. Having given due consideration to the circumstances prevailing in the case, we hereby substitute the sentence of life imprisonment with a sentence of 30 years’ imprisonment.

66. We further order that when computing the actual duration of the sentence to be served, the Prison authorities shall take into account the provisions of Section 333(2) of the Criminal Procedure Code, so that the period spent in custody, whilst the appellant was still on trial, should be accounted for as constituting part of the sentence.

DATED AND DELIVERED AT NAKURU THIS 10TH DAY OF NOVEMBER, 2023. F. SICHALE...........................JUDGE OF APPEALF. OCHIENG...........................JUDGE OF APPEALW. KORIR...........................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR