[2022] KEHC 13999 (KLR)

Khaemba v Republic (Criminal Appeal 38 of 2019) [2022] KEHC 13999 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13999 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal 38 of 2019

SN Riechi, J

October 3, 2022

Between

Cleophas Juma Khaemba

Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence by Hon GP Omondi (S.R.M) in original Bungoma CMC’s Sexual Offence Case No 41/2017 delivered on 18/3/2019)

Judgment

1. The appellant was charged in the subordinate Court with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, 2006 the particulars being that on August 18, 2016 at [Particulars Withheld] Village, Kuywa Location in Bungoma Central Sub County within Bungoma County intentionally and unlawfully caused his penis to penetrate the vagina of PNW a child aged 16 years.

2. He faced an alternative count of committing an indecent act with a child contrary to Section 11(a) of the Sexual Offences Act, 2006 the facts being that on the aforesaid date and place, the appellant intentionally and unlawfully caused his penis to come into contact the vagina of PNW, a child aged 16 years.

3. The appellant denied both the main and the alternative charges and evidence was adduced as follows;-

4. PW-1 PNW stated that she attends form 3 at [Particulars Withheld]. On August 18, 2016 while visiting her brother, she met the appellant who was their neighbour. He held her hand and took her into the banana plantation and defiled her for about 20 minutes. She later missed her monthly periods and it was confirmed that she was pregnant. After the birth of the child, DNA was done.

5. PW-2, ENW stated that she noticed her daughter had changed. On inquiry, the minor told her that she was pregnant after having sex with the appellant on August 19, 2016. She took the complainant to hospital and she was confirmed to be pregnant. She knew the appellant as their neighbour.

6. PW-3, Tom BJ a clinical officer stated that he examined the minor and found her to be 6 months pregnant. He also assessed her age and found her to be 16 years. The witness produced the DNA report in evidence after the appellant indicated he had no objection to its production. The DNA report (Pexh-6b) showed a 99. 99+ chances the appellant was the father of the child.

7. The appellant was put on his defence and opted to give an unsworn statement. He stated that he was a farmer and that on May 26, 2017 while asleep, he was called at about 5. 00 am who wanted him to open his door. He refused but through the intervention of his mother, he opened and was arrested by AP Officers and taken to Chwele Police Station. He stated that he did not know the complainant and was seeing her for the first time in court.

8. After full hearing, the court found the appellant guilty and sentenced him to serve 15 years. Dissatisfied, he now prefers the instant appeal which is based on the following grounds;1. He pleaded not guilty to the charges.2. The witnesses were contradictory3. There is contradiction regarding the time when the matter was reported to police and the time the minor was examined in hospital.4. The trial magistrate failed to consider that he was a first- time offender and remorseful.5. He prays that the sentence be reviewed.6. The sentence handed down is extremely harsh and excessive.

9. The appeal was disposed of by way of written submissions. The appellant submits that the charge sheet was defective for the fact the actual place and the date of the offence were contradictory. He also states the dates are inconsistent. The appellant further submits that his constitutional rights were infringed since the matter was prolonged at the respondent’s instance for no reason and that he was not represented by counsel.

10. He submits that crucial witnesses were not called to testify; government analyst, the arresting officer and the investigating officer who could have given adverse evidence. That such omission is fatal to his conviction.

11. It is submitted that the trial court failed to address the provisions of Section 211 of the Criminal Procedure Code. He challenges the admissibility of the DNA report which he asserts was not produced by the maker.

12. On sentence, he submits that the same is harsh.

13. On its part the respondent submits that the mere fact the exact place where the offence occurred does not qualify to be a defect since from the contents of the charge sheet, the appellant could understand the offence he was charged with.

14. On the issue of failure to accord the appellant legal representation, counsel submits that the court is obligated to provide legal representation if substantial injustice would occur. In the instant case, the appellant ably cross-examined the witnesses so that it cannot be said that he suffered substantial injustice. The case of Karisa Chengo & 2 others Vs R Criminal Appeal No’s 44,45 & 76 of 2014 has been cited.

15. On the failure to call the government analyst, counsel submits that the report was supplied to the appellant who indicated that he had no objection to its production. That the appellant cannot now say failure to call the witness was fatal.

16. Counsel submits under Section 124 of the Evidence Act; the court is permitted to convict on the basis of the evidence of only the victim if the court is satisfied that the witness is truthful.

17. On the sentence, counsel submits that the sentence handed down was commensurate with the statute and is not harsh or excessive in the circumstances.

18. This is a first appeal and the court’s duty is as was espoused in David Njuguna Wairimu Vs Republic(2010) eKLR where the court held;….. 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 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 decision.

19. It is now trite law that for the offence of defilement to be proved, the following ingredients have to be established; age of the complainant, penetration and the identity of the perpetrator.

20. On the issue of age, the mother PW-2 stated that her daughter was 16 years at the time of the incident. Further proof on this came by way of age assessment report and birth certificate produced as Pexh 4 and 5 respectively. The birth certificate showed that the minor was born on May 18, 2001 showing that in the year 2016, the minor was approximately 15 years of age.

21. On the totality of the evidence on record, I am satisfied that the minor’s age was proved to the required standards.

22. On the aspect of penetration, the minor stated that when she met the appellant, he held her hand and pulled her to a banana plantation. He defiled her and left. It also came out clearly that the minor became pregnant from the ordeal.

23. To corroborate the fact, a child was born and the DNA report indicated 99. 99+ percent chance of Cleophas Juma Khaemba, the appellant herein being the father. Even though the report was not produced by the author, I find that the court accorded him an opportunity to air his reservations on production and he indicated he had no objection. The court was therefore proper in adopting and considering the report.

24. I therefore find that this limb was adequately proved.

25. The appellant’s identity is not in dispute here. I have come to the conclusion that the appellant was known to the minor. She indicated that the appellant was a neighbour.

26. Lastly, on the issue of the sentence meted out, Section 89(4) of the Sexual Offences Act states;"A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years."

27. The trial magistrate handed down a 15-year prison term as provided by statute. I also note that the trial court before handing down the sentence called for and considered the Probation Officer’s Report before sentencing.

28. Taking the matter into consideration, I find the appeal lacking in merit and is hereby dismissed.

DATED AT BUNGOMA THIS 3RD DAY OF OCTOBER, 2022. S.N. RIECHIJUDGE