[2022] KEHC 15412 (KLR)

Kibara v Republic (Criminal Appeal E075 of 2022) [2022] KEHC 15412 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15412 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E075 of 2022

TW Cherere, J

November 10, 2022

Between

Iram Kibara

Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence in Criminal S. O No. E002 of 2021 in the Principal Magistrate’s Court at Nkubu by Hon. J.Irura (PM) on 28. 05. 2022)

Judgment

1. Iram Kibara (appellant) was charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006 (the Act). The offence was allegedly committed in the month of October, 2019 against MK a child aged 13 years.

2. Appellant also faced 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. It was alleged that on the same day and place, he unlawfully and intentionally touched the vagina and breasts of MK a girl aged 13 years.

3. AK, the complainant stated that she was born on July 18, 2006as shown on her certificate of birth. She testified that on a date she could not recall in October, 2019, she was preparing lunch in her mother’s kitchen when appellant who had been constructed to build a cow shed for her uncle who lived in the same compound with them attacked her, covered her head with his t-shirt and defiled her right there on the kitchen floor. subsequently, she started feeling unwell and her mother gk escorted her to hospital and upon being examined was found to be pregnant and that is when she revealed that she had been defiled by appellant.

4. Seberina Kamantheri, a clinical officer examined complainant on April 20, 2020and eh found that complainant was 25 weeks pregnant. The case was reported to police on April 14, 2019. PC Kitilit arrested Appellant on January 7, 2021and handed him over to CPL Chepkoech who investigated the case and caused Appellant to be charged.

5. Appellant in his sworn defence denied the offence. He stated this case arose out of a land dispute between his family and complainant’s family. He stated as a result of the land dispute, complainant’s mother demanded KES. 200,000/- which his mother was unable to raise and they moved away to Tharaka Nithi in August 2019. He wondered why he was arrested over two years after the offence was allegedly committed yet he was available. His mother who is complainant’s aunt stated that in 2019, she left her land that she had bought next to complainant’s parents after a dispute arose concerning its ownership and went to Tharaka Nithi. She stated that complainant’s mother went to her home and demanded KES. 200,000/- and when she was unable to raise it, her son, Appellant herein was arrested onJanuary 7, 2021and charged with defilement.

6. After considering both the Prosecution and Defence cases, the learned trial magistrate found the Prosecution case proved and on May 28, 2022convicted and sentenced Appellant to serve 20 years’ imprisonment

7. Dissatisfied with both the conviction and sentence, appellant lodged the instant Appeal mainly on grounds that:i.Prosecution case was not provedii.Defence was not given due consideration.

8. This being a first appeal, the court is expected to analyze and evaluated afresh all the evidence adduced before the lower court and draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno v Republic[1972] EA 32, Pandya v Republic[1957] EA 336 and Kiilu &another v Republic[2005]1 KLR 174.

9. The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant (See CWK v Republic[2015] eKLR).

Age of complainant 10. It is trite that the age of a minor is a critical component of a defilement charge and that it is an element which must be proved by the prosecution beyond reasonable doubt. (See Kaingu Kasomo vs. Republic Criminal Appeal No. 504 of 2010).

11. Proof of the age of a victim of defilement is crucial because the prescribed sentence is dependent on the age of victim. (See Hadson Ali Mwachongo v Republic Criminal Appeal No 65 of 2015 [2016] eKLR & Alfayo Gombe Okello v Republic Cr App No 203 of 2009[2010] eKLR).

12. That Complainant was 13 years old in 2019 was proved by a certificate of birth that revealed that she was born on July 18, 2006. Penetration

13. Section 2 of the Act defines penetration to entail: -“partial or complete insertion of a genital organ of a person into the genital organ of another person.” 13. The P3 form PEXH. 1. reveals that complainant was 25 weeks pregnant when she was examined on April 20, 2020.

Appellant’s culpability 14. In the case of Stephen Nguli Mulili v Republic[2014] eKLR the Court of Appeal had this to say regarding reliance on section 124 of the Evidence Act to convict:“as a general rule of evidence embodied insection 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section makes an exception in sexual offences and provides as follows:“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” (emphasis added).

15. I have considered the defence of alibi raised byappellant and the case of R v Sukha Singh s/o Wazir Singothers(1939) 6EACA 145 cited in support thereof and I find that it was rightly rejected for the reason that whereas appellant stated that he had moved to Tharaka Nithi around the material time, complainant and her mother testified that he frequently visited his uncle who was a neighbour of the complainant’s family. Simple arithmetic shows that complainant was examined around the 6th month after the ordeal and the 25 weeks’ pregnancy corroborates her evidence that she was defiled around October, 2019. Appellant and complainant are not strangers to each other. The incident occurred in broad day light and the possibility that complainant was defiled by any other person other than the appellant is nil.

16. I have considered the holding in Maina v Republic[1970] EA, 370 vis a vis the prosecution case and from the foregoing analysis, I find as did the trial magistrate that the complainant was truthful.

17. Appellant complains that the clinical officer that first attended the complainant was not called as a witness. section 143 of Evidence Act (cap 80) Laws of Kenya provides:“143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

18. Whereas the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case (See Donald Majiwa Achilwa and 2 other v R (2009) eKLR and Bukenya &others v Uganda[1972] EA 549), the prosecution is not obliged to call a superfluity of witnesses but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt. (See Keter v Republic[2007] 1 EA 135). I find that failure to call the clinical officer that first attended the complainant was not fatal to the prosecution case.

19. I have considered sentence albeit the fact that it was not raised in the appael. I find that the extent that the Sexual Offences Act prescribes minimum mandatory sentences with no discretion to the trial court to determine the appropriate sentence to impose, falls foul of article 28 of the Constitution which provides that “Every person has inherent dignity and the right to have that dignity respected and protected”.

20. In the end, the conviction is upheld but the 20-year sentence is substituted with a 10 years’ imprisonment term from the date of arrest on January 7, 2021.

DELIVERED AT MERU THIS 10THDAY OF NOVEMBER, 2022. WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - Present in personFor the State - Ms. Mwaniki (PPC)