[2023] KEHC 26512 (KLR)

Kimeu v Republic (Criminal Appeal E032 of 2021) [2023] KEHC 26512 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26512 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E032 of 2021

DR Kavedza, J

December 8, 2023

Between

Willy Kioko Kimeu

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence imposed by Hon. J. N. Nthunku (P.M) on 19th April 2021 in Sexual Offence No. 23 of 2020; Republic vs Willy Kioko Kimeu)

Judgment

1. The appellant was convicted and sentenced to serve 20 years imprisonment for the offence of defilement contrary to Section 8 (1) (2) of the Sexual Offences Act No. 3 of 2006. Being dissatisfied with both the conviction and the sentence, the appellant filed an appeal in which he raised 5grounds of appeal. In ground 1 to 3 the appellant contended that the prosecution did not proof their case beyond reasonable doubt. In ground 4 and 5 the appellant averred that his defence was not taken into consideration.

2. As this is the Appellant’s first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno v Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oruri Mose v R [2013] eKLR that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.

3. PW1 NM [Name Withheld] stated that she goes to school and is in class 3, she further stated that she is 10 years old and stays with her grandparents. On 19/11/2020 at around 9. 00pm she went to watch a TV programme at a neighbor’s home when she met the appellant who told her to accompany him to his place. When they got to the appellants house, he gave her some drink to take. He later told her to go home but she staggered on the way and fell. She later disclosed in the morning that the appellant usually gives her 5shs or food then tells her to undress, he also undresses then lays on her and inserts his thing for passing urine in her vagina then produces mucus like substances which he later wipes and lets her go. She was later taken to the police station then to the hospital for treatment.

4. PW2 RZ the aunt to the complainant told the court that three girls knocked on her door and when she opened she found the complainant drunk and smelling alcohol. She prepared a mixture of sugar and water then gave the complainant who regained consciousness. She later took her to the police station and later to the hospital.

5. PW3 Musa Kisyoki a passerby stated that he was heading home when he saw a group of people baying for the appellant’s blood and when he asked what the issue was he was informed what the appellant had done. He then called the chief and informed him. He then used the available motor cycle to take the complainant to the police station.

6. PW4 Joel Lenku testified that he is a member of the nyumba kumi and that on 20/11/2020 he was called by PW3 and informed that there was an incident within his vicinity. That he rushed and found a mob who informed him that the accused had defiled a child. He interrogated the child who informed him the same, he then took the appellant to the police station.

7. PW5 Tipape Saneti a medical officer attached to Loitoktok hospital testified that the examined the complainant and he noted that the hymen was broken, there were pus cells but no sperms.

8. PW6 Faith Muma testified that on 20/11/2020 she was in the office when members of the public came with the appellant claiming that he had defiled the complainant. She was allocated the file and she carried out the investigations. She produced that complainant’s age assessment report.

9. After the close of the prosecution’s case, the trial court found that the appellant had a case to answer and he was put on his defence. He gave an unsworn evidence and he did not call any witnesses. He denied ever defiling or threatening the complainant.

Analysis and Determination 10. In grounds 1, 2 and 3 of the appeal, the appellant challenged the weight of the prosecution’s evidence. He contended that the elements of the offence of defilement were not proved and his conviction was improper. In his submissions, the appellant submitted that there was no evidence tendered to show that the complainant suffered physical injuries on her genitalia. Further, that penetration was never proved.

11. From the record, the complainant narrated to court how the appellant lured her to his place then gave him alcohol before undressing her then spreading her legs and inserting his thing until he produced some whitish discharge that looks like mucus. The medical officer in her report stated that the hymen was broken and the Labias were normal. Her conclusion was that the complainant had been defiled. In addition, the age of the complainant was proved to be 10years as at 20/11/2020 when the incident happened. She also positively identified the appellant as the perpetrator of the offence since she had known him for some time. It is my finding that the elements of the offence of defilement were proved beyond reasonable doubt.

12. In ground 4 the appellant complained that his defense was disregarded and therefore the court arrived at a wrong conclusion. He submitted that the complainant’s mother had framed him for ending their relationship. In his defence he maintained that he never defiled the complainant. From the record, the trial magistrate was of the view that the appellant did not avail any evidence as proof of the affair. The same was considered and found to be unbelievable. The ground fails.

13. In ground 5, the appellant challenged the trial court decision on the premise that it failed to give reasons for denying the appellant’s alibi defence as required under section 169(1) of the criminal procedure code. In his defence, the appellant denied defiling the compliant. He did not provide any alibi defence. His defence was considered by the trial court and found to be unbelievable. The ground therefore fails.

14. On sentence, the appellant was convicted to serve 20 years imprisonment. During sentencing, the trial magistrate stated that he had considered the mitigation and the Victim Assessment report. He then proceeded to sentence the appellant to 20 years. It is trite that although sentencing is at the discretion of the trial court, that discretion must be exercised judiciously in accordance with the law taking into account the facts and circumstances of each case.

15. The punishment prescribed by the law for the offence of defilement for a child of less than 11 years is life imprisonment. Although sentences are intended, inter alia, to punish an offender for his wrongdoing, they also aim to rehabilitate offenders to renounce their criminal tendencies and become law-abiding citizens. I have no doubt that the sentence imposed by the trial court, in this case, was lawful but considering that the appellant was a first offender, I am satisfied that the sentence was manifestly excessive.

16. For the above reason, I hereby set aside the sentence of 20years imprisonment passed by the trial court and substitute it with a sentence of fifteen (15) years. The sentence shall take effect from the date of arrest.

17. It is so ordered.

JUDGEMENT SIGNED, DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023D.KAVEDZAJUDGEIn the presence of:Nyaroita for the StateAppellant presentMateli C/A