[2022] KEHC 15037 (KLR)

Kimutai v Republic (Criminal Appeal 179 of 2019) [2022] KEHC 15037 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15037 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 179 of 2019

RN Nyakundi, J

November 9, 2022

Between

Clinton Chebonich Kimutai

Appellant

and

Republic

Respondent

(Being an appeal against both conviction and sentence from the judgment of Hon. Kutwa (PM) in Criminal Case No. 127 of 2014 at Iten dated 12th November, 2019)

Judgment

Coram:Hon. Justice R. NyakundiMr Mugun for the state 1. The appellant was convicted of the offence of defilement contrary to section8(1) as read together with section 8(3) of the Sexual Offences Act. The particulars of the offence are that on the 27th day of January 2014 at [Particulars Withheld] Village, Arror location within Elgeyo Marakwet county the accused intentionally and unlawfully committed an act which caused penetration by use of his genital organ namely penis into the genital organ of MJC, a girl aged 16 years old. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence are that on the 27th day of January 2014 at [Particulars Withheld] Village, Arror location within Elgeyo Marakwet county the accused committed an indecent act with a child, MJC by causing his genital organ to come into contact with the genital organ of the said girl.

2. The prosecution called 4 witnesses to prove its case.

3. PW1, the complainant testified that she knew the accused as a resident of her village. On the material date, as she was washing clothes by the river, the appellant approached her and removed a knife and told her she would marry him and if she refused he would kill her. They sat there until 9pm and he later took her to a house where there were 4 men he claimed to be his brothers. After they gave her food he later said they were going to Mosop and after walking for 1 and a half hours they reached a big stone at midnight where he had sexual intercourse. She was detained there with the other men who came in the morning and they stayed there the whole day. She was later found by people who were searching for her and taken to the Arror police station. She was later taken to Arror hospital and then to Mogil Police station. She recorded her statement.

4. PW2, BJ stated that she was born on 30th April 1999 and produced her birth certificate in court. On the material date her daughter went missing and after conducting a search they found her with the brothers to the accused. She escorted her to the police station and to the hospital for medical examination.

5. PW3, Abraham Kipchumba, a clinical officer from Mogil health centre, testified that he examined the complainant and filled a P3 form. He examined her vagina and the outside area was normal and the hymen was broken. White discharge was present and upon conducting a swab they found sperm cells. He produced the P3 form as evidence.

6. PW4, PC Douglas Cherono, conducted his investigations and testified that he arrested the accused and took him to hospital for tests. He confirmed that the complainant was defiled and he rearrested the accused. He produced her birth certificate in court as proof that the complainant was 14 years of age.

7. The accused was put on his defence and gave an unsworn statement. He testified that on 27th January 2014 he had left home to go see his father at 9am. He met two people on the way and when they were talking another person came and asked him where his brother was. Two ladies also came including the complainants’ mother who alleged that he had defiled her daughter. He was then taken to the police station. He maintained that he did not defile the complainant.

8. Upon consideration of all the evidence, testimonies and submissions, the trial court found him guilty of the main charge and sentenced him to 15 years’ imprisonment.

9. Being dissatisfied with the decision of the trial court, the appellant filed the present appeal vide a Petition of appeal premised on the following grounds;1. That the trial magistrate erred by convicting and sentencing the appellant without seeing that his right to a fair trial under article 25(c), 47(1), 49(1)(f), 50(2)(e), 159(2)(b) of the Constitution of Kenya, section 33 and 108 of the CPC were violated.2. On failing to recite the provisions of section 200(3) of the CPC as required by the law.3. That the trial court grossly convicted the appellant on prosecution evidence which was inconsistent, contradictory and incredible to have sustained a conviction in a court of law.4. On the fact that the charge sheet was defective, shoddy investigation and uncalled witnesses (Doctor) showed the case was not proved beyond reasonable doubt.5. That the trial magistrate dismissed (my) defence evidence without consideration alongside the prosecution’s evidence in violation of section 196(1) of the Criminal Procedure Code.

Appellant’s Case 10. The appellant contended that he was arrested on 27th January 2014 and was produced in court two days later, a delay which was not explained and was in violation of article 49(1)(f) of the Constitution and section 108 of the Criminal Procedure Code. The trial took five years to reach its finality which was against the provisions of articles 50(2)(e) and 159(2)(b) of the Constitution 2010.

11. The appellant submitted that the case was part heard and was taken over by Hon Nyaberi who read the provisions of section 200(3) of the CPC to the appellant and presumed that he understood the requirements of that section without noting that the appellant had suffered psychologically on the delay the case had taken. He submitted that when Hon. C.A Kutwa took over the matter there was no recital of section 200(3) of the CPC and it is therefore evident that the evidence of PW1-3 could not have been used by Hon Kutwa because he did not receive and see the witnesses demeanour who testified in the course of the trial.

12. The appellant submitted that the charge sheet was defective as it stated the age of the complainant as 16 years old yet she testified that she was 15 years old. The investigating officer testified that she was 14 years old yet the p3 form stated that she was 16 years old. He submitted that section 8(4) of the sexual offences act spells out the punishment in relation to a child aged 16 years to 18 years old. He contended that MFI-1 could not have been used by the prosecution and the trial magistrate to prove the age of PW1.

13The appellant’s case is that sections 134 and 147 of the CPC stipulates the rules of framing charge sheets. He also cited various authorities including Simeon Wanjala vs Rep CRA no. 59(2011), Alfayo Gombe Okello vs Rep (2010) eKLR among others to buttress his submission that mere words to prove age do not suffice. He contended that the prosecution forged the document vide page 5 to prove the age of the complainant. He maintained that the charge was defective and could not be saved. Further, he stated that the trial magistrate failed in law when convicting him by not specifying the section he was convicted under in her judgment.

14. The appellant submitted that the evidence tabled in court was full of inconsistencies, hearsay and contradictions. There were aspects of the testimonies that revealed conspired facts. He faulted the evidence pf the medical officer, PW3 on the broken hymen and submitted that the P3 form was full of errors. He maintained that the age of the deceased was not proved and that the prosecution used a forged birth certificate to procure a conviction. He maintained that the prosecution did not prove its case to the required standards and asked that the appeal be allowed.

Respondent’s Case 15. The respondent submitted that the P3 Form produced as Exh. 5 shows that the complainant was 16 years old at the time of medical examination. The complainant herself testified, she is captured at page 25 paragraph 15, stating that she was 15 years old. The Prosecution produced as Exhibit 1, the complainant’s birth certificate. It captures her date of birth as 30/04/ 1999. When the birth certificate was produced, the accused had no qualms with the production. He did not challenge her age in cross-examination and when she was brought to court for further cross-examination. Therefore, it is safe to state that when the offence was committed on 27/01/2014, she was 10 months’ shy of her 15th birthday. Be that as it may, despite the fact that the Republic successfully made an oral application to amend the charge sheet to reflect the complainant’s age as 15 years old, there was no corresponding application to amend the charge sheet and reflect the proper charge under section 8(3) of the Sexual Offences Act. The Appellant still remained charged and was convicted under section 8(1) and 8(4) of the Sexual Offences Act which attracts a lesser sentence.

16The prosecution relied on medical and documentary evidence to prove that there was penetration. PW3, the clinical officer, produced the P3 Form that he prepared after examining and treating the complainant. On page 40 paragraph 21-23, he testified that he found the hymen was broken and that there was a whitish discharge. Sperm cells were also found next to the cervix. All this is suggestive of the fact that the complainant was recently exposed to a sexual encounter.

17. The Appellant was familiar to the complainant and her family. They all hailed from the same village. On page 24 paragraph 12-14, the complainant testified that he knew the Appellant by his name and knew him as a village drunk. This is corroborated by the testimony of PW2, the complainant’s mother on page 35 paragraphs 9-10. This makes the identification of the Appellant more of recognition than identification of a stranger.

18. The respondent submitted that whereas it is true that the trial began with Hon. Ndombi who heard the testimony of 3 witnesses before she recused herself on 03/01/2015 as captured on page 51 paragraph 22-24. When Hon Nyaberi- P.M took over the matter, the record of appeal on page 52 paragraph 8-11 captures the court complying with the requirements of section 200 CPC to which the accused stated that he wanted the matter to proceed. Hon. Nyaberi did not take the testimony of any witness and on page 73 paragraph 26, Hon. Kutwa-SPM was informed that the matter was part heard. The accused is recorded as having said, “we can proceed from where it had reached.” Clearly the Appellant was made aware of the implications of section 200 CPC otherwise why would he be applying for the matter to proceed? It is not true that the trial court did not comply with section 200 CPC as alleged.

19. The accused was sentenced to 15 years imprisonment. Section 8(4) of the Penal Code prescribes a minimum sentence of 15 years imprisonment for anyone convicted on defiling a girl between the ages of 16-18. This means that the appellant could and should have been convicted under section 8(3) which prescribes a stiffer sentence of a minimum of 20 years imprisonment. He is presently benefitting from that inadvertence and shouldn’t be heard complaining that the sentence is too stiff.

20. The respondent submitted that the conviction was thus safe and the sentence meted out was the minimum and thus lawful. He urged that the appeal be dismissed.

Analysis and Determination 21. Before determining the appeal, it is imperative to state that this court being a first appellate court is alive to and takes into account the principles laid down in the case of Okeno vs. Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala v. R [1957] E.A. 570. It is not the junction of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see (Peters V Sunday Post 1978) E.A. 424. ”

22. The following issues arise for determination in the present appeal.1. Whether the prosecution proved its case to the required standard2. Whether the trial court failed to comply with section 200 of the Criminal Procedure Code3. Whether the sentence was harsh/excessive

Whether the Prosecution Proved Its Case to the Required Standard 23. The ingredients of the offence of defilement were stated in the case of George Opondo Olunga v Republic [2016] eKLR, as; identification or recognition of the offender, penetration and the age of the victim.

Identification 24. The appellant was known to the complainant as they all hailed from the same village. The complainant’s mother corroborated the evidence of the complainant as to recognition of the accused. In the case of Anjononi & Others vs Republic [1976-80] 1 KLR 1566. The court held thus:“…Recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported).”

25. The Court of Appeal, in the case of Wamunga v Republic(1989) KLR 426 stated as follows with regard to recognition;“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”

26. I find that this element of defilement was fulfilled.

Penetration 27. The testimony of PW3, the clinical officer was that he found the hymen of the complainant was broken and there was a whitish discharge. He confirmed that this was proof of the complainant having been exposed to a sexual encounter and he produced the P3 form as evidence. The same corroborated the evidence of the complainant and proved that there was penetration.

Whether there was Compliance With Section 200 of the Criminal Procedure Code 28. Section 200(3) of the Criminal Procedure Codeprovides;(3)Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.

29. I have perused the record of the court and on 12th July 2019, the appellant stated that the matter could proceed from where they had reached upon the taking over of the matter by Hon. C.A Kutwa. However, when Hon. Nyaberi took over the matter in 2015, the record shows that there was compliance with section 200 and therefore at the time the appellant agreed that the matter proceed from where they had reached in 2019. Therefore, it is apparent that section 200(3) had been complied with and the appellant was well aware of his rights as he asked that the matter proceed from where it had reached.

30. The scheme of our criminal procedure code under section 200(3) is such that it provides an opportunity for an accused person to exercise his right for the very purpose of fair trial rights espoused in article 50 of the constitution. Therefore, the authority of the state constitutes the duty to recall certain witnesses for purposes of cross-examination by the defence. The framers of the statute believed that certain fair trial rights shall be permitted to operate in favour of the accused person until final judgment is delivered by the session Magistrate or Judge. The interrelationship of various fundamental rights guaranteed under article 50 and chapter 4 of the constitution has been a matter of great deal of judicial discourse in our jurisprudence. The just, fair and reasonable standards of section 200 (3) of the criminal procedure code needs no elaboration in so as this appeal is concerned. On scrutiny of the record I find no prejudice nor injustice occasioned to the appellant.

Age of the Complainant/Whether the sentence was excessive 31. The birth certificate produced in court stated that the complainant was born on 30th April 1999. The offence was committed on 27th January 2014 therefore the complainant was 10 months’ shy of her 15th birthday. The import of this is that the appellant was to be charged under section 8(3) of the Sexual Offences Act which provides as follows;A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

32. The appellant was charged under section 8(1) as read with section 8(4) of the sexual offences act. Section 8(4) of the sexual offences act provides the punishment for the offence of defilement as follows;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

32. The appellant was sentenced under a less punitive section of the act. That notwithstanding, as the complainant was less than 15 years of age, he should have been sentenced under section 8(3) of the act which prescribes a mandatory minimum sentence of twenty years.

33. In light of the new developments on Mandatory Minimum sentences in Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR), declaring mandatory sentences as unconstitutional, and the recent holding in the Court of Appeal, sitting at Nyeri, in the decision of Criminal Appeal No. 84 of 2015 (Nyeri) Joshua Gichuki Mwangi vs Republic (2022), this court is required to consider the circumstances and the mitigation in the case before making a decision on the sentence. In Joshua Gichuki Mwangi vs R (supra) the Court of Appeal pronounced itself as follows;We acknowledge the power of the Legislature to enact laws as enshrined in the Constitution. However, the imposition of mandatory sentences by the Legislature conflicts with the principle of separation of powers, in view of the fact that the legislature cannot arrogate itself the power to determine what constitutes appropriate sentences for specific cases yet it does not adjudicate particular cases hence cannot appreciate the intricacies faced by judges in their mandate to dispense justice. Circumstances and facts of cases are as diverse as the various cases and merely charging them under a particular provision of laws does not homogenize them and justify a general sentence.This being a judicial function, it is impermissible for the Legislature to eliminate judicial discretion and seek to compel judges to mete out sentences that in some instances may be grossly disproportionate to what would otherwise be an appropriate sentence.This goes against the independence of the Judiciary as enshrined in Article 160 of the Constitution. Further, the Judiciary has a mandate under Article 159 (2) (a) and (e) of the Constitution to exercise judicial authority in a manner that justice shall be done to all and to protect the purpose and principles of the Constitution. This includes the provision of Article 25 which provides that the right to a fair trial is among the bill of rights that shall not be limited.

34. The appellant, in his mitigation before this court, submitted that he is the elder son in his family as his father was killed in 2007 and he was supporting his siblings. He married in 2015 and has two children and he is a peasant farmer. After the conviction and sentence his wife left home and left the children with his mother who has been unwell since 2020. He sought to be released so that he can go and help his children with responsibilities.

35. I have considered the mitigation offered by the appellant. I have also taken into consideration aggravating circumstances including that the victim was a minor and the actions of the appellant will impact her life irreversibly. It is my strong view that the sentence was commensurate to the offence, bordering on being lenient. I also note that the age of the minor as proved would have occasioned the appellant to be sentenced to a minimum of twenty years yet he was sentenced to 15 years instead.

36. The fundamental purpose of the sexual offences act as set out in the various provisions is to contribute along with crime prevention initiatives to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions. It is trite that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. What Judges and Magistrates are called upon to apply are the fundamental principles when pursuing a sentencing verdict. What are those key principles;a.Denunciationb.Deterrencec.Separationd.Rehabilitatione.reparationf.offender-victim-community restoration are those key principles;g.the principle that sentences should be increased or reduced in accordance with the existence of aggravating and mitigating circumstancesh.the principle of parityi.the principle of totalityj.the principle of imposing the least restrictive appropriate sanctionk.the principle of restraint in the use of imprisonment, with particular attention to the circumstances of Aboriginal offenders.

37. The power to decide upon the justness of a sentence itself in the various cases tried in our courts is quite another thing. I see that power springs from a due process principle such as articulated in Muruatetu one of 2017. The principles of proportionality, parity, deterrence etc as spelt out from the language of the sentencing judiciary policy guideline provide safeguards that are handmaids to achieve equal justice in sentencing. I need also to emphasize that lack of aligning the substance of aggravating and mitigation factors in every individual case sometimes makes the various custodial sentences a fallacy. There is value in trying to prioritise sentencing objectives connected with the situational analysis. The principle in article 50(2((p)(q) of the constitution makes express implicit on review jurisdiction. In my view the development of presumptive jurisprudence in our country on minimum and mandatory sentences as fashioned is aimed at achieving consistence and fairness. However, make no mistake minimum sentences remain as to their nature and composition legal until otherwise the discretion exercised of the so called aggravating and mitigating factors establishes departure from the minimum sentence. The criticism by the appellant is overstated in so far as the fifteen years custodial sentence is concerned. To be clear I take judicial nature of the offence, the background and systematic factors on aggravation and mitigation that provide a guideline of necessity that there are no compelling reasons to review save for non-compliance by the trial court to credit the pre-trial period spent in custody by the appellant. The statutory validity of the sentence is hereby upheld with a condition precedent provided for under section 333(2) of the criminal procedure code on crediting of the period of five years spent in remand custody. Therefore, I have no hesitation to review the fifteen years custodial sentence and have it substituted with an equivalent sentence of ten (10) years with effect from the date of judgment. As a consequence, the appeal on conviction upheld with a review of the custodial sentence in compliance with section 333(2) of the criminal procedure code.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 9TH DAY OF NOVEMBER, 2022. ............................R. NYAKUNDIJUDGE