[2017] KEHC 3876 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO.71 OF 2014

KINGOO MWANIA............................APPELLANT

VERSUS

REPUBLIC.....................................RESPONDENT

(Being an appeal from the Sentence of Principal Magistrate’s Court at Makindu delivered by Honourable E. MUIRU, (Resident Magistrate) on 24TH April, 2014 in MAKINDU P.M.CR. CASE NO. 613 OF 2013)

JUDGMENT OF THE COURT

1. The Appellant herein had been charged with two counts of unnatural offence to two minors contrary to Section 162 (a) of the Penal code. He also faced two alternative counts of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No.3 of 2006. He was tried, convicted and sentenced to Twenty one (21) years imprisonment on each of the main counts and the sentences were to run concurrently. The Appellant was aggrieved by the conviction and sentence and has raised four grounds of appeal namely:-

(a) That the learned trial Magistrate erred in matters of law and fact by basing conviction on Section 162 (a) of the penal Code which by the time the offence was committed had been repealed by the Sexual Offences Act No.3 of 2006 thereby rendered the Appellants conviction and sentence unlawful.

(b) That the learned trial magistrate erred in matters of law and fact by not finding the Prosecution’s evidence tainted by material contradictions and incapable of sustaining the appellant’s conviction.

(c) That the learned trial magistrate erred in matters of law and fact by not finding that the medical evidence was insufficient to support the Prosecution’s case.

(d) That the learned trial magistrate erred in matters of law and fact by not finding that the respective ages of the Complainants were not ascertained to the required standard in law.

The Appellant now seeks that the conviction be quashed and sentence set aside.

2. The Appeal herein was canvassed by way of written submissions. It was submitted by the Appellant that he was convicted on a law that had been repealed. It was also submitted by the Appellant that the Prosecution’s evidence was full of contradictions and further that the medical evidence and age of the Complainants were not sufficiently proved. It was submitted for the Respondent that the case had been proved beyond reasonable doubt since the incidents took place during the day and the victims knew the Appellant and further that the doctor established that indeed the minors had been sodomized. The Respondent’s learned counsel submitted that the appeal be dismissed and the conviction and sentence be upheld.

3. This being a first appeal, I am obligated to re-evaluate the evidence and come to my own independent conclusion bearing in mind that I neither heard nor saw the witnesses testify (see OKENO =VS= REPUBLIC [1972] EA 32.

4. M.N (name withheld) was the Complainant in count one (PW.1) and he testified that on the material date namely 28th May, 2013 at 3 p.m. he was grazing his parents cattle at [Particulars Withheld] Village when the Appellant herein whom he knew as King’oo and who used to burn charcoal in the area accosted him and covered his mouth with a piece of cloth and pushed him to the ground and sodomized him. The minor later reported to his mother about the ordeal. He was later escorted to Sultan Hamud Police Station and hospital where he was examined and a P.3 form filled.

5. The second Complainant T. N. (name withheld) aged 14 years old testified that on 29th May, 2013 at about 3 p.m. he was grazing cattle and then fell asleep but was woken up by the Appellant who sodomized him. The minor later reported to his mother who escorted him to Makindu District Hospital where he was examined and P.3 form filled. He further testified that he had known the Appellant as he usually burns charcoal in the area.

6. PW.4 was Dr. Makali Douglas and he testified that he worked at Makindu District Hospital and had examined the two Complainants and noted bruises on the anal region. A rectal swab was conducted which revealed presence of bacteria that causes gonorrhea. He produced the two P.3 forms as exhibits.

7. PW.5 PC. Michael Kilongozi attached to Sultan Hamud Police station testified that the Complainants were presented to him on the 30/05/2013 with a complaint of having been sodomized by a person known to them. He issued P.3 forms and referred them to hospital. He testified that the Appellant was handed over to him by members of public and he charged him with the offences.

8. The Appellant was put on his defence and he tendered an unsworn statement. He stated that on the 3/06/2013 he went about his charcoal burning business when the owner of the farm and a stranger approached him. He was escorted to Sultan Hamud Police Station where he was charged. He maintained he knew nothing about the allegations.

9. I have considered the evidence adduced before the trial court as well as the submissions. I find the following issues necessary for determination:-

(1) Whether the Prosecution’s case had been proved against the Appellant beyond any reasonable doubt.

(2) Whether the Appellant had been convicted and sentenced on a non-existent offence.

10. As regards the first issue, it is noted that the two incidents took place during the day and in broad daylight and thus the victims were able to see and recognize the perpetrator. The victims who were aged 13 and 14 years stated that they had known the Appellant as one King’oo who used to burn charcoal in the area. The victims gave a vivid account of how they were sodomized by the Appellant and that they had reported to their mother about the ordeal and who escorted them to Makindu District Hospital where they were examined by Dr. Makali Douglas (PW.4) who noticed bruises on the anal region and confirmed that indeed the victims had been sodomized. The doctor did a rectal swab and noticed the presence of a bacteria which causes gonorrhea. He prescribed treatment to the minors. From the record of the proceedings the victims maintained that it was none other than the Appellant who had sodomized them on the material dates. Even though the Appellant was not tested for gonorrhea, I find the failure not fatal to the Prosecution’s case since the victims positively recognized him as the perpetrator and the sodomy was established by the doctor during the examination. The examination revealed that there was penetration of the victims’ anuses. The record of the proceedings did not reveal that the victims’ parents and Appellant had any grudges with each other so as to raise the possibility of a frame up. It was not possible therefore for the minors and their parent to just wake up one morning and proceed to lodge an allegation against the Appellant for no apparent reason. In fact the mother to the victims stated that their family moved into the area recently and had not gotten acquainted well with the rest of the villagers. Hence I find the Prosecution had proved its case against the Appellant beyond any reasonable doubt. Again the issue of age as regards offences of this nature is not material since what the Prosecution is supposed to establish is the penetration of a victim’s anus by a perpetrator. The key element here is the carnal knowledge of a person by another against the order of nature. Hence the age of the victim is immaterial. Consequently, the Appellants second, third and fourth grounds of appeal lacks merit.

11. As regards the second issue, I must agree with the Appellants contention that indeed Section 162 (a) of the Penal Code has since been repealed by the Sexual Offences Act No.3 of 2006. Indeed under Article 50(2)(n) of the Constitution of Kenya 2010, it is provided as follows:-

“An accused person shall not be convicted for an act or omission that at the time it was committed or omitted was not:-

(i) An offence in Kenya; or

(ii) A crime under International Law

12. As noted above, the offences in the main counts under Section 162 (a) of the Penal Code had already been repealed by the Sexual Offences Act No. 3 of 2006. The offences are alleged to have been committed on the 28th and 29th May, 2013 and therefore the Appellant should not have been dealt with under the repealed Section 162 (a) of the Penal Code but under the Sexual offences Act No.3 of 2006. The only offences preferred against the Appellant under the Sexual Offences Act were the alternative counts namely committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No.3 of 2006. The said Section provides thus:-

“Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten (10) years.”

13. As the Complainants had been established by the doctor to have been sodomized and since Section 162 (a) of the Penal Code had already been repealed by the Sexual Offences Act No.3 of 2006, I find the alternative counts of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act ought to have been resorted to by the trial court. It seems the trial court did not do so. I find the Appellant ought to have been convicted on each of the alternatives counts each of which attracts a minimum sentence of ten (10) years. The Appellant had been convicted and sentenced to serve twenty one (21) years imprisonment. Even though the alternative counts of committing an indecent act with a child could attract a sentence of not less than ten (10) years, the sentence imposed by the trial court could still be lawful. However, under the Provisions of Article 50(2) (p) every accused person has a right to a fair trial which includes the right to the benefit of the least severe of the prescribed punishments for an offence. If the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing, it is my considered view that the Appellant should serve the minimum sentences for the offences under the alternative counts which is ten (10) years imprisonment on each count to run concurrently.

14. In the result the appeal partly succeeds. The sentences of twenty one (21) years is set aside and substituted therefore with a sentence of ten (10) years imprisonment on each of the alternative counts which shall run concurrently from the date of conviction by the trial court.

It is so ordered.

Dated, signed and delivered at MACHAKOSthis 10th .day of JULY2017.

D. K. KEMEI

JUDGE

In the presence of:

Nicholas – Court Asst.

Abuga for Respondent

Appellant in person