[2023] KEHC 24983 (KLR)

Kiplagat v Republic (Criminal Appeal E019 of 2022) [2023] KEHC 24983 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24983 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E019 of 2022

SM Mohochi, J

November 9, 2023

Between

Frankline Kibet Kiplagat

Appellant

and

Republic

Respondent

(Appeal against the sentence of 20 years imprisonment in CMCC SO No. E027 of 2021 -Kabarnet, Republic v Frankline Kibet Kiplagat, delivered by Hon Amboko, R.M. delivered on 22. 09. 2021)

Judgment

Introduction 1. The Appellant herein was charged with the offence of defilement contrary to section 8 (1) (3) of the Sexual Offence Act. The particulars thereof are the Accused “That on 16th day of December, 2020 at about 1500hrs at Kaptina Village Marigat Location in Baringo South Sub County within Baringo County, intentionally cause his penis to penetrate the Vagina of C J a child aged 15 years”

2. He pleaded not guilty to both charges, the prosecution advanced its case by calling a total of four (4) witnesses. The ruling was given and accused placed on his defence and was convicted to 20years imprisonment by the learned Magistrate prompting the Appellant to file the instant Appeal.

The Appellant’s Case 3. The Appellant proposes the following issues for determination.a.That, the prosecution side failed to produce material evidence to support the allegation of PW 1. b.That, the prosecution side shifted the burden of proof to the accused.c.There was no collaboration in the witness adduced in the law Court.d.The investigating officer failed to perform his duty to the satisfaction to the provision of the law.

4. That the prosecution side failed to produce the material evidence to support the allegation of PW 1 reliance is placed on the case of Johson Muiruri Vs Republic EKLR that;“before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a Voire Dire examination.Whether the child understands the nature of the Oath in which she is sworn evidence, maybe received, DR. If she possesses the sufficient intelligence and understands the duty of speaking that truth”.

5. That in the later events, an accused person shall not be liable to be convicted unless it is corroborated by material evidence in support there for implicating him.

6. That the Appellant scrutinized thoroughly in the witnesses adduced by PW3 who was a medical expert, he said that there was blood and white substance, but there was no material evidence that was brought before the law court to confirm these.

7. That the complainant had clothes during the incidence and the Appellant expected to have doctor had explaining or any other dirty substance sustained during the struggle. But there was nothing of sought that were brought to the court.

8. Therefore, this kind of witness cannot be relied on this highly estimated court, because it creates a lot of doubts.

9. That the prosecution side shifted the burden of proof to him, in the reference of Abanga alias Onyango VR CR. APP. No. 32 of 1990,“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests;”i.The circumstance from which an inference of guilty is sought to be drawn must be cogently and firmly established.ii.Those circumstances should be of a definite tendency unerring pointing towards the guilty of the accused.iii.The circumstances taken cumulatively, should form a chain so complete that there is no escape form the conclusion that within all human probability the crime was committed by the accused and no one else.

10. That the only witness who claims to have seen the incidence is the PW 1, a part from her, nobody else in the entire content of the proceedings tell how the incidence happened. These cannot give the court the clear picture on whether the incidence happened or not.

11. That this is a clear indication that he is being charged falsely that, the allegations were fabricated against him.

12. That, there was no corroborations in the witness adduced in the law court in the reference of Republic Vs Jagani & another (2001) KLR590, the court held that;“an appellant could only interfere with a sentence imposed by the trial court in the exercise of its discretion where such sentence is; Against legal principles or when relevant factors were not considered or irrelevant of extraneous matter considered or normally where the sentence is manifestly excessive in the circumstances of the case”.

13. That the Trial court did not consider the principles and relevant factors, because the age of the minor is the key factor in this case of Sexual Offence. But the age written on the charge sheet and the age stated by the witness is quite conflicting, so he prays that this court consider these abnormalities and give him the benefit of doubt. Even the doctor testified in the court of law was not the one who treated the complainant.

14. PW1 and PW2 stated that they went to a private dispensary for treatment and PW3 was from a public hospital. So these contradictions cannot give this court a firm base of conclusion, and this is what caused a harsh sentence to the accused.

15. That, guided by the law as discussed and authorities cited as well as our arguments and the subject's strong defence, the Appellant humbly submits that none of the charges have been established by the prosecution to the required standard of proof beyond any reasonable doubt and urge this court to find that the prosecution’s case is replete with incurable inconsistencies, contradictions and hearsay. These may be resolved in the favor of the subject herein.

16. The Appellant humbly prays that he be acquitted or be given a lesser sentence that it may be suit to him.

Respondents Case 17. The appeal is opposed, there is no defect on the charge sheet the law of evidence does not require corroboration and the medical P3 form confirmed the injury, the state submitted that it is not factually correct PW3 was the medical officer who testified.

18. The State disagrees with the appellant that the appellant has indicated that the burden of Proof is shifted to his disadvantage and the record attests to this the evidence was sufficient to meet the ingredients are the identification of Sound there was penetration and the victim's age was determined, the complainant properly identified the appellant as the person well known to her and that was sufficient.

19. A birth certificate was tendered in evidence and produced as exhibit that settled the age, that penetration was properly proved by PW3 that the evidence is sufficient and no point was the burden shifted to the appellant.

20. The state submitted that, the court does not interfere with conviction and that the sentence is appropriate in terms of the law and evidence the state says that the appeal bid is allowed under the sentence be confirmed.

21. As regards sentence, it is clear that the Court cannot hear an appeal on the severity of sentence. However, the Court can hear an appeal on sentence if it is erroneous in law. An error of law can arise, inter alia, from the manner in which a trial court exercises its discretionary jurisdiction on sentencing. If in imposing the sentence the court acted on the wrong principle of law or committed some errors of law or misdirected itself in some respect, or the exercise of discretion is plainly wrong in the sense, inter alia, that no reasonable court could exercise its discretion in such a way an appellate court can interfere with the exercise of judicial discretion on the principles stated in Mbogo v Shah [1968] EA 93. )

DIVISION - Analysis and Determination 22. The duty of the first appellate court in criminal cases was restated in the case of Charles Mwita –vs- Republic, C. A. Criminal Appeal No. 248 of 2003 (Eldoret) (unreported) where the Court of Appeal, at page 5, recalled that;“In Okeno v R [1972] E.A. 32 at page 36 the predecessor of this Court stated: - “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya –v- R [1957] EA. 336) and to the appellate court’s own decision on the evidence”.

23. Being a 1st Appeal Court I must, weigh conflicting evidence and draw conclusions, (Shantilal M. Ruwalla –v- R [1957]EA 570) it is not the function of a 1st Appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower courts findings and conclusion; 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, [1958] E.A. 424. ”

24. It is noteworthy that the Victim as per the charge sheet was aged 15 years old and in evidence she stated to be 16 years old. To me this issue was it to turnout whichever way, does not alter the sentence to be imposed, unless the Appellant wants enhancement of his sentence. The entire documentation of evidence confirms the victim to have been 16 years old and the sentence imposed is within term provided for in Section 8 (4) and as such the same cannot be termed to have been excessive.

25. I have examined the entire record, witness testimony and with regard to the alleged failure to produce material evidence, the court finds that the Appellant is attempting to determine on appeal that the evidence produced in his conviction was insufficient hence suggesting what ought to have been. This to me is akin to saying that while his conviction was sound, his sentence ought not to have been imposed owing to insufficiency of evidence! This cannot be allowed on appealing against sentence.

26. With regard to identification evidence and its need for corroboration, the victim knew very well the Appellant and described him, his mother, his sister where they reside and a unique ear piercing on the Appellant. In addition, thereto Section 124 of the Evidence Act provides;“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: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.”

27. With regard to the alleged shifting of the burden of truth, the Appellant cannot be heard to prosecute his Appeal as if it was an Appeal against conviction, the parameters of Appeal against sentence are narrow and confined to the exercise of discretion. This is upon conviction that remains uncontested

28. Sentencing is a discretion of the trial court. In Bernard Kimani Gacheru –Vs- Republic (2002) eKLR, the Court of Appeal stated that:-“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.

29. This is alive to the prime objectives of the criminal law, which is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done and that there is no straightjacket formula for sentencing an accused on proof of crime. What sentence would meet the ends of justice depends on the peculiar facts and circumstances of each case and the court must keep the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. (See Charles Ndirangu Kibue v Republic [2016] eKLR).

30. Further, the court ought to bear in mind the obligation imposed on it by the Judiciary Sentencing Policy Guidelines to consider the aggravating and mitigating circumstances and their effects on the sentence in determining the most suitable sentence.

31. In Evans v Bartlam [1937] AC 473, a decision of the House of Lords cited by Sir Clement De Lestang V.P. in Mbogo v. Shah, (supra) Lord Atkin said in part at p. 480-481:“..and while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that it will not interfere with the exercise of the judge’s discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and duty to remedy it.”

32. Lord Atkin’s dictum to the effect that the power of an appellate court to interfere with the exercise of discretion by a trial court is not limited to only consideration of the ground of error of law and can interfere on other grounds to avoid injustice, has often been cited as representing the modern thinking.

33. For the aforesaid reason the court finds the Sentence imposed by the Trial Court to be within the parameters of the law as provided and thus finds no fault in the same. This Appeal is accordingly dismissed.

34. The Sentence of Imprisonment for a term of 20 years (from 28/01/21) imposed is hereby confirmed.

It is so Ordered

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 9TH NOVEMBER 2023. MOHOCHI S.MJUDGE