[2022] KEHC 10850 (KLR)

Kipngetich v Republic (Criminal Appeal E005 of 2021) [2022] KEHC 10850 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10850 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Appeal E005 of 2021

F Gikonyo, J

May 6, 2022

FORMERLY KISII HCCRA 29 OF 2020

Between

Kevin Kipngetich

Appellant

and

Republic

Respondent

(From the conviction and sentence of Hon. D.K. Matutu (P.M) in Kilgoris No. 46 of 2018 on 13th February 2020)

Judgment

1. On 13th February 2020, the trial court convicted the appellant and sentenced him to serve 20 years’ imprisonment for defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.

2. Being dissatisfied with the said conviction and sentence he preferred an appeal as set out in his grounds of appeal:i.That he was forced to carry on the case with the witnesses without being given their statements on the right time even the P3 form of which they were only provided to him two days to his defense after making several attempts and protests.ii.That he was humiliated by the prosecutor in cross examination and submission who denied his request for enough time thus silencing him and he remained silent for he is a layman before the law.iii.That he appeared in court in chambers while on his feet the learned magistrate dropped his pen on the table and didn’t write on record his statements and questions down which make him not trust the judgment delivered.iv.That he requested to be transferred to another court for fair hearing, judgment for justice to be offered as required by the law but it was declined and thus the court proceeded this case by force.v.That the birth certificate of the victim was not provided in the court for scrutiny to feed the court with authentic medical report to prove on age assessment to warrant his conviction since he was academically unfit, his was only to listen look and give attention to date he feels victimized and stigmatized by the statements.vi.That the eye witness who claimed to have seen the act of defilement was not produced in court to testify thus the prosecutor relied on false facts from the victim’s mother, who as per her statement claimed she was only called on phone that her daughter was defiled.in every case the eye witness plays a big role in giving out guideline to the court on exactly what transpired rather than a hearsay and propaganda. upon injury because she was not present or produced as a key witness he was shut down.vii.That the medical report was shallow and shoddily prepared to determine and could not be relied upon by any court of law to warrant justice. The inner pant produced in the court was oversized and belonged to the mother’s menstruation period also the magistrate questioned the prosecution side about the issues of oversized panty but the prosecutor in his own words admitted that it may have been a slide error and confusion. That also raises the questions to the system of justice.viii.That he had stayed in the homestead of the victim’s parents for a period of one year and half as a casual labourer who takes care of their livestock. Since he was young boy from a poor family the victim’s parents agreed to pay him a monthly salary of four thousand shillings, he sends to his poor parents one thousand two hundred shillings and he used the remaining eight hundred as his upkeep for basic needs.

3. Ultimately, he urged this court to acquit the appellant for this is the appellant right to a fair trial and access to justice.

4. The matter was canvassed by way of written submissions.

Appellant’s submissions 5. The appellant submitted that PW1 was coached on her testimony because she was just 6 years old and in class one. Her evidence was consistent as she said bad manners was down to her lower parts.

6. The appellant submitted that there were inconsistencies in the evidence of PW1, PW2 and PW3. PW1 stated that the appellant washed her pant and returned later but the investigating officer on the contrary said that the pant was given to her by the victim’s mother and it had blood stains.

7. The appellant submitted that PW2 hatched a story to evade paying him the arrears of Kshs. 36,000/= owed to him since she was not present when the incident occurred.

8. The appellant submitted that the prosecution did not prove their case to the required standard.

9. The appellant submitted that he was charged with a wrong offence when the clinical officer in his report had indicated sexual assault/rape.

10. The appellant submitted that the trial magistrate did not scrutinize the evidence.

11. The appellant submitted that the sentence of 20 years’ imprisonment was manifestly oppressive and extremely harsh compared to the crime in question.

12. In the end the appellant submitted that his conviction be quashed and sentence set aside and be set at liberty. He prayed for success of his appeal.

The respondent’s submissions. 13. Duncan Ondimu, OGW, senior principal prosecution counsel submitted that this court as a first appellate court is mandated to look fresh at the evidence presented before the court so as to determine whether the appellant was properly convicted.

14. The respondent submitted that it is the duty of the prosecution to prove its case beyond reasonable doubt and where there is reasonable doubt, such doubt shall be decided in favour of the accused and a verdict of acquittal returned. He cited Section 107 (1) of the Evidence Act, Woolmington v Dpp [1935] Ac 462, Miller V Minister of Pensions [1947] 2 ALL ER 372 At 373, And Japheth Gituma Joseph & 2 Others Vs R [2016] eKLR

15. The respondent submitted that the ingredients of defilement are established in section 8(1), 8(2) of the sexual offences act and the case of Kyalo Kioko V Republic[2016] eKLR.

16. The respondent submitted that the age of the complainant was proved. No material has been placed before this court by the appellant to dispute the age of the complaint.PW1 testified that she was in class 1 and aged 6 years. PW2-the mother testified that her daughter was born in 2012 and produced a birth notification (P Exh 1) which showed the complainant was born on 26th April 2012. The respondent relied in the case of Mwalango Chichoro Mwanjembe V Republic [2016] eKLR.

17. The respondent submitted that the fact of penetration was proved to the required standards. The evidence of PW1 and PW2 on penetration was corroborated by the medical evidence produced in court by PW4.

18. The prosecution submitted that the identity of the perpetrator as the appellant was proved beyond reasonable doubt. The incident occurred during the day, the appellant was a herd’s boy at the complainant’s home and there was no room for mistaken identity. PW1 identified the appellant as the person who defiled her.

19. The respondent submitted that there is nowhere on record that the appellant complained as having not being given the necessary disclosures. The appellant cross examined the witnesses meaning that he was given adequate time to prepare and present his case. He never sought any adjournments for not being ready to proceed.

20. The respondent submitted that the appellant’s defence was considered by the trial court in its judgement. It was noted that the appellant admitted to be the herds boy at the complainant’s home and gave unsworn testimony which consisted of mere denials.

21. In conclusion, the respondent submitted that taking into account all the evidence on record adduced by the prosecution and in the circumstances of the case, the prosecution did discharge its burden. The prosecution evidence tendered in court was not in any way discredited by the defence during cross examination. They urged the court to dismiss the appellant’s appeal and enhance the sentence.

Analysis And Determination. Court’s duty 22. I should re-evaluate the evidence to establish whether the prosecution proved its case beyond reasonable doubt (Njoroge v Republic (1987) KLR, 19 & Okeno v Republic (1972) E.A, 32).

23. Upon consideration of the grounds of appeal, evidence adduced, and the rival submissions of the parties, I find the following to be the issues for determination: -i.Whether the appellant was supplied with the statements of the prosecution witnesses and all documents to be relied upon by the prosecution in the case.ii.Whether the offence was proved beyond reasonable doubt; andiii.Whether the sentence was manifestly harsh and excessive.

Right to disclosure in advance of, and reasonable access to evidence 24. A claim has been made by the appellant that his rights in Article 50(2)(j) of the Constitution were violated for, he was neither furnished with the witness statements and exhibits which the prosecution intended to rely on in the case against him; nor allowed time to prepare his defence despite repeated requests and protests to the trial court.

25. Right to fair trial, includes, the right; (i) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence (Article 50(2)(j) of the Constitution); and (ii) to have adequate time and facility to prepare a defence (Article 50(2)(c) of the Constitution).

26. The essence of disclosure in advance of evidence to the accused is to afford the accused sufficient time to prepare his defence and challenge the prosecution’s evidence. These are some of the staple criminal protections for fair trial which should be given due weight and regard in any criminal trial.

27. Were these rights violated in the manner alleged by the appellant or in any other way?

28. From the record, after the plea was taken on 8/10/2018, the trial court ordered witness statements to be supplied to the appellant. On 9/10/2018, when the matter came up for hearing the appellant indicated to the trial court that he was ready to proceed with the hearing. At no time during the hearing did the appellant state that he had not been supplied with witness statements. It is borne out of the record that he was always ready to proceed whenever the matter was scheduled for hearing. The appellant also cross examined all the prosecution witnesses.

29. In the premises, I find no evidence of violation of the right to disclosure, and facilitation to prepare defence. This ground of appeal therefore fails.

Proof beyond reasonable doubt 30. The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides:8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.8(2) “A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”

31. The specific elements of the offence defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:i.Age of the complainant;ii.Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; andiii.Positive identification of the assailant.

32. See the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013.

33. What does the evidence portend?

Age of the complainant 34. In a charge of defilement, the age of the victim is important element for:i.defilement is a sexual offence against a child; andii.age of the child has also been used as an aggravating factor for purposes of determining the sentence; the younger the child the more severe the sentence.

35. A child is defined as a person under the age of eighteen years. Is the victim herein a child?

36. PW1 testified that she was in class 1 at St. Mary’s. PW2- the mother of the victim testified that PW1 was born in 2012. She showed a birth notification which indicated the date of birth as 26/4/12. PW3 produced the birth notification as P Exh 1.

37. Notification of birth coupled with the evidence of the child victim as corroborated by the evidence of her mother is sufficient proof of age. On this, I am content to cite the case of Fappyton Mutuku Ngui vs. Republic[2012] eKLR where it was stated:... That “conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases.

38. Accordingly, I find and hold that the age of the victim was 6 years.

Penetration 39. Penetration is defined in Section 2(1) of the Sexual Offences Act as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

40. Emphasis was laid in the case of Mark Oiruri Mose v R [2013] eKLR by the Court of Appeal that:“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”

41. PW1 testified that on 5/10/2018 she was at home with another girl- Cherotich. Her mother had gone to the farm. Her father had gone to work. The appellant did tabia mbaya on her on the lower parts. The appellant removed her clothes and his clothes. She cried but the appellant closed her mouth. Her clothes were stained with blood. He then gave her other clothes to wear. He then told her to take a birth. He threatened to beat her if she told her mother. Her mother took her to the hospital and the appellant washed her pant and later returned it. She stated that the blood came from her buttocks.

42. PW2-mother to the victim. she testified that she found the two young girls crying. Cherotich told her that the appellant had beaten the victim. When she checked the victim, she was bleeding. She called her neighbour and together they inspected the girl.

43. Gideon Rono- clinical officer- testified as PW4 and produced the P3 Form, PRC form and treatment notes as P Exh 2,3 4, and 5. According to the P3 Form, PW1’s clothes were stained, PW1 was anxious and in shock. Upon examination, he found that she had scratches on her hands. Estimated time of incident was 4 hours after the incident- the same day of the assault. He also found, on the genitals; bruises and laceration, tears on the vagina opening, hymen was freshly broken and blood from the genitals. On the lab test; spermatozoa were seen. The clinical officer concluded that the child was defiled. The degree of injury was grievous harm and the weapon used was a penile shaft. Additional comment on the p3 form was that ‘the child was brutally raped/ injured.’

44. The medical evidence provided pointed and specific evidence of penetration. It corroborates the evidence of PW1 and PW2. Accordingly, I find that the evidence adduced proves that there was penetration of the child. But by whom?

Was the appellant the perpetrator? 45. The Appellant was a person known to the complainant. He was employed to herd their cattle. PW1’s evidence is that it is the appellant who caused penetration to her genital. This was corroborated by PW2- the mother of PW1 and the employer of the accused. I do not find any element of mistaken identity of the Appellant as the person who penetrated her genitalia. This was a person well known to the complainant.

46. When the victim was questioned by her mother, she was categorical that it was the appellant who had done the bad manners to her- pointing her private parts which in common parlance refer to genitalia.

47. The overall impression of the evidence by the prosecution proves beyond reasonable doubt that the appellant caused penetration of the complainant. Accordingly, I find that the elements of defilement namely, age, penetration and identification of the appellant as the perpetrator of the defilement of PW1 were proved beyond doubt. The conviction was therefore safe and properly grounded in evidence.

48. In the upshot, the appeal on conviction lacks merit and is hereby dismissed.

On sentence 49. Notably, under the Sexual Offences Act, sentence for defilement is prescribed based on the age of the victim of the sexual assault. And, although the Act does not expressly state, the manner in which the penalty is prescribed show that, the younger the victim, the more severe the sentence. Therefore, it appears to me that, age of the victim of sexual offence is an aggravating factor which the court should always consider as such in sentencing.

50. In this case, the complainant was 6 years old- which is quite below the age of 11 years. Thus, the appropriate penalty clause is Section 8(2) of the Act which provides:“A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”

51. Despite the couching of the penalty clause, the trial magistrate did not feel fettered; but exercised discretion and found 20 years’ imprisonment to be appropriate sentence in the circumstances of this case.

52. Sentencing is exercise of discretion by the trial court which should never be interfered with unless the trial court acted upon wrong principles or overlooked some material factors or took into account irrelevant factors or short of this, the sentence is illegal or is so inordinately excessive or patently lenient as to be an error of principle (See Shadrack Kipkoech Kogo - Vs - R., and Wilson Waitegei V Republic [2021] eKLR)

53. Was there anything vitiating exercise of discretion by the trial court in imposing a sentence of 20 years’ imprisonment?

54. The appellant argued that the sentence was manifestly oppressive and extreme. Of important consideration: first, the victim of the offence is a child of 6 years old. Second; the said child suffered physical injuries (see medical evidence by PW4). Third, the manner of commission of the offence was cruel and violent- violently penetrated her as evidenced by the injuries about which the clinical officer stated in the p3 form that ‘the child was brutally raped/ injured.’, and classified them as grievous harm. The appellant brutally defiled the victim. Fourth, the child cried after the assault, and it is possible the traumatic experience will linger in her life forever- and as she grows older to know exactly the violation she went through, she will live with the shame and great mental trauma caused to her by this savage act of sexual debauchery. Fifth, this is a serious offence of which extreme societal desire to get rid of society of such wickedness and sexual perversion has been expressed publicly and formally through Sexual Offences Act. See James Okumu Wasike (2020) eKLR.

55. In aggravation the appellant used an unfair advantage to secure and satisfy his sexual desires on the minor.

56. The aggravating factors weigh heavy; against the appellant.

57. The prosecution has sought enhancement of sentence without citing any specific or reasonable reason. I do note that the sentence imposed upon the Appellant is lawful and borne out proper exercise of discretion by the trial court in the circumstances of the case. The discretion was exercised judicially; took relevant factors into account. Thus, I find nothing on which to disturb the exercise of discretion. Appeal on sentence fails.

Conclusion and orders. 58. The appeal on conviction and sentence lacks merit and is dismissed. Except, however, for purposes of Section 333(2) of the Criminal Procedure Code, as he was not released on bond, the sentence shall commence from 8/10/2018 when he was first arraigned in court.

59. Orders accordingly.

60. Right of appeal explained.

DATED, SIGNED AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 6TH DAY OF MAY 2022----------------F. GIKONYO M.JUDGEIn the presence of:The AppellantOndimu for DPPKasaso - CA