[2023] KEHC 24943 (KLR)

Kiptanui v Republic (Criminal Appeal 30 of 2005) [2023] KEHC 24943 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24943 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 30 of 2005

RN Nyakundi, J

November 6, 2023

Between

William Kiptanui

Appellant

and

Republic

Respondent

Judgment

1. The appellant herein was charged with the offence of defilement of a girl contrary to section 145(1) of the Penal Code. The particulars of the offence were that on 20th December 2003, at [Particulars withheld] farm in Uasin Gishu District, Rift valley province, he unlawfully and indecently assaulted D.J, a girl under the age of fourteen years.

2. In the alternative, he was charged with the offence of indecent assault on females contrary to section 144(1) of the Penal Code. The particulars of the offence were that on 20th December 2003, at [Particulars withheld] farm in Uasin Gishu District, Rift valley province he unlawfully and indecently assaulted D.J, a girl under the age of three years by touching her private parts (vagina).

3. The accused pleaded not guilty and the matter proceeded to full hearing.

4. PW1, Dr. Joseph Embenzi, testified that on 7th January 2004, a child by the name D.J aged 3 ½ years was brought to Moi Teaching and referral Hospital by her parents, having been sent from Tarakwa police station. On examination, he found that the child’s neck was bruised with nail marks and there were scratches on her face. She had no visible injuries on the chest and the abdomen but complained of dysuria. He examined her upper limbs which were bruised at both elbows and there were minor bruises on the knees which gave the impression that she had been dragged on the ground. He testified that the offence had been committed on 25th December 2003 and the victim was examined that night. He examined the private parts of the child and the examination revealed that her private parts were swollen. His conclusion after conducting the examination was that the girl had been defiled and in the process, had also suffered physical assault. He produced the P3 form as evidence.

5. PW2, JKR, testified that she is the complainant’s mother. On the 25/01/2003 her two children, including the complainant, asked her for permission to go see the newly circumcised boys. She told them to wait for the herdsman who would escort them but, in the meantime, she directed that they should pick onions from their shamba. The girls did not return which raised her suspicion that something may be amiss and as she was preparing to go and check up on the children, she heard one of the children screaming, “STOP! STOP!” She recognised that voice to be that of TS, her 6-year-old daughter. She immediately requested the help of the children’s grandfather in establishing what could have been wrong. The grandfather came back while carrying the complainant and informed her that she had been defiled by the accused. This was confirmed by DJ herself. When she examined the child’s private parts, she found that it appeared injured with presence of dry blood. The child was taken to Burnt Forest Health Centre then MTRH where it was confirmed that she had been defiled. She also confirmed that the appellant was well known to the family as a neighbour.

6. PW3 D.J , testified that at the time of her testimony, she was four years old and a pupil in baby class at [Particulars withheld] School. She told the court that she knows the accused very well as their neighbour. On 25/12/2003 she was in the company of TS when they happened upon the appellant in their shamba. He tried to persuade them to accompany him to see the newly circumcised boys but they initially refused to go with him. They eventually went along with him, saw the newly-circumcised boys and were led to a forest where the appellant removed her clothes, ordered her to lie down on her back and did bad manners in her private parts. She felt pain when he did this and when she cried, the appellant covered her mouth using his hands. They met their grandfather immediately after the incident and informed him what had just transpired. She was taken to the hospital for treatment. Of particular interest is that when given a chance to cross-examine the witness, the accused did not ask her any questions therefore here testimony was unchallenged.

7. PW4 KB testified that he is the complainant’s grandfather and a neighbour to the accused. On the 25/12/2003 TS (his 6-year-old granddaughter) informed him that the Appellant had taken them by force to the forest. He rushed there and heard screaming. When he got to the place where the screams were coming from, he saw the Appellant running in the opposite direction. He found D.J in the place where the Appellant had run away from. She was half-dressed and bleeding from her genitalia. He carried her home and together with the mother, they took her to the nearby hospital for medical examination and treatment. He also successfully sought help from the village elder in apprehending the Appellant.

8. PW5, George Kiprotich Mutai, told the court that on 25/12/2003 at around 3:30p.m. he was notified that the appellant had defiled D.J. He advised them to take the girl to the hospital for treatment then report the matter. He began searching for the appellant and found him hiding himself in a hut used by newly-circumcised boys. He arrested him and handed him over to the police at Tarakwa Police Station.

9. PW6: PC James Omuse testified that he was the investigation officer. He said that he was satisfied that the appellant committed the crime after receiving a medical report from Burnt Forest Health Centre which showed that there had been penetration of the complainant’s genitalia.

10. The appellant was placed on his defence and opted to give an unsworn testimony. He admitted to the court that in deed he caused his genital organ to penetrate that of the complainant. Upon considering the evidence before the court and the testimonies of the witnesses, the trial court sentenced him to life imprisonment with hard labour.

11. The appellant filed this appeal seeking to set aside the conviction and the sentence. However, after the filing of this appeal, there seems to have been directions issued by the Hon. Mr. Justice M.K Ibrahim (as he was then) to the effect that the Appellant was mistaken that the sentence was of life imprisonment while in reality it was ten years imprisonment. This was in conflict with the sentence of the trial court delivered on 24th June, 2005 which pronounced life imprisonment with hard labour. In that regard, the correct position is that he was sentenced to life imprisonment.

12. Being aggrieved with the conviction and sentence, he instituted the present appeal vide a petition of appeal dated 11th July 2005 premised on the following grounds;1. That he pleaded guilty after suffering in remand for more than two years.2. That he did not commit the alleged offence3. That he received a lot of promises and inducements from both the police and the complainant that if he pleaded guilty that they will withdraw the case and forgive him.4. That being a first offender he got totally confused and was not aware of the sentence according to the offence and section.5. That he has been in custody since 2003. 6.That even though he pleaded guilty, the law is cardinal that there should be formal or documentary evidence to prove the allegation, something that the controlling magistrate did not consider.7. That he is sick and suffering from epilepsy and peptic ulcers disease and his life and health status is seriously deteriorating due to lack of medical facilities in custody.8. That he is an only son coming from a poor family and he is the breadwinner.9. That the sentence was entered on his won plea of guilty and is harsh and excessive given that he never committed the offence.

13. The parties prosecuted the appeal by way of written submissions.

Appellant’s case 14. There are no submissions by the appellant on record.

Respondent’s case 15. Learned counsel for the state, Mr. mark Mugun, filed his submissions dated 7th August 2023. He urged that the offence was committed on 25/12/2003. The law concerning defilement was section 145 of the Penal Code which stated as follows:“145(1)Any person who unlawfully and carnally knows any girl under the age of fourteen years is guilty of a felony and is liable to imprisonment with hard labour for fourteen years together with corporal punishment.”

16. There were amendments introduced by Legal Notice No 5 of 2003 (Criminal Law Amendment Act, 2003) to enhance the proposed punishment, section 19 of which amended the aforementioned section 145 of the Penal Code in the following manner:“The Penal Code is amended by repealing section 145 and replacing I with the following section-145(1)Any person who unlawfully and carnally knows any girl under the age of sixteen years is guilty of a felony and is liable to imprisonment with hard labour for life.”

17. He submitted that the difference between the original section and the amended section was twofold; first the complainant’s age was enhanced from 14 to 16 years old and secondly the punishment was enhanced from fourteen years imprisonment to life imprisonment. The commencement date of the Criminal Law (Amendment) Act 2003 was 25th July, 2003 and as such when the offence was committed on 25/12/2003, the penalty proposed by the law was liability to imprisonment with hard labour for life. Further, that under the now repealed section 145 of the Penal Code, the trial court had discretion to consider the appropriate sentence. He urged that the learned trial magistrate considered the mitigating circumstances and weighed them against the aggravating circumstances. She was not at all misled that the proposed sentence was mandatory in nature but instead factored in the mitigation.

18. Learned counsel submitted that the courts have long held that sentence is a matter that is within the purview of the trial court which an appellate court should not so easily interfere with. He cited the findings of the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR in support of this submission. He further submitted that to vitiate the sentence, the Appellant ought to have proved that any of the circumstances set out by the Court of Appeal are applicable. He has not. The sentence was therefore fully sanctioned by the law and is not severe at all for the following aggravating reasons:a.The complainant was a girl of very tender years.b.The appellant used actual violence on this small girl of tender years. This can be discerned from the scratch marks on her face as noted by the medical officer who prepared the P3 Form,c.In as much as he must have weighed more than her and he could have so easily carried her, the appellant found it necessary to drag the complainant, a small girl of very tender years, across the field to the ground where he rapaciously forever robbed her of her chastity.d.In a bid to compel the complainant to submit to his immoral demands and stop her from screaming for help, the appellant placed his hands around her neck, as if to choke her. This is evidenced by the fact that the medical officer found signs of attempted strangulation on the complainant’s neck.e.The appellant was a very close neighbour of the complainant’s family. There is a societal expectation that he would assist in bringing up this small girl of tender years. He violated that societal trust and expectation.

19. In conclusion, he submitted that it has never been in doubt that the complainant was defiled and that she was a minor. The only issue for determination was whether the sentence should be tampered with. He urged the court not to disturb the sentence.

Analysis & Determination 20. The appellant’s testimony was that he committed the offence. Having admitted the same, it follows that the only issue for determination is;1. Whether the sentence was harsh/excessive

Whether the sentence was harsh/excessive 21. The appellant committed the offence in the year 2003 when the law concerning defilement was governed by section 145 of the Penal Code. It stated as follows;145(1)Any person who unlawfully and carnally knows any girl under the age of fourteen years is guilty of a felony and is liable to imprisonment with hard labour for fourteen years together with corporal punishment.”

22. The punishment was enhanced by Legal Notice No 5 of 2003 (Criminal Law Amendment Act, 2003) to enhance the proposed punishment, section 19 of which amended the aforementioned section 145 of the Penal Code in the following manner:“The Penal Code is amended by repealing section 145 and replacing I with the following section-145(1)Any person who unlawfully and carnally knows any girl under the age of sixteen years is guilty of a felony and is liable to imprisonment with hard labour for life.”

23. The Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, the Court pronounce the circumstances under which it would be permissible to meddle with the trial court’s decision. The Court held thus:“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:i.that sentence is manifestly excessive in the circumstances of the case, orii.that the trial court overlooked some material factor, oriii.took into account, some wrong material, oriv.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.”

24. Mandatory sentences have since been declared unconstitutional. In Mombasa High Court Constitutional Petition No 97 of 2021 – Edwin Wachira and 9 others v Republic Hon. Mativo J, when declaring that courts should have unfettered discretion in sentencing held as follows;For avoidance of doubt, a mandatory minimum sentence is not per se unconstitutional. The legislature in the exercise of its legislative powers is perfectly entitled to indicate the type of the sentence which would fit the offence it creates. It has never been suggested that the sphere of judicial power is invaded when Parliament provides for a maximum or minimum penalty for offences which are duly proved in courts of law. What is decried is absence of judicial discretion to determine an appropriate sentence taking into account the individual circumstances of an accused person, depriving an accused person the right to be heard in mitigation and or depriving the court the discretion to determine an appropriate sentence.

26. However, I note that the life sentence has since been declared unconstitutional by the Court of Appeal. In Julius Kitsao Manyeso v Republic – Malindi Criminal Appeal No 12 of 2021, The court held;We note that the decisions of this Court relied on by the Appellant, namely Evans Wanjala Wanyonyi v Rep [2019] eKLR and Jared Koita Injiri v Republic Kisumu Crim. App No 93 of 2014 were decided before the Supreme Court clarified the application of its decision in Francis Karioko Muruatetu & another v Republic [2021] eKLR and limited its finding of unconstitutionality of mandatory sentences to mandatory death sentences imposed on murder convicts pursuant to section 204 of the Penal Code. This fact notwithstanding, we are of the view that the reasoning in Francis Karioko Muruatetu & another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. In addition, an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under Article 28, and we are in this respect persuaded by the reasoning of the European Court of Human Rights in Vinter and others v The United Kingdom (Application nos. 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.

27. Therefore, in upholding an unconstitutional sentence, this court will not be acting in the interests of justice. It has been discussed elsewhere in this judgement that life imprisonment denies the convict any hope of rehabilitation and re-integration into the home based communities. Prima facie it is a sentence which robs the convict of any hope to walk free from the walls of prisons to find and trace his or her right to freedom, dignity, or liberty for that matter. In a way life imprisonment makes a mockery of the sentencing principles of rehabilitation or reformation. Evaluating the power of mercy release system under Article 133 of the Constitution displays a major weakness of a system that the eligibility for pardon or commutation lies primarily with the state organ charged with responsibility of enforcement. In the premises, I am inclined to interfere with the sentence meted out by the trial court. Taking into account the age of the victim and the circumstances of the offence, period served since conviction and sentence, high chances of rehabilitation, I substitute the sentence of life with a custodial sentence of 20 years with effect from 24th June 2005. As a consequence of this, committal warrants to prison be amended accordingly.It is so ordered.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 6TH DAY NOVEMBER, 2023In the presence ofMr. Mugun for the StateAppellant Present……………………………………R.NYAKUNDIJUDGE