[2023] KEHC 26624 (KLR)

Kirimi v Republic (Criminal Appeal 35 of 2019) [2023] KEHC 26624 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26624 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 35 of 2019

DR Kavedza, J

December 8, 2023

Between

Dancun Mawira Kirimi

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence delivered by Hon M. Shitubi (C.M) on 4th July 2018 in Kajiado Chief Magistrates Court Sexual Offence case no. 27 of 2017 Republic vs Duncan Mawira Karimi)

Judgment

1. The appellant was charged and convicted for the offence of defilement contrary to section 8 (1) as read with 8(3) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve fifteen (20) years imprisonment. Being dissatisfied with the conviction and sentence, he filed an appeal.

2. The grounds raised are that: the trial court erred by failing to appreciate that the appellant was not informed of his right to legal representation pursuant to Article 50(2)(g)(h) of the constitution hence his right to fair trial was violated; the trial court erred in failing to appreciate that the prosecution did not discharge its duty as per the provisions of section 107 of the Evidence Act; the sentence imposed was excessive and manifestly harsh as it did not consider the circumstances and the appellant’s mitigation.

3. As this is the Appellant's first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno vs. Republic [1972] EA 32, and further in the Court of Appeal case of Mark Oruri Mose vs. R[2013] eKLR, that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

4. JW (name withheld) (Pw 1) after voir dire gave sworn evidence and told the court that she is in class 4. On 9th October 2017, she was on her way to school when she saw an ‘old man’ along the way. The man took her from the road and into the bush. He removed her trouser and underpants, unzipped his trouser, laid her on the ground and inserted his penis into her vagina. She felt pain and screamed. Just then, PKW (Pw2), whom Pw1 referred to as uncle appeared.

5. PKW (Pw 2) testified that on the material day at around 1. 30pm, he was on his way to (name withheld) shopping centre when he heard a child screaming from a trench near the road. He went and found a young man on top of the complainant. He had removed the girl’s underwear up to the knees and had also unzipped his trousers. When the man saw him, he became hostile. The two struggled and Pw2 eventually recovered a knife from the man’s jacket. Pw2 called other men who were passing by and with their help; they took him to the Chief’s office. He instructed the complainant, who was crying, to put her clothes back on and go to school. From the chief’s office, the man was taken to Kitengela police station. The child was taken to Nairobi Women Hospital and was admitted for 5 days. He confirmed that it was the appellant who he caught defiling the complainant.

6. Ann Joy Gitari (Pw3), the manager of Ebenezer Children's Home, testified that the children residing there are orphans, destitute, and mentally challenged. She told the court that the complainant, who stays at the home, is mentally challenged. On the material day, the complainant went for lunch and returned to school alone. The caretaker who had been sent to call a cyclist returned reporting defilement of the complainant. She followed complainant to school, where she found her in pain and crying. Subsequently, Pw3 found the appellant at the Chief's office. The complainant was later taken to the hospital. Pw3 presented the complainant's clinical attendance card, indicating her birthdate as 12/11/2002, making her one month shy of turning 15 years at the material time.

7. No. 243699 APC Daniel Mwavuli (Pw5), and No. 230416 APC Reuben Murangiri (Pw6), the arresting officers, both told the court that on 9/10/2017 at about 4. 00pm, there was a report on a defilement case at Sholinke. They went to the Chief’s office in Sholinke where they found the appellant who had been arrested by members of the public. The appellant was taken to Kitengela Police station while the complainant was taken to the hospital.

8. Geoffrey Wagura (Pw7), a clinical officer at Nairobi Women Hospital Kitengela and Kajiado County Hospital testified that the complainant was examined on 9/10/2017 at 7pm. Her clothes were dirty. Upon examination, there was a foul smell and a whitish discharge. The hymen was broken though there were no fresh injuries. Her cervix was inflamed. The urine test came out negative. He produced the PRC Form and P3 form in court.

9. No. 88796 P.C Alice Njanja (Pw 4) the investigating officer produced the knife that was recovered from the appellant, the complainant’s torn school uniform and trousers that she wore on the material day. She issued a P3 form. On cross-examination, she confirmed that according to the clinical card, the complainant was aged 15 years, though the doctor estimated her age to be 13 years old.

10. After the close of the prosecution's case, the trial court found that the appellant had a case to answer. In his defense he contended that the allegations arose from a dispute with Mama Kinywa and Kinywa PKW (Pw2). The appellant denied the accusations, claiming he owed money to Mama Kinywa and was not involved in any wrongdoing. He described a confrontation involving threats with a knife, leading to his detention by the Chief and subsequent involvement of the police and an ambulance. In cross-examination, he denied knowing Pw2 before the incident and argued that Pw2, who he claimed was intoxicated, framed him for personal reasons. Top of Form

Analysis and determination. 11. I have considered the submissions of both parties and note that the issue for determination is whether the prosecution proved their case to the required standard.

12. The appellant in ground one argued that his right to a fair trial, as per Article 50(2)(g)(h) of the Constitution, was violated due to the trial court's failure to inform him of the right to legal representation and legal aid if he could not afford it. Citing among others, the case of Joseph Kiema Philip vs Republic [2019] eKLR, he emphasized the constitutional rights under Article 50(2) that guarantee the right to choose and be represented by an advocate.

13. Legal representation, according to Pett v Greyhound Racing Association, (1968) 2 All E.R 545, at 549, was highlighted as crucial for a fair trial, ensuring effective participation in the criminal process. The Supreme Court inRepublic -vs- Karisa Chengo & 2 others [2017] eKLR reiterated that the right to legal representation is a fundamental element of a fair trial. The appellant pointed to Article 50(2)(h), stating that an accused is entitled to a state-assigned advocate at state expense only if substantial injustice would result. The case of David Njoroge Macharia v Republic [2011] eKLR clarified situations where legal representation at state expense is warranted, particularly in capital offences.

14. To benefit from the alleged omission by the trial court, the appellant had to demonstrate that he raised concerns about affording legal representation and the possibility of substantial injustice from the start of the trial. The court in Charles Maina Gitonga v Republic [2020] eKLR emphasized the importance of raising such concerns in the lower courts.

15. Upon scrutinizing the record, I found that the appellant never raised the issue of legal representation during the trial. The record also indicated that the appellant actively participated in the trial, cross-examining witnesses and presenting a detailed defence, suggesting an understanding of the charges and evidence. There was no evidence of incapacitation due to lack of legal representation. This ground is thus dismissed.

16. On the totality of the prosecution’s evidence, the appellant contested his identification as the alleged offender, asserting that Pw1's identification was a dock identification. He emphasized that Pw1, while describing the perpetrator as an old man, pointed to the appellant in court, a visibly young man. The appellant argued that the investigating officer should have conducted an identification parade to eliminate the possibility of error.

17. Pw1, while stating that she saw an old man on her way to school, identified the appellant in court. The trial court acknowledged the discrepancy between the description and the appellant's appearance. This court nonetheless cannot rely on the dock identification as it was emphasized in Gabriel Kamau Njoroge –vs- Republic (1982-1988) 1KAR 1134 that dock identification is generally deemed worthless unless preceded by a properly conducted parade, where a witness provides a description, and the police organize a fair identification parade.Top of Form However, the failure to conduct an identification parade does not render the case worthless. Pw2, who heard the complainant scream, caught the appellant in the act. After a struggle, Pw2 arrested the appellant and escorted him to the chief's office, positively identifying him as the perpetrator. The appellant was arrested at the scene of the crime, and there was no discrepancy in identifying him.

18. Elsewhere, the appellant argued that the age of the complainant was not proved. He submitted the complainant’s age could not be proven by the Clinical attendance card produced by Pw3 as the said document was not certified and it was only a photocopy of the original. I have perused the trial court record and noted that the appellant did not object to the production of the clinical attendance card at the trial court. His argument to its production at this point cannot stand and it is therefore dismissed. Top of Form

19. There is no dispute that the prosecution did not produce the birth certificate of the complainant. The complainant stated that she was 14 years old and in class 4. The clinical attendance card confirmed that the complainant was born on 12/11/2002, being a month short of turning 15 years old. Suffice to note that the complainant testified in court on 6/11/2017, a few days before she turned 15 years old, therefore her age as per the clinical and attendance card is consistent with her statement on age.

20. Therefore, although production of a birth certificate is important to help the court determine the correct sentence to impose, failure to produce one is not an automatic ground to acquit an accused person if age is established through other means including parents giving the age of their child, witness testimonies or other means (See Musyoki Mwakavi v Republic [2014] eKLR). From the record, the age of the complainant was therefore adequately proved within the provisions of the law. The ground of appeal of therefore fails.

21. The complainant stated that the appellant inserted his penis into her vagina, causing pain, a testimony corroborated by Pw2 who caught the appellant in the act. Medical evidence revealed the absence of the hymen (with old tears) and an inflamed cervix, though not conclusively establishing penetration in this particular instance. The law specifies that evidence of a minor victim in sexual offenses does not require corroboration (Mohamed vs. R, (2008) 1 KLR G & F 1175), allowing conviction based on uncorroborated evidence if the court is satisfied with the victim's truthfulness (Section 124 of the Evidence Act).

22. Despite the complainant's mental challenges, her evidence remained clear and consistent, with Pw2 supporting key details. The complainant maintained her testimony under cross-examination. This court, considering her credible and truthful, concludes that penetration was sufficiently proven. Consequently, I find that the evidence tendered by the prosecution in this case is adequate to establish the elements defilement, and I therefore affirm the conviction.

23. The appellant contested the sentence, arguing that the trial magistrate overlooked mitigating factors and imposed a harsh penalty. The trial court, in sentencing, took into account the appellant's status as a first offender and imposed the minimum sentence of 20 years imprisonment under section 8(3) of the Act.

24. Sentences are intended, inter alia, to punish an offender for his wrongdoing, they also aim to rehabilitate offenders to renounce their criminal tendencies and become law-abiding citizens. I am satisfied that the sentence was harsh and manifestly excessive.

25. For the above reason, I hereby set aside the sentence of twenty (20) years imposed by the trial court and substitute it with a sentence of ten (10) years imprisonment. The sentence shall take effect from the date of the appellant’s arrestIt is so ordered.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8THDAY OF DECEMBER, 2023. .................................D. KAVEDZAJUDGEIn the presence of: