[2023] KEHC 26827 (KLR)

KM v Republic (Criminal Appeal E027 of 2022) [2023] KEHC 26827 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26827 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal E027 of 2022

PJO Otieno, J

November 10, 2023

Between

KM

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentencing of Hon. J.R. Ndururi PM in Kakamega CMCC SO Case No. 120 of 2021 dated 29th March, 2022)

Judgment

1. The Appellant was arraigned before the Principal Magistrate at Kakamega in Sexual Offences Case No. 120 of 2021 charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 11th day of July, 2021 at around 2100hrs in Kakamega East Sub County, the Appellant being a male person caused his penis to penetrate the vagina of RA, a child aged 12 years who to his knowledge was his daughter.

2. In the alternative, the Appellant was charged with the offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 1th day of July, 2021 at around 2100hrs in Kakamega East Sub County, the Appellant intentionally touched the vagina of RA, a child aged 12 years with his penis.

3. The Appellant denied the charge and to prove its case the prosecution called a total of five (5) witnesses.

4. Owing to her apparent age of tender years, voire dire examination was conducted on PW1 and upon the court being satisfied on her ability to tell the truth she testified and gave unsworn statement of being ten years old and a grade one student at [Particulars Withheld] Primary School. She stated that she knew the appellant who was his father and whom she lived with alone ever since she was small. She detailed how it all started when she was in nursery school when her father would undress her and put his urinating thing in her urinating thing. She stated that their house had two rooms, a living room and a cooking area, and that he would do the thing in the room where he sleeps at night on a mattress and then he would ask her not to tell anyone and that he did it so many times and each time he did it she would feel pain. She explained that she used to sleep in the cooking area. She further said that she did not tell anyone until her teacher, Evelyne, asked her what had been done to her and she told her what her father had been doing to her. She was then taken to the police station and to the hospital afterwards. She stated she had previously told her grandmother what the Appellant had been doing to her but she did not say anything.

5. On cross examination she stated that she had been staying with her father since her mother left and that her other siblings only come and leave.

6. PW2, a voluntary child officer testified that on 13/7/2021 at about 1 PM she received a call from the sub county children officer who asked her to go to the education office where a defilement case had been reported from [Particulars Withheld] Primary School. She went to the school where she met the head teacher who informed her that the victim had told other children that her father had been doing something to her. She then met with the victim who told her that she stays alone with the father who had been defiling her and her two other sisters who ran away from home. She said that she had reported the incidents to her maternal and paternal grandmother and they had done nothing. She then took her to Shinyalu Health Centre for treatment. Upon cross examination she said that it was the duty of the police to summon the two grandmothers.

7. PW3, a former teacher of the victim at [Particulars Withheld] Primary School testified that on 13/7/2021 she received a report from a standard three pupil that the victim had told another that her father had been sexually assaulting her at night. She then summoned the victim during break time and she was hesitant to tell her anything though she later informed her that her father would call her to his bed and do ‘tabia mbaya’ to her and that she no longer wanted to live with him. She claimed that she had told her grandmother about it but did nothing. She further told her the last time her father did ‘tabia mbaya’ to her was the previous night. She decided to report the matter with the school administration.

8. PW4, a Clinical Officer at Shinyalu Health Centre testified that she examined the victim and that her hymen was broken. She had a whitish discharge from her vagina indicating a venereal infection and her urine examination disclosed a fungal infection called vaginal candidiasis and they gave her drugs.

9. On cross examination she stated that the victim was brought to the hospital on 23/7/2021 and she was told that the victim had been defiled many times with the last time having been on 11/7/2021.

10. PW5, the Investigating Officer gave evidence that on 14/7/2021 at about 10 AM he received PW2 in the company of PW1 and that PW1 informed her that her father had been defiling her since she was in nursery school and that the last time he had done so was 11/7/2021. She escorted the victim to Shinyalu Health Centre and upon examination it was established that the child had been defiled. She then escorted the victim to Kakamega General Hospital for age assessment and her age was assessed at 12 years and the age assessment report produced as PEXH 4.

11. The Court ruled that a prima facie case had been established and the Accused person was put on Defence.

12. The Defence called one witness, the Appellant herein, who in his sworn testimony said he did not know what to say to the allegations and stated that he was living with the victim and some of his older siblings.

13. Judgment was subsequently delivered and the Accused person sentenced to life imprisonment.

14. Aggrieved with the decision of the trial Court, the appellant has lodged this appeal which is premised on the following grounds: -a.That the learned trial magistrate grossly erred in both law and fact by failing to accord me the right to fair trial by violating article 50(2)(b)(j) of the Constitution of Kenya.b.That the learned trial magistrate erroneously convicted me basing on evidence that was contradictory in nature, inconsistent, uncorroborated and malicious.c.That the learned trial magistrate grossly erred in law and facts by imposing highest sentence of life.d.That the charge sheet was defective and the learned trial magistrate grossly erred in law and facts by assuming the role of prosecution by helping them to prove their case.e.That the trial magistrate erred in law and facts by not appreciating my defence and mitigation and dismissed the same unreasonably.f.That the trial magistrate erred in law and facts by convicting and subsequently sentencing me over a charge that was not proved beyond reasonable doubt as provided by law.

15. This court directed that the appeal be argued by way of written submissions. Both sides have filed Submissions and the Court appreciates the industry from both which has benefited the Court a great deal.

Issues, Analysis and Determination 16. Looking at the Petition of Appeal, the Proceedings and Judgment of the lower Court and the Submissions filed, this Court discerns the following issues for determination: -a.Whether the appellant’s right to a fair trial under article 50(2)(b)(j) of the Constitution of Kenya, 2010 was violated.b.Whether the prosecution proved the offence of incest against the appellant beyond reasonable doubt.c.Whether the testimonies of the prosecution witnesses were marred with inconsistencies and contradictionsd.Whether the charge sheet was defective.e.Whether the sentence meted on the appellant was harsh and excessive.

17. On the right to fair trial, article 50(2)(b)(j) accords every Accused person the right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence. At page 1 of the proceedings of the trial Court, the trial Court noted as follows: -“Plea of not guilty entered. 2 copies of witness statements, charge sheet and P3 form given to the accused in court.”

18. After that date no other complaint was raised with the Court. It is thus not evident what denial ever occurred. The Appellant was therefore given reasonable access to the evidence the prosecution relied on and no right of his was denied.

Was the offence of incest proved against the Appellant beyond reasonable doubt? 19. The offence of incest by a male, under section 20 of the Sexual Offences Act No. 3 of 2006, is committed when any male does an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother. Such a male when adjudged guilty is liable to imprisonment for a term of not less than ten years. Where however it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

20. From the stipulation, for the prosecution to earn a conviction in a case for incest, it must prove the relationship between the victim and the Accused together with the fact of commission of the proscribed act.

21. The fact that the Appellant is the victim’s father is not in dispute and both parties seem to agree on this. The age of the victim was confirmed to be 12 years through the production of the age assessment report which was produced by PW5. On the element of partial or complete insertion of the genital organ of a person into the genital organs of another person, there was sufficient evidenced by the complainant as confirmed by the medical evidence.

22. In a criminal case involving a sexual offence, even if the only evidence is that of the alleged victim of the offense, the Court is bound to 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.

23. The victim narrated how the Appellant would do the thing (sex) in the room where he sleeps at night on a mattress and then would ask her not to tell anyone. She said that he did it so many times and each time he did it she would feel pain.

24. The evidence of the victim was corroborated by PW4, a Clinical Officer who testified that she examined the victim and that her hymen was broken, she had a whitish discharge from her vagina indicating a venereal infection and that her urine examination disclosed a fungal infection called vaginal candidiasis.

25. The Court finds that the offence of incest against the Appellant was proved by the prosecution beyond reasonable doubt.

Whether the testimonies of the prosecution witnesses were marred with inconsistencies and contradictions? 26. The Court has anxiously considered the points raised by the Appellant as inconsistency in the Prosecution’s case and finds the same to be trivial and not substantial to negate on the verdict of guilt. It remains the law that not every inconsistency negates a conviction but on substantial consideration that create a reasonable doubt in the mind of the Court do.

Whether the charge sheet was defective? 27. The Appellant has demonstrated in what manner the charge sheet can be adjudged defective. The Court has re-looked at the charges and notes that they were properly drafted and that the evidence adduced supported the offence charged. It is thus the finding by the Court that the conviction was sound and safe and deserve no disturbance.

Whether the sentence meted on the appellant was harsh and excessive 28. The circumstances in which an appellate Court may interfere with a sentence passed by the trial Court were addressed in the case of Wanjema v Republic Criminal Appeal No. 204 of 1970 (1971) EA 493, 494 to be: -“An appellate Court should not interfere with the discretion which a trial Court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case.”

29. Section 20(1) of the Sexual Offences Act provides that where incest is committed against a person below the age of eighteen (18) years, the Accused person shall be liable to life imprisonment. The trial court in this case sentenced the Appellant to life imprisonment and stated that it was the only sentence prescribed under section 20(1) of the Sexual Offences Act.

30. The court in E E v Republic [2015] eKLR interpreted the meaning of the term ‘shall be liable to life imprisonment’ under section 20(1) of the Sexual Offences Act to mean that life imprisonment is not an only sentence but the maximum sentence for the offence of incest with a minor. The Court said: -“…This provision in my view does not provide for mandatory sentence. It means in my view that life imprisonment is the maximum sentence and a person so convicted can be sentenced to a shorter period.This is so because the words “shall be liable do not in their ordinary meaning require the imposition of the stated penalty but merely expresses stated penalty which may be imposed at the discretion of the court. In other words, they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see the need to impose it.”

31. For the reasons set out above, the appeal against the conviction lacks merits and is dismissed. The appeal against sentence succeeds on the basis that the trial court proceeded on the wrong principle.

32. Taking into account the mitigation offered by the Appellant before the trial Court while aware that our Sentencing Policy is not penalty targeted but also correctional, the sentence of life imprisonment is set aside and in its place substituted an imprisonment term of twenty (20) years computed from the 25th July, 2021, being the date of his arrest and it being that he has been in remand since.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 10TH DAY OF NOVEMBER, 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:Appellant in personMs. Chala for the RespondentCourt Assistant: Polycap Mukabwa