[2022] KEHC 13430 (KLR)

Koech v Republic (Criminal Appeal E009 of 2021) [2022] KEHC 13430 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13430 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E009 of 2021

RN Nyakundi, J

October 5, 2022

Between

Jonathan Kiplagat Koech

Appellant

and

Republic

Respondent

(An appeal against both conviction and sentence from the judgment of Hon. C. Kutwa (SPM) in Iten Criminal Case No. 1 of 2020 dated 21st January, 2021)

Judgment

1. The appellant herein, Jonathan Kiplagat Koech, was charged with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006.

2. The appellant pleaded not guilty to all the charges and the case went to full trial in which the prosecution called four (5) witnesses while the appellant, when put on defence opted to give sworn evidence and called no witness. By judgment delivered on January 21, 2021, the appellant was convicted on both charges and sentenced to serve twenty (20) years imprisonment by Hon C Kutwa, Senior Principal Magistrate.

3. Being dissatisfied with the said Judgement, on February 4, 2021 he lodged the appeal herein setting out eight (8) grounds of appeal challenging both conviction and sentence.

4. PW1 SJK a minor aged 12 testified that on the material date at around 4:00pm she was at home and while outside their house, the accused person grabbed her and covered her mouth. He then took her inside the house a placed her on the kitchen table and he put his penis in her vagina. She told court that she felt pain in her private part and tried to scream but he had covered her mouth. She further testified that while in the kitchen EJ came in and the accused person ran away when he saw E. She then informed her grandmother of the incident who in turn called her mother who then reported the matter and took her to hospital where she was treated. The minor also told court that she knew the accused because he was their immediate neighbour.

5. PW2 EJ, an aunt to the minor testified that on the material date at around 4:00pm she was at her home before deciding to visit the minor’s home. On arrival and while outside she heard a person talking in the kitchen and when she entered the kitchen, she saw the accused defiling the minor. She further told court that she knew the accused very well. She also testified that the accused and the minor were on the table and the minor did not have any clothes on. She further told court that when the minor and accused person saw her, they both ran away. She then informed the minor’s mother about the incident and the accused person was later on arrested.

6. PW3 MC, the mother to the minor testified that on the material date she was grazing her cows when her mother called her and informed her that the minor had been defiled by the accused. She then rushed home and confirmed on arrival that the minor had been defiled. She then reported the matter to Chesoi Police Station and the accused was arrested. She then took the minor for treatment and examination at Kapsowar Mission Hospital.

7. PW4 Dr Kimosop, testified that the minor was treated and examined at their hospital and that her clothes were not blood stained, her head, chest abdomen, hands and legs were normal and that her genitalia had hyper lercia (redness). He further told court that there were no tears, labia and majora and minora were normal. He further testified that there was whitish discharge and no blood. He did a swap and urinalysis test and made the finding that there was penetration.

8. PW5 CPL No.70468 Richard Mwangi, from Kapsowar Police Station testified that on December 31, 2019 he was instructed to investigate the matter which had been reported on December 27, 2019. He further told court that the accused was already in police custody. He then conducted the investigations and further told court that the complainant had been issued with a P3 form which was filled on December 30, 2019. That marked the end of the prosecution case.

9. The defence was based on the sole unsworn testimony of the appellant. He basically denied all the charges levelled against him and alleged that on the material day he went to work and returned home at around 2:00pm and at around 3:00pm children came to destroy his tress and he chased and assaulted them. He also told court that he was shocked when he was arrested on December 27, 2021. The defence case therefore rested.

Submissions 10. The appellant in his undated submissions filed on October 28, 2021 submitted that his rights to a fair trial had been violated and hence the conviction was unsafe. He also submitted that the investigation in this matter were shambolic and shoddy as the complainant’s date of birth was never indicated. He argued that the age assessment test in this matter was never conducted and that there was no basis for the prosecution to conclude that the complainant was aged between 10-12 years.

11. The appellant submitted that the prosecution failed to prove its case beyond reasonable doubt. His argument is that the three elements to prove defilement; that is age penetration and identification were not proved by prosecution. He further argued that the medical report by PW4 revealed nothing to suggest penetration but was only PW4’s personal opinion that penetration had occurred.

12. He further argued that medical evidence produced in support of the respondent’s case was inconclusive as the PW4’s findings were only based on his own personal opinion. He further argued that the P3 form did not indicate the age of the complainant. According to the appellant, there was no spermatozoa seen or semen evident in the complainant a fact that is corroborated by the finding that there were no tears to prove that the hymen membrane had been broken.

13. The appellant submitted that his evidence was never regarded by trial court regarding the destruction of his trees by children including the complainant herein.

Determination 14. In determining this appeal, this court being a first appellate court is alive to and takes into account the principles laid down in the case ofOkeno vs Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R 1975) EA 336 and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala v R [1957] EA 570. It is not the junction of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; 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 1978) EA 424. ”

15. I have considered the evidence on record, the grounds of appeal and the submissions by the appellant, the issues for determination is whether the prosecution proved its case beyond any reasonable doubt and whether there were material discrepancies in the prosecution case which may make the conviction and sentencing of the appellant unsafe.

16. The appellant was charged, tried, found guilty and subsequently convicted of the defilement of a twelve (12) year old girl in contravention of section 8(1) as read with section 8(2) of the SOA which provides as follows:“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 or less shall upon conviction be sentenced to life imprisonment.”

17. In terms of section 8(1) of the SOA, the onus resides with the prosecution to prove beyond reasonable doubt with following elements of the offence of defilement:

18. In terms of section 8(1) of the SOA, the onus resides with the prosecution to prove beyond reasonable doubt with following elements of the offence of defilement:(a)The minority age of the complainant.(b)There was penile penetration into the genitalia of the complainant.(c)Positive identification of the alleged offender.

19. In Charles Wamukoya Karani v Republic, CR No 72 of 2013, it was stated that:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

20. The appellant challenged the conviction and sentence on the basis that the prosecution failed to prove its case beyond reasonable doubt, particularly on the question of penetration. He alleges in his submissions that the medical evidence produced before trial court was marred with discrepancies and inconsistences. He argued that penetration was not proven and that the age of the minor was also not proved.

21. Section 2(1) of the Sexual Offences Act, defines penetration to mean:“the partial or complete insertion of the genital organs of a person into the genital organ of another person.”

22. The evidence of PW1 is that on the material date while outside her house, the appellant grabbed her and covered her mouth to her to the house and removed her skirt and panty. She further noted that he placed her on the kitchen tabled and inserted his penis into her vagina, she stated that she felt pain in her private part and tried to scream but the accused covered her mouth. This evidence is corroborated by PW2 who testified that on arrival at the complainant’s home she had someone talking in the kitchen and when she entered the kitchen, she saw the complainant with the accused person on the kitchen table and that the complainant did not have clothes. This evidence is further corroborated by Dr Kimosop who produced the P3 form dated December 30, 2019 and the complainants post care form. He testified that he had examined the complainant at Kapsowar Mission Hopsital. He told court that upon examination of the complainant her genitalia had lercia (redness), labia majora and minora were normal. He further noted that there was a whitish discharge and no blood. he then conducted a swap and urinalysis and was of the opinion that there was penetration.

23. From the above I note that there no discrepancy or inconsistency in the prosecution case as far as the medical evidence produced is concerned. The medical evidence available on record is cogent and consistent, as well as corroborating the testimony of the complainant. Although there were no tears on the labia majora and minora, the complainant’s genitalia had hyper lercia (redness) and there was whitish discharge indicative of sexual penetration of the minor’s genial organ. Therefore, the prosecution discharged its onus on this limb.

24. On age, The appellant submitted that the age of SKJ (PW1) was not proven. He argued that although an age assessment test was mentioned the same was never conducted. He also submitted that the prosecution never produced the age assessment report in court. On record there is an age assessment report. I have carefully looked at it. It is dated December 31, 2019 and indicated that the assessment was done on the same day. According to the report, the assessment was done by Dr Nakitari who signed off as the dental specialist in at the Iten County Referral Hospital. He indicated the complainant’s age to be between 10 and 12 years. I am convinced that the trial court correctly exercised its discretion in relying on the age assessment report to ascertain the age of the complainant. Therefore, I find that the fact that the age of the complainant was proved beyond reasonable doubt.

25. As regards the question of positive identification of the assailant as the perpetrator of the alleged offence, the evidence on record places the appellant at the crime scene. The incident took place in broad day light which enabled the complainant to ascertain the identity of the appellant. The appellant was caught during the act by PW2. The appellant was also well known to the complainant and PW2 as they were neighbours. The Court of Appeal in Francis Muchiri Joseph v Republic (2014) eKLR held that:“In Lesarauv R, 1988 KLR 783, this court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name”.

26. This matter is therefore one of identification by recognition, which makes the identification of the appellant as the perpetrator of the offence safer. In my view the prosecution evidence on identification was watertight.

27. On the ground on sentence, the appellant challenged the sentence imposed by the learned magistrate on the basis that it is harsh and excessive. The appellant was sentenced to serve twenty (20) years imprisonment. He also argued that the trial magistrate had failed to consider his grounds for mitigation. The age assessment report indicated the complainant’s age to be between 10 and 12 years. It is worth noting that the assessment was done four days after the commission of the offence. Therefore, at the material time, the complainant was between 10 and 12 years.

28. The Sexual Offences Act, No 3 of 2006 prescribes different punishments for victims of different ages. For victims aged 11 years or less, the punishment is imprisonment for life. For victims aged between 12 and 15 years, the punishment is imprisonment for a term not less than 20 years. For victims aged between 16 and 18 years, the punishment is imprisonment for a term not less than 15 years.

29. The victim in this case was between 10 and 12 years at the time of the offence. This does not fall within a specific age bracket as provided for by the law. The expert who assessed her age did not come up with a definite age. It is my considered view that the learned trial magistrate gave the appellant the benefit of the age bracket which prescribes a lesser sentence to wit ‘between 10 and 12 years’.

30. In light of the foregoing it is my finding that the appeal herein is not meritorious and is hereby dismissed. For clarity purposes both the conviction and the sentence are hereby upheld.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5TH DAY OF OCTOBER, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:1. Mr Mugun for DPP2. The appellant