[2023] KEHC 25548 (KLR)

Langat v Republic (Criminal Appeal E021 of 2021) [2023] KEHC 25548 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25548 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Appeal E021 of 2021

RL Korir, J

November 16, 2023

Between

Jackson Kibet Langat

Appellant

and

Republic

Respondent

(From the Conviction and Sentence in Sexual Offence Case Number 45 of 2020 by Hon. Omwange J. in the Magistrate’s Court at Sotik)

Judgment

1. The Appellant herein was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the charge were that on 22nd August 2020 in Konoin sub-county within Bomet County, he intentionally and unlawfully caused his penis to penetrate the anus of MC, a child aged 9 years.

2. The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the charge were on 22nd August 2020 in Konoin sub-county within Bomet County, he intentionally and unlawfully touched the anus of MC, a child aged 9 years with his penis.

3. The Appellant pleaded not guilty to the charges before the trial court, and a full hearing was conducted. The prosecution called five (5) witnesses in support of its case.

4. At the close of the prosecution case, the trial court ruled that a prima facie case had been established against the Appellant and he was put on his defence.

5. The evidence before the trial court is summarized in the following paragraphs.

The Prosecution’s Case. 6. It was the Prosecution’s case that the Appellant defiled MC (PW1) on 22nd August 2020. PW1 testified that on the material day, the Appellant defiled her by inserting his penis into her anus.

7. The complainant reported the incident to her father JC (PW3) who reported to their employer who in turn had the suspect arrested.

8. Daniel Too (PW5) who was the clinical officer testified that he examined PW1 on 23rd August 2020 and found that the victim’s anal and vaginal regions were normal. He further testified that he examined the Appellant and he did not find any injuries on his genital organ.

The Accused/ Appellant’s Case. 9. Put on his defence, the Appellant, Jackson Kibet Langat gave unsworn testimony and denied committing the offence. That on the material day, he worked at his manager’s place at Kitumbe factory until 5pm after which he went home to meet his children at 7pm. The Appellant testified that JC (PW3) visited them and later left. That they soon fell asleep until the following day.

10. It was the Appellant’s case that he went to work the following day and upon reaching his work station, he was asked to board a security vehicle which took him to Mara Mara police station. That when he arrived at the police station, he found the victim (PW1) and to his utter shock, he was informed that he had defiled the victim. It was his further case that he did not have any grudges with the victim or her family and that he had been framed.

11. At the conclusion of the trial, he was convicted of defilement and sentenced to life imprisonment

12. Being dissatisfied with the Judgment dated 14th June 2021, Jackson Kibet Langat (Accused) filed a Memorandum of Appeal on 29th July 2021 and relied on the following grounds which I reproduce verbatim:-i.That I pleaded not guilty at the trial and still maintain the same.ii.That the learned trial Magistrate erred in both law and fact by relying on uncorroborated evidence.iii.That the learned trial Magistrate erred in both law and fact by relying on evidence adduced by the Prosecution side which was inconsistent and full of irregularities.iv.That the learned trial Magistrate erred in both law and fact by failing to analyze the entire evidence adduced by the clinical officer who examined the complainant whereby on his finding he testified that there was no spermatozoa.v.That the learned trial Magistrate erred in both law and fact by convicting the Appellant and failing to appreciate that the burden of proof lies with the Prosecution.vi.That the learned trial Magistrate erred in both law and fact by rejecting my plausible defence without any further explanation of it.vii.That I pray to be present during hearing of this Appeal.

13. The Appellant filed Amended Memorandum of Appeal on 16th May 2022 and relied on the following grounds which I reproduce verbatim:-i.That the learned trial Magistrate erred in law and fact when he convicted I the Appellant whereas the Prosecution did not prove the ingredients provided in section 8(1) of the Sexual Offences Act.ii.That the learned trial Magistrate erred in law and in fact by relying on PRC and P3 Forms which were altered or doctored contrary to section 354 of the Penal Code.iii.That the learned trial Magistrate erred in law and in fact by failing to observe that the testimonies of the witnesses were not creditworthy.

14. This being the first appellate court, I have a duty to re-evaluate the evidence on record afresh. The Court of Appeal in the case of Mark Ouiruri Mose v Republic (2013) eKLR, held that:-“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”

15. This Appeal was dispensed off by way of written submissions.

The Appellant’s Submissions. 16. In his undated submissions filed on 16th May, 2022 the Appellant submitted that the case was not proved against him. He submitted that the Prosecution did not prove penetration of the victim as required by the law. That it was a fundamental principle that for an Accused to be convicted of a crime, his guilt must be proved beyond reasonable doubt. It was the Appellant’s further submission that the PRC and P3 Forms that the Prosecution used were questionable and could not be relied upon and that the trial court also highlighted the same. He urged that his conviction was unsafe and that this court should find it a nullity.

17. It was the Appellant’s submission that he had worked with JC (PW3) for a long time and they were well known to each other. That PW3 had been lying to their boss about him with an intent of getting him sacked. It was his further case that the case against him was born out of ill will.

The Prosecution’s/Respondent’s Submissions. 18. Through their submissions dated 13th June 2023, the Respondent submitted that the victim was aged 9 years at the time of the incident. That a Birth Certificate (P.Exh1) was produced and it proved that she was aged 9 years old. The Respondent further submitted that the victim’s evidence on age was corroborated by the investigating officer (PW4) and the clinical officer (PW5).

19. It was the Respondent’s submission that the victim testified how on the material day, the Appellant defiled her by dragging her into his bedroom, undressing her and removing her pant, unzipping himself. That he told her to bend on the opposite side and inserted his penis into her anus. It was the Respondent’s further submission that the victim’s evidence was corroborated by the investigating officer (PW4) and JC (PW3).

20. The Respondent submitted that the Appellant and the victim knew each other very well. That they were neighbours. The Respondent further submitted that the offence took place during the day which meant that the victim could properly identify the Appellant.

21. It was the Respondent’s submission that the Appellant in his evidence, confirmed that he knew the victim and her father. That the identification of the Appellant was beyond doubt.

22. The Respondent submitted that the Appellant tendered unsworn evidence and did not call any witness. That his defence of being framed up was not corroborated by any other witness. The Respondent further submitted that the Appellant’s defence lacked merit and ought to be dismissed.

23. It is salient to note that the Respondent had filed an earlier set of written submissions dated 8th May 2023. The point of departure with their submissions dated 13th June 2023 was the proof of penetration. They submitted that the medical evidence adduced showed no penetration. That the offence of defilement had not been established but that of indecent act had been established.

24. The Respondent submitted that in view of the offence of indecent act with a child having been established, that the Appellant’s sentence of life imprisonment should be substituted with the mandatory minimum sentence of 10 years imprisonment.

25. I have gone through and given due consideration to the trial court’s proceedings, the Memorandum of Appeal dated 29th July 2021, the Appellant’s Amended Memorandum of Appeal and written submissions both filed on 16th May 2022, the Respondent’s written submissions dated 8th May 2023 and 13th June 2023. The following issues arise for my determination: -i.Whether the Prosecution proved its case beyond reasonable doubt.ii.Whether the Defence places doubt on the Prosecution case.iii.Whether the Sentence preferred against the Accused was just and fair.

i. Whether The Prosecution Proved Its Case Beyond Reasonable Doubt. 26. It is trite law that for the offence of defilement to be established, the age of the victim, penetration and positive identification or recognition of the offender have to be proved.

27. In sexual offences, the age of a victim is an important ingredient to be considered when deciding the penalty to be meted out to an Accused person. The age of the victim may be proved through the production of a birth certificate or a parent’s testimony.

28. Rule 4 of the Sexual Offences Rules of Court 2014 provides that:-When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.

29. The victim who testified as PW1 told the court that she was aged 9 years at the time of the alleged offence.

30. No 75741 Cpl Gilbert Nato (PW4) who was the Investigating Officer produced a Birth Certificate and the same was marked P.Exh 1. The Birth Certificate indicated that MC (PW1) was born on 23rd December 2010. The authenticity of the Birth Certificate or its production was not challenged during the trial.

31. Flowing from the above I find the Birth Certificate (P.Exh 1) admissible and based on its contents and the testimony of PW1. She was born on 23rd December, 2010 and at the time of the offence, she was 4 months shy of 10 years. It is my finding therefore that MC was aged 9 years old.

32. With regard to the issue of identification, the Court of Appeal in the case of Cleophas Wamunga v Republic(1989)eKLR expressed itself as follows:-“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger……”

33. The victim testified that she went to her neighbour’s house (JL) house. He was the father of her friend FC. She found him at home and her friend FC was lighting the fire. He asked her to arrange items which were on the table and while she did that, her friend FC left the house and it was then that the father pulled her into the bedroom and made her bend and inserted his penis into her anus.

34. EC (PW2) who was the victim’s brother testified that the Appellant was their neighbour and a friend to his father (PW3).

35. The victim’s father, JC Bett (PW3) testified that he knew the Appellant as he was his work mate. On the other hand, the Appellant in his testimony stated that PW3 was his neighbour and identified the victim as PW3’s daughter.

36. This evidence in my view is more of recognition than identification. In the case of Peter Musau Mwanzia v Republic (2008) eKLR, the Court of Appeal expressed itself as follows:-“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognise a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for sometime, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident……”

37. There is no doubt in my mind that the Appellant was well known to PW1 as they were neighbours and they interacted frequently. PW1 identified him by his two names and as her neighbour and father to her friend FC. There was absolutely no chance of mistaken identity. It is my finding therefore that the Appellant was positively identified.

38. With regards to penetration, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. In the case of Bassita v Uganda S. C Criminal Appeal Number 35 of 1995, the Supreme Court held that:-“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims own evidence and corroborated by the medical evidence or other evidence……”

39. Penetration can be proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred.

40. MC (PW1) testified that on 22nd August 2020, the Appellant pulled her to his bedroom and defiled her by inserting his penis into her anus.

41. Daniel Too (PW5) who was the clinical officer at Mogogosiek Hospital testified that he examined PW1 on 23rd August 2020 and found that PW1’s anal and vaginal regions were normal. He said that he examined the patient after two hours. He stated that he also examined the Accused and did not find any injuries on his genital organ. That there could have found bruises or spermatozoa in the victim’s stool but did not get anything. When he was cross examined, he confirmed that he did not find anything positive when he examined the victim (PW1).

42. PW5 produced P3 and PRC forms that were marked as P.Exh 2 and 3 respectively. The PRC form (P.Exh 3) indicated that PW1 had been examined on 23rd August 2020 and her hymen was found intact. That she did not have lacerations in her vagina and anus. The P3 form (P.Exh.2) indicated that PW1 had been examined on 23rd August 2020.

43. The testimony of the clinical officer (PW5) raised doubt in the court’s mind as to his truthfulness. PW5 testified that he examined the victim two hours after she was penetrated but the P3 and PRC Forms he produced as exhibits indicated that the victim was examined on 23rd August 2020. This date corroborated the victim’s father’s (PW3) testimony that on 23rd August 2020, he noticed his daughter (PW1) looking unusual and disturbed and after she told him what had happened, they went to Mara mara police station where they were issued with the P3 Form and they later went to the hospital for PW1’s examination and treatment.

44. Additionally, the trial court raised an issue with the medical evidence. The trial court noted that there were no treatment notes in the court file and that the P3 and PRC Forms that were produced were not marked for identification as practice dictates. It was the trial court’s findings that the P3 and PRC Forms were doctored or manipulated.

45. Flowing from the above, I am not satisfied by the clinical officer’s (PW5) testimony or the medical evidence he produced. Consequently, I dismiss his testimony and the medical evidence in form of the P3 Form (P.Exh 2) and PRC Form (P.Exh 3).

46. Medical evidence in such cases is normally persuasive and not binding to the court. It is normally considered alongside other evidence. The Court of Appeal in Kassim Ali v Republic (2006) eKLR held that:-“So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

47. Similarly, the Court of Appeal in Dennis Osoro Obiri v Republic (2014) eKLR held that:-“The appellant secondly contends that there was no medical evidence adduced to link him with the defilement of PW1. In our view, such evidence was not necessary the moment the trial court found that there was sufficient medical evidence to prove that the appellant had been defiled and that the appellant’s evidence was trustworthy as to the identity of the person who had defiled her……….”

48. Flowing from the above, courts can still convict solely on the testimony of the victim and the only caveat is that the trial court has to believe the testimony of the victim and record the reasons why it believed the victim. In Section 124 of the Evidence Act provides:-Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall 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

49. I have carefully gone through the victim’s evidence. Her testimony was vivid and cogent. She was able to describe to the trial court in detail how the Appellant defiled her and even stated that she used to bleed when she went for a long call. Her testimony was unshaken even after cross examination.

50. The trial court which had the benefit of seeing the victim testify and the chance to observe her demeanour while testifying and found her testimony truthful. There was nothing to indicate that the victim (PW1) could have been untruthful.

51. In light of the above, I find the victim’s testimony as truthful and I find that there she was penetrated by the Appellant on the material day.

52. Based on the totality of the evidence before me, it is my finding that the Prosecution satisfactorily established the age of the complainant, proof of identification and penetration. It is also my finding that Prosecution proved its case against the Appellant beyond reasonable doubt.

ii.Whether The Defence Places Doubt On The Prosecution Case. 53. I have considered the Appellant’s defence in which he denied committing the offence. The Appellant’s defence was aptly captured early in this Judgment.

54. The Appellant that on the material day he took care of cattle until 5 pm after which he went home to meet his children at around 7 pm. That the victim’s father (PW3) came to visit them and later left. It was his testimony that when PW3 left, he slept until the following morning.

55. It was the Appellant’s testimony that he was arrested the following day while at work and informed that he had defiled the victim (PW1). It was his further testimony that he had no grudge and that he had been framed.

56. I dismiss the issue of being framed up. The Appellant did not bring up the issue of being framed up when he was cross examining the Prosecution witnesses. He only brought it up in his defence. Furthermore, the Appellant testified that he had no grudges with anyone. I consider this defence an afterthought.

57. In totality, I find that the Appellant’s defence did not raise or place a doubt on the Prosecution’s case.

iii. Whether The Sentence Preferred Against The Accused Was Just And Fair 58. The general principles upon which the first appellate court acts in regards to sentencing are now well settled. It has jurisdiction to interfere with sentence imposed by the trial court if it is satisfied that in arriving at the sentence, the trial court did not take into account a relevant factor or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the Court should not lose sight of the fact that in sentencing, the trial court exercises discretion and as long as the discretion is exercised judicially and not capriciously, the appellate court should be slow to interfere with that discretion.

59. The penal section for a defilement case for a child of 9 years is provided by Section 8 (2) of the Sexual Offences Act which states that:-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.

60. As earlier indicated, the Appellant was sentenced to life imprisonment as prescribed by the law.

61. I am aware of the recent jurisprudence which has cast a dark cloud over life sentence. The Court of Appeal in Justus Kitsao Munyao v Republic, Malindi Criminal Appeal Number 12 of 2021 found life imprisonment to be unconstitutional and held that: -“……. 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 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 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.”

62. Guided by the above authority that a life sentence was unconstitutional, I have the discretion to interfere with the sentence of the trial court. In doing so, I consider the circumstances of the case, the Appellant’s mitigation and thereafter pass a sentence that is commensurate to the offence.

63. I will also be guided by the objectives of sentencing contained in the Sentencing Guidelines 2023 which are retribution, deterrence, rehabilitation, restorative justice, community protection, denunciation, reconciliation and reintegration.

64. The circumstances of the case was that the Appellant defiled the minor MC by penetrating her anus. The victim who was 9 years was exploited and endured the inhumane act by the Appellant who was an adult and someone the victim could look up to. I have also considered the Appellant’s mitigation in the trial court and in his written submissions filed on 16th May 2022. I have taken into consideration his middle age which means that a life sentence would give him no chance at rehabilitation and reintegration.

65. In the end, I uphold the Appellant’s conviction and partially allow his appeal on sentence. I hereby set aside the sentence of life imprisonment and substitute therefore a deterrent sentence of 20 years in prison. The sentence shall run from 14th June 2021 being the date of his conviction and sentencing.

66. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 16TH DAY OF NOVEMBER, 2023. ..........................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of Mr. Njeru for the Respondent, the Appellant acting in person. Siele (Court Assistant)