[2022] KEHC 17243 (KLR)

Lesingo v Republic (Criminal Appeal 26 of 2017) [2022] KEHC 17243 (KLR) (8 November 2022) (Judgment)

Neutral citation: [2022] KEHC 17243 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 26 of 2017

SN Mutuku, J

November 8, 2022

Between

Lekisambu Lesingo

Appellant

and

Republic

Respondent

((Being an appeal from the judgement dated 21st March, 2017 by Hon Okuche (SRM) in S.O case no 577 of 2014 Kajiado CM’s court)

Judgment

1. The Appellant, Lekisambu Lesingo, was charged with the offence of Defilement contrary to section 8 (1) as read with section 8(3) of the Sexual Offences Act. The particulars of the offence are that on April 26, 2014 in Loitoktok District of Kajiado County intentionally and willingly caused his genital organ (penis) to penetrate the genital organ (vagina) of RM, a girl aged 14 years.

2. He was also charged with an alternative charge of indecent act with a child contrary to section 11(1) of the sexual offences Act. The particulars are that on April 26, 2014 in Loitoktok District of Kajiado County intentionally and willingly caused his genital organ (penis) to penetrate the genital organ (vagina) of RM, a girl aged 14 years.

3. He faced a second count of being involved in prostitution with a person with mental disability contrary to section 19(1)(a) of the Sexual offences Act. The particulars are that on April 26, 2014 in Loitoktok District of Kajiado County intentionally rewarded Kshs 5/- to RM a person with mental disability, intentionally caused his genital organ(penis) to penetrate the genital organ(vagina) of RM.

4. The Appellant pleaded to the principal charge and the alternative charge. He did not plead to count two after amendment of the previous charges with the result that the third count was struck out.

5. He was tried and found guilty for the main charge of defilement. He was convicted and sentenced to serve 20 years imprisonment.

6. He was aggrieved by the conviction and the sentence and has filed the instant appeal in which he has raised the following grounds of appeal, through his amended grounds of appeal:i.That the Learned trial magistrate erred in law by convicting the Appellant and sentencing him to serve a sentence of 20 years imprisonment which was awarded in a mandatory form without considering the circumstances which prevailed during the commission of the offence and other constitutional provisions Article 50(2)(p).ii.That the Learned trial magistrate erred in law and fact by holding that, the offence of defilement was proved but failed to note that the ingredients of the offence were not proved by the prosecution.iii.That the Learned trial magistrate erred in law and fact by failing to note that the whole prosecution case was marred with inconsistencies and contradictions which if considered would have overturned the prosecution case.iv.That the Learned trial magistrate erred in law and in fact when he failed to consider the defense evidence by the appellant alongside other prosecution evidence.

Submissions 7. The Appeal was canvassed by way of written submissions. The appellant filed his submissions on January 31, 2022. He has submitted that the trial magistrate having considered the accused mitigation, nature and circumstances of the offence awarded him 20 years imprisonment which sentence took the nature of mandatory form as per section 8(3) of the Sexual offences Act and that by awarding the mandatory minimum sentence prejudiced the appellant. It was his case that when a trial court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial.

8. On his second ground on whether the prosecution proved the ingredients of the offence of defilement, he argued that the same was not proved; that the evidence was marred with inconsistencies and contradictions; that the case was all about suspicion which in law cannot be the basis for a conviction; that the age of the victim was not proved to the required standard and that no documentary evidence was produced to show the age of the complainant.

9. He argued that PW3 produced an age assessment report but contrary to section 77(3) of the Evidence Act, he did not tell the court who assessed the age of PW1 on July 1, 2014. He submitted that expert evidence should not be considered in a vacuum and that it should be considered in the context of other evidence.

10. On penetration he argued that the evidence of PW1 and PW3 as presented was not sufficient to prove penetration. He argued that no one witnessed the offence being committed thus it remained the evidence of PW1 against that of the Appellant. He submitted that the evidence of PW3 on broken hymen is not prove that there was penetration.

11. On the issue of inconsistencies and contradictions, he argued that with regards to PW1 the prosecution made an application for PW1 to be declared a vulnerable witness due to being mentally-impaired; that however, the court conducted a voire dire and found that the minor was capable of understanding the meaning of an oath. It was his case that the motive by the prosecution was thereby not truthful.

12. He argued, further, that PW1 testified that she left her pants at the Appellant’s house while PW4 told the court that they had the clothes the minor was dressed in on the material day, being a biker. It was his argument that the trial court did not consider this.

13. He argued that the trial court did not consider his defence. It was his argument that the magistrate failed to note that it was the prosecution who alleged that the Appellant committed the offence. That he had no burden to prove his guilt.

14. The Respondents filed their submissions on June 2, 2022. On penetration it was argued that PW1 testified that the Appellant pulled her to his house, undressed her by removing her pant, removed his clothes and inserted his penis into her vagina; that this evidence was corroborated by evidence of PW3 who examined the minor and found the minor had a blood stained trouser; that she also had whitish discharge, a broken hymen and blood in her vagina and that the evidence produced showed that penetration had been proved beyond reasonable doubt.

15. The Respondent submitted that the age of the minor was proved to be 14 years by the evidence of PW1 and PW2 and that PW4, the Investigating Officer caused the age assessment which showed that the minor was 14 years old.

16. It was submitted that both PW1 and PW2 stated that the Appellant was their neighbor and thereby he was well-known to the complainant.

17. On the issue of contradictions and inconsistencies, the Respondent relied on the decision in Erick Onyango Odeng-vs- Republic [2013] eKLR which cited the case of Twehangane Alfred -vs- Uganda Criminal Appeal No 139 of 2001 [2003] UGCA, 6 and argued that the contradictions mentioned on the amount of money that was given to PW1 is a mere contradiction which does not interfere with the main substance of the prosecution case. They argued that there were no contradictions that are prejudicial to the Appellant and that the trial court considered the Appellant’s defence but found it had no merit and dismissed it.

18. They argued that the conviction was safe and the sentence was judicious as the trial court took into consideration all the facts of the case as well as mitigation from the accused person. They argued that sentencing is purely on the discretion of the trial court and relied on the Court of Appeal case of Bernard Kimani Gacheru-vs- Republic [2002] eKLR.

Determination 19. I have considered the grounds of appeal raised by the Appellant, the submissions by the parties and the evidence adduced at trial. I have subjected the entire record of the lower court to scrutiny and re-considered and re-evaluated all the evidence adduced afresh.

20. The offence of defilement has 3 key elements that is penetration, age of the victim and identity of the accused. It is the three elements of this offence that the prosecution must prove beyond reasonable doubt.

21. Before determining the elements of defilement, I wish to point out the issue of mental impairment of the complainant. The record shows that the prosecution told the court on June 3, 2014 that the complaint was mentally impaired and could only communicate through her mother. There is no record showing how the court dealt with this application.

22. A voire dire examination was conducted on the complainant who stated her name and age and where she attends school. She confirmed to the court that she knew the weight of telling the truth and promised to only tell the truth. My view on this matter is that the trial magistrate did not strictly follow the procedure of administering a voire dire examination which, briefly put, requires establishment of whether the minor knows the meaning and nature of an oath. If the finding is in the positive, the minor testifies under oath. If the finding is in the negative, then the trial court proceeds to establish if the minor possesses sufficient intelligence to tell the truth in which case the minor’s evidence is taken without taking the oath.

23. The trial court therefore improperly received the evidence of the minor. I have however read the evidence of the minor. She seemed intelligent and her evidence is candidly given. She does not seem to me to be under any mental impairment. There is no indication from the trial magistrate that there were any difficulties in receiving the evidence of the minor.

24. The minor testified to have known the Appellant as her neighbour. She testified that the Appellant pulled her into his house as she came from fetching water and defiled her. She was cross-examined by the Appellant but she did not change her evidence. She candidly testified to what happened to her and denied that she was lying to the court. Her evidence is corroborated by her mother, PW2, who found her crying and bleeding from her genitalia. The P3 form shows that the complainant had blood stains on her clothes.

25. I have considered this evidence touching on the identity of the Appellant as the perpetrator. It is true that there is no other witness who saw the Appellant defiling the complainant. This leaves the evidence of the minor as the only evidence on this issue. I have looked at the law under Section 124 of the Evidence Act on the need for corroboration of evidence in criminal matters. The proviso to that section states that:'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.'

26. The trial magistrate was alive to the fact that the evidence on what happened to the complainant and the identity of the perpetrator was given by the complainant alone. In the judgment of the lower court, the trial magistrate stated as follows:'The complainant gave evidence in court. It was her assertion that it is the accused who sexually assaulted her. She was put on cross-examination by the accused. She was very vivid as to the facts of the day. Throughout her cross-examination, she remained unshaken in evidence. Although it is only her evidence against that of the accused this court has no reason not to believe her.'

27. I did not have the opportunity to observe the complainant giving evidence but I am impressed by the manner she remained candid as to the circumstances surrounding her sexual assault. I have no reason to believe she was lying to the court that it is the Appellant that defiled her. I am convinced beyond reasonable doubt that the identity of the Appellant as the perpetrator is firmed established by the evidence of the complainant.

28. I have considered the evidence of the complainant on the issue of penetration and that of her mother on the state she found the complainant in. I have considered medical evidence on the same issue and I am convinced beyond reasonable doubt that the element of penetration has been proved beyond reasonable doubt. It is not true, as argued by the Appellant that the trial court only relied on the evidence of the complainant to determine that penetration occurred. The record of the court is clear that there was more evidence on this issue than that of the complainant.

29. I have considered the issue raised by the Appellant that there were inconsistencies and contradictions with regards to the evidence of the prosecution. I have noted that the complainant told the court that she was given Kshs 200/- by the appellant while her mother, PW2, told the court that the complainant told her that she was given Kshs 50/-. Further, that PW1 stated that she left her pants at the Appellant’s house while PW4 testified that she had the clothes worn by the minor on the material day.

30. In my view I find that the inadequacies of prosecution evidence outlined by the Appellant do not adversely affect the prosecution case. I am persuaded by the case of Uganda Court of Appeal in Twehangane Alfred v Uganda- Criminal Appeal No 139 of 2001, [2003] UGCA, 6, where the court noted as follows:'With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.'

31. I have considered the element of the age of the complainant. She testified that she was 14 years old. This evidence was corroborated by her mother who testified that her daughter was aged 14 years. Her age was assessed and given as 14 years old. Although her birth certificate was not produced to prove her age, I have no reason to doubt that she was aged 14 years. I find this element proved beyond reasonable doubt.

32. The Appellant gave alibi defence that he was operating his boda boda business until 8. 00pm that evening and that PW was framing him because he broke the relationship between him and PW2. The trial court considered the defence of the Appellant and dismissed it contrary to what the Appellant submitted.

33. On my part, I have considered the Appellant’s defence. I find it as an afterthought. The issues he raised in his defence seem to me to be an afterthought. He did not cross-examine the complainant and her mother about there having been a relationship between him and PW2. I find no truth in that defence while bearing in mind the fact that the Appellant has no duty to prove his innocence.

34. I have considered the issue raised by the appellant on the sentence meted out. I have confirmed from the record that the trial magistrate considered the mitigation of the Appellant before sentencing him to serve jail term for 20 years. Sentencing is left to the discretion of the trial court. InDismas Wafula Kilwake vs Republic [2019] eKLR, the Court of Appeal expressed itself as follows:'In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.

35. Having considered this matter, it is clear that the trial court was under an obligation to look at the circumstances of the case, the mitigating circumstances, circumstances of the offence and the dignity of the individual, among others, in imposing a sentence. I note that the trial magistrate considered mitigation of the Appellant before sentencing. I have no reason to interfere with the discretion of the trial court in sentencing the Appellant.

36. Consequently, I find no merit in this appeal. The same must fail and is hereby dismissed. The sentence meted out by the trial court is upheld. The Appellant shall continue serving sentence.

37. Orders shall issue accordingly.

Dated, signed and delivered this 8thNovember, 2022. S. N. MUTUKUJUDGE