[2023] KECA 1324 (KLR)

LHA v Republic (Criminal Appeal 30 of 2021) [2023] KECA 1324 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KECA 1324 (KLR)

Republic of Kenya

In the Court of Appeal at Malindi

Criminal Appeal 30 of 2021

SG Kairu, JW Lessit & GV Odunga, JJA

November 10, 2023

Between

LHA

Appellant

and

Republic

Respondent

(An appeal from the Judgment of the High Court of Kenya at Malindi (W. Korir, J.) delivered on 6th December 2018 in High Court An appeal from the Judgment of the High Court of Kenya at Malindi (W. Korir, J.) delivered on 6th December 2018 in High Court Criminal Appeal No. 29 of 2017) Originally Malindi Chief Magistrates Criminal Case SO 462 of 2017. ) Originally Malindi Chief Magistrates Criminal Case SO 462 of 2017. Criminal Appeal 29 of 2017 )

Judgment

1. The Appellant, LHA has brought this appeal challenging the decision of the High Court (W. Korir, J.) as he then was) sitting as a first appellate Court against the decision of the Chief Magistrates Court at Malindi (Hon. Dr. Julie Oseko). The Appellant faced one count of incest contrary to Section 20(1) of the Sexual Offences Act (hereinafter SOA). The particulars were that on 10th June 2017, in Kilifi County the Appellant by use of fingers and his penis penetrated into the vagina of SLH, a child of 11 years who to his knowledge was his daughter. He was charged with an alternative count to Count 1 of Committing an Indecent act contrary to Section 11(1) of the SOA. The second count he faced was Sexual Assault contrary to Section 5(1) (a)(i) as read with Section 2 of the SOA. All these were committed on the same day against the same complainant.

Background 2. The relevant facts of the case were that the Appellant, the father of the complainant, PW2 in the case, was left with the complainant, then 10 years and her younger sibling, then six years as his wife, PW3 was admitted in hospital with their youngest child. PW2 testified that for two weeks after her mother was admitted in hospital, her father applied Vaseline on his fingers and on her vagina and then inserted his fingers into her vagina. After the two weeks, he progressed and applied vaseline on his penis and then on her vagina before he inserted his penis into her. He then threatened her not to tell anyone. She said that he did that for some period until her mother returned home.

3. PW3 testified that after her child was discharged from hospital, she returned home and then resumed her employment as a house help. On the material day, she returned home from work at 8 a.m. She went to the window to put her hand inside to open the main door as they normally did when she witnessed the Appellant apply vaseline on his penis, then applied it on the complainant’s vagina then turned her to lie on her back. He then inserted his penis into her vagina. PW3 said that she kicked the door open. On seeing her, the Appellant released the complainant and pretended to be asleep. She reported the matter to her brothers in law who were her neighbours that night. The complainant was taken to hospital where she was confirmed to have been defiled. The complainant and PW3 identified to Court the treatment notes, medical findings and age assessment report that were produced as exhibits 1 to 4.

4. PW1 a Clinician produced as exhibits 1 to 4 [respectively] the P3 form, Treatment Notes, Lab test and Age Assessment on PW2 as recorded by his colleague Moses, who had examined her at Malindi hospital. He said that as per the four reports, PW2 was 11 years old, had been defiled as hymen was not intact and had no infections.

5. The Appellant gave a sworn defence, he denied the charges facing him. He said that he was a teacher by profession. He said that PW3 was his wife and that she was admitted in hospital with their youngest child, while he was left at home with the other two children. He said that he had no clue who paid the hospital bill. He testified that on 9th June 2017, he disagreed with his wife because of having affairs with other men and that he took her to the village elders. He testified that PW3 told the village elders that she wanted to leave her marriage. The Appellant stated that from that day she did not return home.

6. The trial Magistrate delivered her judgment on the 22nd September 2017 and convicted the Appellant in counts 1 and 2 of the charge, being satisfied that the case against the Appellant was proved beyond a shadow of doubt. On the request of the prosecution, the case was adjourned to give time for filing of record on Appellant’s previous conviction and Victim Impact Statement. On 2nd October 2017, the learned trial Magistrate received the two reports and proceeded to sentence the Appellant to life imprisonment. On 3rd October 2017, the learned trial Magistrate issued a production order for the Appellant to be produced in Court for sentencing in count 2. The Appellant was produced on 4th October 2017 whereupon the Court recorded;

“Court: Sentence on count 2. Accused sentenced to 10 years imprisonment.The sentence now read in absence of the 1st sentence is expended.”

7. On appeal to the High Court, the Appellant challenged the admission of PW2’s evidence urging it was inadmissible for failure to conduct voire dire examination properly or at all. He also challenged the admission of the Age assessment for reason it was not availed in Court on the date the trial Court ordered, claiming it was brought late and backdated. He also challenged the failure by the trial Court to take into account the bad blood between him and his wife. He also challenged the sentence urging that he was sentenced in Count 2 in absentia. The learned High Court Judge delivered his judgment on the 6th December 2018, in which he dismissed the appeal against Count 1, being satisfied that the conviction and sentence was safe and the appeal against the conviction and sentence in count 2 was allowed. The Appellant was dissatisfied and so filed his second appeal to this Court. He raised three grounds of appeal before us in his supplementary grounds of appeal which he relied on, in which he challenged both Courts of:i.Failing to note that the voire dire examination of the complainant was not conducted;ii.Depending on the complainant’s evidence under Section 124 of the Evidence Act without giving requisite reasons; and,iii.Allowing a sentence that was manifestly harsh and excessive in the circumstances.

Submissions 8. We heard this appeal on the 19th June 2023 through this Court’s virtual platform. The Appellant was present in person from Malindi Prison, while learned Acting Assistant Director of Public Prosecution Mr. Jamii Yamina was present for the State. The Appellant relied on his submissions, which he filed on 31st January 2023. Mr. Jami filed submissions in response dated 16th June 2023.

9. In his submissions, the Appellant urged that the learned trial Magistrate did not conduct a voire dire examination of the complainant who was a child of tender years, and that the High Court erred by failing to set aside the conviction and sentence on that account. He relied on Patrick Kathurima vs. Republic [2015] eKLR and Gamaldene Abdi Abdirahaman and Another vs. Republic [2013] eKLR for the proposition that where voire dire is not conducted, the case should be declared a mistrial.

10. His second ground was that the Court should not have believed the evidence of PW2 in absence of reasons showing why her evidence was accepted. He submitted that there were no remarks recorded as the demeanour of the complainant. He urged that in the circumstances the proviso to Section 124 of the Evidence Act was not complied with, and that the High Court was in error for not appreciating the omission. He urged further that PW3 claimed to have witnessed the incident at 8p.m. from a window. That she did not disclose the nature of light, or its position that enabled her to see the Appellant commit the offence, and so her evidence was not reliable. For that proposition he relied on the case of Abdallah Bin Wendo vs. Republic [1953] EACA 166.

11. Mr. Jamii opposed the appeal. In response to the second ground of appeal he submitted that the learned magistrate relied on the demeanor and observation of the complainant PW2 as against that of the Appellant, before making a determination that the witness was credible and truthful. He urged that the High Court Judge a made similar observations agreeing with the trail Magistrate. Learned Counsel urged us not to interfere with the concurrent findings of the trial and first appellate court.

12. The Appellant’s third ground was against the sentence, which he urged was manifestly harsh and excessive in all the circumstances of the case given that he was sentenced to life imprisonment, which was not the sentence provided for the offence he faced. He relied on the Ugandan case of Oponya vs. Uganda 1976 EA 752 for the proposition that in sentencing the words “‘shall be liable’ do not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be passed at court’s discretion.” The Appellant urged that the High Court Judge upheld the conviction and sentence even though the trial Court did not allow the Appellant a chance to mitigate. In contravention of Article 52(2) (p) and 27(1) (4) of the Constitution. He relied on Daniel Kyalo Mwema vs. R [2009] eKLR and Mithu vs. State of Punjab Cr. Appeal 745 of 1980 on discretion of judicial officers in sentencing.

13. Mr. Jamii submitted that the Court relied on the Victim Impact Statement report and noted that as per the report the Appellant destroyed the future of his daughter and concluded that the Appellant did not deserve to be released into the community, as he is a danger to young children. Counsel urged that the passed a deterrent against the Appellant.

Determination 14. We have considered this appeal and the submissions by the Appellant and the State as well as the record of appeal. Being a second appeal our mandate is limited by Section 361(1) (a) of the Criminal Procedure Code to consider issues of law only but not matters of fact that have been tried by the first court and re-evaluated on first appeal. In Karani vs. Republic [2010] 1 KLR 73 that:“This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.”

15. In Njoroge vs. Republic [1982] KLR 388 it was held by this Court on the said mandate on a second appeal:“On a second appeal, we are only concerned with points of law and consider ourselves bound by the concurrent findings of fact arrived at in the courts below, unless shown to be based on no evidence.”

16. The very first challenge raised by the Appellant concerned voire dire examination that the trail Magistrate did not conduct any to verify whether the complainant understood the nature and the meaning of an oath. The learned Judge of the High Court considered the Appellant’s complaint and exhaustively evaluated and analyzed afresh the evidence adduced before the learned trial Magistrate, and the manner in which the complainant’s evidence was received. The learned Judge considered the observation by the trail Magistrate that the complainant was ‘intelligent, vocal, focused and consistent and did not give the impression that she was lying.’

17. The learned Judge considered the law applicable in regard to voire dire examination, quoting extensively from Court of Appeal decisions, such as Maripett Loonkonok vs. Republic [2016] eKLR, James Mwangi Mureithi vs. Republic Criminal Appeal No. 10 of 2014 (UR), Johnson Muiruri vs Republic [1983] KLR 447 and DWM vs. Republic [2016] eKLR. He agreed with the Appellant that the complainant who was 11 years old was a child of tender age and that voire dire examination was necessary. He then observed that the learned trail Magistrate erred by failing to record the questions put to the complainant by the Court and the answers to the questions. He however noted that even though it was not recorded as required, the record was clear that such examination had been conducted before the complainant was allowed to give evidence on oath, going by the short ruling by the Court, which he quoted verbatim in his judgment. Relying on several cases he analyzed, including Patrick Kathurima vs. Republic [2015] eKLR and DWN vs. Republic [2016] eKLR he concluded that there was no hard and fast rule on the procedure of voire dire examination. The learned Judge concluded that it would be unjust to ignore the complainant’s evidence, as the record was clear the voire dire examination was conducted.

18. On our part, we agree with the analysis of the various decisions on the issue of voire dire examination, that indeed from various cases of this Court and also of the High Court, there is no hard and fast rule of what comprises administration of voire dire examination. That the format of administration of the voire dire examination to be followed has evolved through case law. In this Court, we have some benches expressing the view that both the questions put to the child witness and answers given by the child during the examination should be recorded verbatim. While others still express satisfaction if the answers only are recorded. See for instance Johnson Muiruri vs. Republic 1983 KLR 447; Patrick Kathurima vs. Republic [2015] eKLR; Maripett Loonkonok vs. Republic [2016] eKLR; James Mwangi Mureithi vs. Republic Criminal Appeal No. 10 of 2014 (UR), and DWM vs. Republic [2016] eKLR.

19. In the appeal before us, we are satisfied that indeed some form of voire dire examination was administered, though not recorded, going by the short ruling made before the evidence of PW2 was received. That format was too basic, and should not be encouraged. The trial Court should record some substance to enable the appellate Court(s) determine whether, from an analysis of what is recorded, it can be said that the trial Court properly applied its mind, and came to the correct conclusion. The recorded substance should aid the appellate Court determine whether, on the basis of what is recorded, the trial Court could determine whether the child witness, understood the meaning of an oath, appreciated the duty to tell the truth, and whether the child was possessed with sufficient knowledge to have his or her evidence taken.

20. The next issue, following this, is whether the failure to conduct properly voire dire examination of PW2 should result in vitiation of the proceedings. As noted in various cases, including some of this we have referred to in this judgment, the effect of such failure should be determined on a case to case basis. This is because each case has to depend on its own facts. In this case, the evidence of PW2 was not the only evidence given in support of the charge. The evidence of PW3, the mother of the complainant, was an eyewitness account of the events of the material day. She saw the Appellant oil himself and PW2 with vaseline and then turning PW2 to lie on her back, and how he inserted his penis into PW2. There was therefore direct evidence of the Appellant’s actions that constituted the offence. Even if PW2’s evidence were disregarded, we are satisfied that there was sufficient evidence with which to sustain the prosecution case. Nothing turns on this ground.

21. In his second ground of appeal, the Appellant urged that the proviso to Section 124 of the Evidence Act was not complied with and therefore the evidence of PW2 ought not to have been admitted. We note from the record that this was not a ground urged by the Appellant in his appeal before the High Court. The question that follows is how then can the learned first appellate Judge be faulted for having failed to address issues that were never placed before him. This Court, when faced with a similar issue in Alfayo Gombe Okello vs. Republic [2010] eKLR Criminal Appeal No. 203 of 2009; held as follows:“….the issue was not raised since the trial began and was only raised for the first time in this second appeal. The appellant gave no reason for failure to do so earlier. We must therefore find, and we now do so, that it was not raised at the earliest opportunity although it could and should have.”

22. In line with that finding, we are disinclined to address matters where there is no opinion by the two Courts below on new issues introduced for the first time on a second appeal.

23. The last issue raised is concerning the sentence. It is the Appellant’s complaint that the sentence was manifestly harsh and excessive. The circumstances under which this Court, and any appellate court for that matter, interferes with the exercise of the discretion by the trial court in imposing a sentence were restated by this Court in Bernard Kimani Gacheru vs. R. [2002] eKLR as follows:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. The position was stated succinctly by the Court of Appeal for East Africa in the case of OGOLA s/o OWOURA VS REGINUM (1954) 21 270 as follows: -“‘The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James V R., (1950) 18 E.A.C.A 147:“‘It is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case: R. V Sher shewky, (1912) C.C.A. 28 T.L.R. 364. ’”

24. We have perused the record of appeal and note that the Appellant was not invited to give mitigation before sentence. All he was asked to confirm is whether he was jailed before for an offence, which he answered in the positive. The learned trial Court then recorded the following:““Court:I have perused the pre-sentence report and the victim impact report.The accused has committed a very serious offence. He has defiled his own child. He has put her future in jeopardy. He has destroyed the future of the child. He is a teacher and has also put the lives of other children at risk. He does not desire (sic) to be released back into the community he is a danger to young children. The Court will therefore give him a deterrent sentence.I do appreciate that this offence attracts a penalty of 10 years but under the circumstances, I will give the maximum sentence prescribed. Accused has a previous conviction of 3 years imprisonment for him (sic) he is not a first offender.SentenceI sentence the accused to serve imprisonment for life.RAE.”

25. The learned Judge of the High Court observed that the sentence for Incest under Section 20(1) of the SOA is imprisonment for a term not less than ten years “provided that, if it is alleged in the information or charge 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 ident act was obtained with the consent of the female person.”

26. The learned Judge noted that in imposing life imprisonment, the trial Magistrate observed that the Appellant was a danger to children. He then noted that the sentence for defilement contrary to Section 8(1) as read with Section 8(2) of the SOA, which the Appellant would have faced, given the age of the complainant, had he been charged under that Section, was life imprisonment. He concluded by saying that a person convicted of incest should not get anything less than life imprisonment.

27. Numerous cases have held that sentence is a matter that rests in the discretion of the trial court and must depend on the facts of each case. That on appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account, some wrong material, or acted on a wrong principle.

28. The learned trial Magistrate, we do appreciate, stated what she considered before passing sentence. She stated: “that this offence attracts a penalty of 10 years but under the circumstances, I will give the maximum sentence prescribed.” The circumstances that justified the imposition of the life sentence were not enumerated in the Sentence ruling. The appellate Courts were left to wonder what these circumstances could have been.

29. The High Court, while considering the Appellant’s complaint on sentence unfortunately went on a different tangent, comparing the offence of Incest with that of Defilement. The point was, what was it the trial Court considered that justified the imposition of the maximum sentence prescribed under the Section of the law under consideration. As none was mentioned, we find that nothing justified the imposition of life imprisonment.

30. We are satisfied that the sentence imposed upon the Appellant was excessive in the circumstances and that his appeal against sentence succeeds. Accordingly, we set aside the sentence of life imprisonment. Considering the age of the complainant, the fact the Appellant took advantage of the absence of his wife to commit the offence, we are convinced that the Appellant is undeserving of the minimum sentence prescribed under Section 20(1) of the SOA. We substitute the sentence of life imprisonment with sentence of 30 years’ imprisonment. The sentence should be computed from the date of sentence in the lower Court, and to take into account the period the Appellant spent in custody during the pendency of his trial between 19th June 2017 to 2nd October 2017, which was the date of sentence.

31. In the result, the Appellant’s appeal succeeds in part, only against the sentence. Subject to the finding on sentence, the appeal against conviction fails and is dismissed.

32. Those are our orders.

DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF NOVEMBER, 2023. S. GATEMBU KAIRU, FCIArb.............JUDGE OF APPEALJ. LESIIT.............JUDGE OF APPEALG. V. ODUNGA.............JUDGE OF APPEALI certify that this is the true copy of the originalDEPUTY REGISTRAR