[2023] KEHC 25938 (KLR)

Likope v Republic (Criminal Appeal E001 of 2023) [2023] KEHC 25938 (KLR) (29 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25938 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Appeal E001 of 2023

RN Nyakundi, J

November 29, 2023

Between

Dominic Ekai Likope

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in the Principal Magistrate Court at Lodwar Sexual Offences Case No. E002 of 2022 by Hon. N M Idagwa (PM) dated 19th December, 2022)

Judgment

Before Justice R. NyakundiMr.Edward Kakoi for ODPP 1. The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 17th day of December, 2021 within Turkana County, intentionally caused his penis to penetrate the anus of KE a child aged 8 years 2. 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. The particulars of the offence were more less the same.

3. The appellant was convicted on the main charge and sentenced to life imprisonment.

4. Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:i.That the learned trial magistrate erred in both law and facts when he failed to consider that the identification of accused by prosecution witness was not watertight.ii.That the learned trial magistrate erred in law and facts when he failed to acknowledge the fact that the prosecution witness evidence was full of hearsay.iii.That the learned trial magistrate erred in law and facts when he failed to consider that prove of penetration was clear in the instant case.iv.That the learned trial magistrate erred in law and facts when he failed to consider that the complainant refused to be cross examined by the accused.v.That he was not accorded a fair trial at all as stipulated by the 2010 constitution.

5. The respondent filed submissions in support of its case whereas the appellant filed none.

6. Mr. Edward Kakoi, prosecution counsel in opposing the appeal submitted that the issue of age was sufficiently proven. He submitted that the victim’s father testified that the Complainant was 9 years old. Further the complainant was assessed as aged 8 years old. He relied on the case of Francis Omuroni vs Uganda, Criminal Appeal No. 2 of 2000.

7. On the issue of penetration, counsel submitted that the complainant testified that the appellant used his penis and then he inserted it in his anus. That the appellant put saliva on his penis and then inserted it in his anus. Further, at the examination by the clinical officer, it was confirmed that the complainant had a crack on his anal region blood stained and he had anal injuries discharging blood. Counsel submitted that penetration was proved.

8. Counsel submitted that the appellant was positively identified. The act happened during the day and the appellant was well known to both the complainant and his father.

9. On sentence, the prosecution submitted that the appellant was sentenced to 50 years whereas the offence attracts life imprisonment. Counsel submitted that in recent rulings by the high court and court of appeal, the court has discretion. He urged the court to exercise it properly.

Analysis And Determination 10. I have considered the appeal and submissions by the respondent. I have also read the record of the trial court and the judgment. As a first appellate court, this court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial court had the advantage of hearing and observing the demeanour of the witnesses. See Okeno vs. Republic [1972] E.A 32. The issues that arise for determination in this appeal are;i.Whether the prosecution proved its case to the desired threshold;ii.Whether the sentence meted upon the appellant was lawful.

Elements of offence of defilement 11. The appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides:8(1)a person who commits an act which causes penetration with a child is guilty of an offence termed defilement8(2)“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.”

12. The specific elements of the offence defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:1)Age of the complainant;2)Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and3)Positive identification of the assailant.

13. In the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal 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.”What does the evidence portend?

Age of the complainant 14. In a charge of defilement, the age of the victim is important for two reasons: i) defilement is a sexual offence against a child; and ii) age of the child has also been used as an aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence.

15. A child is defined as a person under the age of eighteen years. Is the victim herein a child?

16. The respondent submitted that the complainant testified that he was 9 years old. His father, PW2 testified that the complainant was 9 years old. The complainant was assessed as aged 8 years old and that though the report was marked, it was not produced.

17. In delivering its judgment, the trial court noted that voire dire examination was conducted on the complainant before taking his evidence. The court observed that the complainant was of tender years.

18. The trial court rightly found that the complainant was eight years old at the time.

PenetrationSection 2(1) of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 19. In the case of Mark Oiruri Mose v R [2013] eKLR the Court of Appeal stated that:“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”

20. The complainant testified that the act was done to him by the accused person who used his penis by inserting it inside his anus. That he put saliva on his penis and then inserted it inside his anus. During examination, the clinical officer established that he had a crack on his anal region blood stained. He also had anal injuries discharging blood.

21. The inevitable conclusion from the analysis of the evidence is that there was ample evidence to prove that penetration did occur. I find that the medical evidence supports there was penetration of the minor.

Was the appellant the perpetrator? 22. The Appellant was a person known to the complainant. There was no element of mistaken identity of the Appellant as the person who penetrated him. The appellant was well known to the complainant and his father.

23. The evidence by the prosecution leaves no doubt that the appellant caused penetration of the complainant. Accordingly, I find that the elements of defilement namely, penetration and minority age of the victim were proved beyond doubt. The conviction was therefore proper.

24. In the upshot, I find that the Appellant was positively identified as the assailant herein; there was no mistaken identity or error. Accordingly, I find that the prosecution proved their case beyond reasonable doubt and that the trial court did not error in convicting the appellant for defilement. The appeal on conviction therefore lacks merit and is hereby dismissed.

On sentence 25. Section 8 (2) of the Sexual Offences Act to convict provides as follows:8(2)“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.”

26. In the “Muruatetu Case”, the Supreme Court outlined the following guidelines as being applicable when the Court was giving consideration to re-sentencing;“(a)a) age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaption of the offender;(h)any other factor that the Court considers relevant.”

27. In my considered view, the accused mitigation ought to count in sentencing. The objectives of sentencing should be considered in totality. In this regard, section 10 of the Sexual Offences Act gives room for the exercise of judicial discretion.

28. Further, the sentencing objectives in Kenya have been captured in the Sentencing guidelines 2023 to be the following: -1)Retribution: to punish the offender for his/her criminal conduct in a just manner.2)Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.3)Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person.4)Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.5)Community protection: to protect the community by incapacitating the offender.6)Denunciation: to communicate the community’s condemnation of the criminal conduct.7)Reconciliation: To mend the relationship between the offender, the victim and the community.8)Reintegration: To facilitate the re-entry of the offender into the society.

29. The trial court while sentencing the accused persons noted the mandatory sentence to the offence of and took into account mitigating factors and the objectives of sentencing in totality. Notwithstanding the principles in Ogalo s/o Owousa vs R (1954)21E.AC.A.270 and R vs. Mohammed Jamal (1948) 15 E.A.C.A. 126 an appeals court is not a rubber stamp of a trial court decision. That therefore calls for the session judge on appeal to read in and read out the impugned judgment on sentence to examine it at various levels with a view to satisfy itself as to the justness, propriety, fairness and proportionate of the elective type of sentence adopted by the trial court. The learned author Andrew ashworth, in his Treatise on criminal justice and sentencing Techniques of Guidance on sentencing (1984) criminal law LR 519 had this to say..“Judgments of appellate courts are often substantial and consider sentencing for a whole category of similar offences including the particular offence committed by the accused, it sets down factors which are appropriately considered to be aggravating or mitigating the seriousness of the offence and state the proper range of sentences for the relevant offence. It is therefore the appellate court to consider interrelationships of sentences between the different forms of an offence. Secondly, instead of having to deal with a series of potentially conflicting appellate decisions, sentences in the lower courts are given a specific frame work to operate within”

30. The first conclusion this sentence of 50 years presents is the emphasis on punitive objectives. Is this correct? The short answer is there must be rigorous empirical details of aggravating and mitigating factors taken to account at the time to avail the incarceration of the appellant for a logically 50 years imprisonment. For example the reading of the facts are clear that this was a serious sexual offence against the victim incapable of even appreciating the act itself. The extent at which the appellant may have intended the results of this crime are also within reach of assessment by the court to diminish any weight to be given on mitigatory factors. In my view to address meaningfully the complex interpreting issues raised by this on sentence calls for a deeper consideration on the sentencing tool in the broader context our sentencing regime. One of the key parameter directed at sentencing an offender is for trial courts to look not only at protecting society and the risk of re-offending but also on re-habilitation. It is apparent that the trial court imposing the 50 year sentence ruled out any aspect of reformation and rehabilitation of the offender. I am of the persuasive view that besides incarceration greater prominence to the principles of restorative justice in sentencing i.e. rehabilitation, reparation to the victim, and the community would promote a sense of responsibility in the offender or for that matter the accused person. The drafters of the principles and objectives of sentencing did not give any higher weight to any one of the objectives or principles to tilt the scale of justice in terms of the final verdict. The approach is that imprisonment should be chosen only when the gravity of the offence points to a penal objective either to the complete exclusion of any other principle/objective to an extent that it cannot be accommodated in that decision save for deterrence. Yes, parliament in Kenya intended sexual offences sentences to be punitive with little rehabilitative aspects. Again as a matter of emphasis demonstrably by empirical criminal data in our courts long period of incarceration of convicted offenders has not militated against the upsurge of sexual offences. The systemic or background factors that have contributed to the difficulties faced by the Kenyan people to reduce the category of sexual offences ought to be addressed as a matter of urgency. If one dissects sequential sexual offences filed in the various magistrate’s courts it is predominately alarming. One can hardly conceive at the moment of a more better legal framework to deal with the violations against humanity to ensure fairness on the proportionality. May be we need re-editing some of the provisions to the sexual offences act. Going back to the original penal law is not an option but the answer may lie in the recognition that the sexual offences act denunciatory objectives has not diminished the crime from our society and communities. Whether the approach on rehabilitation and transformation applying a value system entrenched in the family units will provide a better analytical framework for judges is worthy of debate. I sometimes wonder whether there are circumstances in a sexual offence case that will suggest that the denunciatory objective can be conveyed by trial courts in some way other than incarceration as the only remedy to hold one accountable for the offence. The various cases in our criminal divisions across the country by themselves have no answers to many questions arising out of the sentencing regime and the severe enough sanctions imposed for those appropriately found guilty and convicted of the net-widening category of offences in the act. In my view is overly optimistic that denunciation and deterrence are true objectives to cure the malaise bedeviling our society.

31. Finally let me address the subject matter of this appeal notwithstanding the dichotomy of the issues I have raised above. The appellant invited me to consider the learned trial magistrate’s exercise of judgment as to the fairness of the sentence. The test of this court on an appeal of this nature is to decide whether the decision on sentence been complained of is in breach of the well settled principles and guidelines. As I can remember, this court should not interfere unless on well-known grounds that the appellant must establish by presenting considerable number of relevant authorities to address the specific issue in question. The conventional approach would not work.

32. The court has considered the circumstances of this case and the provisions of the Act. Further sentencing is discretionary and the Appellate Court can only interfere if the sentence is too harsh as to result into an injustice or it is illegal. In considering the objectives of sentencing in totality, the Court interferes with the sentence of 50 years and substitutes it with 35 years’ imprisonment with the commencement date of 5/1/2022. The appeal therefore partially succeeds on sentence whereas the order on conviction is affirmed.

DATED AND SIGNED AT LODWAR THIS 29TH DAY OF NOVEMBER, 2023In the presence of;Mr. Kakoi for the stateAppellant in person.....................R. NYAKUNDIJUDGE