[2024] KEHC 3216 (KLR)

Lolem v Republic (Criminal Appeal E041 of 2022) [2024] KEHC 3216 (KLR) (5 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3216 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Appeal E041 of 2022

RN Nyakundi, J

April 5, 2024

Between

Joel Alila Lolem

Appellant

and

Republic

Respondent

(Being an appeal from the judgment of Hon. N.M. Idagwa in Lodwar law court cr. SO. N0. E054 of 2021)

Judgment

Representation:Mr. Wasike for ODPP 1. The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 12th September, 2021 in Turkana Central Sub-County within Turkana County intentionally caused his penis to penetrate the vagina of RA a child aged 15 years.

2. The appellant faced an alternative being 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 Fifteen years (15 years) imprisonment.

4. Being aggrieved with the said judgment the appellant lodged the present appeal based on the following grounds:i.That the trial magistrate erred in law and fact in convicting the appellant without the prosecution having proven all the ingredients of the offence of defilement.ii.The trial magistrate erred in fact and law in convicting the appellant in circumstantial evidence that was purely and insufficiently uncorroborated.iii.The trial magistrate erred in fact and law in convicting the accused person based on sufficient evidence full of material contradictions which did not establish the statutory ingredients of defilement.iv.The trial magistrate erred in fact and law in convicting the appellant without the prosecution having proven all the ingredients of the offence of defilement.v.The trial magistrate erred in fact and law in convicting the appellant without the prosecution having proven the ingredients of the offence of defilement.vi.The trial magistrate erred in fact and law in failing to consider the accused person’s mitigation.vii.The trial magistrate erred in fact and law in imposing a sentence that was so harsh, excessive and punitive.

5. Parties filed written submissions in support of their arguments.

Appellant’s Submissions 6. The appellant submitted that the elements of the offence of defilement which ought to be proven as per George Opondo Olunga v Republic [2016] eKLR include penetration; the age of the victim and the identification/recognition of the offender.

7. It was submitted for the appellant that the medical record relied on was filled by PW5 who is a nurse, working as such at Kalokol health centre. That the finding was arrived at by the trial court without considering whether PW3 was a proper medical practitioner for purposes of filling and producing a P3 form.

8. The appellant submitted that a qualifying expert for purposes of filing and production of a P3 form is from the rank of a Registered Medical Officer of Medical practitioner and extends to include a dentist and a clinical officer.

9. It was the appellant’s position that the reliance on the foregoing observation to establish the element of penetration is erroneous. That the trial court forgot the position that courts have none the less held that absence of hymen is not prima facie evidence of penetration. On this, counsel relied on the case of PKW v Republic [2012] eKLR.

10. The appellant submitted that the medical evidence of absent hymen, relied upon by the trial court again is not conclusive proof of penetration. Further that the trial court relied on evidence of a single witness to believe that there was penetration, in disregard of the evidence of all the other witnesses.

11. The appellant argued that in terms of whether penetration occurred, the medical report indicated that the alleged victim was on her menses. That the medical report indicated that Labia Majora and Minora were normal with no bruises only hymen was missing and such was an inconclusive proof of penetration.

12. Counsel submitted that at the trial court, the prosecution only managed to prove the element of age by production of a birth certificate.

13. On identification, it was submitted that the prosecution witnesses testified that they had seen the appellant in his room with the complainant. The witnesses stated that they saw the appellant run away. They however did not say whether they saw the appellant cause penetration on the complainant.

14. The appellant argued that the prosecution did not disprove the Appellant’s alibi. That the trial court got stuck in the prosecution’s side of the story as the gospel truth. Counsel submitted that the trial court without any justifiable reason dismissed the appellant’s defence of alibi and relied in the irrelevant position that the minor was known to the appellant; the innocence and alleged gullibility of the minor adjectives which were overtly irrelevant and immaterial in the charges, whose elements are clear and ought to be proven independent of anything ulterior.

15. It was submitted for the appellant that he is a victim of suspicion, in disregard of the already existing superior judicial positions on the issue of suspicion, such as in Mary Wanjiku Gichira v Republic, Criminal Appeal No. 17 of 1998).

16. On the issue of sentence, the appellant submitted that the learned trial court overlooked some material factors such the failure of the prosecution to prove its case beyond reasonable doubt, the failure by the prosecution to displace the defence of alibi and also the magistrate failed to consider the fact that the complainant was behaving like an adult by taking herself to the accused person’s house, enjoying having sex with adults. That had the trial court considered all these, it could have arrived at a different sentence.

17. In conclusion, the appellant urged this court to find that the trial court relied on poorly presented evidence and one not proven beyond reasonable doubt, as expected of all criminal charges, to convict the appellant.

Respondent’s Submissions 18. Mr. Edward Kakoi, prosecution counsel in opposing the appeal submitted that on the various ingredients of the offence of defilement.

19. On the issue of age, it was submitted for the respondent that a birth certificate was produced as exhibit 4 and confirmed that the age of the minor was 15 years old at the time the incident occurred.

20. On penetration, counsel submitted that the complainant testified how she was penetrated by the Appellant. She gave details on how she met the appellant who forced her to have sex with him. Further it was submitted that the medical report confirmed that the hymen was missing and as such it corroborated penetration.

21. Counsel submitted that the appellant was well known to the Complainant. That their relationship had been ongoing for some time and they were neighbors coming from the same area and therefore the appellant was positively identified.

22. The Respondent’s counsel was of the view that all the three ingredients of the offence of defilement were proved to the required standard. That there was nothing wrong for the trial court to rely on the evidence of a single witness to convict.

23. On the defence of alibi as argued by the appellant, the respondent’s counsel submitted that the defence was considered and duly dismissed for reasons that it was too general. No dates or time was given to give chance for the prosecution to investigate the so-called alibi. He submitted that there are no material inconsistencies or contradictions.

24. In concluding, counsel was of the position that given the circumstances of the case, the conduct of the complainant and the discretionary powers of the court, the court can relook at the sentence with the intention of reducing the same.

Analysis And Determination 25. I have considered the appeal and submissions by both parties. 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 demeanor of the witnesses. See Okeno v Republic [1972] E.A 32.

26. 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 27. The appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) 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(3) “A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”

28. 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:i.Age of the complainant;ii.Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; andiii.Positive identification of the assailant.

29. In the case of Charles Wamukoya Karani v 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 30. 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.

31. In the instant, case the element was not in contention as the appellant concurred in his submissions that the same was proven through a birth certificate adduced in evidence. The element of age is therefore settled and as such the age of the minor was 15 years old at the time of the incident.

Penetration 32. Section 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.”

33. The trial court in coming up with its finding relied on the testimony of the Complainant who stated:“There was a ceremony at the church. He called me and told me to have sex with him, he forced me. I had sex with himwe had sex at his home at Kalmapos. It was at midday. I cant remember the date.”She further stated:“He removed my clothes; he asked me why I was scared. I go sleep with him. He then slept on top of me. He had removed his clothes. He then raped me using his thing, the thing he uses to urinate to the place I use to urinate.”

34. The prosecution produced a P3 form at the trial court and from the form, it was observed that:“Both the external and internal genitalia are normal, hymen absent, blood (clotted) seen over vaginal opening and she said she is on her menses.”

35. The Complainant in giving her testimony at the trial court stated as follows:“Another day he called me again this is the day Florence and Mansera got us. They saw him touch my breasts. We were at his house. Florence and Mansera came and opened the door. Accused run away. I can’t remember the date. I was in class 7. When he was having sex with me and also touching me.”

36. The trial court observed that from the evidence of the complainant, she described how the accused penetrated her vagina using his penis. The act happened several times. The accused was well known to the Complainant. The Complainant was steady in her testimony and she had no reason to lie against the accused.

37. The Learned Trial Magistrate after considering the evidence in its totality concluded that there was sufficient and credible evidence against the appellant thereby rendering him guilty of the offence of defilement.

38. According to the P3 form adduced by the prosecution, it was established that both the external and internal genitalia are normal, hymen absent, blood(clotted) seen over vaginal opening and the complainant indicated that she was on her menses.

39. I must state that absence of hymen per se cannot be conclusive evidence of penetration and therefore defilement. In PKW v Republic (supra), Maraga and Rawal JJ (as they then were) stated with regard to absence of hymen:“[15]. In their analysis of the evidence on record, the two courts below…appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse?[16]. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen v Manuel Vincent Quintanila [1999] AB QB 769. ”

40. From the foregoing, having thoroughly read through the record, and even the pre-sentence report, the court gets the impression that the victim and the appellant have been engaging in the ‘act’ repeatedly. The pre-sentence report indicated that the appellant defiled the minor while he was drunk. The absence of the hymen could be for the said reason but I will leave it at that.

41. The inevitable conclusion from the analysis of the evidence is that there was ample evidence to prove that penetration did occur.

Was the appellant the perpetrator? 42. The accused was found in his house by the prosecution’s witnesses. It is the same house that he run from naked and the complainant was found in the house. The trial court noted that these witnesses might not have seen the accused commit the offence but he was at the scene the same time the offence was committed. That the appellant was well known to the prosecution witnesses. The trial court found the appellant to have been positively identified. In considering all the material on record, I couldn’t agree more.

43. It is also apparent from the prosecution case that the victim of this offence identified as PW1 was aged 16 years old as supported by documentary evidence produced as exhibit 3. On review of the evidence by the 5 witnesses lined up by the prosecution some of the characteristics of the offence which have not been impeached by the defence include that the victim was below 18 years of age bringing her within the bracket of the sexual offences Act and the Children’s Act. This class of citizens are protected by the constitution and statute law due to their vulnerability. It is also established by evidence by PW1 and as corroborated by medical evidence that there was a sexual Act performed on the victim. It is trite law as also established by the learned trial magistrate that the act of the Sexual Intercourse of penetration may be proved by direct all circumstantial evidence. Traditionally the court is obligated by law to assess the evidence by the victim and any other independent cogent evidence to proof this ingredient of penetration beyond reasonable doubt. It is also the law in Kenya as restated by the Supreme Court of Uganda in Hussein Bassita v Uganda S. C Criminal Appeal No. 35 of 1995 where the court observed that “ Though desirable it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt”

44. 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.

45. In the upshot, I find that the Appellant was positively identified as the assailant herein; there was no mistaken identity or error.

46. 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 47. According to the Appellant, the learned magistrate did not consider the fact that the complainant was behaving like an adult by taking herself to the accused person’s house, enjoying having sex with adults etc.

48. Section 8 (3) of the Sexual Offences Act to convict provides as follows:8(3) “A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”

49. In the “Muruatetu Case”, the Supreme Court outlined the following guidelines as being applicable when the Court was giving consideration to re-sentencing;“(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.”

50. In my considered view, as I have stated over and again elsewhere 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.

51. Further, the sentencing objectives in Kenya have been captured in the Sentencing guidelines 2023 to be the following: -i.Retribution: to punish the offender for his/her criminal conduct in a just manner.ii.Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.iii.Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person.iv.Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.v.Community protection: to protect the community by incapacitating the offender.vi.Denunciation: to communicate the community’s condemnation of the criminal conduct.vii.Reconciliation: To mend the relationship between the offender, the victim and the community.viii.Reintegration: To facilitate the re-entry of the offender into the society.Sentencing is the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and should legal principles. It must take into account all relevant factors and eschew all extraneous or irrelevant factors. Certainly the appellate court would be entitled to interfere with the sentence imposed by the trial court if it is demonstrated that the sentence imposed is not legal or is so harsh and excessive as to amount to miscarriage of justice, and or that the court acted upon wrong principles or if the court exercised its discretion capriciously. In Shadrack Kipchoge Kogo v Republic the court of Appeal stated: “Sentence is essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred.”

52. The trial court while sentencing the appellant considered the appellant’s mitigation and as such did not issue the minimum mandatory sentence. However, in considering the objectives of sentencing in their totality and the circumstances of the case, there are no compelling or substantial circumstances for this court to interfere with the sentence. The Appellant has failed to demonstrate that the sentence imposed was irregular, harsh, punitive, unfair, excessive, and not within the drafters of the Sexual Offences Act. The upshot of it both conviction and sentence fails to receive any atonement from this court exercising Appellate jurisdiction. The only rider that the sentence so imposed be incompliance with Section 333(2) of the Criminal Procedure Code for the credit period spent in pre-trial detention.

DATED AND SIGNED AT LODWAR THIS 5TH DAY OF APRIL, 2024In the Presence ofMr. Wasike for the ODPPThe Applicant..............................................R. NYAKUNDIJUDGE