[2022] KEHC 13974 (KLR)

Maina v Republic (Criminal Appeal 92 of 2017) [2022] KEHC 13974 (KLR) (14 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13974 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Appeal 92 of 2017

J Wakiaga, J

October 14, 2022

Between

Cyrus Nyaga Maina

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence in Murang’a Sexual Offences No. 11 of 2017 by Hon. V. Ochanda R.M)

Judgment

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 which were that on February 23, 2016 at [Particulars Withheld] location within Muranga County, intentionally and unlawfully caused his penis to penetrate the vagina of AWW a child aged 6 years.

2. He faced an alternative charge of indecent act with a child contrary to section 11(1) of the sexual Offences Act.

3. He denied the said charges and was tried and convicted on the main count and sentenced to life imprisonment.

4. Being aggrieved by the aid conviction and sentence, the appellant filed this appeal on December 22, 2017 through his home made petition of appeal wherein he contended that he was not given time to tender his defence, his submission was not considered as well as his request for medical examination and report thereon.

5. When the appeal came up for hearing, the appellant, through his advocates on record filed supplementary grounds of appeal and raised the following additional grounds:-A.The learned magistrate erred in law and in fact by convicting the appellant without evidenceB.The prosecution evidence was contradictory, inconsistent and uncorroboratedC.The sentence was harsh and excessive in the prevailing circumstancesD.Essential prosecution witnesses were not called.

Submission 6. On behalf of the appellant it was submitted, that age of the minor, which is an essential ingredient of the offence was not proved either by way of birth certificate, notification or age assessment and neither dud the mother testify and the only evidence tendered was the estimate of age contained in the P3 form, which was no proof of age. It was contended that the trial court erred in holding that there was birth notification, while none was tendered in evidence.

7. It was contended that the act of penetration was not proved as the treatment notes submitted in evidence indicated that the external gentile was normal even though the hymen was absent, which is no proof of penetration in support of which the case of PKW v Republic [2012] eKLR was tendered.

8. On identification, it was submitted that the court relied on the evidence of the mother and the grandmother of the victim, who were not called to testify and that whereas the appellant may be convicted on the evidence of a single witness, the evidence of the victim was that she had not seen the appellant before and therefore there was a gap in the prosecution case as regards identification which required corroboration and therefore all the ingredients of the offence were not proved.

9. It was finally submitted that the appellant alibi defence supported by DW2, giving account of where he was at 3. 00pm was not considered and therefore his conviction was not safe.

10. On sentence, it was submitted that the same should be set aside based on the cases of Christopher Ochieng v Republic [2018] eKLR and Joseph Makau Katana v Republic [2018] eKLR.

11. On behalf of the Republic, it was submitted that there was sufficient evidence to link the appellant with the offence and that contrary to the submissions by the appellant, the complainants mother testified as PW2 and confirmed the age. Penetration was proved through the testimony of the complainant and the medical evidence on record through PW3.

12. On identification, it was submitted that the complainant indicated that it was day time when she met the appellant and since she spent enough time with him, she was able to identify him at the dock and that there were no grave contradictions on the prosecution case and that the appellant alibi defence was introduced late into the trial and further DW2 stated that she was not with the appellant throughout.

Proceedings 13. This being a first appeal, the court is required to re-valuate the evidence tendered before the trial court and to come to its own conclusion, giving allowance to the fact that I did not unlike the trial court have the advantage of seeing and hearing witnesses as was stated in Okeno v R [1972] EA 32.

14. PW1 having been found too young to understand the meaning of oath stated that she was in class one and did not know her age. On the material day she left school for home alone, when she found the appellant at the mango tree and he requested her to go with him to his home which she declined but later on agreed to do so. The house had electric power and he removed his clothes and “did tabia mbaya" to her at the place girls urinate with by placing what the boys have and she stayed with him until the following morning when she went back to the mango tree, where her mother found her and took her to the hospital.

15. PW2 stated that the complainant as 6years old ad was a pupil at Muringa Primary School and that she did not return home from school at 6 pm she looked for her and did not find her until the following day when she was found near the mango tree at 8. 00 am, she told them that Nyaga asked her to go with him to his house where he did to her tabia mbaya and she was not in good shape when she found her, so she took her to the hospital where she was examined and a P3 form issued.

16. PW3 Linus Muturi a clinical officer examined who examined the minor stated that she had bruises on libia majora, her hymen was broken, he therefore concluded that there was vaginal penetration. In cross examination he stated that there were no spermatozoa seen in the samples taken

17. 17. PW4 CPL James Mwangi was at the station when the complainant came with her mother and CPL Thomas Thumbe to make the report, they advised them to report to Murang’a police station, he later on arrested the appellant at a club at muringa shopping centre and on arrest he told them that he knew why they had arrested him.

18. PW5 CPL Ann Wamutali a companied the complainant to the hospital and later on collected the results and the p3 form. She was given the birth notification showing that she was aged 6years

19. DW1 the appellant stated that he woke up on February 23, 2016 and went to the shamba until 1. 00 pm. At 6. 00 pm he went to the shopping centre and was arrested by the police fir something he knew nothing about. In cross examination, he stated that he had not seen the complainant before.

20. DW2 Alice Njeri stated that on 24th, she went to the shamba with the appellant and at about 5 pm she sent him to go and buy maize floor but did not return back. In cross examination, she stated that on 23rd they went to the shamba up to 1. 00 pm and later show him at 7. 00pm, she confirmed that she knew the complainant and her grandmother as neighbours and that the complainant was not well behaved in the village.

Analysis and Determination 21. In determining this appeal, I will turn to the appellant’s grounds of appeal and analyse the same as I reach to the conclusion thereon.On the age of the complainant, the evidence on record through the testimony of her mother, who testify contrary to the submission of the appellant, safe for the fact that she was not cross examined, was six years. This was corroborated by post rape care form produced as pext 2, p3 form pext 3 and the treatment card pext 1.

22. Whereas birth notification card was not produced contrary to the finding of the court, I find and hold that the age of the minor was proved beyond any reasonable doubt as the jurisprudence emanating from the superior courts is that age can be proved through any other means over and above the birth certificate.

23. On penetration, the complaint at her age was very clear in her testimony that the appellant did tabia mbaya to her by putting by placing what the boys have at her place the girls use for urinating. This evidence was corroborated by the medical evidence of the clinical officer and her mother’s evidence as to the shape she was in when found.

24. Contrary to the submissions by the appellant the lack of hymen in this case was evidence of vaginal penetration as confirmed by the clinical officer and therefore the case of RKW v R (supra) cannot come to his rescue.

25. On identification, the complainant spent the entire night with the appellant having waylaid her on her way from school, the appellant alibi defence did not lodge the fact that the complainant spent the night with the appellant. The mothers evidence that she failed to return home and was found the following day at the same spot from where the appellant had taken her the previous day, placed the appellant with her and she was able at her age to identify the same at the dock, thereby confirming that his identification was free from error.

26. It therefore follows that the conviction of the appellant was safe and therefore find no merit on the appeal against conviction.

27. On sentence, the same remains at the discretion of the trial court and the appellate court can only interfere with the same if the conditions set by the court in Philip namaya v R [2021] eKLR as follows are met:“8. It must be stated for record purposes that the appellant pleaded guilty to the charges and was convicted on his own plea of guilty and therefore his appeal herein is only limited to the sentence herein.The conditions upon which the appellate court may interfere with the sentence of the trial court were set out in the case of Simon Kipkurui Kimori v Republic [2019] eKLR as follows:5. Since the appellant is only appealing against sentence, it is important to set out the circumstances under which an appellate court interferes with sentence. The principles guiding interference with sentencing by the appellate court were properly, in my view, set out in S v Malgas 2001 (1) SACR 469 (SCA) at para 12 where it was held that:“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”6. Similarly, in Mokela v The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that:“It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court.This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”7. The predecessor of the Court of Appeal in the case of Ogolla s/o Owuor v Republic, [1954] EACA 270, pronounced itself on this issue as follows:-"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”8. To this, I would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case.” (R v Shershowsky (1912) CCA 28TLR 263) while in the case of Shadrack Kipkoech Kogo v R Eldoret Criminal Appeal No 253 of 2003 the Court of Appeal stated thus:-“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka v R (1989 KLR 306)”9. The Court of Appeal, on its part, in Bernard Kimani Gacheru v Republic [2002] eKLR restated that:“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 states is shown to exist.”

28. In sentencing the appellant, the trial court stated as follows“I have considered the offence, the penalty and mitigation. The law provides for the sentence of life in prison. I hereby sentence the accused to life imprisonment”.

29. I have taken note of the age of the complainant and the fact that the appellant was a neighbour, who owed a fiduciary duty of care towards the same and who should not have used her a sexual object to gratify his misplaced sexual urge and in this I find support in the Court of Appeal decision in the case of Athanas Lijodi v Republic [2021] eKLR where the court stated that the life sentence imposed by the trial court and affirmed by the High Court was not unconstitutional and can still be mated out in deserving cases muruatetu case not withstanding if it is passed upon exercise of proper sentencing discretion and consideration of facts of each case. I therefore find no fault with the sentence herein which I hereby affirm.

30. In the final analysis I find no merit on the appeal herein both on conviction and sentence which I dismiss and affirm the judgement of the trial court.

31. The appellant has a right of appeal.

32. And it is ordered.

SIGNED DATED AND DELIVERED AT MURANGA THIS 14TH DAY OF OCTOBER, 2022. J WAKIAGAJUDGEIn the presence ofCourt assistant: Carol Mutahi