[2022] KEHC 15377 (KLR)

Malala v Republic (Criminal Appeal E076 of 2022) [2022] KEHC 15377 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15377 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E076 of 2022

TW Cherere, J

November 10, 2022

Between

Henry Kithene Malala

Appellant

and

Republic

Respondent

(Being an appeal against judgment, conviction and sentence in Nkubu Criminal SO No. E008 of 2021 by Hon. J.Irura (PM) on 23rd May, 2022)

Judgment

Background 1. Henry Kithene Malala (appellant) was charged defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006 (the act). The offence was allegedly committed on diverse dates between 30th and January 31, 2021 against HK a child aged 6 1/2 years. He also faced an alternative charge of committing an indecently and intentionally touching with his penis, the vagina of HK a child of 6 ½ years contrary to section 11 (1) of the Sexual Offences Act No 3 of 2006.

2. The prosecution called six (6) witnesses in support of the charges. Complainant recalled that on two consecutive days, he met appellant who lived near their home and whom she referred to as Kithenge and he took into a banana and maize farm respectively and defiled her. It was her evidence that she reported the matter to her parents and to Feli who in turn informed one Pauline Kanyiri who then informed complainant’s parents on February 5, 2021. Complainant’s mother stated that complainant was born on August 24, 2014 as shown on her certificate of birth PEXH 1. Upon being informed by Pauline on February 5, 2021 that appellant had defiled complainant, complainant’s mother interrogated complainant who informed her that appellant had defiled her twice. She reported the matter to police on February 6, 2021.

3. Complainant was examined on February 9, 2021. A P3 form tendered as PEXH 3 reveals that complainant had a broken hymen with healing vaginal laceration. Appellant was arrested on February 9, 2021 and charged.

Defence case 4. Appellant in his unsworn defence denied the offence. He stated that he was framed by complainant’s mother to cover up for having attacked him with a panga injuring his head.

5. The trial court after hearing the witnesses for the prosecution and defence found appellant guilty and sentenced him to life imprisonment.

Appeal 6. Aggrieved by the conviction and sentence, appellant lodged the instant appeal and filed submissions mainly on the grounds that the prosecution case was not proved beyond reasonable doubt, that his defence was not considered and finally that the sentence meted on him was excessive. The state on the other hand submitted that all the ingredients of defilement had been proved and appellant positively identified as the perpetrator.

Analysis and determination 7. The appeal proceeded by way of written submissions. This being a first appeal, this court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial court, and give due allowance for that (See Okeno v Republic [1972] EA32). I have considered the appeal and I shall deal with it as set out herein below.

Age of complainant 8. It is trite that the age of a minor is a critical component of a defilement charge and that it is an element which must be proved by the prosecution beyond reasonable doubt. In Kaingu Kasomo v RepublicCriminal Appeal No 504 of 2010 the Court of Appeal stated as follows:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.

9. That complainant was born born on August 24, 2014 as shown on her certificate of birth PEXH 1. I therefore find that complainant was a minor less than 11 years of age and that appellant was correctly charged under section 8(1) as read with section 8(2) of the act.

Penetration 10. Section 2 of the act defines penetration to entail: -“partial or complete insertion of a genital organ of a person into the genital organ of another person.”

11. The P3 form PEXH 1 reveals that complainant had a broken hymen with healing vaginal laceration and the trial magistrate’s finding that that an act of penetration had been proved was therefore well founded.

Appellant’s culpability 12. As a general rule of evidence embodied in section 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section make an exception in sexual offences and provides as follows:“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.”

13. Appellant was not a stranger to the complainant a fact conceded by appellant. The incidents allegedly happened during the day and the possibility that complainant was defiled by someone else and not the appellant was nil.

Appellant’s defence 14. Appellant’s defence that he was framed by complainant’s mother was considered by the trial magistrate and found to be an afterthought for the reason that the issue was not raised when complainant’s mother testified to give her a chance to answer to the allegation that she had framed the appellant.

15. The essential question is not the truth or untruth of the defence but whether, the case for the prosecution was proved beyond reasonable doubt. I have considered the decision by the trial court rejecting the defence and I find that the learned trial magistrate rightly considered the degree of proof in criminal cases as was properly established in the classicus English case of Woolmington v DPP 1935 A C 462 and correctly rejected appellant’s defence as an afterthought.

16. From the analysis of the complainant’s evidence, I find that the appeal on conviction has no merit.

Sentence 17. Concerning sentence, the extent that the Sexual Offences Act prescribe minimum mandatory sentences with no discretion to the trial court to determine the appropriate sentence to impose, falls foul of article 28 of the Constitution which provides that “Every person has inherent dignity and the right to have that dignity respected and protected”.

18. In the end, the conviction is upheld but the life sentence is substituted with a 15 years’ imprisonment term from the date of arrest on February 9, 2021.

DELIVERED AT MERU THIS 10TH DAY OF NOVEMBER 2022WAMAE T W CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - PresentFor appellant - Mr. Mutegi AdvocateFor the State - Ms. Mwaniki (PPC)