[2022] KEHC 9773 (KLR)

Mamilaka v Republic (Criminal Appeal 53 of 2020) [2022] KEHC 9773 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 9773 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal 53 of 2020

JM Bwonwong'a, J

May 6, 2022

Between

Augustine Simiyu Mamilaka

Appellant

and

Republic

Respondent

Judgment

1. The appellant has appealed against his conviction and sentence of twenty years imprisonment in respect of the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act No.3 of 2006.

2. In this court the appellant has raised six grounds of appeal in his petition of appeal.

3. In grounds 1 and 2 the appellant has stated that he pleaded not guilty to the charges and that he is a first offender. These are undisputed issues.

4. In grounds 5 and 6 the appellant has stated that the evidence adduced by the prosecution was circumstantial, speculative and contradictory and therefore cannot support the conviction.

5. The evidence of the complainant (name withheld) (Pw 1) was that she was a pupil at Kibingei FYM Primary School. She testified that on 12th May 2018 at around 5 pm while she was fetching firewood, the appellant approached her and offered to take her to her friend who was calling her. She further testified that the appellant was a boda boda rider and took her to Nasusi and later on to Chesamis. She testified that at around 7 pm in Chesamis, the appellant took her to a house and locked the house from outside only to return at around 9 pm. She continued to testify that the appellant ordered her to undress and inserted his private parts describing the ordeal as painful. She further testified that the appellant repeated the sexual intercourse several times in the next three weeks as she was not allowed to leave the premises.

6. It was her testimony that she finally managed to call her mother when the appellant left his phone and met her sister at Chemasis market. She also testified that she went to her sister’s house but returned to the appellant’s house in the evening. The complainant testified that on 10th July 2018, police officers came to the appellant’s premises and arrested him in her presence. She further testified that she was taken to Chemasis Police station and later on to Kapsokwony Hospital for examination; a matter in respect of which she identified the P3 form which was later produced as exhibit 2.

7. The complainant was examined by Dr. Edward Wafula Simiyu (Pw 8), a doctor at Mt. Elgon Sub County Hospital. Upon examination he made the following findings. The complainant was Sephar Nabalayo. Her hymen was missing. The pregnancy was negative. She had a whitish discharge. STD’s test was negative. Epithelial cells were seen, an indication of penetrative sexual intercourse. LR was negative. PITC was negative. Pw 3 concluded that she had penetrative sex which led to the missing hymen. Pw 8 then produced the P3 form as exhibit 2.

8. In addition to the foregoing witness, the prosecution called Everlyn Wabomba Nanjala (Pw 2) a sister of the complainant. She testified that Pw 1 was living with the appellant after missing from their home in May 2018. That on one occasion she secretly followed Pw 1 and saw her enter into the appellant’s house.

9. It was the evidence of Pamela Misanga Rubia (Pw 3) and Joseph Wanjala Ouma (Pw 4) that they were the parents of the complainant and reported her disappearance to the police. Pw 3 also testified that she received a call from the complainant during the period of her disappearance and managed to communicate via short message service (sms) to an individual who identified herself as her daughter. She also testified in respect of the events that led up to the arrest of the appellant.

10. Samuel Otwori Ogato (Pw 5) was the sub county registrar of births and deaths. Pw 5 produced the complainant’s birth certificate as exhibit Pexh 3. It indicated that the complainant was born on 5th November 2004 and was aged 14 years at the time the offence committed.

11. William Ngerisho (Pw 6), was the head teacher at Kimkung SDA Primary School confirmed that the complainant was a pupil at his school and had disappeared at the time the offence was committed.

12. No. 111783 PC Moses Munya (Pw 7), the investigating officer testified on how he received the report on the disappearance of the Pw 1. He testified how he carried out the investigations which led to the arrest and charging of the appellant. He testified that he also issued a P3 form and referred Pw 1 for treatment at the sub-county hospital.

13. Upon being placed on his defence, the appellant chose to remain silent and did not give any testimony in his defence.

14. The respondent through her prosecution counsel submitted that the evidence linking the appellant to the offence was direct primary and secondary evidence and not circumstantial evidence as contended by the appellant. Counsel further submitted that the evidence of the prosecution witnesses was consistent and was not contradictory.

15. I have re-assessed the entire evidence as a first appeal court. As a result, I find the prosecution evidence to be credible that the appellant had sexual intercourse with the complainant; whom he had taken and lived with her for about three weeks in Chesaina area. I further find as credible the medical evidence of Dr. Edward Wafula Simiyu (Pw 8), a doctor at Mt. Elgon Sub County Hospital that the complainant had penetrative sexual intercourse which was evidenced by a missing hymen and the existence of epithelial cells. I therefore find as credible that sexual penetration was proved by both the evidence of the complainant and the medical evidence of Pw 8. The contention of the appellant that the evidence was speculative, circumstantial and contradictory is without basis and is hereby dismissed.

16. In ground 4 the appellant has faulted the trial magistrate for being biased and contended that the age of the complainant was not properly established and proved beyond reasonable doubt. The respondent submitted that the allegation of bias is baseless. I find that the court gave each party a fair hearing and the court was not biased.

17. In respect of the age of the complainant, the respondent asserted that the same proved beyond reasonable doubt.

18. From the record, there is no evidence that the trial magistrate was biased in any way. Each party was given an opportunity to be heard and cross –examined witnesses within the provisions of the right to fair hearing under the Constitution. Consequently, I dismiss the claim of bias.

19. Secondly, Samuel Otori Ogato (Pw 5) the sub county registrar of births produced the complainant’s birth certificate. It indicated that the complainant was born on 5th November 2004 and was aged 14 years at the time the offence was committed. I find that the birth certificate conclusively proved the age of the complainant. Consequently, I reject the appellant’s submissions in this regard.

20. In ground 3 the appellant submitted that the sentence of 20 years imprisonment was too harsh considering the circumstances and the evidence adduced. The appellant submitted that the court ought to have considered the period he spent in custody pursuant to section 333(2) of the Criminal Procedure Code. Furthermore, the appellant submitted that the trial court should have considered his mitigation before imposing the sentence. He urged the court to reduce his sentence and substitute it with a non-custodial one.

21. In response to the foregoing the respondent submitted that the sentence that was imposed by the trial court was legal under the provisions of the Section 8 (3) of the Sexual Offences Act which provides for a sentence of imprisonment for term of not less than 20 years. It was argued that the sentence was not harsh or excessive.Section 8 (1) of the Sexual Offences Act provides as follows:(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.

22. This is a first appeal. I have borne in mind the principles to be followed in respect of sentencing in matters where the sentence imposed is the prescribed minimum mandatory sentence. It is a mandatory sentence that was imposed by the trial court.

23. Furthermore, I also do not have any discretion to interfere with the mandatory statutory minimum sentence that was imposed by the trial court.

24. In the circumstances, I find that the sentence imposed is authorized by law.

25. In the premises, I find no merit in the appeal which I hereby dismiss in its entirety for lacking in merit.

JUDGEMENT SIGNED, DATED AND DELIVERED AT NAIROBI IN OPEN COURT THROUGH VIDEO CONFERENCE THIS 6TH DAY OF MAY 2022. ****J M BWONWONG’A****JUDGEIn the presence of: -Kinyua: Court AssistantThe appellant - present in personMr. Ayieka for the respondent