[2022] KEHC 12732 (KLR)

Masha v Republic (Criminal Appeal 8 of 2020) [2022] KEHC 12732 (KLR) (16 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12732 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal 8 of 2020

SM Githinji, J

May 16, 2022

Between

Kahindi Charo Masha

Appellant

and

Republic

Respondent

(Being an appeal against the Conviction and Sentence from the Original Malindi Criminal Case No. 67 of 2018 in a judgment dated on 31st January, 2020 by Hon. (Dr) Julie Oseko – Chief Magistrate)

Judgment

1. Kahindi Charo Masha,the Appellant herein, was charged in the lower court with a main count of defilement of a girl contrary to section 8 subsection (1) as read with subsection (3) of the Sexual Offences Act No. 3 of 2006.

2. The particulars of this offence are that on the diverse dates of September, 2017, at [Particulars Withheld] village in Magarini Sub-County within Kilifi County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of RK, a girl aged then 14 years.

3. In the alternative, the Appellant was charged with the offence of committing an indecent act with a child, contrary to section 11 subsection (1) of the Sexual Offences Act No. 3 of 2006.

4. The particulars hereof are that on the diverse dates of September, 2017 at [Particulars Withheld] Village, Bomani Sub-Location, Magarini Sub-County within Kilifi County, the Appellant intentionally touched the vagina of RK, a girl aged 14 years old.

5. The prosecution case is that the complainant in this case as of September, 2017 was aged 14 years. She was living at [Particulars Withheld] village at Magarini. She is an orphan and her grandmother was the guardian. At the time she was schooling at [particulars Withheld] Primary School in class 6. The Appellant herein is her relative and a neighbor. He is said to be a cousin to the complainant but the complainant referred to him as her grandfather probably due to the age difference between them.

6. According to the evidence of Pw-2, who is also their relative, the complainant was in the habit of spending the nights in the house of the Appellant. The grandmother when she was told about it took no official action apart from addressing the issue with the Appellant who did not desist. Pw-2 decided to take an action as other family members were reluctant to do so. It’s said even when the Appellant was drinking in bars, the complainant was feeding at the places waiting for him to complete and go home together. The evidence portrays as if he had taken her for his “wife”.

7. The complainant herself talked about one incident in September, 2017 when the Appellant called her to his house when the grandmother was away. She went and was given Kshs.50 to buy something and urged to return in the evening to sleep in the house. She went and bought chips. In the evening she returned and the Appellant had sex with her. Out of it, she got pregnant.

8. On 9th January, 2018 Pw-3 the children’s officer heard about the incident. Pw-2 at the time happened to be in the probation’s office where Pw-3 was. He offered to assist Pw-3 find the victim. He led Pw-3 to the victim’s house. She was there and was asked whether she was unwell. She said she was. She was taken to Marafa dispensary. She was treated and said it is the Appellant who had sex with her. The matter was reported at Marereni Police Station. The police investigated the case. She was referred to Malindi District Hospital. Her age was assessed as 14 years old. Dr. Ibrahim noted that the hymen was missing and she was pregnant. The P3 form was thus filled. The Appellant was traced, arrested and charged.

9. In his sworn defence he did not address the defilement issue. He only alleged that on the night of 31/8/2018 five men knocked on his door, and when he opened he noted they were police officers. He was arrested and taken to Marafa. The following day he was taken to Marereni and later charged.

10. The trial court evaluated the evidence and found that the age of the victim was established as 14 years old, penetration was proved and the Appellant recognized as the perpetrator. He was convicted of the main count and sentenced to serve 15 years imprisonment.

11. The Appellant dissatisfied with the said conviction and sentence appealed to this Court on three grounds that; -1. The prosecution did not prove the offence of defilement contrary to section 8 (1) (3), beyond reasonable doubt.2. The sharp contradictions in the prosecution case were not properly weighed.3. His defence was not adequately considered.

12. Both parties filed submissions for consideration in this Appeal.

13. I have re-evaluated the entire evidence, judgment of the lower court and sentence, grounds of the Appeal and Submissions by both parties.

14. The evidence of Pw-1 and Pw-5 shows that at the time of the offence the victim was aged 14 years. She was therefore a child. There is also no doubt that she was pregnant as she said so as well as the doctor who examined her. She eventually gave birth on 19th July, 2018 to a girl child. This fact when weighed against the evidence of the complainant that its only the Appellant who had sex with her, and the evidence of Pw-2 that she was in the habit of spending the nights in the Appellant’s house, leave no doubt at all that it’s the Appellant who had sex with her and made her pregnant. There is no credible evidence at all to the contrary. The evidence therefore establishes beyond reasonable doubt that it’s the Appellant who defiled her.

15. The Appellant was well known to her as a neighbor and a relative, and the same case applies to Pw-2. Both had no cause to fix the Appellant. I do find that they are honest witness who spoke the truth.

16. The Appellant during cross-examination and in his defence did not come out clearly and strongly as opposed to the allegations in the prosecution case. His defence casts no doubt at all on the truth of the prosecution case. Actually given the evidence on record, there were no basis of preferring the alternative count against the Appellant. The victim could not have become pregnant out of an indecent act.

17. From the foregoing, I do find that the conviction was proper.

18. I now turn to the sentence. The Appellant was sentenced to serve 15 years imprisonment. From the sentiments of the trial court, there were no strong mitigating factors. The Court observed that; -“I have taken to account the victim Impact Assessment Report. I have also noted how the offence committed by the Accused has affected the child. I also note that this offence is serious. It’s very prevalent in the County. Child negligence are very high and a deterrent sentence is preferable, particularly for mature adult like the accused who is 42 yeas old.”Section 8 (1) (3) of the Sexual Offences Act takes states that (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.”

19. The victim herein was aged 14 years, and the Appellant should not have been sentenced to a period of less than 20 years imprisonment. The 15 years Imprisonment he got is an illegal sentence. I wish to right that and push the sentence to 20 years imprisonment, in line with the law. I have done so, as justice is met if it is in accordance to clear provisions of the law.

20. The Appellant herein will serve a sentence of 20 years imprisonment.

JUDGMENT READ AND SIGNED AT MALINDI IN THE OPEN COURT TO PARTIES WHO APPEARS VIRTUALLY, WHO ARE; - THE APPELLANT AND MR MWANGI FOR THE STATE, THIS 16TH DAY OF MAY, 2022. ....................................S.M. GITHINJIJUDGECORAM: Hon. Justice S.M.GithinjiMr Mwangi for the stateAppellant in person