[2022] KEHC 2049 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL APPEAL NO. E002 OF 2021

MICHAEL MUTHANDI MAINA............APPELLANT

VERSUS

REPUBLIC.................................................RESPONDENT

[Appeal from the decision of I. Gichobi, Principal Magistrate, in S.O. No. 26 of 2019 at

Kangema dated 9th February 2021]

JUDGMENT

1. The appellant was convicted for defilement contrary to section 8 (1) of the Sexual Offences Act. He was imprisoned for twenty years.

2. The amended charge sheet stated that on 23rd August 2019 at [particulars withheld] within Murang’a County, he intentionally caused his penis to penetrate the vagina of M.W.K [particulars withheld] a child aged fourteenyears.

3. The petition of appeal raises sixgrounds but which can be compressed into four. Firstly, that penetration was not proved; secondly, that the appellant was not examined to link him to the offence; thirdly, that there was violation of Article 50 of the Constitution and sections 77, 162 and 307 of the Criminal Procedure Code; and, fourthly, that the defence was not taken into consideration.

4. In a synopsis, the appellant contends that he did not get a fair trial and that the offence was notproved beyond reasonable doubt.

5. The appellant relied entirely on his typed but undated submissions filed on 2nd February 2022.

6. The appeal is opposed by the respondent. Learned counsel for the appellant, Ms A. Otieno, relied wholly on her submissions dated 2nd February 2022 and the attached precedents.

7. This is a first appeal to the High Court. I have re-evaluated the evidence and drawn independent conclusions. I am alive that I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] E. A. 32.

8. From the acknowledgment of birth notification (exhibit 1), I am satisfied that the complainant (PW2) was born on 10th June 2005. She was thus aged 14 years at the time of the offence. Although she was in class six at a regular institution, she had learning difficulties.

9. The trial court had initially declared her a vulnerable witness and directed that her mother be her intermediary. Arising from the testimony of her mother (PW1) and submissions by the prosecutor, the court ordered a mental assessment of the minor. I think the court went over the top. The report was not forthcoming and the court decided to conduct a voir dire examination. The learned trial magistrate formed the opinion that the minor understood the nature of an oath. The record shows that she also “expressed herself clearly…and [understood] the gist of the matter”. The court directed that she would testify without the intermediary and on oath.

10. I am thus satisfied that the trial court complied with the procedure of taking the evidence of the minor. Johnson Muiruri v Republic [1983] KLR 445. I also find that there was no prejudice to the appellant. Ground (v) of the petition of appeal is thus unmerited and is dismissed.

11. The complainant (PW2) had been sent to pick an axe by her mother (PW1) from Mama Chege’s house. On her way back she met a man who she did not know. He pulled her into the Nyayo Tea Plantation, removed her stockings and panties and defiled her. She said the man then gave her 40 shillings and told her not to disclose the matter. The perpetrator left towards the shops.

12. PW1 got worried that PW2 had taken too long and it was getting dark. She decided to go for her. They met along the Nyayo Tea Zone. Upon enquiring, PW1 disclosed that she met a man who removed her biker and inner wear and penetrated her. The perpetrator gave her Kshs 40. PW1 did not know his name but told PW1 that she could identify him.

13. The pair then went to the nearby shops where the complainant identified the appellant. PW1 said that the appellant admitted defiling the child and that he gave her the 40 shillings. He was arrested by PC Yegon from Mioro Police Station. PW4 issued the complainant with a P3 Form and advised the mother to take her for medical examination at Nyakianga Health Centre.

14. Although the complainant did not know the appellant, she clearly identified him. She testified as follows:

I met with my mother while heading to the shop. I told her someone had done bad things to me. I told her the man had proceeded towards the shop. We went towards the shop and I pointed the man who had sexually assaulted me to my mother. He was beaten up by my cousins and my mother…

15. From that evidence I find that the offence took place at about 06:00 p.m. The complainant in cross examination said the appellant was “wearing a black cap and had dread locks”. She disclosed the matter immediately to her mother and surrendered the 40 shillings to her. She identified the appellant immediately after the incident as the person who defiled her and left towards the shops. The appellant was found at the shops soon thereafter by PW1 and PW2. I am thus satisfied that the appellant was positively identified.Wamunga v Republic [1989] KLR 424, Maitanyi v Republic[1986] KLR 198 at 201.

16. Medical evidence from the clinical officer (PW3) confirmed that the complainant’s hymen “was broken and she had bruises around the vagina area”. No sperms were seen. The medical notes and the P3 Form were produced as exhibits 2 (a) and (b).

17. Section 2 of the Sexual Offences Act defines penetration as“the partial or complete insertion of the genital organs of a person into the genital organs of another person”.

18. I find that on the totality of the evidence of PW1, PW2 and PW3 that the appellant penetrated the vagina of PW1.

19. The appellant laments that he was not availed legal counsel at his trial. I find that the nature of the charge did not entitle him to pro bono counsel from the State. He also complained that the proceedings in the lower court were conducted virtually. I take judicial notice that the trial was conducted at the height of the Covid-19 pandemic. The Chief Justice had issued sufficient guidelines including practice directions on the hearing of civil and criminal cases electronically during that season. I am unable to say that any grave prejudice was suffered by the appellant during any of the video-link sessions.

20. The appellant was present at all the hearings and cross-examined all witnesses at length. I find no evidence on the record to show that the trial court was biased or that the burden of proof was shifted to him. The trial magistrate explained to the appellant his rights under section 211 of the Criminal Procedure Code but he opted to remain silent. In the end I am unable to say that that there was violation of Article 50 of the Constitution.

21. Like I stated, the appellant exercised his right to remain silent. But the evidence against him overwhelmingly pointed to his guilt. I thus find that the conviction for defilement was safe. The appeal against conviction is accordingly dismissed.

22. I will now turn to the sentence. Section 354 (3) of Criminal Procedure Code empowers this court to review the sentence.

23. The minimum sentence provided in this case is twenty years’ imprisonment. However, the Court of Appeal has given fresh guidance on mandatory sentences under the Sexual Offences Act. In Jared Koita Injiri v Republic [2019] Kisumu Criminal Appeal 93 of 2014 [2019] eKLR. The court held:

In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis.

The appellant was provided an opportunity to mitigate in the trial court where it was stated that he was a first offender. He pleaded for leniency. However, it cannot be overlooked that the appellant committed a heinous crime, and occasioned severe trauma and suffering to a young girl. His actions have demonstrated that around him, young and vulnerable children, like the complainant could be in jeopardy.

Needless to say, pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic (supra), we would set aside the sentence for life imposed and substitute it therefore with a sentence of 30 years from the date of sentence by the trial court.[Underlining added]

24. I accordingly set aside the sentence. I have considered that the appellant is a first offender. However, the victim was a vulnerable child with learning disabilities. The appellant shall now serve a term of 10 years’ imprisonment. The total period spent in remand from the date of his arrest on 23rd August 2019 shall be deducted from this sentence.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 1ST DAY OF MARCH 2022.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of-

The appellant (in person).

Ms. A. P. Gakumu for the Republic instructed by the Office of the Director of Public Prosecutions.

Ms. Susan Waiganjo, Court Assistant.