[2022] KEHC 11270 (KLR)

Mitei v Republic. (Criminal Appeal 129 of 2017) [2022] KEHC 11270 (KLR) (31 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11270 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Appeal 129 of 2017

F Gikonyo, J

May 31, 2022

Between

Jackson Cheruiyot Mitei

Appellant

and

Republic.

Respondent

(From the conviction and sentence of Hon.W. Juma (C.M) in Narok SOA No. 25 of 2017 on 25th August 2017)

Judgment

1. The appellant was, on 25th August 2017, convicted for committing an indecent act with a child-the alternative offence in count I, and sentenced him to serve 10 years’ imprisonment.

2. Being dissatisfied with the said sentence he preferred an appeal as set out in his 6 grounds of appeal.

3. He however, on 28th December, 2021, the appellant in his written submissions sought to amend his grounds of appeal under Section 350 (2)(v) of the CPC as follows;i.That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant but failed to find that the sentence was harsh as it did not take account of Section 333(2) of the CPC.

4. Ultimately, he prayed that this court allows his grounds of mitigation.

5. The matter was canvassed by way of written submissions.

Appellant’s submissions 6. The appellant submitted that the mandatory nature of sentences under the Sexual Offences Act did not allow the trial magistrate to exercise judicial discretion to impose proportionate sentences according to peculiar circumstances of the case. He suffered from this fetter in his sentencing. He cited the cases of Wilson Kipchirchir Koskei v republic [2019] eKLR And Philemon Koech v Republic [2012] eKLR.

7. The appellant submitted that the trial magistrate failed to consider section 333(2) of the CPC. He cited the cases of Johana Nyagaka v Republic Criminal Appeal no. 40 of 2018, Thomas Mwambu Wenyi v Republic [2017] eKLR.

8. The appellant submitted that there are no facts pointing to the guilt of the appellant therefore the prosecution did not prove its case beyond reasonable doubt. He cited the cases of Joan Chebii Sawe v Republic [2003] eKLR, state of Punjab v Jagir Singh [1974] 3 SCC277 and Crwcher v Crowcher [1972] 1 KLR 425, 430.

9. The appellant prayed that conviction be quashed, sentence set aside and he be set at liberty.

Prosecution’s Submission 10. On the part of the Respondent, Ms. Torosi, learned prosecution counsel submitted that although the trial court did not record that the time spent in custody was considered, it is apparent from the record that the court was guided by sentencing guidelines and the aggravating circumstances in the case in imposing the sentence of 10 years. The complainant was a child aged 11 years and was mentally challenged, the appellant took advantage of the vulnerability of the child. The sentence was proper and in accordance with the law.

11. The respondent submitted that the prosecution proved the offence of committing an indecent act with a child beyond reasonable doubt.

12. The respondent submitted that identification of the appellant as the perpetrator was proved. The appellant was well known to the complainant. Her evidence was corroborated by the evidence of PW5, her father and PW3 her mother.

13. The respondent submitted that the defence of the appellant were mere denials and did not challenge prosecution’s evidence.

14. In conclusion, the prosecution submitted that the conviction was safe as against the appellant and urged this court to uphold it as well as the sentence.

Analysis And Determination. Court’s duty 15. As a first appellate court, I will re-evaluate the evidence and make own conclusions, except, bearing in mind that I neither saw nor heard the witnesses; thus, matters of demeanor of the witnesses are best observed by the trial court. See Okeno v Republic [1972] E.A 32

16. I have considered the grounds of appeal, evidence adduced in the lower court and the rival submissions of parties. The two broad issues for determination are: -i.Whether the prosecution proved beyond reasonable doubt the guilt of the appellant for the offence of indecent act with a child?ii.Whether the sentence was manifestly harsh and excessive

Proof of indecent act with a child 17. Section 11(1) of the Sexual Offences Act establishes the offence of committing indecent act with a child, and prescribes the penalty thereof as follows:“Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”

18. According to Section 2 (1) of the said Act: -“Indecent act means an unlawful intentional act which causes: -Any contact between any part of the body of a person with the genital organ, breast or buttocks of amother, but does not include an act that causes penetration;Exposure or display of any pornographic material to any person against his or her will.”

19. The evidence was that; the appellant took the complainant to his place and did bad manners to her using the thing for urinating. That he told her to lie on his bed. That she sleeps and he gives her food. She identified the appellant as he used to work for his father. The appellant then used the thing for urinating, he put it where she removed her urine.

20. PW1 -Benjamin tum, a clinical officer at Narok referral hospital testified that he examined PW2, 5 days after alleged defilement. He examined PW2, her hymen was intact; no lacerations, no tears of the genitalia cervix was normal. Pregnancy test was negative. There was no positive findings. He filed p3 form on 14/4/2017. He produced p3 form as p exh 1a and treatment notes as exh 1b.

21. The trial court held that,: -“the medical evidence favours the accused to a large extent he gets a reprieve that there was no evidence of penetration of the child’s vagina, not with a penis and not a finger. The hymen was intact.No injuries were seen on her parts. The child described the act like it was a gentle act but called it ‘tabia mbaya’ done to her and this would explain why no injuries are sighted coupled with the number of days gone by from the time she reported. The court treats this child as a truthful witness and under the exception of section 124 of the evidence act her evidence is believable. On the strength of PW2’S word, the court is satisfied that there is no issue of mistaken identity. The child said truthfully as to what was done to her. The defense of the accused does not respond directly to the acts PW2 talked about.The court is satisfied that the prosecution has proved a case beyond any shadow of doubt that the accused committed an indecent act with the child in line with the alternative charge of count I.”.

22. The complainant testified that the appellant ‘did put his thing for urinating in her thing which she uses to pass urine’.

23. The court finds that appellant was convicted substantially on the evidence of the complainant only.

24. Section 124 of the Evidence Act provides that: -“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him; 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.”

25. The trial court was impressed when she gave quite a narration of the events as they unfolded which she appears to have told her father. The trial court had the chance to see her and observe her demeanour which became the basis for making an inference on her truthfulness. In the premises, the observation of demeanour and the finding of the fact by the trial court that the complainant was telling the truth is properly grounded.

26. Therefore, the conviction herein was safe.

Of sentence 27. It was the Appellant’s submission that the learned trial magistrate erred by failing to take into consideration the mitigating factors and time spent in custody in determining his sentence.

The test 28. The first appellate Court can only interfere with the sentence imposed by the trial court if it is satisfied that; the trial court did not exercise discretion judicially in that; i) in arriving at the sentence the trial court did not take into account a relevant fact or that it took into account an irrelevant factor; or ii) that in all the circumstances of the case, the sentence is harsh and excessive (Wanjema v Republic (1971) EA 493)

29. The penalty for committing an indecent act with a child under Section 11(1) of the Sexual Offences Act is prescribed as follows:1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.

30. What is the appropriate sentence in the circumstances of this case?

31. In passing sentence, the court takes into account the individual circumstances of the case.

32. It is material factor that the appellant committed an indecent act with a child aged 10 years. From the evidence on record, the appellant took her to his place and did bad manners to her. He promised to give her mandazi and threatened to kill her and her parents if she ever revealed what transpired. The appellant also knew the victim was a minor when he committed the act.

33. I note that the trial magistrate considered the appellant’s mitigation. However, the trial court noted that the law says that the appellant should not be given less than 10 years’ imprisonment.

34. That notwithstanding, I will exercise discretion. I have taken into account the fact that the appellant is a first offender, is young and has responsibilities. I also consider the manner the offence was committed, the seriousness of the offence and the age and status of the complainant; these aggravating factors warrant a sentence for 10 years. I find the sentence of 10 years to be appropriate, as it serves as a deterrent measure, yet, giving this young person an opportunity to be re-integrated into society and eke a productive life for himself. I so find and hold.

Of section 333(2) of CPC 35. It seems the trial did not give him the benefit of time spent in custody ostensibly on the basis of the statutory fetter in sentencing.

36. Section 333(2) of the Criminal Procedure Code pertains to fair trial and justice. It must be given real effect to avoid a person serving a sentence more severe than he should (Ahamad Abolfathi Mohammed & amother v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR). Accordingly, as courts should always take a path that protects or promotes rights and fundamental freedom, section 333(2) of the CPC is given effect in this case by ordering that the sentence shall commence from the date of arraignment in court that is; 18th April 2017. This appeal, therefore, succeeds only on sentence to the extent expressly stated above. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 31ST DAY OF MAY, 2022F. GIKONYO MJUDGEIn the Presence of :1. The Appellant2. Ms. Torosi for Respondent3. Mr. Kasaso - CA