[2023] KEHC 25901 (KLR)

Mitoko v Republic (Criminal Appeal E079 of 2021) [2023] KEHC 25901 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25901 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E079 of 2021

AC Mrima, J

November 30, 2023

Between

Ezra Kiaye Mitoko

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. M.I.G. Moranga (Senior Principal Magistrate) in Kitale Chief Magistrate’s Court Criminal Case (S.O) No. 298 of 2020 delivered on 24th September, 2021)

Judgment

Introduction: 1. The Appellant herein, Ezra Kiaye Mitoko, was charged with three Counts under the Sexual Offences Act before the Chief Magistrates Court at Kitale in Sexual Offence No. 298 of 2021 (hereinafter referred to as ‘the Criminal Case’). They are as follows:i.Count i: Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. The particulars of the offence were that on 5th January, 2019 within Trans-Nzoia County, the Appellant intentionally and unlawfully caused his penis to penetrate into the anus of BI, a boy aged 10 years old.In the alternative, the Appellant was charged with committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in same place, the Appellant unlawfully and intentionally caused contact between his genital organ namely penis and the genital organ namely anus of BI, a boy aged 10 years old.ii.Count ii: Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. The particulars of the offence were that on 19th January, 2019 within Trans-Nzoia County, the Appellant intentionally and unlawfully caused his penis to penetrate into the anus of ON, a boy aged 8 years old.In the alternative, the Appellant was charged with committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in same place, the Appellant unlawfully and intentionally caused contact between his genital organ namely penis and the genital organ namely anus of ON, a boy aged 8 years old.iii.Count iii: Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. The particulars of the offence were that on 5th January, 2019 within Trans-Nzoia County, the Appellant intentionally and unlawfully caused his penis to penetrate into the anus of EON, a boy aged 11 years old.In the alternative, the Appellant was charged with committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in same place, the Appellant unlawfully and intentionally caused contact between his genital organ namely penis and the genital organ namely anus of EON, a boy aged 11 years old.

2. The Appellant denied all the charges and he was tried. After a full trial, the Appellant was found guilty of defilement as charged. He was convicted and sentenced to life imprisonment in each of the three Counts.

The Appeal: 3. The Appellant was utterly aggrieved by the conviction and sentence. He subsequently lodged an appeal against both.

4. In his Petition of Appeal, the Appellant challenged the convictions and sentences mainly on the grounds that the charge sheets were defective, that the ingredients of the offences were not proved, that crucial witnesses were not called, that the evidence was doubtful and contradictory, that he had a solid defence and that the sentences were unproportional.

5. In the premises, the Appellant prayed that the appeal be allowed, the convictions be quashed and the sentences be set aside and that he be set forthwith at liberty.

6. At the hearing of the appeal, the Appellant relied on his written submissions. The Appellant expounded on the above grounds of appeal and referred to several decisions.

7. The Respondent opposed the appeal. It relied on its written submissions dated 28th July, 2023. The Respondent argued that all the three charges were rightly proved in law and that the sentences were lawful.

8. The State prayed for the dismissal of the appeal.

Analysis: 9. This being a first appeal, it’s the duty of this Court to re-consider and to re-evaluate the evidence adduced before the trial Court with a view to arriving at its own independent conclusions and findings (See Okono vs. Republic [1972] EA 74). In doing so, this Court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial Court and, therefore, it ought to give due regard in that respect as so held in Ajode v. Republic [2004] KLR 81.

10. Having carefully perused the record, this Court is now called upon to determine whether the offences of defilement were committed, and if so, whether by the Appellant.

11. It is established by law and settled judicial precedents that the offence of defilement carries three components. They are the age of the victim, penetration and identification of the assailant.

12. Before dealing with the said aspects of the offence, this Court acknowledges the comprehensive manner in which the trial Court captured the evidence in the impugned judgment. As such, this Court hereby adopts that evidence as part of this judgment; by way of reference.

13. As a recap, a total of 6 witnesses testified. PW1 was EO, the complainant in the third Count. PW2 was ON, the complainant in the second Count and PW4 was BI, the complainant in the first Count. PW3 was a Clinical Officer based at Kitale County Referral Hospital who produced the complainants’ P3 Form and treatment s records. PW5 was Dr. Mercy Oyieko, a Senoir Dentist Officer at Kitale County Referral Hospital who produced the complainants’ Age Assessment Reports. The Investigating Officer testified as PW6.

14. When the Appellant was put on his defence, he gave a sworn testimony and called a witness, his brother, who testified as DW2.

15. It was the cumulative evidence of the above witnesses that led to the convictions and sentences under review in this appeal.

16. The Court will now look at the elements of the offences of defilement in this case.

Ages Of The Complainant: 17. The Appellant lamented that the ages of the complainants had not been established. However, from the Age Assessment Reports, the ages of PW1, PW2 and PW4 were well settled at 11, 8 and 10 years old respectively. The age assessments by PW5 was carried out on 21st January, 2019. The reports were produced as exhibits.

18. The Reports contained expert evidence. Having gone through the record, this Court does not see how the expert evidence was impugned. The reports were of high probative value and this Court agrees with the trial Court that the ages of the three complainants in this matter were as contained in the said age assessment reports.

19. Accordingly, the complainants were children within the meaning ascribed to the term under Section 2 of the Children’s Act.

Penetration: 20. Section 2(1) of the Sexual Offences Act defines “penetration” to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” The provision also defines ‘genital organ’ to include the whole or part of male or female genital organs and for purposes of the Sexual Offences Act it also includes the anus.

21. This position was fortified in Mark Oiruri Mose vs R (2013) eKLR when the Court of Appeal stated thus: -…. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ…. (emphasis added).

22. Later, the Court of Appeal, then differently constituted, in Erick Onyango Ondeng v. Republic (2014) eKLR held as such on the aspect of penetration: -In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.

23. The Appellant herein vehemently argued that the prosecution failed to establish penetration. The evidence on penetration was given by the three complainants and PW3, the Clinical Officer.

24. The trial Court analyzed the evidence of all the witnesses and found that the prosecution witnesses were truthful. The Court believed the complainants and even went ahead to caution itself on relying on their sole testimonies.

25. Each of the complainants was quite candid in the manner they narrated the events as they occurred. Each of them explained how a male genital organ (penis) found its way into their anal orifices. They complained that each of the respective entry was painful and they felt generally tired thereafter.

26. PW3 corroborated the evidence on penetration. He produced the P3 Forms for each of the complainants and narrated how their respective anus were physically examined. In each such examination it was found that the anus was enlarged. According to PW3, the enlargements were abnormal and that was evidence of forceful entry.

27. Again, the P3 Forms and the other treatment notes were produced as exhibits. This Court has perused them and is also satisfied that they are of sound probative values.

28. This Court, thus, finds no difficulty in affirming the position that penetration into each of the three complainants’ anal orifices was proved to the required standard.

Identity Of The Perpetrator: 29. The prosecution had to lastly positively identify the perpetrator of the offence. The prosecution relied on the complainants’ sole testimonies in establishing the fact.

30. The complainants narrated their separate enCounters with the Appellant. They vividly explained how each of them was sexual molested by the Appellant. There was ample evidence that whereas one of the complainants lived with the Appellant, the other two were friends to the other and they would visit and play with him at the Appellant’s place which was in the neighbourhood. At one time, one of the two spent the night at the Appellant’s house with the other friend.

31. Being a sexual offence matter, a Court can rely and find a conviction on uncorroborated evidence of the victim. That is courtesy of Section 124 of the Evidence Act. In doing so, the Court must, however, be satisfied that the complainant was truthful.

32. The complainants testified before the trial Court which observed their demeanors. The Court did not make any adverse finding on their demeanors or character. The Court was satisfied that the complainants were truthful and were not mistaken on the person who sexually engaged them.

33. The trial Court further believed that the Appellant took one of the complainants from his parents’ home under the guise of taking him to school, but turned wolf by sexually molesting him.

34. The Appellant vehemently impugned the finding of the trial Court on this aspect. He pitted out that the trial Court ought to have relied on his defence which fully exonerated him.

35. The trial Court considered and analyzed the defence and found it to be unsustainable. This Court has equally reconsidered the defence. It is the finding of this Court that the trial Court, correctly so, analyzed the defence which it ultimately dismissed as an afterthought. To add on to the allegation that the defence was not sufficiently considered, this Court notes that the defence also placed the Appellant at the scene of crime on the alleged dates. The evidence of DW2 did not aid the Appellant since it centered on what largely happened way after the occurrence of the incidents in issue.

36. There was also the aspect of the Appellant escaping immediately the complainants disclosed what had happened to them. The Appellant who was a teacher in Kitale town never reported to school. He effectively disappeared. Efforts to trace him through the school were unfruitful as the school declined to give the Appellant’s details. Further, whenever the Appellant was called and the caller identified as from Kitale, the Appellant would disconnect the call. He was also offline for quite a while and was arrested after around a year later while working as a cook in a hotel in Bungoma town.

37. The Appellant’s conduct after the allegations were disclosed by the complainants does not conform to an innocent person. The Appellant must have been out to escape from the consequences of his actions.

38. This Court, therefore, reiterates its position that the defence was duly considered by, and was rightly so, disregarded by the trial Court.

39. The upshot of the foregoing is that the prosecution discharged its burden to the required standard of proof in proving that indeed the perpetrator of the heinous act against the poor young boys was none other than the Appellant.

40. Having found as much, this Court will now deal with the other grounds as raised by the Appellant to ascertain whether the convictions were unsafe.

41. There was the allegation that the charge sheets were defective as they failed to conform to Section 134 of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya.

42. Article 50(2)(b) and (n) of the Constitution provides as follows: -(2)Every accused person has the right to a fair trial, which includes the right-(b)to be presumed innocent until the contrary is proved;(n)not to be tried convicted for an act or omission that at the time it was committed or omitted was not –i)an offence in Kenya; orii)a crime under international law

43. Section 134 of the Criminal Procedure Code (hereinafter referred to as ‘the CPC’) provides as follows: -Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

44. Courts, in considering what constitutes a defective charge, have variously emphasized on the need to ensure that the accused is not prejudiced.

45. The then East Africa Court of Appeal in Yosefu and Another -vs- Uganda (1960) E.A. 236 held as follows: -The charge was defective in that it did not allege an essential ingredient of the offence; i.e. that the skins came from animals etc, in contravention of the Act.

46. In Nyamai Musyoka v. Republic (2014) eKLR, the Court of Appeal expressed itself as follows: -The test for whether a charge sheet is fatally defective is a substantive one.......If a defective charge is followed by a series of other procedural or substantive mistakes and which in particular affect the rights of the accused person, or the defect goes into the root of the charge distorting it in a way that the accused person cannot understand the charge, then the Court ought to be reluctant to apply Section 382 C.P.C. to cure the defect... (emphasis added).

47. And, in Sigilani -vs- R (2004) 2 KLR 480, it was held that: -The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence.

48. The Black's Law Dictionary defines 'defective' as follows: -Lacking in some particular which is essential to the completeness, legal sufficiency, or security of the object spoken of......

49. As rightfully settled by the Court of Appeal, the test in determining whether a charge is defective is a substantive approach as opposed to being formalistic.

50. Therefore, if on examination of a charge, a Court is satisfied that the offence is stated and the particulars rendered such that the accused can understand what he/she is facing before Court and in a manner that enables him/her to adequately prepare for a defence, then such a charge cannot be faulted on defectivity. That position will not change even if a wrong section of the law has been cited on the charge.

51. Applying the above to this case, the Appellant was charged with three Counts of defilement. The particulars of each offence were given. The Appellant took part throughout the trial. He extensively cross-examined all the witnesses including the expert witnesses. He even defended himself in stating that he was not the perpetrator of any of the offences and called a witness, DW2.

52. The Appellant was, therefore, well aware of what he faced before Court and fully participated in the trial. There was no demonstration of any defectivity of the charges. However, if by any chance there was any such defect, then it such is readily curable by the application of Section 382 of the CPC since such error did not occasion any injustice to the Appellant.

53. Having said as much, the Appellant’s contention that the charge sheets were defective does not have any legal leg to stand on. It is hereby dismissed.

54. There was also the issue of contradictions in the evidence. This Court has carefully perused the record. As this Court has repeatedly stated, contradictions in evidence cannot be totally ruled out when parties testify. The reason being that people perceive and narrate same events differently. Therefore, unless the contradictions go to the root of the matter and prejudices the accused, such are reconcilable and not fatal to the case.

55. The alleged contradictions, if any, did not, however, go to the root of the case. They were easily reconcilable and did not prejudice the Appellant or at all.

56. On the contention that crucial witnesses were not called without any reasonable explanation, the prosecution has a discretion to call any witnesses. (Section 143 of the Evidence Act). It is only in instances where crucial witnesses are not called and no plausible explanation is given when a Court may raise a red flag. (See Bukenya & Others versus Uganda (1972) E.A. 594, Kingi versus Republic (1972) E.A. 280 and Nguku versus Republic (1985) KLR 412).

57. The witnesses called in this case were sufficient to prove the offences.

58. Deriving from the foregoing, the Court now finds that none of the grounds of appeal succeed. Having found that the three elements of the offence were sufficiently proved on each Count, then the Appellant was properly found guilty and convicted. The appeals against the convictions are, hence, dismissed.

Sentences: 59. The Appellant was sentenced to life imprisonment on each Count. The Appellant tendered mitigations and were duly considered by the sentencing Court.

60. This Court recently considered the constitutionality of life imprisonment in High Court of Kenya at Kapenguria Criminal Appeal No. E019 OF 2022 Issah Maruti alias Baba Favour vs. Republic where the State posited that life imprisonment was still constitutional since there were two contradictory decisions of the Court of Appeal on the subject.

61. In finding that indeed the life imprisonment is unconstitutional, this Court rendered itself as follows: -56. The Appellant submitted that life imprisonment was unconstitutional and that the sentence ought to be set-aside and he be sentenced to the period already served.57. The State opposed the submission and contended that the life imprisonment was upheld by the Court of Appeal as constitutional in Criminal Appeal No. 104 of 2021 in Nairobi Onesmus Musyoki Muema vs. Republic. The decision was rendered on 4th August, 2023. 58. Earlier, on 7th July, 2023, the Court of Appeal, differently constituted, in Manyeso v Republic [2023] KECA 827 (KLR) found the life imprisonment unconstitutional.59. This Court has carefully considered the two decisions from the Court of Appeal. Whereas the matter calls for urgent resolution by the Supreme Court, this Court ought to carefully weigh the rival decisions. After consideration of the said decisions, this Court finds favour in the finding that life sentences are unconstitutional to the extent that they are indeterminate.60. Unlike the decision in Manyeso v Republic, the latter one did not consider the issue in light of the various provisions of the Constitution, prevailing judicial pronouncements from the Supreme Court including Francis Karioko Muruatetu & Another v Republic (Petition 15 & 16 of 2015; [2017] KESC 2 (KLR)) and comparative jurisprudence world-over.61. Manyeso v Republic had a robust exposition of the relevant constitutional provisions coupled with appropriate legal reasoning which is in tandem with the transformative 2010 Constitution.62. It is, hence, the finding of this Court that life sentences are unconstitutional to the extent that they are indeterminate. This Court, therefore, upholds the Court of Appeal decision in Manyeso v Republic case (supra).63. Having found as such, the life sentence imposed on the Appellant is hereby set-aside.64. In considering an appropriate sentence this Court is guided by the statement in Manyeso v Republic case (supra) when the Court was considering the sentence. The Court stated as follows: -27. …… We are also alive to the fact that he [the Appellant] was convicted for defiling a child of 4 years and of the likely ramifications of his actions on the child’s future. We are therefore of the view that while the Appellant should be given the opportunity for rehabilitation, he also merits a deterrent sentence. We, therefore in the circumstances, uphold the Appellant’s conviction of defilement, but partially allow his appeal on sentence. We accordingly set aside the sentence of life imprisonment imposed on the appellant and substitute therefore a sentence of 40 years in prison to run from the date of his conviction.65. Given the age of the victim in this case, which was 3½ years old, and in consideration of the mitigations, this Court finds that a stiffer penalty is called upon as a deterrent measure.

62. It is, hence, the finding of this Court that the life sentences handed down to the Appellant by the trial Court are unconstitutional. As such, they are hereby set-aside.

63. Going by the heinous nature of the offences, the respective ages of the complainants, the fact that the children were needy and highly vulnerable coupled with the Appellant’s conduct after committing the offences and the Appellant’s mitigations on record, this Court finds that the Appellant ought to serve a deterrent sentence.

Disposition: 64. Drawing from the above considerations, the following final orders hereby issue: -a.The appeals on convictions are hereby dismissed.b.The appeals on sentences are hereby allowed and the life sentences are set aside.c.The Appellant is hereby sentenced to serve 20 years imprisonment on each of the three Counts of defilement. Since the offences were committed at different times and on three different complainants, the sentences shall run consecutively. Cumulatively, the Appellant shall serve a term of 60 years in prison. The sentence shall run as from 10th February, 2020 when the Appellant was charged.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 30TH DAY OF NOVEMBER, 2023. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of: -Ezra Kiaye Mitoko, the Appellant in person.Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Chemosop/duke – Court Assistants