[2022] KEHC 17183 (KLR)

MMN v Republic (Criminal Appeal E003 of 2021) [2022] KEHC 17183 (KLR) (2 June 2022) (Judgment)

Neutral citation: [2022] KEHC 17183 (KLR)

Republic of Kenya

In the High Court at Garsen

Criminal Appeal E003 of 2021

SM Githinji, J

June 2, 2022

Between

MMN

Appellant

and

Republic

Respondent

(Appeal from Original Conviction and Sentence in Criminal Case No. 93 of 2018 of the Principal Magistrate’s Court at Lamu Law Court – Hon T.A.Sitati – PM dated 20th January, 2021)

Judgment

CORAM: Hon. Justice S.M.GithinjiOrina & Co. Advocates for the AppellantMwangi for the State 1The Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act No 3 of 2006. The particulars of the offence as per the charge sheet are that on the March 10, 2020 at around 12. 00 am at {Particulars Witheld} in Lamu West Sub county within Lamu County the Appellant, intentionally and unlawfully caused his male genital organ namely penis to penetrate the vagina of RWK a child aged 16 years.

2In the alternative he was charged with the offence of committing an indecent act with a child contrary to Section II (i) of the Sexual Offences Act No 3 of 2006. The particulars of the offence as per the charge sheet being that on the March 10, 2006 at around 12. 00am at {Particulars Witheld} in Lamu West Sub county within Lamu County, the Appellant intentionally and unlawfully committed an indecent act with a child. Aggrieved by the sentence and the conviction of the trial court, the Appellant lodged an appeal on the following grounds:

3. That the learned magistrate erred in law and fact by convicting the appellant to life imprisonment by relying on a charge sheet whose ingredients and particulars were contradicted by the evidence of the complainant and the prosecution witness in terms of alleged place and time of the offence.

4. That the learned magistrate erred in law and in fact in failing to establish that the prosecution did not satisfy the test of uncle-niece relationship beyond reasonable doubt.

5. That the learned magistrate erred in law and in fact by fatally failing to analyse and critically digest the evidence tendered by the prosecution witnesses of which evidence was inconsistent throughout the hearing.

6. That the learned magistrate erred in law and fact by failing to appreciate the fact that the prosecution witness (PW-6), the investigating officer despite visiting the alleged scene of crime did not avail any material evidence or exhibits.

7. That the learned magistrate erred in law and fact by demonstrating bias from the date of plea and throughout the hearing, contrary to the provisions of Article 50 (2) (a) (b) (c) and (g) of theConstitution of Kenya 2010.

8. That the learned magistrate erred in law and fact by considering the charge sheet and P3 form whose information was contradicting the evidence of the prosecution witness.

9. That the learned magistrate erred in law and in fact in failing to consider the defense, by a defendant who was unrepresented throughout the trial.

10. That the learned magistrate erred in fact by failing to allow the accused person call witnesses despite the fact that the accused person kept on insisting that he be given a chance to call his witnesses.

11. That the learned magistrate erred in law and in fact in failing to consider that there was bad blood between PW-2 the accused’s wife and the accused person.

12. That the honourable magistrate erred in law and in fact in finding that the prosecution had proved its case beyond reasonable doubt.

13. That in any event the sentence was manifestly excessive in the circumstanceThe above grounds were condensed by the appellant into 6 issues for determination through his submissions dated the July 12, 2021. The issues as identified by the appellant are:

a.Did the learned magistrate err in law and in fact by failing to establish that the prosecution did not satisfy the test of Niece-Uncle relationship beyond reasonable doubt?b.Did the complainant report the matter to anyone?c.Are there inconsistencies in the testimony of the prosecution witnesses?d.Was the accused’s defense considered?e.Failure to conduct a proper victim impact assessment report.f.Was in any event the sentence manifestly excessive in the circumstances? Evidence at Trial

14The prosecution called a total of six witnesses.

15PW1- RWK testified that she was sixteen years having been born on January 4, 2004 and had joined form one before the COVID -19.

16It is her testimony that she had been living at her uncle’s place since it was close to her school. That on March 10, 2020, she was sleeping in her bedroom wrapped in a lesso when the uncle entered the bedroom and pulled off the lesso leaving her naked. He then inserted his penis into her vagina for about five minutes despite her resistance. She then corrected herself immediately by stating that he did not insert his penis, it just touched the external parts of her vagina.

17She testified that her aunt C called her and asked whether she had seen the accused to which she said no, but the aunt opened the door and found the accused hiding under the bed.

18The next day she was taken to Mokowe dispensary for medical examination and to the police station where she recorded her statement.

19On cross examination by the accused she stated that there was no light when the events took place and that she recognized him by voice when he talked to her in Kiswahili.

20The trial court noted that the minor’s demeanour changed when she was questioned about how far the penis went into her vagina. She appeared to diminish the extent of insertion probably to protect her uncle from criminal liability.

21PW2 – CWM gave sworn testimony and stated that she was living with the accused who is her husband. That the complainant was living with them due to the proximity to her school.

22She testified that on March 10, 2020 at around 1 am she got up from her bed and found her husband missing. She looked for him and found him in the complainant’s room hiding under the bed. That out of anger she went and informed her parents because she suspected that the accused had sexual intercourse with the minor.

23PW3- Mutarim Saidi a clinical officer, gave sworn testimony and stated that she is based at Hindi Dispensary.

24She stated that on March 10, 2020 the minor aged 16 years was taken to the dispensary with the history of being defiled by someone known to her. The said person was her uncle.

25She testified that she examined her and made the following findings;1. Fresh laceration on the vagina2. Hymen lost3. Epithelial cells seen in the vagina indicative of a sexual act4. Whitish discharge seen in the vagina5. Urinalysis and VDRL were negative6. Pregnancy negative7. HIV negative

26PW 4- JM the minor’s mother gave sworn testimony and stated that the complainant was born on January 4, 2004 and produced a birth certificate to that effect.

27She stated that on March 10, 2020 at around 11 am she received a call from one C who was living with her daughter informing her that she was needed urgently since the minor had been defiled by the accused. She went to the medical facility where the minor had been taken and when she questioned her she said that her uncle (the accused) had sexual intercourse with her.

28The matter was then taken up by the police.

29On cross examination she stated that she did not witness the defilement take place.

30PW 5- PNG the accused’s father gave sworn testimony that on March 10, 2020 at around 2 am, he was awakened by Pw4, her daughter in law, who informed them of the accused’s crime.

31He stated that he questioned the minor who confirmed that the accused had defiled her.

32On cross examination, he stated that the accused and Pw4 had a strained relationship due to suspected infidelity by Pw4.

33PW 6- S No xxxx PC Justine Baroki Munene under oath stated that he was based at Hindi police station.

34It is his testimony that he was handed over this case to carry on with investigations. That he accompanied both the suspect and the minor to Mokowe dispensary where they were both examined.

35That he took witness statements, compiled the police file and brought the suspect to court.

36The accused person was placed on his defence and elected to give sworn evidence with no witnesses.

37DW1- MMN testified to the effect that the charges against him were a mere fabrication. He stated that he was framed up by his wife whom she had caught cheating on him severally. Submissions on Appeal

The appellant’s submissions

38It is the appellant’s submission that the prosecution did not satisfy the test of niece-uncle relationship beyond reasonable doubt. That the appellant is related to the complainant as the appellant is married to the complainant’s aunt.

39It is further submitted that there were inconsistencies in the testimonies of the prosecution witnesses that the trial court did not factor in.

40Further, it is submitted that the accused’s defence was not considered and that the trial magistrate did not consider that the witnesses are close family members whose best interest is of the complainant. The Respondent’s Submissions

41The respondent submits that the elements of incest as per Section 20 (1) of the Sexual offences Act in this case were proved beyond reasonable doubt.

42It was submitted that the element of penetration was proved by the testimony of PW1 the complainant, which was corroborated by the evidence of PW3 the Clinical officer who examined the complainant and noted that there was fresh laceration on her vagina. They cited the authority of Mark Oiruri Mose V R [2013] eKLR.

43On the element of relationship, it is submitted that it was uncontroverted that the complainant is the niece to the accused’s wife. Further that it is not in dispute that the complainant was 16 years old then.

44It is further submitted that there were no inconsistencies in the testimonies of the witnesses as the testimonies place the appellant at the scene. That the testimonies are cogent and logical and the inconsistencies pointed out by the appellant are minimal and do not touch on the core of the charge against the appellant. They cited Abdalla Maghanga Sharrif V R [2020] eKLR. Analysis and Determination

45This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, re-evaluate and re-analyze it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial, and should make an allowance for that. See Okeno v R (1972) EA 32,Eric Onyango Odeng’ v R (2014) eKLR.

46Having weighed the submissions of the appellant and the material before the court, all the issues raised can be condensed into a single issue for determination, and that is whether the offence of incest was proved beyond reasonable doubt by the prosecution. The Law

47. The offence of incest is carried in Section 20(1) of the Sexual Offences Act as: -(1)Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years, provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

48The above provision by virtue of Section 21 of the same Act, apply Mutatis Mutandis with respect to any female person who commits an indecent act or act which causes penetration with a male person who is to her knowledge her son, father, grandson, grand father, brother, nephew or uncle.

49Consequently, the ingredients for the said offence, that is, Incest, are:-a.Knowledge that the victim is a relative as indicated in the section,b.Penetration or Indecent Act

50The Act proceeds to define penetration under Section 2 to mean 'the partial' or complete insertion of the genital organs of a person into the genital organs, of another and defines Indecent act to mean 'any contact between any part of the body of a person with the genital organs, breast or buttocks of another but does not include an act that causes penetration.'

51Furthermore, the Act expounds the test of relationship under Section 22 in the following manner:22. (1)'In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.'(2)In this Act –(a)'Uncle' means the brother of a person’s parent and 'aunt' has a corresponding meaning;(b)'Nephew' means the child of a person’s brother or sister and 'niece' has a corresponding meaning;(c)'Half-brother' means a brother who shares only one parent with another;(d)'Half-sister' means a sister who shares only one parent with another; and(e)'Adoptive brother' means a brother who is related to another through adoption and 'adoptive sister' has a corresponding meaning.

52It flows therefore from the above provision that there must exist a defined relationship between the appellant and the complainant which relationship in contemplated under the Act. As such, any other relationship not contemplated under the Act does not pass the test of relationship under the Sexual Offences Act.

53Notably, under the Act, the prohibition of certain relationships as incestuous arise from consanguinity (blood relationship) or from affinity (relationship by marriage). In the case of consanguinity, the prohibition is largely based on moral and eugenic grounds. That is, most people view sexual intercourse or marriage between relatives such as father and daughter, brother and sister, uncle and nice with abhorrence and against societal morals and values. On the other hand, others view the same as carrying the greater risk of having children inheriting undesirable genetic characteristics. (See Nigel Lowe and Gillian Douglas, Bromley’s Family Law, 9thEdition, Butterworths,1998 at 31).

54Back to the case at hand, the primary issue is whether the appellant is indeed the complaint’s uncle.

55A look at Section 22(2) highlighted above indicates that the term uncle means the brother of a person’s parent. On the other hand, the term niece has been defined to have a corresponding meaning to the term nephew which means the child of a person’s brother or sister. Notably, the Act does not define the term brother. However, theBlack’s Law Dictionary, 18thEdition defines brother as a male person who has one parent or both parents in common with another person and further defines consanguine brother as a brother who has the same father but a different mother.

56From the testimony of the witnesses, can one infer that there exists an uncle- niece relationship between the appellant and the complainant? The complainant is the niece to the wife of the accused and therefore the relationship arises out of affinity. I find that the prosecution did prove this relationship.

57On the issue of penetration, it is trite that penetration can be proved by the evidence of the complainant alone as provided by Section 124 of the Evidence Act which provides that:'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'

58This position was succinctly held by the Court of Appeal in Williamson Sowa Mbwanga v Republic (2016) eKLR, where it stated that:'The import of the provision to section 124 of the Evidence Act is that the trial court can convict an accused facing a charge of defilement solely on the evidence of the victim, if for reasons to be recorded, the court is satisfied that the victim is telling the truth. Medical evidence is not mandatory under that proviso, a position which was reiterated thus by this court in GEORGE KIOJI V REPUBLIC CR APP NO 270 of 2012 (Nyeri): 'where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and record the reason for such belief'

59The evidence of PW1 though not vivid on issue of penetration, penetration was well proved by the medical evidence adduced by PW3 whose conclusion is that there was fresh laceration on the vagina, lost hymen and epithelial cells indicative of a sexual act.

60Having analyzed the evidence on record and the P3 Form produced and the victim’s evidence, I am satisfied that penetration was proved beyond reasonable doubt.

61I now turn to the issue of sentence. The Court of Appeal sitting at Nyeri in the case of Francis Nkunja Tharamba v Republic [2012] eKLR held as follows with regards to sentencing:'Sentencing is a discretionary act of the trial court even though the limits such as the maximum sentences and in some cases the minimum sentences are prescribed by law, nonetheless, as to the exact sentence to be pronounced upon a convicted person, the trial court has in most criminal cases, the discretion to decide. That being the case, in law, the appellate court should not intervene in such an exercise of discretion by an inferior court unless, it is demonstrated to it that the trial court has not exercised that discretion properly in that it has failed to consider matters it should have considered or that it has considered matters it should not have considered or that looking at the entire decision, it is plainly wrong. These are the situations in law where the appellate court can intervene in the trial court’s exercise of discretionary power such as that of sentencing. The next principle that the appellate court should adhere to when considering an appeal on sentence is that when the sentence is lawful, the appellate court should not interfere.'

62From the provisions of Section 20 (1), it is clear that the sentence for incest is predicated upon the age of the complainant. If the complainant is an adult, that is over eighteen years old, the court has discretion to mete a sentence of imprisonment of any period not less than ten years. If the complainant is under eighteen years of age the court has discretion to mete a sentence of up to life imprisonment.

63The Court of Appeal had the opportunity to interpret Section 20(1) of the Sexual Offences Act in the case of MK- Vs – Republic (Nbi) Criminal Appeal No 248 of 2014 (CA) (2015) eKLR. The court stated as follows: -'17. In the instant case, the appellant was charged with an offence under Section 20(1) of the Sexual Offences Act. This Section provides for a minimum term of 10 years imprisonment. However, the proviso to Section 20(1) stipulates that if the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life. The learned Judge of the High Court interpreted this proviso to mean that a mandatory minimum sentence for life is provided for in the proviso if the female victim is under the age of eighteen years. The legal question for our consideration and determination is whether this interpretation is correct; does the proviso provide for a minimum term of life imprisonment'.18. The first observation to note is that the phrase 'not less than' has not been used in the proviso to Section 20(1) of the Sexual Offences Act. The inference is that the proviso does not create a minimum sentence. The phraseology and wording in the proviso is that the accused shall be liable to imprisonment for life.19. What does 'shall be liable' mean in law'. The court of Appeal for East Africa in the case of OPOYA – V – UGANDA (1967) EA 752 had an opportunity to clarify and explain the words 'shall be liable on conviction to suffer death'. The court held that in construction of penal laws, the words 'shall be liable on conviction to suffer death' provide a maximum sentence only; and the courts have discretion to impose sentences of death or imprisonment.'

64. In the Opoya case (supra), the court went on to interpret the phrase 'shall be liable to' as used in penal statutes by stating that:'It seems to us beyond argument the words 'shall be liable to' do not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words, they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it.'

65From the above interpretation of the phrase 'shall be liable', it can be construed that the life imprisonment sentence under Section 20(1) of the Sexual Offences Act is not mandatory. It is also not the minimum sentence that can be imposed. What this means is that the accused can be sentenced to a period between 10 years up to life imprisonment when the victim is below 18 years old.

66It is trite that crime should be punished in the interest of justice. However, an excessive punishment serves neither the interests of justice nor those of the society. This court is therefore called upon to determine whether the trial court acted on the correct principles of law in meting out the life imprisonment sentence.

67I note that in his defence and mitigation during sentencing, the appellant maintained that the charges were framed on him due to questioning of his wife’s alleged infidelity. I also do note that the appellant’s own father was a prosecution witness who gave evidence in support of the charges against the appellant. Further, the appellant did not seem remorseful of his actions.

68The principles upon which an appellate Court will act in exercising its discretion to review or alter a sentence imposed by the trial court were settled in the case ofOgolla s/o Owuor vs R, (1954) EACA 270wherein the Court of Appeal stated as follows:'The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors'. To this, we would add a third criterion namely, 'that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28TLR 263).'

69In the case of Wanjema v R [1971] EA 493, 494, the court held that the appellate court is entitled to interfere with the sentencing discretion of the trial court in view of plain error of omnibus sentence and the illegality of the sentence. Therefore, in view of the above analysis, it is my finding that the trial court considered the correct principles in imposing the maximum sentence of life imprisonment. I thus find that this court should not interfere with sentence meted by the trial court. The Appeal therefore fails and is hereby dismissed.

DATED, SIGNED AND DELIVERED AT GARSEN THIS 2NDDAY OF JUNE, 2022. ....................................S.M. GITHINJIJUDGEIn the presence of; -1. Mr Mwangi for the State2. The Appellant in person