[2023] KEHC 24786 (KLR)

Mogendi v Republic (Criminal Appeal 16 of 2022) [2023] KEHC 24786 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24786 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Appeal 16 of 2022

PN Gichohi, J

November 2, 2023

Between

Mark Mogendi

Appellant

and

Republic

Respondent

(Being an appeal against conviction and sentence by Hon. P. K. Mutai (SRM) in his Judgement delivered on 23rd August, 2022 in Kisii S.O Case No. 100 of 2018 Republic v Mark Mogendi)

Judgment

1. The Appellant herein, Mark Mogendi, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 24th day of September 2018, in Kisii Central Sub-County within Kisii County, he intentionally and unlawfully caused his penis to penetrate the vagina of RMM a child aged 15 years.

2. He was also charged with an alternative count of committing indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 24th day of September 2018, in Kisii Central Sub-County within Kisii County, he intentionally touched the vagina of RMM a child aged 15 years.

3. After hearing both the Prosecution and the Defence , the trial magistrate convicted the Appellant and sentenced him to serve ten (10) years imprisonment vide judgment delivered on 23rd August, 2022.

4. Dissatisfied, the Appellant has preferred this appeal. Vide a Petition dated 30th August 2022, the Appellant seeks to have the conviction quashed. The grounds on the face of the Petition of Appeal are mainly that :1. The charge sheet fails the ingredient test of defilement.2. The Trial Magistrate erred in law and fact by disregarding the evidence produced by the Accused but wholly concentrated on the Prosecution’s unrealistic and dishonest evidence.3. The Trial Magistrate erred in law and fact by failing to establish the time of the alleged offence by assuming that it was on daylight yet the 3 Prosecution witnesses and charge sheet are silent in time.4. The Trial Magistrate erred in his judgment by stating that “the incident allegedly occurred in the presence of two people, the Accused and the Complainant” but failed to evaluate in what how the Complainant was able to identify the Accused in the alleged scene.5. The Trial Court erred in law and facts by relying on the evidence of just 3 prosecution witnesses to incriminate the Appellant yet neither the Investigating Officer nor the Arresting Officer was called to give evidence.6. The Trial Court erred in convicting the Appellant as there was no scene visit to establish the truth of the Complainant and her mother’s evidence. The accused gave his evidence that he was arrested while asleep and was not aware of any criminal wrong doing but his short evidence was disregarded and mistaken for dishonesty.7. The Trial Court erred in law and fact by convicting the accused on a case of mistaken identity as there was no cross-check on the accused by the Doctor to establish if it was the Accused who defiled the Complainant.8. The Trial Magistrate wrongly evaluated the evidence which resulted in a wrongful conviction of the Accused.

5. The Respondent opposed the appeal and urged the Court to dismiss the appeal on the grounds that: -a.There exists overwhelming evidence against the Appellant which was consistent and well-corroborated.b.This was a case of recognition and there was no mistaken identification as the offence occurred in the evening hours and the victim knew the Appellant well since they were neighbours. That there exists no reason why the complainant would falsely implicate the appellant.c.The victim’s age was established beyond and reasonable through evidence and Birth Certificated.Penetration was proved by the Complainant’s testimony that the Appellant raped her by putting his penis in her vagina which evidence was corroborated by that of a medical officer (PW3) who examined the victim’s genitalia and found the victim’s hymen freshly torn and spermatozoa were seen in her genitalia.e.The Prosecution proved all the ingredients of defilement as charged even without the testimony of the Arresting Officer and the Investigating Officer.f.The defence tendered was a mere denial and only a narration on how the Appellant was arrested. The defence never shook the Prosecution’s case.g.The minimum sentence provided for in law is a minimum of 20 years imprisonment and therefore. a sentence of 10 years was too lenient in the circumstances.

Analysis 6. This court’s duty as the first appellate court is well cut out by the Court of Appeal in the case of Okeno v Republic [1972) EA where it was held:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R [1957] E A 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions - Shantilal M. Ruwala v. R [1957] EA 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts’ findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses - See Peters v. Sunday Post [1958] EA 424”.

7. The Prosecution called three witnesses. RMM (PW1) who was the Complainant testified that she came home from school at about 5. 00 pm on 24th September 2018 and went to fetch water. She came back and found her mother V. K. (PW2) who sent her to take some money to a lady called Patricia.

8. On her way, back, she saw the Accused, Mark Mogendi, on the road and she identified him as their neighbour. There was no one else on the road. He followed her from behind, grabbed her and pulled her into an abandoned house that was under construction. She feared screaming as she was scared. He removed her clothes and started doing bad manners to her. The Accused put her in a corner and he put his penis in her vagina while they were standing. She felt pain when he raped her. When he finished, he ran away and she reported the matter to her mother.

9. Her mother went to Accused’s place and found him packing his clothes to run away. The Accused was subsequently arrested by her mother, father and uncle. He was taken to Keumbu Police Station. She was taken to the hospital on the same day and treated.

10. On cross-examination, she told the court that she was with her aunt, mother, father and uncle when the Accused person was arrested around 8. 00 p.m. She explained that she was defiled around 7. 00 p.m and she went to the police station with the clothes she had that day. That she went to the hospital on 24th September 2018 and 25th September 2018. She testified that she did not bleed during the ordeal. She showed the police officer the house the accused person defiled her.

11. VKM (PW2) testified that on 24th September 2018 at around 4. 40 p.m., her daughter (PW1) arrived home from school. PW2 gave her money to take to a neighbour. At around 5. 00 p.m., PW1 came back home crying and saying saying that Mark Mogendi pulled her to a house near the road, removed her clothes and did bad manners to her. That he then removed her pant and skintight and defiled her.

12. While in company of her husband and other people, PW2 proceeded to Mark Mogendi place. She knew him as he was their neighbour and she knew his family too. They found him packing his clothes with the intention of running away. They all took him to the police station. They then took PW1 to hospital at Keumbu where a P3 Form and PRC Form were filled.

13. On cross-examination by Mr. Nyagwencha for Accused, she told the court that they found the Accused person on a road near his house, carrying clothes. That PW1 was taken to the hospital on the same day that she was defiled. That the P3 Form was issued the next day. She told the court that PW1 was born in 2004.

14. She further testified that she sent PW1 to the shop at 4. 00 pm. She sent her to a neighbour called Truphena. It was her testimony that prior to the incident, they had good relations with the Accused Person.

15. PW3 was a Clinical Officer, Erick Abisi of Keumbu. He testified that PW1 aged about 14 years was presented to Keumbu Sub-County Hospital with a history of having been forcefullly undressed by a known person to her who then inserted his penis into her vagina. On physical examination, PW3 noted that the genitalia, labia majora and labia minora, were normal but the hymen was freshly torn. There was white discharge from the vagina. Spermatozoa, red blood cells and puss cells were detected on the vaginal swabs. The blood had urine and puss cells.

16. The injuries were approximately one (1) day old and the probable weapon used was blunt and the nature of the offence was defilement. The conclusion was that there had been penetration since the hymen was torn. Further, the hymen had been torn not more than 24 hours prior. There were epithelial cells which pointed to some friction. The conclusion was that the victim had been defiled.

17. The Accused gave a brief sworn statement in his defence evidence. He testified that he was asleep when police officers arrested him. He recorded his statement and they charged him.

Determination 18. From the material analysed above , the main issue for determination is:-Whether the ingredients of the offence of defilement were proved to the required standard thereby warranting a conviction.

19. To start with, the Appellant attacks the charge sheet on the ground that it fails the ingredient test of defilement. The Appellant was charged under Section 8(1), (3) of the Sexual Offences Act which provides that:(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(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.

20. For this charge, age is a critical element under the Sexual Offences Act No. 3 of 2006 as it determines the sentence that is applicable in case of a conviction. It is now settled law that age of a child can be determined by baptism cards, birth certificate, oral evidence of a child who is found by the court to be possessed of sufficient intelligence, evidence from the guardians or parents, school documents , medical records among other credible documents that may be availed before court but these must be credible and reliable.

21. In this case, the Prosecution produced a baptism card (Exh. 1) showing that the Complainant child (RMM) was born on 28th November 2004. The P3 Form (Exh. 3) filled on 25th September 2018 indicates her age as 14 years. As at the time the offence was allegedly committed against her on 24th September 2018, her age was within the bracket prescribed by the Act as stated in the charge sheet.

22. The other element to be proved is penetration. 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.” The Complainant herein testified that the Appellant inserted his penis in her vagina. The medical evidence on record is that Complainant’s the hymen was freshly broken and that injury was less than 24 hours prior to the examination.

23. The vaginal swab revealed presence of spermatozoa. It is not material that DNA was not done to determine who the spermatozoa belonged to. There is no doubt that there was penetration and therefore, the Complainant was defiled.

24. The issue then is whether the Appellant was properly identified as the person who defiled her. The undisputed evidence herein is that the Appellant was a neighbour to the complainant and there well known to her. There was no grudge between the Complainant and the Appellant. There is no reason why the Complainant would have fabricated the evidence against the Accused. There was no possibility of mistaken identity.

25. Regarding failure to call the Investigating Officer and the Arresting Officer, Section 143 of the evidence Act provides that no particular number of witnesses is required to prove a fact. The issue therefore, is whether these two were crucial witnesses in this case. The arrest of the Appellant is not in dispute in this case to require that evidence be led on how the he was arrested. Further, and with the evidence on record, it is not shown how failure to call the Investigating Officer affected the Prosecution case.

26. The court can still proceed to convict an Accused on the sole evidence of the victim in such a case as provided for under Section 124 of the Evidence Act. Indeed, the trial magistrate had this provision of law in mind as she had this to say:“Under proviso to section 124 of the evidence Act, the court may rely solely on the on the victim of sexual assault evidence and convict if satisfied that the victim is telling the truth. The accused and the complainant are neighbours . This was not disputed . There were no underlying issues among the parties raised. She narrated in details what happened and was examined by defence. Her evidence was not shaken . She was firm and consistent that that the accursed did defile her… ”

27. The trial magistrate was satisfied that the Prosecution had established that the Complainant was a minor, there was penetration and that the Appellant herein was the perpetrator and hence, the prosecution had discharged its burden to the required standard. That finding was well grounded in law and evidence and therefore, the conviction herein was safe.

28. Regarding the sentence, the Respondents argument that the “minimum sentence provided for in law is a minimum of 20 years imprisonment and therefore a sentence of 10 years was too lenient in the circumstances” has no effect to this appeal. There is no cross -appeal and in any event, he supports both the conviction and sentence.

29. Lastly, this Court notes that though neither party raised the issue, it is an issue that continues to unnecessarily cause too many applications by convicts with net effect of creating unnecessary backlog. This Court’s record shows that while passing the sentence, the trial magistrate did not take into account the period the Appellant spent in custody yet Section 333 (2) of Criminal Procedure Code is couched in mandatory terms.

30. Indeed, the Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR held: -“The appellants have been in custody from the date of their arrest on 19th June 2012. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(s) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012. ”.

31. The trial court record shows that Appellant was arrested on 24th September , 2018 and brought to court for plea the following day 25th September , 2018. He remained in custody until 13th November, 2018 when he was released on bond. That period that he was in custody should have been taken into account.

32. In the upshot, this Court disposes off this appeal in the following terms:-1. The appeal is dismissed for lack of merit.

2. The conviction herein is upheld and the sentence affirmed.

3. The period the Appellant spent in custody, that is from 24th September, 2018 when he was arrested to 13th November, 2018 when he went out on bond, be taken into account in computing the ten (10) years imprisonment.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISII THIS 2ND DAY OF NOVEMBER, 2023PATRICIA GICHOHIJUDGEIn the presence of:N/A for AppellantMr. Ochengo for RespondentAphline , Court Assistant