[2023] KEHC 25844 (KLR)

Moru v Republic (Criminal Appeal E010 of 2022) [2023] KEHC 25844 (KLR) (20 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25844 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Appeal E010 of 2022

F Gikonyo, J

November 20, 2023

Between

Caleb Nyachae Moru

Appellant

and

Republic

Respondent

(From the conviction and sentence of Hon. S.M. Mungai (C.M) in Narok CM SOA Case No. 38 of 2019 on 22nd June 2022)

Judgment

1. This appeal is against the appellant’s conviction, and sentence of 15 years imprisonment imposed on August 3, 2022 for the defilement of the complainant- a girl aged 15 years.

2. The appeal memorandum of appeal dated October 31, 2022 sets out the following grounds of appeal;i.That the learned trial magistrate erred in law and fact by imposing a manifestly harsh and excessive sentence to the appellant in the proceedings given the circumstances of the case.ii.That the learned trial magistrate erred in law and fact by not considering that the crucial elements of defilement were not proved beyond any reasonable doubt by the prosecution.iii.That the learned trial magistrate erred in law and fact by passing a conviction and sentence not supported by relying on insufficient evidence.ivThat the learned trial magistrate erred in law and fact by failing to appreciate that the appellant was not given enough time to prepare for his evidence.vThat the learned trial magistrate erred in law and fact by failing to appreciate that the medical evidence tendered before court did not create a nexus between the appellant and the alleged offence.vi.That the learned trial magistrate erred in relying on the wrong principle and by overlooking some material factors in imposing the sentence to the appellant in the proceedings.vii.That the learned trial magistrate in imposing the sentence to the appellant in the proceedings erred in law and fact by not taking into account the guidelines with regard to mitigating factors on resentencing issued by the Supreme Court in Francis Karioko Muruatetu v Republic [2017] eKLR that is;a.Age of the offender;b.Being a first offender;c.Character and record of the offender;d.Remorsefulness of the offender;e.The possibility of reform and social re-adaptation of the offender;

Directions of the court 3. The appeal was canvassed by way of written submissions. Both parties filed their written submissions.

Appellant’s submissions. 4. The appellant submitted that the crucial elements for defilement were not proved beyond any reasonable doubt. The appellant relied on section 107(1) of the Evidence Act, section 8(1) of the Sexual Offences Act, and the case of George Opondo Olunga v Republic [2016] eKLR.

5. The appellant submitted that the age of the complainant was contradicted in several instances by the prosecution witnesses. PW1 testified that she was 15 years old. PW2 produced an age assessment report which indicated that PW1 was 15 years but in her testimony, she stated that the victim was 16 years old. The appellant relied on the case of Kaingu Kasomo v Republic Criminal Appeal No. 504 of 2010 and Hadson Ali Mwachongo v Republic [2016] eKLR

6. The appellant submitted that the prosecution did not prove the penetration factor beyond any reasonable doubt. The report by PW2 indicated that the hymen was broken and long-standing. Therefore, it could be implied that the hymen was broken a long time contrary to the short period the complainant allegedly stayed with the appellant. The conclusion by PW2 was not based on medical examination but rather on the history of the victim whose authenticity is questionable. Further, all tests done on the appellant turned a negative result and hence there was no nexus between him and the alleged offence. The appellant relied on the case of Alex Chemwotei Sakong v Republic [2018] eKLR and Mercy Chelengat v Republic [2021] eKLR.

7. The appellant submitted that he was not given enough time to prepare for his defense resulting in an unfair trial. That he was not informed promptly of his right to representation. PW1 claimed to have eloped with the appellant after her brother PS found them. The duo stayed together for one month as a husband and wife as was stated by PW4. The appellant contends that if indeed he was with the complainant for the alleged one month, it is evident that the complainant is enjoying the relationship regardless of the circumstances. The appellant relied on article 50 (c) (g)of the Constitution.

8. The appellant submitted that he was denied a right to a de novo hearing. The appellant applied to have the matter start de novo on 27. 08. 2019 before Hon. W. Juma (CM) and the prosecution confirmed that PW1 could be traced and had no objection. On 29. 11. 2019 PW5 mother of PW1 stated that PW1 had fled home and her whereabouts were unknown. 0n 20. 05. 2021 Hon. G.N.Wakahiu (CM) delivered a ruling that the matter proceeds without recalling PW1. Therefore, the appellant contends that he was denied an opportunity to recall the complainant for further cross-examination. The appellant relied on section 200(3) of the Criminal Procedure Code, the case of Francis Mbithi Katete & 2 Others v Republic Machakos Criminal Appeal No. 43,44 & 45 Of 2006, In the Court of Appeal (Nairobi) No. 1 Of 1983 Yongo v Republic, In The Supreme Court of India P. Sanjeeva Rao v State of A.P.

9. The appellant submitted that the appellant was imposed on harsh and excessive sentence. That during cross-examination PW1 stated that she told the appellant that she was 19 years old. That the complainant might have deceived the appellant. The appellant relied on section 8 of the Sexual Offences Act, Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, Article 50(1) of the Constitution, Martin Charo v Republic [2016] eKLR Criminal appeal no. 32 of 2015, Francis Karioko Muruatetu v Republic [2017] eKLR. He was 22 years at the alleged time of the offence, of good character, and first offender and therefore deserved a chance to reform and re-adapt socially.

The respondent’s submissions. 10. The respondent submitted that the age of the victim was proved during the trial and was never disputed at all. PW1 testified that she was 15 years old and in class 6. She also confirmed that she had been escorted for age assessment at Narok referral hospital where it was ascertained that she was 15 years old. The respondent relied on the case of Nahayo Syprian v Republic [2016] eKLR and section 2 of the Sexual Offences Act.

11. The respondent submitted that the issue of penetration was proved beyond reasonable doubt. PW1 stated that she had gone for a walk after church when she met the appellant who was her friend- and he asked her to elope. They had unprotected sex at a hotel room and when they left to stay at his friend’s house they further had sex 3 times. PW2, a clinical officer examined PW1 and noted that she had a torn longstanding hymen. PW1 had no bruises on the posterior vulva. She produced a lab request form, treatment notes, and P3 form as P Exh 2a, 2b, and 3. The respondent relied on section 2(1) of the Sexual Offences Act.

12. The respondent submitted that the circumstances allowed for proper identification and recognition of the complainant’s assailant. PW1 stated that she knew the appellant and her parents had previously warned her about being in a relationship with him. The appellant had approached her when she came from church and had requested her to elope with him. The two spent a night at a lodging and then proceeded to the appellant’s friend’s house where they stayed for 3 days. The respondent relied on the case of Anjononi & Others V Republic [1980] KLR 57.

13. The respondent submitted that the sentence was within the law. The respondent relied on section 8(1) as read with section 8 (3) of the Sexual Offences Act.

14. In the end the respondent submitted that the case was proven beyond reasonable doubt. That the trial magistrate did not err in conviction and sentence as the evidence adduced was solid. They prayed that this appeal be dismissed in its entirety and the conviction and sentence be upheld as it is within the law.

Analysis And Determination. Court’s duty 15. As a first appellate court, will re-evaluate the evidence and make own conclusions. Except, bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno v Republic [1972] E.A 32

16. The broad issues for determination arising from the grounds of appeal, the evidence adduced in the lower court, and the respective parties’ submissions are;i.Whether the appellant’s right to have his matter start de novo was violated.ii.Whether the prosecution proved its case beyond reasonable doubt.iii.Whether the sentence was manifestly harsh and excessive

Whether the appellant’s right to have the matter start de novo was violated. 17. This ground rests upon Section 200(3) of the CPCwhich provides: -Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.

18. Direction was given that the case starts de novo. PW1 was to be recalled.

19. It appears the succeeding magistrate reviewed the earlier direction when it was clear that PW1 had fled home and could not be traced, and used the evidence recorded of PW1 by the predecessor magistrate.

20. The section makes it mandatory that the accused should be informed of his rights under the section. But, the decision of any request to re-summon or re-hear a witness or witnesses under section 200(3) of the CPC is made by the court on the basis of the justice of the case.

21. The test, where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, if whether, in the opinion of the court, the accused person was materially prejudiced, and may set aside the conviction and may order a new trial.

22. The appellant applied to have the matter start de novo on 27. 08. 2019 before Hon. W. Juma (CM) and the prosecution confirmed that PW1 could be traced and had no objection. The court directed the matter to start de novo. On 29. 11. 2019 PW5 mother of PW1 stated that PW1 had fled home and her whereabouts were unknown. On 20. 05. 2021 Hon. G.N. Wakahiu (CM) delivered a ruling that in its opinion recalling PW1 will prejudice the prosecution case. Therefore, PW1 shall not be recalled.

23. This is a case of defilement. It involves a child whose rights are protected by law. PW1 is the victim, and is a child. She had testified as PW1. Nothing casts doubt that the child fled home and it is impossible to procure her attendance. These are important considerations in determining this ground. In the circumstances, the appellant is not materially prejudiced by use of evidence by PW1.

24. This ground of appeal therefore fails.

The charge and particulars 25. The appellant 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.

26. It was alleged that on diverse dates between 07. 04. 2019 and 30. 04. 2019 at [Particulars Withheld] in Narok Sub-County within Narok county unlawfully and intentionally caused his penis to penetrate the Vagina of MC a child 15 years.

27. In the alternative charge, the appellant was charged with the offence of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006.

28. It was alleged that on diverse dates between 07. 04. 2019 and 30. 04. 2019 at [Particulars Withheld] in Narok Sub-county within Narok county unlawfully and intentionally touched the vagina of MC a child 15 years.

Elements of offence of defilement 29. Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act establishes the offence of defilement as follows:“8(1)a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.8(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.”

30. The specific elements of the offence defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond a reasonable doubt are:1)Age of the complainant;2)Proof of penetration in accordance with Section 2(1) of the Sexual Offences Act; and3)Positive identification of the assailant.

Age of the complainant 31. The age of the victim of defilement is an essential element because; defilement is a sexual offence committed against a child- a person below the age of 18 years (Children Act). Notably, also, the age of the child is an aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence. See penalty clauses in SOA.

32. Was the age of the victim proved?

33. The appellant has challenged the age of the complainant. The prosecution submitted that the age of the complainant was conclusively proved. What does the evidence unveil?

34. PW1 testified that she had been taken for age assessment and was found to be 15 years old (P Exh1). She was in class 6.

35. PW2 a clinical officer, testified that the girl’s age was assessed to be 15 years old. He produced an age assessment report as P Exh1.

36. Proof of age is not necessarily a certificate. Other evidence may be adduced to prove age (Fappyton Mutuku Ngui v Republic [2012] eKLR).

37. Based on evidence adduced by the prosecution, I find the age of the victim was 15 years at the time of the offence.

Penetration 38. On whether there was penetration.

39. Penetration is defined in Section 2(1) of the Sexual Offences Act as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

40. Penetration was succinctly explained by the Court of Appeal in the case of Mark Oiruri Mose v R [2013] eKLR 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.”.

41. PW1 stated that she had gone for a walk after church when she met the appellant who was her friend- and he asked her to elope. They had unprotected sex at a hotel room and when they left to stay at his friend’s house they further had sex 3 times.

42. PW2, a clinical officer examined PW1 and noted that she had a torn longstanding hymen. PW1 had no bruises on the posterior vulva. She produced a lab request form, treatment notes, and P3 form as P Exh 2a, 2b, and 3.

43. PW1 gave a detailed account of how the appellant lured her to elope with him to his friend’s house at [Particulars Withheld]then to a lodging finally ending up in rental premises where they were finally traced and arrested within the same locality.

44. Analysis of the evidence is that there was a penetration of the genitalia of PW1. I accordingly find that the prosecution proved beyond reasonable doubt that there was a penetration of PW1- a child. But by whom?

Was the appellant the perpetrator? 45. PW1 testified that she knew the appellant and her parents had previously warned her about being in a relationship with him. The appellant had approached her when she came from church and had requested her to elope with him. The two spent a night at a lodging and then proceeded to the appellant’s friend’s house where they stayed for 3 days.

46. The evidence of PW1 was consistent and corroborated by that of the elder and the chief who tracked and arrested them following a report of the disappearance of PW1.

47. The mother of PW1 and the chief confirmedthat they were alerted by the wife of the appellant that the appellant had deserted his matrimonial home and moved to [Particulars Withheld]where he was living with PW1.

48. From the evidence that was adduced there was no possibility of mistaken identity. The appellant was well known to the complainant.

49. Before closing, one submission by the appellant is quite disturbing when he stated that it appears the girl was enjoying the relationship. This is really unfortunate and the attitude should be castigated in the strongest terms possible.

50. The court also noted that the appellant seemed to allude to the defence in section 8(5) of SOA. For such defence to succeed, it must be proved that the child deceived the accused into believing that she was over the age of 18 years at the time of the commission of the offence; and the accused reasonably believed that the child was over 18 years. The belief is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.

51. Merely stating that the child may have deceived him was not enough. The ground fails.

52. The pieces of evidence analyzed herein prove that there was no mistaken identity of the appellant as the perpetrator of the offence in question. The evidence by the prosecution leaves no doubt that the appellant caused the penetration of the complainant.

53. In the upshot, the court finds that the Appellant was positively identified as the assailant herein; there was no mistaken identity or error.

54. Accordingly, the prosecution proved their case beyond reasonable doubt and that the trial court did not error in convicting the appellant for defilement. The appeal on conviction, therefore, lacks merit and is hereby dismissed.

On sentence 55. The appellant submitted that the learned trial magistrate convicted and sentenced him to 15 years imprisonment which to him was harsh and excessive.

56. The trial court applied Section 8 (3) of the Sexual Offences Act to convict. The section provides:8(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.”

57. The accused was a first offender. But the offence is serious and the manner and circumstances it was committed require a deterrent sentence. The girl was in school- in class 6 and aged 15 years. He lured her to elope with him to a friend’s place and then to a lodging and to a rented premises. It is a shame the appellant submitted that the girl was enjoying the relationship. He surely set out to a spree of sexual satisfaction with his easy prey- a minor girl. This conduct of luring young school girls into having sex has become prevalent and has dire consequences; defilement, teenage pregnancy. In these circumstances, a sentence of 15 years was not excessive. It is capable of acting as a deterrent measure on these debauchery sexual attacks on children, yet, giving him an opportunity to be reintegrated back into society and be a productive citizen. I therefore see nothing upon which I may interfere with the sentence imposed of 15 years’ imprisonment. Accordingly, I dismiss the appeal on the sentence.

Of Section 333(2) CPC. 58. I have perused the trial court record and found that the appellant was first arraigned in court on 02. 05. 2019. He remained in custody till 20. 12. 2019 when he was released on bond. He remained out on bond till 22. 06. 2022 when he was convicted and sentenced. In this circumstance, the sentence shall run from 22. 06. 2022 the date he was convicted.

Conclusion and orders 59. The appeal on conviction and sentence is dismissed.

60. The sentence of 15 years imprisonment shall run from 22. 06. 2022.

61. It is so ordered

62. Right of appeal 14 days.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 20TH DAY OF NOVEMBER, 2023. .......................HON. F. GIKONYO M.JUDGEIn the presence of;-1. Mr. Muraguri – C/A2. Ms. Mwaniki for Appellant3. Appellant.