[2023] KECA 1526 (KLR)

Mukembi v Republic (Criminal Appeal 6 of 2022) [2023] KECA 1526 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KECA 1526 (KLR)

Republic of Kenya

In the Court of Appeal at Malindi

Criminal Appeal 6 of 2022

P Nyamweya, JW Lessit & GV Odunga, JJA

December 8, 2023

Between

Murimi Mukembi

Appellant

and

Republic

Respondent

(An appeal from the Judgment of the High Court of Kenya at Malindi (Reuben Nyakundi, J.) delivered on 28th October 2021 in Criminal Appeal No. 74 of 2019. Criminal Appeal 74 of 2019 )

Judgment

1. This is a second appeal lodged by the appellant, Murima Mukembi against the judgment of the High Court at Malindi delivered by R. Nyakundi, J. in Criminal Appeal No 74 of 2019. The appellant and three others were charged before the Senior Principal Magistrate’s Court at Mariakani in Sexual Offences Case No 27 of 2019, with four separate counts of the offence of gang defilement contrary to section 10 of the Sexual Offences Act No 3 of 2006, hereinafter SOA. The appellant and his co-accused faced an alternative count each of committing an indecent act with a child contrary to section 11 of theSOA. The particulars of the charge were:“On the 9th day of March 2009 at around 0300 hours in Kwale County with Antony Ndaikwa, Tsimba Mkembi,Gwaya Mwachifidzo and another not before the court caused his penis to penetrate the vagina of US a girl child aged 16 years old.”

Background 2. When the charges were read out to the appellant and his co- accused persons, they all pleaded not guilty to the charges. The prosecution called five witnesses. The complainant was US., PW1 in the case. Her testimony was that she was born on 29th September 2003, hence aged 16 years at the time of the offence. She identified her birth certificate as P. Exh 1. She was going home from a funeral in the company of her cousin sister, one CN (PW3), on the 9th March 2019, at 3 a.m. when she met the appellant, one Anthony the 2nd accused in the trial Court, one Tsimba the 3rd accused in the trial Court and one Gwaya the 4th accused, all of who were known to her. There was a fifth man whom she did not know, who was in their company. Gwaya called her and she stopped. Tsimba and Gwaya and the other man she did not know walked ahead whereas the appellant and Anthony were left with her. The two began assaulting her with a stick, knocked her down and pinned her to the ground. The appellant was the one that defiled her being the first one, followed by Anthony. Gwaya held her legs in position. Tsimba and the other person had initially held the complainant’s hands, however, the two ran away when she was knocked down. The matter was reported to the Assistant Chief and then the police. Mary Mwaka, PW2 a Clinician, examined the complainant on 10th March 2009. She found the complainant had a freshly torn hymen, had lacerations on the labia minora with bleeding and bruises on the left neck. The P3 form and medical treatment notes were produced as P. Exhibits 2 and 3.

3. PW3 testified that she was in the company of the complainant when they met five men. She was carrying a baby on her back. Two of the men called the complainant and when both of them stopped, the appellant and one Anthony started assaulting the complainant. When she saw them knock the complainant to the ground and one of them, Tsimba cover her mouth and the appellant undress her, she ran away screaming to seek help. She found no one at home. At 8 a.m., she reported the matter to HNS, the complainant’s brother, PW4 in the case.

4. PW4 received the report of the attack the same morning. The complainant was with his wife at his home crying when he saw her. He first took her to the Assistant Chief to report. The appellant and his co-accused were apprehended and taken to the Chief, and later to the police where they were charged with this offence. PW4 took the complainant to the hospital where PW2 examined her and confirmed injuries consistent with sexual assault. P.C. Loise Mailu, PW5 investigated the case, collected and collated the evidence, both from witnesses and documentary, after which she charged the appellant and the co-accused with the offences as stated earlier.

5. The appellant in his unsworn statement stated that he was a mason. He said that on the morning of 9th March 2009, three boys he didn’t know before went to his shop and asked him to identify himself, and when he did, they took him to Kalalani AP Post, and later to Samburu Police Post. He was charged in Court the next day. He denied the charges.

6. In the judgment delivered on 24th October 2019, the trial magistrate court was satisfied beyond reasonable doubt that the prosecution proved that the complainant was a child of 16 years of age; that the appellant and Anthony his co-accused, were well known to the complainant; that in turns and acting in concert, the appellant and Anthony penetrated with their penises the vagina of the complainant. He found that their action constituted the offence of defilement under section 8 of the Sexual Offences Act. He convicted the appellant and Anthony of gang defilement under section 10 of the SOA. After hearing their mitigation, the learned trial Magistrate (Hon. S.K. Ngii, SRM) sentenced them to 15 years’ imprisonment.

7. Aggrieved by the findings of the trial magistrate court, the appellant and Anthony lodged a first appeal before the High Court in Criminal Appeal No 74 of 2019. They raised three grounds of appeal, namely, that the trial Magistrate erred in law by failing to consider: (i) that the legal provisions on minimum sentences violates section 216 and 329 of the Criminal Procedure Code (hereinafter CPC) and Article 27 (1), (2) and (4) of the Constitution on right to equality; (ii) that no original or certificate copy of the child was produced in evidence in compliance of section 66 and 64 of the Evidence Act; and, (iii) the legal mandatory minimum sentence under section 10 of the SOA was harsh and excessive.

8. The High Court applying the principle in Ogolla s/o Owuor v Republic [1954] EACA 270, found that the appeal lacked merit as the appellants failed to show that the trial magistrate made an error or mistake or applied wrong principles or took into consideration irrelevant factors to warrant interference with the findings of the court. Regarding proof of complainant’s age through the health card produced by the prosecution, the learned Judge found that the card was not recognized under section 64 and 66 of the Evidence Act. The Judge was however satisfied that the complainant’s age proved as 15 years and six months, through the evidence of PW2, the Clinician who examined her and assessed her age as such. In regards to identification, the Judge first noted that the appellant raised no such issue before the trial Magistrate. After analyzing and evaluating the evidence and the applicable law, the learned Judge found that the complainant’s evidence received corroboration from PW3, who was present and witnessed the attack unfold, committed by the appellant, whom she knew before, and others. On the issue of sentencing, the learned Judge considered the purpose of sentencing as guided under the Sentencing Policy Guidelines and the circumstances of the offence and concluded that there was justification in passing a deterrent sentence. In a judgment rendered on 28th October 2021, the High Court upheld the conviction and the sentence meted out by the trial magistrate court.

9. Being aggrieved, the appellant lodged this second appeal to this Court. Anthony appears not to have pursued a second appeal. The appellant’s appeal raised four grounds;i.That the learned High Court Judge erred in law by not considering that the identification of the assailant was not proved to the required standard.ii.That the learned High Court Judge erred in law by not considering that the case at hand was poorly investigated.iii.That the learned High Court Judge erred in law by not considering that the prosecution did not prove the case to the required standard of the law.iv.That the learned High Court Judge erred in law by not considering the appellant’s defence evidence.

Submissions 10. When the matter was called out for virtual hearing before us, the appellant appeared in person from Manyani Maximum Prison. The DPP was represented by the Principal Prosecution Counsel Mr. Alex Gituma, who held brief for Ms. Vallerie Ogetti. The appellant relied on his submissions, which he sent on the day of the hearing. In the submissions, the appellant relied on two grounds of appeal, in his written submissions one, that the learned Judge erred in law for failing to find the appellant’s identification was not positive. He urged that the incident was at night and that moon light was not safe for a positive identification. For that proposition, he relied on Kariuki Njiru & 7 others v Republic, Criminal Appeal no. 6 of 2001, unreported,Roria v Republic [1949] 16 EACA 135, the second ground among others. The second ground decried the mandatory minimum sentence of 15 years’ imprisonment for the offence of gang defilement, urging that it denied the accused person fair trial as envisaged under Article 50 of the Constitution, and the right to the least severe sentence under Article 50(2) (p). He urged that the trial Magistrate did not consider he spent in custody before sentence, and urged us to allow the appeal.

11. Learned Principal Prosecution Counsel, Ms. Vallerie Ongeti, filed her written submissions dated 26th May 2023, on behalf of the State. In response to the grounds of the appeal, regarding the issue whether the offence of gang defilement was proved, counsel cited section 10 of the Sexual Offences Act, and relied on the case of Onesmus Karithi Kaberi & 2 others v Republic [2021] eKLR, for the proposition that in a charge for gang defilement, the prosecution is required to prove that the offence of defilement was committed in association with another or others. Further, that where a person did not do the actual act of penetration within the meaning of defilement, but was in the company of others who did the actual penetration, he too will be liable for the offence. It was therefore submitted that the definitive parts of the section are found in the terms: ‘in association with another or others, or any person who, with common intention, is in the company of another who commits the offence.’

12. Counsel urged that from the evidence of the complainant, she was attacked as she walked by the appellant and another who was also convicted alongside him, and defiled in turns by the two, as other men held her legs. That from the facts of the case, all the men who held her legs and the two who raped her clearly had formed the common intention to commit an offence.

13. Counsel weighed in on whether the appellant was positively identified as the perpetrator. Counsel urged that it was not in doubt that the complainant knew the appellant very well. According to her, the appellant was her neighbour and that he sold vegetables. Further, the complainant also stated that there was sufficient moonlight which assisted her to identify the culprits. It was also submitted that during the attack, the victim was in the company of one Chizi (PW3) who witnessed part of the attack. She was present when the complainant was assaulted, that she was able to identify the appellant and his co-accused as the two of them were well known to her. Counsel placed reliance on Joseph Muchangi Nyaga & another v Republic [2013] eKLR which that cautions the court to inquire as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused. Counsel urged that the case was one case of recognition of the appellant as he was a person well known to the complainant. Citing Madan J.A in Anjononi and others v The Republic [1980] KLR where he delivered himself thus;“…This, however, was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”

14. On the issue of proof of the complainant’s age, counsel submitted that the complainant’s age was sufficiently proved by way of the child immunization card that was produced on record. The card indicated that the child was born on 29th September 2003; and was about 16 years as at the time of the incident and therefore a child within the meaning of Article 260 of the Constitution and section 2 of the Sexual Offences Act.

15. As regards the sentence it was submitted that the trial court took into account the seriousness of the matter and also the fact that the complainant was a child. The court also took into account the fact that that superior courts are now departing from mandatory sentences. The respondent drew the court’s attention however, to the decision in David Mutai v Republic [2021] eKLR (Petition No 27 of 2019) where the Court observed that it is trite law that even an appellate court cannot interfere with the sentencing court’s discretion unless it is established that there was real error on application of the sentencing principles. In this case, there is no indication that there was any apparent error in the sentencing. Hence, the respondent prayed that this Court does not interfere with the sentence that was meted on the appellant bearing in mind the gravity of the offence against the complainant.

Analysis 16. In a second appeal such as this, our mandate under Section 361 of the Criminal Procedure Code is limited to a consideration of matters of law only. In Karani v R [2010] 1 KLR 73 the Court expressed that:“By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.”

17. As to what constitutes “matters of law” in relation to this Court’s jurisdiction as the second appellate court, the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji and 3 others [2014] eKLR characterised the three elements of the phrase “matters of law” thus:“(a)the technical element: involving the interpretation of a constitutional or statutory provision;b.the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record; andc.the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.”

18. We have considered this appeal and find that the issue for our determination is twofold;i.Whether the identification of the appellant was positive; and,ii.Whether the sentence meted out in this case was harsh and excessive.

19. The appellant was charged of the offence of gang defilement contrary to section 10 of the SOA which provides as follows:“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.”

20. We are also guided by the decision in Adan Muraguri Mungara v R CA Cr App No 347 of 2007 where it was held thus:“As this Court has stated many times before, it has a duty to pay homage to concurrent findings of fact made by two courts below, unless such findings are based on no evidence at all, or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such findings. That would mean that the decision is bad in law, thus entitling this court to interfere."

21. It is therefore clear that on second appeal, this Court is mandated to make a finding as to whether the first appellate Court carried out its legal mandate of re-evaluating the evidence presented before the trial Court in arriving at its decision.

22. Before we delve into the issues raised in this appeal, we shall first deal with what we noted on the record. After the learned trial Magistrate correctly set out the charges facing the appellant at the beginning of the judgment, at page 6 of the judgment, last paragraph, he stated thus:“To this end I am satisfied beyond reasonable doubt that Mrima (appellant) and Anthony penetrated the vagina of the complainant in turns with their penises. This penetration amounted to the offence of defilement as defined under section 8 of the Sexual Offences Act…”

23. The learned trial Magistrate then concluded his judgment thus:“Under the same provisions of the law Mrima (appellant) and Anthony Ndaikwa are convicted for the offence of gang rape contrary to section 10 of the SOA.”

24. The offence the appellant faced was that of gang rape or defilement, which offence is defined under section 10 of the SOA. Section 10 defines the ingredients of the offence of gang rape thus: “Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape.” The offence of defilement under section 8(1) of the SOA is different from gang rape or defilement under section10 for the basic reason that a person will only be convicted of the latter offence of gang rape if it is shown that he acted in association with another or others, or acted in concert or one common intention with another or others. The aspect of association, collaboration and common intention to commit the offence of defilement is missing from the offence under section 8(1) of the SOA. Therefore, the learned trial Magistrate made a mistake to state that the offence the appellant faced is defined under section 8 of the SOA. That mistake did not affect the appellant’s right to a fair trial neither did he suffer any prejudice. The learned trial Magistrate was clear which offence the appellant faced, as well as the ingredients that constituted the offence. At the close of his judgment, the learned trial Magistrate pronounced the conviction under the correct penal provision. In the circumstances, the error is curable under section 382 of the Penal Code.

25. On the issue of whether there was positive identification of the appellant. The appellant contended that the complainant was attacked at night and that therefore the safeguards for a positive identification were lacking. We note that the issue of identification was not raised before the trial Magistrate. It was raised before the High Court. This is what the learned Judge of the High Court stated in that regard:“On identification the policy of the law rom time imminent has been to require the Court to subject the evidence to the criterion outlined in Roria v R (19490 16 EACA 135, Abdallah bin Wendo v R 20 EACA 166; R v Turnball (1976) 2ALL ER.In this case, the relationship between the confirming testimony and of (PW1) and (PW3) and the legal requirement for corroboration on identification of the appellants was entirely clear. The substantive evidence that the complainant had prior knowledge of the physical stature and other collateral features of the appellants as neighbours or inhabitants of the same village stands out to prove the element of recognition. The complainant was defiled persons known to her before the sex act.”

26. We did examine the evidence of the complainant and PW3, who was with the complainant just before the incident. The complainant’s testimony was that on the material night she met with the appellant and the other three charged with him in this case, who she knew before, and a fifth man she did not know. She stated that the Gwaya called her and she stopped. Then she was assaulted by the appellant and knocked down with the help of Anthony and the others. The appellant defiled her, followed by Anthony. She was then warned not to tell anyone about the incident, otherwise they would slaughter her. She then stated about the appellant thus:“I knew Anthony and Mrima. The incident occurred at night. There was moonlight which helped me identify the culprits. Mrima was known to me before. He’s a neighbour. He sells Sukuma.”

27. We note that the complainant had a close encounter with the assailants, and especially the appellant and Anthony who took turns to defile her. They were well known to her. They also spoke to her before the attack, and after the sexual assault at which time they threatened her with death if she reported them. We find that even though the incident was at night the complainant had a good and sufficient time to see the culprits. Hers was not just the evidence of visual identification but recognition, not only through visual identification but also through recognition of the voice. The complainant’s testimony received corroboration from PW3, who also knew the appellant before the date of the incident. We are satisfied that the appellant was positively identified by the two eye-witnesses. Nothing turns on this ground.

28. As regards the sentence, especially given his personal circumstances of being the sole bread winner, the appellant’s complaint is that the mandatory minimum sentence under section 10 denied him the benefit of enjoying a lesser sentence, and having his considered mitigation in a manner that accorded him a less severe sentence.

29. This Court sitting in Nyeri in Joshua Gichuki Mwangi v Republic, Criminal Appeal No 84 of 2015 expressed itself as hereunder:“We emphasise that this Court is alive to the fact that some accused persons are obviously deserving of no less than the minimum sentences as provided for in the SOA due to the heinous nature of the crimes committed. And they will continue to be appropriately punished as was pronounced… On the other hand, there are definitely others deserving of leniency and this is the leeway we are asserting that ought to be at the disposal of courts… We acknowledge the power of the Legislature to enact laws as enshrined in the Constitution. However, the imposition of mandatory sentences by the Legislature conflicts with the principle of separation of powers, in view of the fact that the legislature cannot arrogate itself the power to determine what constitutes appropriate sentences for specific cases yet it does not adjudicate particular cases hence cannot appreciate the intricacies faced by judges in their mandate to dispense justice. Circumstances and facts of cases are as diverse as the various cases and merely charging them under a particular provision of laws does not homogenize them and justify a general sentence. This being a judicial function, it is impermissible for the Legislature to eliminate judicial discretion and seek to compel judges to mete out sentences that in some instances may be grossly disproportionate to what would otherwise be an appropriate sentence. This goes against the independence of the Judiciary as enshrined in Article 160 of the Constitution. Further, the Judiciary has a mandate under Article 159(2) (a) and (e) of the Constitution to exercise judicial authority in a manner that justice shall be done to all and to protect the purpose and principles of the Constitution. This includes the provision of Article 25 which provides that the right to a fair trial is among the bill of rights that shall not be limited. In the end, courts have a duty to dispense justice not only to the complainants but also to accused persons. For these reasons we allow this appeal and we set aside the 20-year sentence and substitute it with a 15-year sentence to run from the time the trial court imposed its sentence.”

30. We advocate for exercise of judicial discretion in determining the sentence that best fits the justice of the case, as well as that which best ensures that justice is be done to all, including the accused persons, and which protects the purpose and principles of the Constitution. In this case, the appellant was sentenced to the minimum sentence prescribed under section 10 of the SOA under which he was charged. The Court, while considering sentence must consider the unique facts and circumstances of each case, and the role played by each of the accused person before it in the offence.

31. In the instant case, the appellant and his cohorts waylaid the complainant as she went home with a relative. They singled her out, knocked her down after assaulting her physically before the appellant and one of the other three took turns to defile her. And after that, they threatened her saying they would slaughter her if she reported them.

32. Was the sentence of 15 years’ imprisonment harsh and excessive in the circumstances? We think not. The offence was savagely executed to a child of 16 years. It was heinous, given the fact two mature males took turns to defile the complainant. The appellant is in the category of those who do not deserve any sympathy in light of the aggravating circumstances. Sexual assaults are invasive and the ultimate violation of the person, is demeaning and traumatizing both physically and psychologically. We think that the sentence meted out to the appellant was appropriate. We find no reason to interfere.

33. The result is that the appellant’s appeal fails in its entirety and is accordingly dismissed.

DATED AND DELIVERED AT MOMBASA THIS 8THDAY OF DECEMBER, 2023. P. NYAMWEYA………………………………………JUDGE OF APPEALJ. LESIIT………………………………………JUDGE OF APPEALG.V. ODUNGA………………………………………JUDGE OF APPEALI certify that this is the true copy of the originalDEPUTY REGISTRAR