[2022] KEHC 14767 (KLR)

Muriuki v Republic (Criminal Appeal E019 of 2022) [2022] KEHC 14767 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14767 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E019 of 2022

LM Njuguna, J

November 2, 2022

Between

Edwin Mugendi Muriuki

Appellant

and

Republic

Respondent

(Being an appeal against the sentence and conviction by Hon. J. Ndeng’eri. in CM’s Court in Embu Sexual Offences Case No. 22 of 2019 delivered on 09. 12. 2021)

Judgment

1. The appellant herein filed a petition of appeal dated April 5, 2022 and wherein he challenges the conviction and sentence by the trial court in Chief Magistrate’s Court in Embu Sexual Offence Case No. 22 of 2019. The trial court convicted the appellant of the offence of defilement contrary to Section 8(1) (4) of the Sexual Offences Act No. 3 of 2006.

2. The particulars of the offence were that; on unknown date during the month of March, 2019 at [Particulars Withheld] village, [Particulars Withheld Sub County within Embu County, intentionally caused his penis to penetrate the vagina of MMM, a child aged 16 years.

3. The appellant was tried and thereafter convicted of the offence of defilement contrary to Section 8(1) (4) of the Sexual Offences Act No. 3 of 2006 and sentenced to serve Ten (10) imprisonment.

4. It is that conviction and sentence that necessitated the instant appeal wherein the appellant raised the grounds of appeal as here below:i.The learned magistrate erred in both points of law and facts by imposing a harsh and excessive sentence without considering that the appellant is a first offender and thus guaranteed the benefit of the least severe of the prescribed punishment as provided for by the law.ii.The learned trial magistrate erred in both points of law and facts by not considering the age of the complainant.iii.The learned trial magistrate erred in both law and facts by totally disregarding the appellant’s evidence without giving cogent reasons for the same.iv.That the learned trial magistrate erred both in law and in fact by totally disregarding and dismissing the appellant’s mitigation.

5. At the hearing of the appeal, the court directed the parties to file their submissions and wherein the appellant filed his submissions but the prosecution did not.

6. The appellant submitted that the learned magistrate failed to take into account the circumstances in which the offence was committed and argued that the victim of the alleged crime is a lady who is physically an adult who had previously been involved in intimate relationships with other men before he met her. That she was not opposed to their relationship and she willingly consented to the union.

7. It was further submitted that from her appearance, she looked like an adult and the appellant is not guilty as he did not know the act he was engaging in, is a crime in law. That the complainant deceived him into believing that she was an adult at the material time. He relied on the case of Joshua Antony Gitongavs Republic (Criminal Appeal No. 9 of 2020 at Embu).

8. He decried the sentence meted out by the trial court submitting that instead, a release would have been best to offer him an opportunity to cater for the needs of the complainant and her child SM who live in abject poverty. That the complainant was responsible for the deceit in passing out as an adult and reason wherefore, he sought for this court to order for his release on a condition that he takes care of the minor borne out of the alleged defilement ordeal.

9. Having considered the submissions of the appellant and after analyzing the evidence before the trial court, the issue for determination is whether the appellant has made a case for this court to interfere with the conviction and sentence imposed by the trial court.

10. The duty of this court while exercising its appellate jurisdiction was set out by the Court of Appeal in Okeno v Republic [1972] E.A. 32 and re-stated in Kiilu and another v R (2005) 1 KLR 174 where it was held that the evidence as a whole is to be exposed to a fresh and exhaustive examination by the court and thereby weigh conflicting evidence and thereafter draw its own conclusions. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses. Further, the court should be alive to the principle that a finding of fact made by the trial court shall not be interfered with unless it is based on no evidence or on a misapprehension of the evidence or that the trial court acted on the wrong principles [See Gunga Baya & another v Republic [2015] eKLR].

11. It must be appreciated that under Section 107(1) of the Evidence Act, the burden of proof is placed on the prosecution to establish every element in a criminal charge beyond reasonable doubt. This was well buttressed in the principle in the cases of Woolmington vDPP 1935 AC 462 and Miller v Minister of Pensions 2 ALL 372-273.

12. In the case before the trial court, the appellant was charged with the offence of defilement contrary to Section 8(1) (4) of the Sexual Offences Act No. 3 of 2006. Section 8(1) of the Sexual Offences Act provides that “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.” As it was correctly held in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013,“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

13. The question which needs to be answered is whether the above elements were proved to the required standards?

14. It is not in dispute that the complainant at the time of the commission of the offence, was roughly 16 years 5 months old as the same could be determined from the evidence produced in the trial court (Birth Certificate) which shows that the minor was born on 10. 09. 2002; and further, from the testimony of the complainant, PW3 who is the mother of the complainant and PW6 who investigated the matter.

15. In the case of Edwin Nyambaso Onsongo v Republic (2002) eKLR, in which the court cited the case of Mwolongo Chichoro Mwanyembe v Republic, Mombasa Criminal Appeal No. 24 of 2015 (UR) the Court of Appeal held that:….the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents, guardian or medical evidence among other forms of proof…..

16. As such, I am satisfied that the complainant was a minor which satisfies the legal requirement.

17. In regards to whether there was penetration, Section 2 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.

18. In this case, the complainant testified that sometime in January 2019, she was at home alone as her mother had gone to the tea buying centre. The appellant went to their home and asked her to follow him to the farm to which she complied. They went for a distance of 40 meters into an area where there are trees at which point, the appellant told her to lie down but she refused. The appellant removed her clothes and pant, lay on her and defiled her for about 40 minutes after which he rose and went home. The complainant collected her pant and also went home. The complainant did not report the incident to her mother but she missed her monthly periods in the month of March and started throwing up. The head teacher of [Particulars Withheld] Kathangariri escorted her for a pregnancy test and she was confirmed to be pregnant and the matter was reported to the police who carried out investigations and arrested the appellant herein and charged him with the offence of defilement.

19. Her evidence was corroborated by that of PW4, Joyce Kihoro, a Government Analyst who conducted a DNA test on the April 19, 2021. She took samples of the appellant, the complainant and the minor who was born following their sexual encounter and concluded that there are 99. 99+% chances that the appellant is the biological father of the child. As such, penetration was not only proved by the evidence by the prosecution witness but the DNA report also corroborated the same.

20. The complainant clearly identified the appellant as the person responsible for defiling her in that, the appellant herein was her neighbor and that the wife of the appellant operated a retail shop around the plot; therefore the appellant was a person well known to the complainant. In the circumstances therefore, I find that identification herein was favourable. In my view, this was a case of recognition and not identification. I am thus guided by the case of Anjononi & Others v Republic [1989] KLR in which the court held;Recognition 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 another.

21. Further, the appellant averred that his defence was never considered. A perusal of the record informs me that the trial magistrate in her judgment considered the defence by the appellant in its totality and in the end, she was satisfied that the prosecution proved its case beyond any reasonable doubt. The court noted that the defence in its submissions brought up the issue of how the complainant herein lived in an environment that allegedly made her susceptible to unwarranted attention from men. In my view, this piece of evidence could not pass, for the reason that, the same was never tested during cross examination but was only raised at the submission stage. As such, judgement was pronounced based on all the facts and evidence presented before the trial court.

22. In reference to the ground that the trial court did not consider the mitigation of the appellant, a perusal of the record shows otherwise. The appellant’s counsel on record mitigated on behalf of the appellant and the trial court in passing the sentence noted that it considered the mitigation by the appellant and further proceeded to reiterate that the offence that the appellant had committed was serious. As such, I hold the view that the ground must fail.

23. The appellant did submit that the sentence meted out by the trial court was unlawful and excessive. The legal position on sentencing was stated succinctly by the Court of Appeal for East Africa in the case of Ogola s/o Owoura v Reginum (1954) 21 270 as follows: -“The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James v R., (1950) 18 E.A.C.A 147:"It is evident that the Judge has acted upon some wrong principle or overlooked some material factor."To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case: R v Shershewky, (1912) C.C.A. 28 T.L.R. 364. "

24. In the instant case, the sentence under Section 8(1) (4) of the Sexual Offences Act states that:(1)A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

25. In my view, the sentence imposed despite being viewed as harsh by the appellant, was within the law and within the discretionary powers of the court. This court cannot interfere with the exercise of the said discretion as the appellant did not justify the interference. He did not prove that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle.

26. In view of the foregoing, this court has subjected the evidence adduced before the trial court to a fresh scrutiny and with honest belief, it is not persuaded that the appellant’s conviction and sentence was unsafe. It is for that reason that I dismiss his appeal and uphold the determination by the trial court.

27. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF NOVEMBER, 2022. L. NJUGUNAJUDGE..................................for the Appellant..................................for the Respondent