[2022] KEHC 3365 (KLR)

Musau v Republic (Criminal Appeal 64 of 2019) [2022] KEHC 3365 (KLR) (9 February 2022) (Judgment)

Neutral citation: [2022] KEHC 3365 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 64 of 2019

SN Mutuku, J

February 9, 2022

Between

Peter Amon Musau

Appellant

and

Republic

Respondent

(Appeal from the original sentence in Criminal Case No. 43 OF 2015 at the Resident Magistrate’s Court – Kajiado Law Courts by Hon.M. Chesang - RM)

Judgment

1. The appellant, Peter Amon Musau, was charged with defilement contrary to section 8 (1) (3) of the Sexual Offences Act. (herein referred to as the Act). The particulars thereunder were that on 11th day of December 2016 at Orata place in Kitengela town within Kajiado County, he intentionally caused his penis to penetrate the vagina of AM a child aged 12 years.

2. The appellant faced an alternative charge of Indecent Act contrary to section 11(A) of the Act; that on 11th day of December 2016 at Orata place in Kitengela town within Kajiado County, intentionally touched the vagina of AM with his penis against her will.

3. The Appellant was tried and found not guilty on the charge of defilement contrary to section 8(1) as read with section 8 (3) of the Sexual Offences Act. He was however found guilty for the Alternative charge of indecent act with a child contrary to section 11 (A) of the Sexual Offences Act.

4. He was aggrieved by the conviction and the sentence and filed the instant appeal in which he has raised six (6) grounds (although they are seven but the seventh ground is a request to be present during the hearing of the appeal) of appeal as follows:i.The Learned trial magistrate erred in both law and facts where the prosecution failed to establish the truth in accordance to section 107 of the evidence Act.ii.The Learned trial magistrate erred in both law and facts on where crucial/essential witnesses were not summoned in accordance with section 150 of the CPCiii.The Learned trial magistrate erred in both law and facts by failing to consult the victim in contravention of section 137(d) of the CPC.iv.The Learned trial magistrate erred in both law and facts on contravention of section 169 (2) of the CPC.v.The Learned trial magistrate erred in both law and facts on where there were no point or points of determination and the reason for reaching such decision in accordance to section 169 (1) of the CPC.vi.The Learned trial magistrate erred in both law and facts on failing to observe the sentencing guidelines and policies as stipulated by the law.vii.He wishes to be called upon and be present in court and proceedings be availed during or before hearing and determination of this appeal.

5. Parties filed their submissions. In his submissions the appellant argued that the prosecution did not prove their case beyond reasonable doubt as required by the law and that the prosecution case was contradictory, incompetent, has discrepancies, was illegal, irregular, lacked straightforwardness, lacked integrity and trustworthiness.

6. On the issue of penetration the appellant argued that there was no penetration and that PW1 and PW2 testified as such. He stated that PW6’s narration to the court did not speak of any penetration. That no exhibits were collected. That the trial court found that penetration was not proved. That no bleeding was reported on clothes or beddings according to P3 form. In addition, he challenged the testimony account of the witnesses called by the prosecution alleging that their account of the case was not truthful or credible. For instance, he submits that PW1 evidence was not straightforward as she stated that the appellant tried to penetrate to no avail yet both their clothes were on.

7. On the issue of age, he submitted that the prosecution did not prove that PW1 was a child in accordance with the law. That the only proof produced was a birth certificate which was not an original and the copy produced was not certified.

8. He submitted that the evidence was circumstantial as the testimony of PW1 cannot be trusted as it was inconsistent. That he was not furnished with all police statements to help him adequately prepare for his defense. He also submitted that he was not given a fair and impartial trial as contemplated by article 25( c) and 50(2) of the Constitution.

9. In regard to the sentence meted out, he submitted that the same was harsh and excessive and urged the court to put into account various aspects such as remorse, 1st offender among other mitigating factors. He relied on the cases of Robert Merire Njeru v RepCr App No 06 of 2015 and Sara Akinyi Odinga v Rep Cr App no 680 of 2018.

10. He urged that the time spent in remand custody be discounted from the date of arrest.

11. The appeal was opposed by State. In regard to the conviction, the Learned Prosecution Counsel submitted that the ingredients of the offence of defilement facing the appellant were proved. In regard to the age of the complainant, he submitted that the same was proved to be 12 years as per the Birth Certificate tendered.

12. That penetration was established as per PW4 the clinical officer who examined the victim’s private parts. In regard to the identity of the appellant as the one who committed the offence Counsel submitted that the testimony of the victim together with that of PW2 clearly identified the appellant as the culprit. He urged the court to dismiss the appeal and the conviction and uphold the sentence.

13. This is a first appeal. The duty of this court while sitting as the first appellate court is clear in my mind. I am required to examine all the evidence tendered in the lower court, analyse and consider the same and arrive at an independent conclusion all the time bearing in mind that I did not observe witnesses as they testified and therefore giving allowance of that.

14. I have read, with great care, all the evidenced adduced in the trial court. This was a short case. The victim is a child aged slightly over 12 years at the time of the offence. The trial court put her age at 12 years and 7 months. A copy of the birth certificate was produced. It is not certified as a true copy of the original, a fact that was addressed by the trial. I will get back to this issue.

15. She seemed to have been lured to the house of the appellant by a relative of the appellant. The trial court conducted a voire dire examination on the victim and satisfied itself that the child was a competent witness. Inside the house alone with the appellant, the latter defiled her.

16. Th appellant and the victim were found by the victim’s sister SN (PW2) a University Student who called the police. Both the victim and the appellant were taken to Kitengela Police Station where the appellant was placed in cells to face these charges and the victim was taken to the Nairobi Women’s Hospital, Kitengela Branch where she was examined by Ruth Leng’ete, a Clinical Officer.

17. I have noted the evidence of the victim, her sister, PW2 and the Clinical Officer, PW4. I have also noted the defence of the Appellant who testified under oath. It is not lost to me that the sister to PW1 knocked at the door for some time before the appellant opened the door. But that aside, it is possible to defile the victim even with clothes on so long as the under pant is removed. There is mention that the victim went to the police station with her under pants.

18. The appellant denied that he lived at the scene where he was found claiming that he had just gone to his brother’s place to pick his things. He testified that the girl whom he did not know arrived with his step sister and sat outside near a kiosk. He testified that the girl’s sister found her there and asked her what she was doing at the place.

19. He denied that he was found inside the house with the victim and stated that all the prosecution witnesses were lying to the court.

Evaluation and Determination 20. I have considered the grounds of appeal raised by the appellant and his submissions on the same. I have also considered the submissions by the State. The appellant claims that the prosecution failed to prove the case beyond reasonable doubt; left out crucial witnesses and in failing to consider sentencing guidelines.

21. The State claims they have proved all the ingredients of defilement beyond reasonable doubt.

22. To my mind therefore, the main issues for determination in this Appeal are whether there was penetration; whether the identify of the culprit was established and whether the age of the victim has been established. The standard of proof required here is beyond reasonable doubt.

23. Before addressing all the issues raised in this matter, I wish to address two issues that arise in this case. One of the issues has been raised by the appellant. These issues require the intervention of this court for completeness.

24. The first issue is the charge sheet. The main charge reads defilement contrary to section 8(1) (3) of the Sexual Offences Act. The appellant has raised it in his arguments though without clarity.

25. Further in respect of the charge, the alternative charge reads: Committing an indecent act with a child contrary to section 11 (A) of the Sexual Offences Act.

26. It is common in this country for the Investigating Officers to draw Charge Sheets in respect of defilement in the manner shown in paragraph 20 above. This is wrong and renders the Charge Sheet defective.

27. There is also an error in citing section 11 (A) of the Sexual Offences Act in respect to the charges the appellant is facing. The relevant section in respect to committing an indecent act with a child is section 11 (1) of the Sexual Offences Act. The Section cited refers to committing an indecent act with an adult.

28. Both these defects in the Charge Sheet are curable under section 382 of the Criminal Procedure Codewhich provides that:Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.

29. I hereby invoke the provisions of the above section to sanitize the defects found in the Charge Sheet, main charge and alternative charge and make a finding that such defects did not occasion injustice to the appellant as far as this court can discern from the proceedings in the lower court.

30. The second issue is that of the production of uncertified copy of the birth certificate of the victim which is tied with the issue of the age of the victim, one of the ingredients of defilement.

31. The victim told the court that she was aged 12 years. In that respect a copy of a birth certificate was produced in court. It is not certified as a true copy of the original. It however bears the names of the victim and her parents and shows details of her birth.

32. The victim’s mother testified. Neither the prosecution counsel nor the appellant asked her about the date of birth of the victim or question her about the birth certificate.

33. I have noted that the learned trial magistrate addressed that issue as follows:“Though the birth certificate is not on its original form and the copy is not certified, I will accept the age as shown on the copy produced as it is compatible with the body size and intellect of an average 12 year old as I saw the complainant in court at the hearing hereof.”

34. I am satisfied that the age of the victim has been proved beyond reasonable doubt. I make a finding that the victim’s age was proved as between 12 years and 15 years, thereby falling under section 8 (3) of the Sexual Offences Act.

35. On the issue of identification of the appellant as the culprit, I have considered the evidence of the victim, PW1 and that of her sister SN (PW2). PW1 identified the appellant as the person whose forced her on the bed and “did something to her”.

36. PW2 testified as follows:“On December 11, 2016 at 11am I went to a house made of iron sheets and found PW1 in accused house. I had been called by a woman called mama Lily who said that a certain woman had told her that PW1 had been seen being taken to a house. I went there immediately. I knocked the door several times. Accused opened the door and apologized.I found PW1 lying on the bed with her clothes on. I asked accused what PW1 was doing there. He said one Bahati had brought her to the house.”

37. The two witnesses were not shaken in cross-examination. They maintained their testimony that it was the appellant who was with the victim at the scene of this crime. I have no doubt in my mind that the appellant was properly identified. He did not leave sight of PW1 and PW2 until police arrived and took all the three of them to the Police Station. This ingredient has been proved beyond reasonable doubt.

38. Penetration is defined under section 2 of the Sexual Offences Act as follows:“Penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.

39. I have examined and analyzed the evidence touching on this issue. The only evidence available is that of PW1 and the evidence derived from the medical examination. Some excerpts of her evidence on the issue are that:“…..Accused told me to sleep on the bed and I refused. He then threw me and told me to remove clothes, but I refused. He then removed my trouser. He wanted to penetrate me using his penis but I refused………. My sister found me on the bed and called the police……. I felt pain on the private parts. The accuse tried to penetrate me by force but it was not possible. I told the doctor that I was feeling pain.”

40. On cross-examination, she told the appellant that “you did something to me”. On re-examination she stated that “the accused wanted to have sex with me. He was first about to penetrate me but my sister knocked the door. His penis touched my vagina but did not enter. He tried to penetrate me but I told him I did not want. The pain was as a result of his withdrawal.”

41. It is obvious that this evidence is mixed up and seems to contradictory. On the face of it, there was no penetration. But then PW1 said she felt pain and further that the reason for the pain was because the appellant was withdrawing. The question is where was he withdrawing from, was it from her genitals? Why would there be pain if there was no penetration. The penis touching the vagina would not cause any pain. For pain to occur, there must have been penetration.

42. The Clinical Officer (PW3), who examined the victim on the same day observed that her private parts were swollen and reddish on the outside. Hymen was swollen and had been torn. She explained that the swelling and redness was an indication of forceful penetration. Her conclusion was that the victim had been defiled.

43. I have, with care, considered this evidence. I did not have the chance to observe the demeanor of the victim as she testified. I do not know the circumstances under which she testified: had the court been cleared of all the people other than those key to the trial? Was she given a conducive atmosphere in which to testify freely without fear or intimidation? What is clear is that she was either confused, scared or intimidated. Her mixed testimony clearly shows that. But that notwithstanding, I have analyzed this evidence and I am satisfied that penetration has been proved and therefore the offence of defilement is proved to the required standard.

44. It is my considered view that the grounds of appeal raised by the appellant have no merit. My analysis of all the evidence confirms without doubt that this offence was committed by the appellant. The threshold of proof beyond reasonable doubt was met. The only issue being that the trial court misapprehended the issues before it and found the alternative charge proved instead of the main charge of defilement.

45. I place reliance on the victim’s side of evidence that showed that the appellant touched her genitalia with his penis and that she felt pain. Further that the pain was due to the appellant withdrawing. I place great reliance on the medical examination that pointed to the fact that the victim was defiled. Her genitalia was found swollen and reddish and her hymen was broken. This examination was carried out the same day when the offence took place.

46. With the above evidence and given the definition of “defilement” I beg to differ with the trial court who concluded that defilement was not proved but indecent act with a child was proved beyond reasonable doubt. I find that as an error of reasoning and judgment on the part of the learned trial magistrate given the evidence on record.

47. I find that I am convinced, after subjecting all the evidence to careful scrutiny, that the offence of defilement was proved beyond reasonable doubt.

48. The issues raised by the appellant in this Appeal cannot stand. It is my finding that, having read the proceedings in the lower court, the trial was fair and impartial. I have addressed all the issues in this appeal and find that the appellant was accorded a fair trial.

49. On sentence, it is clear from the record that the appellant, even though he was a first offender at the time of the sentence, he showed no remorse and continued denying the offence even when evidence shows that he was found inside the house with the victim.

50. The penalty for defilement of a child aged between 12 and 15 years is not less that 20 years. This is one of the provisions of the law that sets the lower limit of the sentence and to that extent it denies the court discretion in sentencing.

51. Section 354 (3) of theCriminal Procedure Codeprovides that:The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may-a.in an appeal from a conviction –i.reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction; orii.alter the finding, maintain the sentence, or, with or without altering the finding reduce or increase the sentence, oriii.with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;b.in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence.

52. In view of this provision of the law and my own analysis and conclusions above, I hereby dismiss the appeal, alter the finding from guilty of the offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act to that of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. I hereby increase the sentence from 15 years to 20 years imprisonment as stipulated under section 8 (3) of the Sexual Offences Act.

53. The appellant shall continue serving that sentence from the time of his incarceration.

54. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 9TH FEBRUARY 2022. S. N. MUTUKUJUDGE