[2023] KEHC 26385 (KLR)

Musyoki v Republic (Criminal Appeal E005 of 2022) [2023] KEHC 26385 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26385 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E005 of 2022

DR Kavedza, J

December 8, 2023

Between

Christopher Mutie Musyoki

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence of Life imprisonment Hon. Caroline (RM) delivered on 22nd June 2021 in Loitoktok S.O Case No. 1B of 2020 Republic vs Christopher Mutie Musyoki)

Judgment

1. 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 (the Act). The appellant pleaded not guilty and was tried for the offence charged. The trial court found him culpable and convicted him on the main charge, but under section 8(2) of the Act. He was sentenced to serve life imprisonment.

2. Being dissatisfied with the conviction and sentence, he filed three grounds of appeal in his petition of appeal that; the trial magistrate misdirected herself in law and fact when she held that the minor’s evidence was adequately corroborated while ignoring the gaps in the evidence, the learned magistrate erred in finding that the medical evidence proved penetration and the trial magistrate failed to consider the appellant’s defence the evidence relied upon by the magistrate court to convict the appellant was not sufficient to warrant a conviction.

3. As this is the appellant's first appeal, the role of this appellate Court in the first instance is well settled. It was held in the case of Okeno v R[1972] EA 32 and further in the Court of Appeal case of Mark Oiruri Mose v R [2013] eKLR that this Court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

4. AM., the complainant (PW2), testified that she was 13 years old and in class six. She told the court that on 5th April 2018 at around 6. 30pm, she had come from school when her friend W (name withheld) asked her to help look for her shoe, which was lost in the farm. While looking for the shoe, the appellant (who she identified as Babu) appeared from behind and held her. Her friend W ran away. When she tried to scream, the appellant covered her mouth.

5. The appellant then told her to remove her panty but she refused so he removed the panty himself and lowered his own trouser and underwear. He laid on top of her, covered her eyes and inserted his penis into her vagina. PW2 felt pain and asked the appellant to let her go but he did not let her go. When he was done, the appellant wiped a mucus-like discharge from his penis. PW2 got up, put her panty back on and left. On her way, she met her mother with a neighbour and she narrated to them what had happened. She identified the appellant as Babu.

6. FN (PW3) told the court that W came and told her that her daughter had been had been caught by one Babu and taken inside the maize farm. Her neighbour (Kadada) suggested that they go look for her but they did not find her in the maize farm. As they kept searching along the road, the met PW2 who was at the time barefooted and looking scared. Upon inquiry on what had happened, PW2 was initially hesitant but she eventually narrated the ordeal. PW2, together with Kadada and Kadada’s husband started the search for Babu. They found him and took him to the Chief in Zamzam where he was later arrested by the police. PW2 was taken to the hospital where she was examined and treated. PW3 told the court that she knew appellant as he was their neighbour.

7. No. 236616, PC Arthur Maina (PW4) told the court that on 5th April 2018, he was at the AP Camp with his colleagues when a mzee (the appellant) was brought by members of the public at around 8. 00pm. It was alleged that he had defiled a child. PW4 interrogated him and called the OCS. Officers came and the mzee was arrested and taken to Illasit Police Station.

8. Likamu Backson (PW1) a clinical officer attached at Illasit Police Station produced a p3 form for the complainant aged 11 years old, who was at the time looking sick and limping from her right lower limb. The findings were that there were multiple bruises on both Labia Minora and Majora which caused the pain while urination. The age of injuries was I day and the probable weapon used penile penetration. The bruises were as a result of friction from the penetration. There was further observed discharge from the vagina, which according to PW1, could have been caused by the ejaculation by the defiler. The hymen was intact.

9. The conclusion was that there was penetration. PW1 was particular that in this case, the labia minora could not have been injured in any other way other than penetration. He also added that it is possible for the hymen to be intact depending on level of penetration; if the penetrator was not forceful, the hymen can remain intact, as was the case in this instance. He concluded that defilement had taken place.

10. No. 85574 CPL John Kenga (PW5), the investigating officer in this case told the court that the case was reported on 5th April 2018 while he was at the station. While at the station, he noted that the complainant was limping. He was assigned the case and commenced investigations. He visited the scene of crime, recorded witness statements and took the complainant and accused to the hospital for examination. He obtained the age assessment, which confirmed that the complainant was 11 years old. He asserted that he did not know the appellant prior to the incident.

11. The appellant was found to have a case to answer and put to his defence where he opted to give unsworn testimony. He testified that on 5th April 2018, he woke up and went to the farm where he stayed until 12. 00 noon. At 2. 00pm, he went back to the farm until 5. 00pm. He went to a hotel and took tea and in the process, two men went to him and said they wanted to see him. They went to the Wazees home where he was shocked after being accused of defiling a girl. Upon denial of the accusations, he was taken to the chief and later on arrested. The following day he was taken to the hospital where his examination revealed nothing significant.

Analysis and Determination 12. I have considered the submissions of both parties and find that the issues for determination are:1. Whether the Charge sheet was Defective,2. Whether the Appellant’s right to fair hearing was infringed, and3. Whether the prosecution proved its case to the required standard.

13. On the first issue, the appellant contends that the charge sheet was fatally flawed, rendering the conviction unsafe. He argues that he was charged under section 8(1) as read with 8(3) of the Act, pertaining to a child aged 12 to fifteen years, but the magistrate convicted him under section 8(1) as read with 8(2). He relied on the case of Isaac Omambia v R [1995] eKLR. Despite acknowledging the drafting error, this court deems it insufficient grounds to overturn the conviction. In John Irungu v Republic [2016] eKLR (Criminal Appeal No. 20 of 2016) the court emphasized the substantial compliance with the rules, and section 382 of the Criminal Procedure Code allows for curing such errors unless they result in a failure of justice. I am of the view that the charge sheet error, though present, did not lead to a miscarriage of justice, as the statement of offence contained the necessary elements. The appellant's claim of a miscarriage of justice is deemed unfounded and rejected.

14. On the second issue, the appellant argued that his right to a fair trial, as per Article 50(2)(g)(h) of the Constitution, was violated due to the trial court's failure to inform him of the right to legal representation and legal aid if he couldn't afford it. Citing the case of Daniel Mpayo Ngiyaya v Republic [2018] eKLR, he emphasized the constitutional rights under Article 50(2) that guarantee the right to choose and be represented by an advocate. Legal representation, according to Pett v Greyhound Racing Association, (1968) 2 All E.R 545, at 549, was highlighted as crucial for a fair trial, ensuring effective participation in the criminal process. The Supreme Court in Republic v Karisa Chengo & 2 others[2017] eKLR reiterated that the right to legal representation is a fundamental element of a fair trial. The appellant pointed to Article 50(2)(h), stating that an accused is entitled to a state-assigned advocate at state expense only if substantial injustice would result. The case of David Njoroge Macharia v Republic [2011] eKLR clarified situations where legal representation at state expense is warranted, particularly in capital offences.

15. The Supreme Court, in Republic v Karisa Chengo (supra), detailed factors to consider in determining substantial injustice in criminal proceedings. These factors included the seriousness of the offence, the severity of the sentence, the accused's ability to pay for legal representation, whether the accused is a minor, the accused's literacy, and the complexity of the charge. To benefit from the alleged omission by the trial court, the appellant had to demonstrate that he raised concerns about affording legal representation and the possibility of substantial injustice from the start of the trial. The court in Charles Maina Gitonga v Republic [2020] eKLR emphasized the importance of raising such concerns in the lower courts.

16. Upon scrutinizing the record, I found that the appellant never raised the issue of legal representation during the trial. The record also indicated that the appellant actively participated in the trial, cross-examining witnesses and presenting a detailed defence, suggesting an understanding of the charges and evidence. There was no evidence of incapacitation due to lack of legal representation. This ground is therefore dismissed.

17. Elsewhere, the appellant contested the reliability of the age assessment, claiming that the maker was not summoned and no reason was given for their absence. However, the Evidence Act's sections 33 and 77 allow for the admission of certain statements and medical evidence even without the maker's presence, with the court assuming the genuineness of signatures on documents. The appellant did not explain how the production of the age assessment violated these sections. Moreover, the appellant did not object to the report's production in court. His argument to its production cannot therefore stand.Top of Form

18. The next issue is whether the prosecution proved the offence of defilement. In order to prove defilement, the prosecution must show that the accused did an act that amounted to penetration of a child.

19. PW2 gave an account of the actions of the appellant on 5th April 2018. She was very clear and her testimony was not shaken on cross-examination by the appellant. Her evidence was corroborated by PW1 and his evidence was that the vagina had multiple bruises on both Labia Minora and Majora which caused the pain while urination. The bruises were as a result of friction from the penetration. There was further observed discharge from the vagina, which according to PW1, could have been caused by the ejaculation by the defiler. The hymen was however intact.

20. PW1 explained that it is possible for the hymen to be intact depending on level of penetration; if the penetrator was not forceful, the hymen can remain intact, as was the case in this instance. Section 2 of the sexual Offences Act defines penetration to mean partial or complete insertion of the genital organs of a person into the genital organs of another person. According to the interpretation of Section 2, the slightest and brief arousal Penetration is sufficient to complete the crime.

21. The law does not envisage absolute penetration into the genital nor the release of spermatozoa or semen of the male organ for the act of penetration to be said to be complete (See Daniel Maina Wambugu v Republic [2018] eKLR). The medical report produced concluded that the complainant had been defiled.

22. The appellant was positively identified by complainant. Identification was by recognition; the appellant, known as Babu, was a neighbour to the complainant. Moreover, the appellant was apprehended on the very evening the incident transpired. Given the close proximity of the appellant as a neighbour to the complaint, along with the minimal time elapsed before the complainant singled him out, the likelihood of her failing to recognize and identify him as the perpetrator is exceedingly low. The proof of identification is robust.

23. On the age of the complainant, the mother of the complainant stated that the she was born on 12/12/2005, being thirteen (13) years old at the time the incident happened. The age assessment report on the other hand estimated the complainant’s age to be 11 years old. From the above, I note that there are discrepancies and my role is to ascertain whether the discrepancies go into the root of the trial. In assessing whether the same have a bearing on the conviction handed down, the court in Richard Munene v Republic [2018] eKLR, the Court of Appeal stated:“Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”

24. In this particular instance, there is no dispute regarding the complainant's status as a minor. The point of contention revolves around determining the specific age at which she was considered a minor. It is trite that the testimony of a parent on the age of their child overrides any other evidence on the age of the minor. In this regard, the statement of the mother that the complainant was born on 12/12/2005, being thirteen years old at the time of the offense overrides the age assessment report. Besides, an age assessment is only an approximation on age and it could have a margin error or two years and cannot be considered as conclusive evidence of age, as was held in E K v Republic[2018] eKLR. This court therefore finds that the complaint was thirteen years at the time the offence was committed.

25. The appellant elsewhere argued that crucial prosecution witnesses were not availed by the prosecution. He argued that the prosecution was duty bound to call all crucial witnesses to establish the truth in the case. This court is alive to the fact there is no legal requirement in law on the number of witnesses to prove a fact. Section 143 of Evidence Act (Cap 80) Laws of Kenya provides: -“143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact”

26. In the case of Bukenya & OthersvUganda [1972] EA 549 court addressed itself thus:-“(i)The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.(ii)That Court has right and the duty to call witnesses whose evidence appears essential to the just decision of the case.(iii)Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.”

27. The evidence in the instant case was adequate to prove the ingredients of the offence the appellant was charged with at the trial court. Having found the age of the complainant to be thirteen years at the time of the offence, I set aside the conviction by the trial court under section 8(1) as read with 8(2) and convict the appellant under section 8(1) as read with 8 (3) of the Act.

28. The sentence of life imprisonment is subsequently set aside. Section 8(3) of the Act provides for a minimum sentence of twenty years imprisonment. The court can however exercise discretion to mete out an appropriate sentence depending on the circumstances of the case.

29. I have considered that the circumstances of the case and the pre-sentence report prepared at the trial court and sentence the appellant to 10 years imprisonment from the date of conviction.

Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8THDAY OF DECEMBER, 2023___________________D. KAVEDZAJUDGE