[2022] KEHC 13047 (KLR)

Mutenyo v Republic (Criminal Appeal E121 of 2021) [2022] KEHC 13047 (KLR) (19 September 2022) (Judgment)

Neutral citation: [2022] KEHC 13047 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E121 of 2021

LN Mutende, J

September 19, 2022

Between

Geoffrey Khisa Mutenyo

Appellant

and

Republic

Respondent

(Appeal against the original conviction and sentence in Criminal Case No. 330 of 2020 at the Senior Principal Magistrate’s Court Kimilili by Hon. G. Adhiambo – PM on 24th November, 2021)

Judgment

1. Geoffrey Khisa Mutenyo, was jointly charged with two (2) others as follows:Count 1 – Assault causing actual bodily harm contrary to section 251 of thePenal Code. Particulars being that on the 18th day of August, 2020 at around 2000 hrs at [particulars withheld] village in Bungoma North Sub County within Bungoma County jointly with others not before court assaulted FWM thereby occasioning him actual bodily harm.Count 2 – Insulting modesty by forcible stripping contrary to section 251A of the Penal Code. Particulars of the offence being that on the 18th day of August, 2020 at around 2000hrs. at [particulars withheld] village in Bungoma North Sub County within Bungoma County, jointly with others not before court intentionally insulted the modesty of FWM by stripping off his clothes namely, shirt and long trouser against his will.

2. Having been taken through full trial the appellant and the co-accused were found guilty of both counts, convicted and sentenced as follows:Count 1 – To pay a fine of Ksh 20,000/- and in default to serve three (3) months imprisonment.Count 2 – To serve five (5) years imprisonment.Sentences were ordered to run consecutively.

3. Aggrieved, the appellant appeals against the conviction and sentence on grounds as follows:1. That the learned trial Magistrate erred in law and in fact in convicting the appellant on the offences charged when the prosecution had not proved its case beyond reasonable doubt or at all.2. That the learned trial Magistrate erred in law and in fact in convicting the appellant of the offence of assault when there was no direct evidence that the appellant occasioned any injuries on the complainant.3. That the learned trial Magistrate erred in law in convicting the appellant of the offence insulting modesty when the evidence tendered pointed out that the acts complained off were committed by a mob.4. That the learned trial Magistrate erred in law and in fact by not fully considering the appellant’s defence and merely dismissing it as a mere denial and an afterthought, hence occasioned a miscarriage of justice.5. That having found as a fact that the offence herein was allegedly committed at night, the learned trial Magistrate erred in law and in fact in holding that the circumstances were favourable for identification6. That the learned trial Magistrate erred in law and in fact in holding that the appellant should have brought out his alibi defence early, thereby casting the burden of proof on the appellant.7. That the judgment of the learned trial Magistrate was against the weight of the evidence tendered.

4. The case presented by the prosecution was that, PW1 FWM, the complainant, was from Nasianda market when he encountered some twelve (12) young men, the appellant being one of them. They asked him for money or alcohol. When he denied being in possession of money, they assaulted him using metal rods and undressed him, leaving him stark naked. They sang circumcision songs, tore his trousers and cut his genitals with a knife. They injured his chest at the ribs area and smeared him with mud and tar. In the meantime, PW2 Jonah Wafula Mukhwana, heard people singing circumcision songs. Since he did not understand how a person could be circumcised at night he decided to check on what was happening only to find the twelve (12) people harassing the complainant. He recognized two (2) of the assailants. On checking the complainant, he noticed part of his penis having been cut and he was injured.

5. The complainant was taken to his sister’s home where he was dressed up and escorted to Naitiri Sub County Hospital. He was examined and treated by PW3 Joel Bwoyo Simiyu, a clinical officer. The matter having been reported to the police, PW4 No 48147 PC Emmanuel Adanda was detailed to investigate the case. He arrested three of the suspects and caused them to be charged.

6. Upon being placed on his defence, the appellant stated that he was framed up.

7. The trial court considered evidence adduced and found the prosecution’s case overwhelming, hence the conviction.

8. Although the appeal was filed by the firm of M/s J O Makali & Company Advocates, submissions were filed by the appellant in person and he only mitigated on sentence. He urged that the sentence was harsh. Seeking reduction of sentence he submitted that following his incarceration he was now rehabilitated and he would be a creative, innovative and industrious citizen. He sought to be set at liberty.

9. The respondent through Ms Ursulla Kimaru, learned prosecution counsel opposed the appeal. It was argued that the evidence of the complainant was corroborated by PW2, and was buttressed by photographs showing he was naked and smeared with mud.

10. That the Clinical Officer confirmed injuries suffered, evidence of mistreatment, humiliation and inhuman treatment. That identification of the appellant was free from error and the alibi defence given was not credible.

11. Looking at the grounds of appeal though not argued by the appellant, questions to be appraised can be condensed thus:a.Whether there was direct evidence to prove the offence of assault.b.Whether the complainant’s modesty was insulted.

12. Ingredients of assault causing actual bodily harm were stated in the case of Ndaa Vs. Republic (1984) KLR thus;i.Assaulting the complainant or victim.ii.Occasioning actual bodily harm.

13. The complainant gave direct evidence of how he was beaten by the attackers. PW2 found him having been undressed and made to sit down, he could tell, the complainant had been beaten thoroughly. His evidence corroborated that of the complainant’s allegation that he had been physically attacked.

14. Subsequently, the complainant was examined by PW3 who confirmed the injuries sustained. He had bruises on the right cheek, forehead, back, right hip and a swelling on the left hand. The injuries sustained were assessed as harm. This was proof of the fact of the assailants having occasioned actual bodily harm on the person of the complainant.

15. On the second count, section 251A of the Penal Code providesthus:A person who intentionally insults the modesty of any other person by forcibly stripping such person, commits an offence and is liable, upon conviction, to imprisonment for a term not less than ten years.

16. The prosecution was duty bound to prove the element of the complainant having been stripped, and that the act was done forcibly and intentionally.

17. The Cambridge Dictionary defines stripping as removing a piece of clothing.

18. PW1 alluded to having been undressed. He stated that the individuals removed his trouser, shirt and even the innerwear and left him naked, then started singing circumcision songs, in particular, songs ordinarily sang for uncircumcised persons. PW2 found him undressed and made to sit down. He had marks on the body and his penis had been mutilated.

19. The attackers treated the complainant with not only disrespect but scornful abuse. When the complainant encountered the assailants, he moved aside to give them way, but, they attacked him and forcibly removed his clothes. The act done was deliberate, hence intentional.

20. On the question of identification, the act was committed at 8. 00 pm. The defence put up was that he was framed up. It is on being cross-examined that the appellant claimed he was elsewhere when the act was committed. As correctly opined by the learned trial Magistrate, the defence of alibi should have been reflected as an afterthought. (See the case of Republic VS Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA 145. )

21. In his testimony the complainant stated that the assailants were persons well known to him and he identified them physically and by name.

22. On the question of sentence which the appellant dwelt on, hence the implication that he had abandoned the appeal on conviction; it is urged that it was excessive. The sentence provided for the first count is up to (5) years imprisonment but the court imposed a fine, and, in default a prison term of three (3) months. This was extremely lenient.

23. On the 2nd count, the term of imprisonment provided for is up to ten (10) years imprisonment. In the case of Kipchoge Kago Vs Republic Criminal Appeal No 253 of 2003 the Court of Appeal stated that:“Sentencing is essentially an exercise of the trial court and for the court to interfere, it must be shown that in passing sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of these the sentence was so harsh and excessive that an error in principle must be inferred".

24. One of the objectives of punishment is to prevent future crimes. The stated deterrence is aimed at deterring not only the offender but other people who are likely to commit such an offence. I have in mind circumstances under which the offence was committed. Forced circumcision against one’s will is serious. The sentence meted out should incapacitate others from attempting to commit such an offence.

25. However, I note that the appellant herein was a first offender, this was a factor that the court should have considered. In the circumstances, I set aside the sentence meted out on the second count which I substitute with that of three (3) years imprisonment. The appeal therefore succeeds to that extent.

26. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLYTHROUGH MICROSOFT TEAMS AT NAIROBI,THIS 19TH DAY OF SEPTEMBER, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Court Assistant – BrendaAppellantMr. Ayekha- ODPP