[2022] KEHC 11226 (KLR)

Mwangi v Republic (Criminal Appeal E001 of 2022) [2022] KEHC 11226 (KLR) (15 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11226 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E001 of 2022

LM Njuguna, J

June 15, 2022

Between

Boniface Mwangi

Appellant

and

Republic

Respondent

(An appeal against conviction and sentence by Hon. J.W Gichimu in Criminal Case No. E013 of 2021 at Runyenjes Law Court and delivered on 01. 12. 2021)

Judgment

1. The appellant herein was on 27. 07. 2021 arraigned before the Senior Principal Magistrate’s court at Runyenjes in Sexual Offence No E013 of 2021 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.

2. The particulars of the offence were that on diverse dates between March – April 2021 at Kawanjara sub location in Embu County intentionally and unlawfully caused his penis to penetrate the vagina of SN a girl aged 14 years.

3. He faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006, the particulars being that; on diverse dates between March – April 2021 at unknown time at Kawanjara Sub location in Embu County, intentionally touched the vagina of SN a child aged 14 years with his penis.

4. The case proceeded with the prosecution calling 3 witnesses and at the close of the prosecution’s case, the appellant was put on his defence and he opted to give sworn statement and thereafter called two witnesses to support his case.

5. In a judgment delivered on 01. 12. 2021, the appellant was convicted and thereafter sentenced to 20 years imprisonment. Being dissatisfied with both the conviction and the sentence, he appealed to this court vide a petition of appeal filed on 27. 01. 2022 in which he raised 7 grounds of appeal which can be summarised as: that the prosecution failed to discharge the burden of proof.

6. When the appeal came up for hearing, the court directed that the appeal be canvassed by way of written submissions.

7. The appellant submitted that the evidence on record was contradictory and inconclusive given that PW1 never stated the name of the organ that was inserted in her vagina and as such, it cannot be out rightly determined that he is liable for the offence he has been charged with and convicted of. That the prosecution ignored key witnesses in the case herein in that, had the complainant’s mother and the assistant chief being called as witnesses, then the court could have benefitted from their evidence and as a result, the court could have reached a different determination. Reliance was made on the case of Uganda v Sebeyala & others. It was submitted that the case by the prosecution was not cogent to return a verdict of guilty. It was his evidence that the complainant was aged 18 years and so, the learned trial court could have had in mind relevant considerations while convicting and sentencing the appellant herein.

8. The respondent on the other hand submitted that the prosecution proved its case beyond any reasonable doubt and as such, the trial court’s determination was proper in the given circumstances.

9. This being the first appellate court, I am guided by the principles enunciated in the case of Okeno v Republic ( 1972) EA 32 where the court of appeal set out the duty of the first appellate court as follows: -An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R [1957] EA 3365) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.

10. I have considered and analyzed the evidence which was tendered in the trial court by both the appellant and the prosecution, the grounds of appeal and the written submissions by the parties herein and I find that the issue for determination is whether the prosecution proved its case beyond any reasonable doubt.

11. In reference to section 107(1) of the Evidence Act, the burden of proof rests on the prosecution to establish every element in a criminal charge beyond any reasonable doubt. [See Miller v Minister of Pensions 2 All ER 372 – 373].

12. The appellant herein was charged with the offence of defilement. The same is provided for under section 8(1) of the Sexual Offences Act.A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 3. A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than 20 years.

13. In the case ofGeorge Opondo Olunga v Republic [2016] eKLR, it was stated that the ingredients of an offence of defilement are;1. Identification or recognition of the offender

2. Penetration

3. Age of victim

14. For the offence of defilement to be proved, the prosecution must prove each of the above ingredients beyond reasonable doubt. [See the case of John Mutua Munyoki v Republic [2017] eKLR.

15. On whether the prosecution proved its case beyond any reasonable doubt, and whether penetration was proved, section 2 of the Sexual Offences Act define penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another. It is trite that the key evidence relied on by the courts in rape and/ or defilement cases in order to prove penetration is the complainant’s own testimony which is usually corroborated by the medical report presented by the medical officer. In this case, the complainant testified that she had sexual intercourse with the accused on several days and further that, the appellant chased her upon realizing that she was pregnant. Further, PW2, a clinician also gave evidence in regard to the complainant having been sexually abused and thereafter, impregnated. He stated that,’’the hymen was perforated at 3 O’clock with laceration and tears which were about I cm large…..the pregnancy was less than 12 weeks……’

16. Conviction on the evidence of a single witness has been subject of appeals for a long time but now it is settled that the oral evidence of a single witness is indeed sufficient to warrant a conviction. Further, the trial court that saw the complainant testify was satisfied that the complainant spoke the truth. [See Sahali Omar v Republic [2017] eKLR; Kassim ali v Republic [2006] eKLR; also Section 124 of the Evidence Act].

17. Therefore, contrary to assertions that the object used for penetration was not named, remains baseless given that the complainant testified that she had sexual intercourse with the appellant and further, PW2 confirmed that there was penile penetration thus corroborating the testimony of PW1; there was proof beyond reasonable doubt and this ground can’t stand.

18. In reference to age, the importance of proving age in a sexual offence case cannot be gainsaid. In the case of Kaingu Kasomo v Republic, Criminal Appeal No 504 of 2010, the Court of Appeal stated as follows:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”

19. In the present case, it is not in dispute that the victim was a minor aged between 13 - 14 years at the time of the occurrence of the alleged offence. The age assessment that was conducted showed that the complainant at the time of the incident was between the ages of 13 – 14 year. Her age was therefore adequately proven.

20. In reference to the identification of the appellant as being the person who perpetrated the offence, it is trite that in sexual offences, the positive identification of the victim is what connects them to the offence. It is therefore extremely important that any evidence on identification must be thoroughly and carefully scrutinized to avoid any miscarriage of justice. In the case of Kariuki Njiru & 7 others v Republic, Criminal Appeal No 6 of 2001 (Unreported) the court held as follows:“Law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”

21. Further to the above, it is well settled law that recognition may be more reliable than identification of a stranger. However caution must always be taken where a witness is purporting to recognize someone that they know since even in such cases, mistakes may sometimes be made. [See R v Turnbull & others [1976] 3 All ER 549].

22. In this case, the appellant was well known to the complainant and in her testimony, she testified that the appellant’s house was next to theirs given that they lived in the same plot. Further, the complainant stated that they met during the season when schools closed during the Corona pandemic that led to the closure of schools. It was her testimony that she had sexual intercourse with the appellant on several occasions and it is my view that the complainant could not have been wrong given that she not only saw but interacted with the appellant severally. I therefore hold the view that the appellant was well known to the complainant herein.

23. The appellant contended that he was framed for the reason that he had previously disclosed to the OCS that there was rampant sale of bhang in the area. This allegation was considered by the trial court that found the same to be baseless given that no relationship was established between the alleged report and the offence before the court. As such, the same ground must fail.

24. The appellant contested his conviction and sentence by arguing that he was deceived by the police to plead guilty to the charge herein. Article 50(2)(m) of the Constitution provides as follows:Every accused person has the right to a fair trial, which includes the right—(m)to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;

25. I have perused the record and though the appellant was not asked to state the language he understood, it is clear from his response after the facts were read to him that he responded as ‘Not true” and a plea of not guilty entered and thereafter, the trial was conducted to the end. It is therefore not true that the appellant pleaded guilty allegedly after he was deceived by the police.

26. The appellant also contended that the prosecution’s evidence was contradictory and inconclusive. It is trite that not every contradiction warrants rejection of evidence. In reference to the case herein, having perused the record, I am unable to agree with the appellant that the evidence adduced by the prosecution was contradictory and inconclusive as alleged by the appellant.

27. In reference to the appellant’s defence not having been considered, the court record shows that the appellant herein was given an opportunity to present his defence and further, he called two witnesses who supported his case. However, the court weighed his defence against the evidence adduced by the prosecution and found that the prosecution had proved its case against the appellant beyond any reasonable doubt and as such, the appellant can’t be heard to say that his defence was never considered.

28. The appellant was charged under section 8(3) of the Sexual Offences Act No 3 of 2006. Under that section, a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term not less than twenty years. The learned trial magistrate imposed a sentence of 20 years imprisonment. Having perused the grounds of appeal and the submissions by the appellant herein, I note that the appellant has not challenged the sentence as being excessive. Nonetheless, I hold the view that the trial court did not act on any wrong principle, overlooked any material factor, or took into account some wrong material in meting out the sentence herein. [See Dismas Wafula Kilwake v Republic [2018] eKLR].

29. It is thus clear that the court exercised its discretion in sentencing and in doing so, meted the appropriate sentence and which is lawful. [See Benard Kimani Gacheru v Republic [2002] eKLR.]

30. In view of the foregoing, I find that the appeal has no merit and I hereby dismiss the same. The conviction and sentence meted out on the appellant by the trial court are hereby upheld.

31. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 15TH DAY OF JUNE, 2022. L. NJUGUNAJUDGE........................... for the Appellant........................... for the Respondent