[2023] KEHC 25576 (KLR)

Mwei v Republic (Criminal Appeal E034 of 2022) [2023] KEHC 25576 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25576 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Appeal E034 of 2022

RL Korir, J

November 16, 2023

Between

David Kiprotich Mwei

Appellant

and

Republic

Respondent

(From the Conviction and Sentence in Sexual Offence Case Number E055 of 2021 by Hon. Kiniale L. in the Principal Magistrate’s Court at Bomet)

Judgment

1. The Appellant was charged for the offence of attempted defilement contrary to Section 9(1) of the Sexual Offences Act. The particulars of the charge were that on 15th November 2021 at around 1800 hours at [particulars withheld] village in Chepalungu sub-county within Bomet County, he intentionally attempted to cause his penis to penetrate the anus of H.K, a child aged 6 years.

2. The Appellant pleaded not guilty to the charge before the trial court, and a full hearing was conducted. The prosecution called six (6) witnesses in support of its case.

3. At the close of the prosecution case, the trial court ruled that a prima facie case had been established against the Appellant and he was put on his defence.

4. At the conclusion of the trial, he was convicted on the charge of attempted defilement and sentenced to serve twenty (20) years in prison.

5. Being dissatisfied with the Judgment dated 24th August 2022, David Kiprotich Mwei appealed to this court on the following grounds which I reproduce verbatim:-i.That the learned trial Magistrate erred in law and fact by sentencing I the Appellant to life imprisonment while basing his conviction on PW1, PW2 and PW4 who were incredible witnesses. PW1 and PW2 are family members who have a hidden agenda against me.ii.That the learned trial Magistrate erred and fact by relying on extrinsic evidence that was not adduced during the trial.iii.That the learned trial Magistrate erred and fact by depending on evidence which was based on theory conspiracy between I the Appellant and the witness (PW1) and (PW2) that was not proved beyond reasonable doubt by the Prosecution witnesses.iv.That the learned trial Magistrate erred in law and fact by convicting me on charges that were not tallying and favourable.v.That I wish to be present during the hearing of my appeal and also pray that the court proceedings so that I may be able to lodge more grounds of appeal.

6. The Appellant further filed Amended Grounds of Appeal and relied on the following grounds which I reproduce verbatim:-i.Thatthe learned trial Magistrate erred in law and fact by not exercising Article 50 (2) (p) of the Constitution of Kenya and also failed to exercise his discretion judicially.ii.Thatthe learned trial Magistrate erred in law and fact in not appreciating the mitigation of the Appellant.iii.Thatthe learned trial Magistrate erred in law and fact in not observing that the sentence imposed did not match the Constitution of Kenya.

7. This being the first appellate court, I have a duty to re-evaluate the evidence on record afresh. This duty was succinctly stated by the Court of Appeal in Njoroge v Republic [1987] KLR 19 where it held: -“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of the first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect (see Pandya v R [1957] E.A 336, Ruwalla v R. [1957] E.A 570).”

The Prosecution’s Case. 8. It was the Prosecution’s case in the trial court that the Appellant attempted to defile H.K (PW1) on 15th November 2021. PW1 testified that on the material day the Appellant came to his grandmother’s house where he was staying. That after the Appellant learnt that PW1’s grandmother (PW5) and aunt (PW3) were away, he remove his trouser and did bad manners to him on his backside.

9. Linet Kerich (PW3) testified that she found PW1 seated on the Appellant’s lap and the Appellant who had his zip open and penis out, was attempting to insert his penis into PW1’s anus.

10. Ian Samoei (PW2) who was the clinical officer testified that he examined the victim on 16th November 2021 and found that he had minimal bruising on the anus orifice and that he had no lacerations. PW2 further testified that he did not find any discharge or spermatozoa. It was his conclusion that there was no penetration but there was an attempt to penetrate PW1.

The Appellant’s Case. 11. The Appellant, David Kiprotich Mwei gave unsworn testimony and he denied committing the offence. It was his testimony that on the material day, he went to get something from Amos but he did not find him. That he found H.K (PW1) and as they were talking, Linet (PW3) found them and she looked at him with bad eyes. It was his further testimony that he took his panga and left to farm and thereafter went to take tea in a hotel before going to seek out his debtor.

12. The Appellant testified that he had a grudge with the victim’s family. That sometime in the year 1990, while celebrating his brother’s circumcision, there was an arrangement for the victim’s family to exchange their bull with a heifer from his family as they needed a bull to slaughter.

13. On 24th January 2023, this court directed that this appeal be canvassed by way of written submissions.

The Appellant’s Submissions. 14. The Appellant submitted on the sentence only. He submitted that the sentence he was given was harsh and excessive and that the trial court should interfere with it. That the use of the word ‘liable’ connoted that the trial court had the discretion to impose a lesser sentence where the circumstances so dictated. He relied on Daniel Kyalo Muema v Republic [2009] eKLR.

15. It was the Appellant’s submission that the trial court while sentencing did not consider that he was a first offender and that he was aged 60 years old. It was his further submission that the trial court did not also consider that he had a family whom he provided for and that he had high blood pressure.

16. The Appellant submitted that he promised to be a role model and that he be given a lesser sentence stating that he had forgiven the complainant and all the other witnesses.

The Prosecution’s/Respondent’s Submissions. 17. The Respondent submitted that the victim was aged 6 years at the time of the commission of the offence. That the age was proved by the production of the victim’s immunization card (P.Exh 3).

18. It was the Respondent’s submission that the Appellant went to the victim’s home, removed his trousers and attempted to insert his penis into PW1’s anus. That PW3 testified that she caught the Appellant in the act, pants down. It was the Respondent’s further submission that were it not for the PW3’s intervention, the Appellant would have completed his intention of defiling the victim.

19. The Respondent submitted that the Appellant was properly identified by the victim. That the victim testified that he used to see him in the neighbourhood. The Respondent further submitted that PW3 who was an eye witness caught the Appellant in the act.

20. It was the Respondent’s submission that the Appellant gave an unsworn statement and gave a mere denial of the offence. That the Appellant alleged the existence of a grudge but never questioned any witnesses about the grudge. It was their further case that the Appellant’s defence was an afterthought.

21. The Respondent submitted that the trial court heard the matter and gave the Appellant the chance to mitigate. The Prosecution submitted that the victim went through trauma taking into account the age of the victim and the nature of the offence. They urged this court not to interfere with the sentence.

22. I have gone through and given due consideration to the trial court’s proceedings, the Grounds of Appeal filed on 29th August 2022, the Appellant’s Amended Grounds of Appeal and written submissions both filed on 2nd March 2023 and the Respondent’s written submissions dated 12th June 2023. The following issues arise for my determination: -i.Whether the Prosecution proved the offence of attempted defilement to the required standard.ii.Whether the Defence places doubt on the Prosecution case.iii.Whether the Sentence preferred against the Accused was fair and just.

i. Whether the Prosecution proved the offence of attempted defilement to the required standard. 23. The offence of attempted defilement is premised under section 9 (1) of the Sexual Offences Act as follows:-A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.

24. The term attempt is defined by section 388 of the Penal Code as follows: -1. When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.2. It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.3. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

25. The ingredients of the offence of attempted defilement were outlined by Kemei J. in the case of Benson Musumbi v Republic [2019] eKLR as follows: -“The prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; it must prove the age of the complainant, positive identification of the assailant, and then prove steps taken by the assailant to execute the defilement which did not succeed. Attempted defilement is as if it were a failed defilement, because there was no penetration.”

26. The same was reiterated by Odunga J. (as he then was) in Stephen Mungai Maina v Republic [2020] eKLR, where he stated that:-“………….since the appellant was charged with the offence of attempted defilement contrary to section 9(1) (2) of the Sexual Offences Act, the prosecution must prove the ingredients of defilement (age, positive identification) except penetration and the steps taken by the Appellant to execute the defilement which did not succeed.”

27. Thus, for a charge of attempted defilement to stand, the Prosecution must adequately prove beyond reasonable doubt the following: the age of the complainant, positive identification of the assailant, and that the overt act (attempted penetration) was committed

28. The importance of proving the age of a victim in a defilement case has been restated in several authorities. The Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR held thus: -“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim. In Alfayo Gombe Okello vs. Republic Cr. App. No. 203 of 2009 (Kisumu). This Court stated as follows;“....In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).?”

29. It is now an established principle that the age of a victim can be proven in several ways. I agree with the holding of Aburili J. in the case of JOA v Republic [2019] eKLR where she stated as follows:-“It is equally trite law that proof of age or apparent age can be done by other means other than documentary evidence in the form of birth certificate, birth notification, baptismal card or the child Health or Immunization Card. In addition, proof of age can be by observation by the court, or testimony by the parent or guardian as long as the court believes that they are saying the truth and makes such observations on the apparent age of a victim.”

30. To prove the age of the victim, No. 256521 (PW6) PC Moses Langat produced a PW1’s Immunization Card and the same was marked P.Exh 3. The Immunization Card indicated that H.K (PW1) was born on 27th January 2015. The authenticity of the Immunization Card or its production was not challenged during the trial. I find the Immunization Card admissible and based on its contents, it is my further finding that the time of the commission of the alleged offence, H.K was aged 6 years old. Further, the trial court conducted a voire dire examination of the victim and he stated that he did not know his age but was in Grade 1. This court takes judicial notice that in Kenya, it is usual for children to enter Grade one at 6 years.

31. Regarding identification, H.K (PW1) testified that it was the Appellant who did bad manners to him and when he was cross examined, PW1 stated that the Appellant came home from time to time and that he referred to him as grandfather.

32. Linet Kerich (PW3) was an eye witness to the commission of the offence. She testified that she found PW1 seated on the Appellant’s lap and that the Appellant had his penis out ready to commit the offence. PW3 further testified that the Appellant was a relative and a neighbour.

33. The Appellant in his defence confirmed that Linet Kerich (PW3) found him and PW1 in the house of PW1’s grandmother.

34. There is no doubt in my mind that PW1 positively identified the Appellant. This was evidence of recognition. Apart from the Appellant being the victim’s neighbour, he was also his relative.

35. Additionally, PW1 positively identified the Appellant in the dock. In the case of Muiruri & Others v Republic [2002] KLR 274, the court held that:-“…………….We do not think that evidence will be rejected merely because it is dock identification evidence. The court might base a conviction on such evidence if satisfied that on the facts and circumstances of the case the evidence must be true and if prior thereto the court duly warns itself of the possible danger of mistaken identification.”

36. It is my finding that the element of identification was clear and adequately proven.

37. The Prosecution had to prove whether the overt act of attempted penetration was committed by the Appellant. 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.

38. It follows then that in a case of attempted defilement, the Prosecution must demonstrate that an Accused took all the necessary steps to begin an act of penetration but was unable to complete the same either at his own volition or through the intervention of another. There must be no penetration but only evidence of its attempt as held by Makau J in David Aketch Ochieng v Republic [2015] eKLR as follows: -“….For a successful prosecution of an offence of an attempted defilement, the prosecution must adduce sufficient evidence to the required standard to prove an attempted penetration. This may in my view include bruises, or lacerations from complainant’s vagina, and/or bruises or lacerations of culprit’s genital organ and finding male discharge such as semen or spermatozoa outside the complainant’s vagina or innerwear without there being penetration.”

39. Penetration or attempted penetration is proved by the victims own evidence and corroborated by the medical evidence or any other evidence. H.K (PW1) testified that on the material day, the Appellant came to his grandmother’s house where he lived and did “bad manners” to his backside. He further testified that Linet (PW3) came and found them. When PW1 was cross examined, he confirmed that it was the Appellant who did bad manners to him.

40. Linet Kerich (PW3) testified that on the material day, she found PW1 seated on the Appellant’s lap and that the Appellant had his penis out and was trying to insert his penis between PW1’s buttocks. When PW3 was cross examined, she stated that she saw the Appellant holding his penis with his right hand and PW1 on his left hand.

41. Ian Samoei (PW2) testified that he was a clinical officer based at Sigor sub-county hospital. That he examined PW1 the following day (16th November 2021) and found that he had minimal bruising on the anus orifice. He did not find any lacerations or spermatozoa. It was PW2’s conclusion that there was no penetration but there was an attempt at it.

42. PW2 produced the victim’s P3 form and treatment notes which were marked as P.Exh 1(a) and 1(b) respectively. The findings contained in the P3 form and the treatment notes were that the victim had minimal anal bruises and there were no lacerations or bleeding noted.

43. The totality of the evidence by the victim (PW1), PW3 and the clinical officer (PW2) show that there was an attempt by the Appellant to penetrate the victim. From the minimal bruising on PW1’s anus, it was evident that the Appellant had already put into action the act of penetration but he was stopped dead in his tracks when PW3 walked in on him. This was corroborated by the victim testimony that the Appellant put his penis in his anus.

44. Having established the age of the complainant, proof of identification and proof of the overt act of attempted penetration, it is my finding that the Prosecution proved its case against the Accused beyond reasonable doubt.

ii. Whether the Defence places doubt on the Prosecution case. 45. The Appellant’s defence was aptly captured earlier in this Judgment. I have considered the said defence against the evidence presented by the Prosecution’s witnesses. The Appellant stated that after he was found by Linet (PW3) while talking with the victim, Linet looked at him with bad eyes and he left and went to the farm. This evidence did not shake the victim’s and PW3’s evidence that the Appellant attempted to penetrate the victim. This was further cemented by the findings of the clinical officer (PW2) who found minimal bruising on the victim’s anus, proof that the Appellant had set in motion the act of penetration.

46. The Appellant’s defence of an existence of a grudge is dismissed as an afterthought. He only raised it in his defence and he did not cross examine the Prosecution witnesses about the same.

47. Flowing from the above, it is my finding that the Appellant’s defence was not credible and was also an afterthought. It did not cast an iota of doubt on the Prosecution’s case. It is my finding therefore that the Appellant’s conviction was proper and I uphold it.

iii. Whether the Sentence preferred against the Accused was fair and just. 48. Sentencing is at the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. An appellate court would be entitled to interfere with the sentence imposed by the trial court if it is demonstrated that the sentence imposed is not legal or is so harsh and excessive as to amount to miscarriage of justice, and or that the court acted upon a wrong principle. These principles were enunciated by the Court of Appeal in the case of Ogolla s/o Owuor v Republic, [1954] EACA 270, where it pronounced itself on this issue as follows:-“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

49. The penal section for the offence of attempted defilement is found in section 9(2) of the Sexual Offences Act which states that:-A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.

50. The trial court in issuing the sentence of 20 years, stated that it had considered the circumstances of the case and the fact that the victim was a child of tender years.

51. In mitigation, the Appellant stated that he was 58 years old and that the victim was like a child to him. That he had children in secondary school and he prayed that this court relooks his sentence and sentence him to probation.

52. Having considered the circumstances of the case and the Appellant’s mitigation, it is clear to me that the circumstances of the case were aggravating. The Appellant was an old man who was well known to the victim, who was a child of tender years. The victim referred to the Appellant as grandfather. Clearly the Appellant took advantage of the victim’s innocence and would have penetrated him if he was not stopped in his tracks.

53. I have however considered the age of the Appellant, now aged 60 and the fact that he was remorseful. I shall temper justice with mercy and substitute his 20 year sentence with the minimum mandatory sentence of 10 years provided by law.

54. In the end, I uphold the conviction. The Appellant shall serve 10 years’ imprisonment from the date of conviction and sentence by the trial court. The Appellant has 14 days’ right of appeal to the Court of Appeal.

55. Orders accordingly.

Judgment delivered, dated and signed at Bomet this 16TH day of November, 2023. ..........................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of the Appellant acting in person, Mr. Njeru for the Respondent and Siele (Court Assistant)