[2023] KEHC 25168 (KLR)

Mwenda v Republic (Criminal Appeal E164 of 2022) [2023] KEHC 25168 (KLR) (27 October 2023) (Judgment)

Neutral citation: [2023] KEHC 25168 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E164 of 2022

LW Gitari, J

October 27, 2023

Between

Martin Mwenda

Appellant

and

Republic

Respondent

(An appeal against the conviction and sentence of in the Senior Resident Magistrate Court at Nkubu Law Courts delivered by HON. E AYUKA (SRM) dated 9 th November 2022 in S.O. Case No. E037 of 2021))

Judgment

1. The Appellant herein, Martin Mwenda, was charged alongside one Cosmas Mwenda Kinyua (hereinafter referred to as the Appellant’s co-accused) with the offence of gang defilement contrary Section 10 of the Sexual Offences Act with an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.

2. In the main charge, it was alleged that on 14th October, 2021 at around 0005Hrs in South Imenti sub-county within Meru County, the Appellant jointly with the aforementioned Cosmas Mwenda Kinyua intentionally caused his penis to penetrate the vagina of E.K., a child aged 16 years.

3. In the alternative charge, it was alleged that on 14th October, 2021 at around 0005Hrs in South Imenti sub-county within Meru County, the Appellant jointly with the aforementioned Cosmas Mwenda Kinyua intentionally touched the vagina of E.K. with his penis.

4. After full trial, the Appellant was found guilty, convicted and sentenced to serve 25 years imprisonment.

5. Aggrieved by the decision of the trial court, the Appellant has approached this Court challenging both the conviction and sentence.

The Appeal 6. Aggrieved by the said judgment, the Appellant herein instituted this appeal against the said decision of the trial court. He proffered the following grounds of appeal:i.That the learned trial magistrate erred in matters of law and fact by failing to note that the evidence adduced was not sufficient to sustain the conviction.ii.That the learned trial magistrate erred in law and facts by failing to note that the sentence is harsh and excessive in the circumstances of this case.iii.That the learned trial magistrate erred in law and facts by failing to note that the key witnesses were not called.iv.That the learned trial magistrate erred in law and facts by failing to note that the clinical evidence adduced did not connect the Appellant with this case.v.That the learned trial magistrate erred in law and facts by not observing that the evidence adduced by the prosecution witnesses were uncollaborating (sic) and inconsistent.vi.That the learned trial magistrate erred in both law and facts by failing to note that the complainant was sixteen years old.vii.That the learned trial magistrate erred in law and fact by rejecting the Appellant’s defence without giving any cogent reason.

7. The Appellant thus prayed for this appeal to be allowed by quashing his conviction, setting aside the sentence and that he be set at liberty.

The Court’s duty 8. Being a first appeal, this Court is duty bound to re-evaluate and reconsider all the evidence adduced during the hearing afresh and come up with its own independent findings. In doing so, the Court must make appropriate allowance for the fact that it did not have a chance to see or hear the witnesses. See: Okeno v Republic [1973] E.A. 32; Pandya vs. R (1957) EA 336, Ruwala vs. R (1957) EA 570.

9. As required under the above authorities, I shall now proceed and consider the evidence adduced before the trial court.

The Prosecution’s case 10. E.K., the victim herein, testified as PW1. She stated that she was 16 years old. She recalled that on 14th October, 2021, she was at her uncle’s place with her cousin LG. She was asleep when the Appellant and his co-accused came at 12 a.m. The Appellant’s co-accused called the said LG and they left with her. The Appellant’s co-accused then entered where PW1 was and the Appellant locked the door from outside. The Appellant’s co-accused then demanded to have sexual intercourse with PW1 while threatening to kill her. He allegedly had a knife. PW1’s cousin LG then came back and called PW1 but the Appellant’s co-accused went and chased her away. The Appellant’s co-accused then returned together with the Appellant. PW1 attempted to leave by the Appellant and his co-accused dared her not to. LG ran and called her father. The Appellant’s co-accused then threatened LG’s father before he went and locked him in the house and went back. The Appellant’s co-accused then threatened PW1 that she had 8 minutes to decide to have sexual intercourse with him or she would face the consequences. That after the 8 minutes, the Appellant’s co-accused held her by the hand and pulled her into the house which was a single room. The appellant also followed them into the house. The Appellant and his co-accused then locked the house and the Appellant’s co-accused laid PW1 on a sack that was at the house. He undressed PW1, removed his trouser then had sexual intercourse with her by inserting his penis into her vagina. It was the complainant’s testimony that after the Appellant’s co-accused was done, the Appellant also had sexual intercourse with her by inserting his penis into her vagina. According to PW1, they used condoms, wiped themselves on with her blouse and inserted the condoms in her mouth. The Appellant’s co-accused then threatened to kill PW1 if she ever told anyone about the incident. LG, who had been in hiding, then came for her and they went to the area manager to report. The area manager, one James Mbuthia, gave them a place to sleep and in the morning, they reported the incident at Maara Police Post. PW1 was referred for treatment at Kanyakine Sub/County Hospital where she was treated and thereafter her P3 form was filled. PW1 stated that the Appellant’s co-accused was using a phone torch flash and so she could see them both and heard their voices. That both the Appellant and his co-accused were known to her as the Appellant’s co-accused was her cousin by virtue of their mother’s being sister and the Appellant’s co-accused was a neighbour.

11. PW2 was James Mbuthia. It was his testimony that on the material day at 2 a.m., he was called outside his house by two girls, LG and EK (PW1). He went outside and LG told him that she had been threatened by the Appellant and his co-accused with a knife. PW1 stated that she had been threatened and defiled by the Appellant and his co-accused. PW2 offered the girls a place to sleep so that they could report the incident the following day. The following morning at 6 a.m., PW2 woke up the girls and asked them to proceed to the police and report the matter. Later on, PW2 heard that the Appellant and his co-accused had been arrested. PW2 then recorded his witness statement.

12. PW3 was P.C. Amos Kitilit of Maara Police Post and the investigating officer in this case. He recalled that on the material day at 6. 48 a.m., he was at the station when two complainant’s LG and EK (PW1) went and reported and incident of LG being threatened and PW1 being defiled and also threatened. LG reported that while asleep the previous night at about midnight, the Appellant’s co-accused woke her and EK up. LG opened that door and left EK asleep. When she opened the door, LG met the Appellant and his co-accused. The Appellant’s co-accused held her by the neck and threatened her with a knife. He then gave her two options: to run away or to be stabbed with the knife. LG opted to run away for fear of her life. The Appellant’s co-accused then entered the house and the Appellant locked the door. The Appellant’s co-accused undressed PW1 and forced her to have sexual intercourse with him. He then struggled with PW1 who almost ran away but the Appellant pusher her inside. The Appellant’s co-accused then ordered PW1 to get out and held her by the hand and took her into his house next door. The Appellant, his co-accused and PW1 all entered the house and the Appellant locked the door. The Appellant’s co-accused undressed PW1, laid her on her sack and then defiled her, once he was done, the Appellant also defiled PW1. When PW1 tried to scream, the Appellant’s co-accused inserted the condom he had used in her mouth and she kept quiet in fear of her life. When they were done, they left and PW1 returned to the house where she was sleeping in. LG, who was hiding, saw the Appellant and his co-accused leave. She then went and called PW1 who opened the door for her and narrated what had happened to her. They then left to report to the area manager at about 2. 30 a.m. The area manager gave them a place to sleep and the following morning, he referred them to the police. LG charged her brother with creating disturbance but later withdrew the charges. PW3 issued PW1 with a P3 form which was subsequently filled by a clinical officer. PW1 and LG took PW3 to the scene where the incident took place. It was the house of the Appellant’s co-accused. She found a used condom in the house and a sack spread on the floor. According to PW3, it was evidence that there was a struggle in the house. She took the sack and condom as exhibits and obtained PW1’s birth certificate. Later, she was called by members of the public in Ithitune who told her that the Appellant and his co-accused ad been arrested by a mob and that the mob was begging for their blood. PW3 rushed to the scene where she found the Appellant and his co-accused had been tied with a rope. She re-arrested them and escorted them to Maara Police Post. Upon searching them, she found a knife inside the trouser of the Appellant’s co-accused. PW1 identified the knife as the one that was used to threaten her.

13. PW4 was Timothy Mberia, a clinical officer at Kanyakine Sub/County Hospital. He filled PW1’s P3 form which he produced in evidence (P. Exhibit 1). He stated that the complainant presented a history of defilement by two people well known to her on 14th October, 2021 at 12. 05 a.m. Upon examining her, PW4 saw that the complainant’s clothes were not torn. Her hymen was broken and there was a whitish discharge from her vagina. He remarked that the broken hymen was indicative of penetrative sexual intercourse and issued the complainant with drugs and a test run P.E.P. was also issued. He further remarked that the nature of offence was defilement and assessed the degree of injury as grievous harm. He also produced into evidence the PW1’s treatment card, lab request form and PRC form as P. Exhibits 2, 3, and 4 respectively.

The Defence case 14. Upon being placed on their defence, both the Appellant and his co-accused denied the charges and gave sworn testimonies. Neither of them called any other witness.

15. It was the defence by the Appellant’s co-accused that the area manager, PW2, was sent to call him to the police station where an officer told him that his father had offered to sell him a piece of land and that the consent of the Appellant’s co-accused was required. That the officer told him that he had already given his father a down-payment of Kshs. 10,000/=. That the Appellant’s co-accused protested the sale. It his testimony that he was later arrested on instruction of the investigating officer and did not know why until the charges were read to him in court for plea taking.

16. On his part, the Appellant that LG is his girlfriend and a sister to his co-accused. That on 20th August, 2021, LG invited him to attend her birthday party and he went. On reaching there, he found LG in confrontation on one hand with The Appellant’s co-accused and his wife on the other hand. That he was later arrested on allegation that he was involved in a fight at the homestead. He stated that he was surprised to learn that EK was the complainant as she was a stranger to him. According to the Appellant, the case was a frame up because he refused to take part in the confrontation.

17. After a full trial, the learned magistrate held that the prosecution had proved its case against both the Appellant and his co-accused to the required standard of proof of beyond reasonable doubt. It found them both guilty, convicted them accordingly and sentenced each of them to serve imprisonment for a period of twenty five (25) years.

18. The appeal was canvassed by way of written submissions.

The Appellant’s Submissions 19. In his written submissions filed on 17th March, 2023, the Appellant amended his grounds of appeal and submitted on the following grounds:i.That the learned trial magistrate erred in law and fact by failing to note that the voir dire examination was not properly conducted since there was no finding that the complainant PW1 understood the importance of giving evidence on oath.ii.That the learned trial magistrate erred in matters of law and fact by failing to note that key witnesses were not called to support the prosecution case.iii.That the learned trial magistrate erred in matters of law and fact by failing to note that the appellants were denied their rights to recall PW1 for further cross-examination contrary to Article 50(2)(k) of the Constitution of Kenya 2010. iv.That the learned trial magistrate erred in law and fact by failing to note that the burden and standard of prove by the prosecution was not discharged and thus the prosecution case was not proved beyond reasonable doubt as provided by the law.v.That the learned trial magistrate erred in law and fact by failing to note that the medical evidence adduced before court did not support the allegations adduced by PW1 the complainant herein.vi.That the learned trial magistrate erred by law and fact by disregarding the facts raised in the Appellant’s defense.vii.That the learned trial magistrate erred in fact and law when he failed to properly evaluate the evidence on record and retired on insufficient, uncorroborated and incredible evidence, and finally formed a wrong decision that the appellants had gang defiled PW1. viii.That the learned trial magistrate erred in matters of law by failing to note that the sentence was harsh and excessive.

20. It is the Appellant’s submissions that the trial magistrate erred in law and fact in not conducting a voir dire examination before proceeding to take the testimony of PW1 under oath. That the failure to undertake this procedural step contravened Section 19 of the Oaths and Statutory Declaration Act (Cap 15 of the Laws of Kenya) and was consequently fatal to the entire prosecution’s case.

21. The Appellant further submitted that the prosecution failed to prove that there was penetration in this case. That the medical evidence was clear that there was no evidence of penetration. In addition, it was submitted that the evidence of the clinical officer fell short of the required standard for the charge that the Appellant was facing. The Appellant relied on the cases of John Mutua Muyoki v. Republic [2017]eKLR, P.K.W. v. Rep, and John Mwaura Karau Cr. App. No. 38 of 2019 to buttress this position.

22. In addition, the Appellant submitted that the prosecution failed to prove that the subject crime was committed as crucial witnesses were never summoned to testify at trial. That the there was need to call the girl and the complainant’s uncle who were alleged to be at the scene of the incident when the subject crime was committed and that failure to call the said witnesses called for an adverse inference. Reliance was placed in the case of David Mwingirwa v. Republic [2017] eKLR in this regard.

23. It was also submitted that the learned trial magistrate erred in matters of law and fact by failing to note that the Appellant was denied his right to recall PW1 for further cross-examination contrary to the law. That the Appellants sought to recall PW1 for more clarification because of the issue of a broken hymen that arose during the testimony of the clinical officer but the trial magistrate denied them that right contrary to Article 50(2)(k) of the Constitution of Kenya 2010. The Appellant contended that many women and young girls in the society today have been taking advantage of the Sexual Offences Act and turned it into a weapon that they use as tool to fabricate rape and defilement cases against boys and men whenever they disagree with them. The Appellant thus urged this court to keenly handle this case in order to help eliminate this alleged nuisance from the society and prevent innocent young men and boys from remaining behind bars and serving sentences for crimes they know nothing about. To this end, the Appellant relied on the case of Michael Mugo Musyoka v. Republic [2015] eKLR.

24. Finally, the Appellant submitted on the issue of the sentence meted out against him by stating that the mandatory sentences under the Sexual Offences Act are unconstitutional because they do not give the discretion to the trial courts to determine the appropriate sentence to impose thus falling foul of the provisions of Articles 27 and 28 of the Constitution.

25. Based on the above submissions, the Appellant thus urged this court to allow this appeal by quashing his conviction, setting aside his sentence and by setting him free.

The Respondent’s Submissions 26. On behalf of the State, it was submitted that the conviction and sentence by the trial court should be upheld and the instant appeal dismissed for a number of reasons. First, that the prosecution proved its case beyond reasonable doubt and called witnesses that gave consistent evidence that was corraborated. Secondly, that the trial court took into account the nature of the offence vis-à-vis the provisions for meting out of the offence. Third, all the key witnesses that were pertinent to this case were called. Fourthly, that the Appellant’s defence was considered by the trial court and the same was found to be a mere denial that did not rebut the evidence given by the prosecution witnesses. It was thus the Respondent’s submission that the Appellant’s grounds of appeal were unmerited and that the same should be dismissed.

Issues for Determination 27. I have carefully considered the judgment of the trial court, the grounds of appeal and the record of appeal as well as the submissions by the parties. The main issues that arises for determination are:i.Whether the trial court conducted a voir dire examination of PW1 before taking evidence, and if so, whether the same was properly conducted.ii.Whether the prosecution proved the charge of gang rape against the Appellant to the required standard of beyond any reasonable doubt;iii.Whether the sentence meted out against the Appellant was excessive in the circumstances.

Analysis 28. On the issue of voir dire examination, I take the view that the conduct of voice dire is for the benefit of the trial court and once the same is satisfied that the child of tender age is intelligent enough and understand the meaning of oath the same is sworn in and tenders his/her evidence on oath. This position was confirmed by the Court of Appeal in the case of Japheth Mwambire Mbitha v. Republic [2019] eKLR where the court held as follows:(13)As regards the second issue, the appellant has contended that the evidence placed before the trial court was not only contradictory, but that no voir dire examination was ever conducted on the minors (PW 2 and PW 3). Voir dire examination is a hearing to determine the admissibility of evidence or the competency or qualification of a witness or juror (See Duhaime, Lloyd. “Voir Dire definition” Duhaime’s Legal Dictionary).With specific regard to the testimony of children, voir dire examination is essential to enable the court satisfy itself that the child is conscious of the truth. The purpose of voir dire was explained by this court in Johnson Muiruri vs Republic [1983] KLR 445 as follows:“1. Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.2. It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided.3. When dealing with the taking of an oath by a child of tender years, the inquiry as to the child’s ability to understand the solemnity of the oath and the nature of it must be recorded, so that the cause the court took is clearly understood.4. A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth.5. The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to conviction.”(14)In this case, a perusal of the record reveals that prior to receiving the respective testimonies of PW 2 and PW 3, the learned trial magistrate went on an enquiry of whether each of the witnesses understood the meaning of telling the truth and the consequences of lying. Having satisfied herself that the two minors understood the importance of telling the truth, the court went on to record their evidence. No objection was ever raised by the appellant regarding the voir dire examination or the subsequent admission of the minors’ testimony. Again, it bears repeating that the purpose of voir dire is to ensure that the minor understands the solemnity of oath and if not, at the very least, the importance of telling the truth. In this case, the record shows that a brief interview was conducted in this regard on each of the two witnesses; to which the two minors even indicated to the court that failure to tell the truth renders a liar ineligible to go to heaven.(15)Having satisfied herself that the two minor witnesses understood the import of speaking the truth in court and the consequences of lying, the trial magistrate then admitted their evidence and from the record, we see no reason to interfere with that finding. The evidence of FO and PW 3 was admitted within the confined of the law on voir dire examination…”

29. I have noted that in Maripett Loonkomok v Republic [2015] eKLR, the Court of Appeal had this to say in respect of voir dire examination:“Section 19 of the Oaths and Statutory Declaration Act is concerned with the reception and admissibility of evidence of a child of tender years. The section starts by declaring that where the child does not, in the opinion of the court understand the nature of an oath, his evidence may nonetheless be received though not given upon oath. But that evidence shall only be received if, again in the opinion of the court, the child is possessed of sufficient intelligence to justify the reception of the evidence and also if, the child understands the duty of speaking the truth...The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declaration Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82 the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 10 years. This Court has recently in Patrick Kathurima v R, Criminal Appeal No 137 of 2014 and in Samuel Warui Karimiv R Criminal Appeal No 16 of 2014 stated categorically that the definition in the Children Act is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honored 14 years remains the correct threshold for voire dire examination..."

30. Section 19 (1) of the Oaths and Statutory Declaration Act provides that:“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.

31. In this case, the complainant (PW1) was 16 years old at the time she was giving her testimony. Guided by the holding in the Maripett case (supra), PW1 cannot be said to be a child of tender years as she was over 14 years old. Thus the trial court did not err in not conducting a voir dire examination on PW1. In any case, the failure to conduct a voir dire examination does not by any means invalidate the testimony of the other witnesses in the case. This was the position taken the Maripett Case (supra) where the Court of Appeal held that:“It follows from a long line of decisions that voire dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this court recently found that;“In appropriate cases where voire dire is not conducted, but there is sufficient independent evidence to support the charge … the court may still be able to uphold the conviction.”

32. In view of the above decision, it is my view that this ground of appeal is unmerited and should therefore fail.

Whether the prosecution proved its case against the Appellant 33. Section 10 of the Sexual Offences Act provides that: -“Any person who commits the offence of rape or Defilement under this Act in association with another or others, or any other with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.”

34. From the above provision, it is clear that under Section 10 of the Act, for the Prosecution to obtain a guilty verdict in the offence of gang rape, it needs to prove the following four elements:a.Commission of rape; Penetration as defined by section 2 of the Sexual offences act without consent thereof;b.In association with another or others, or any other with common intention, is in the company of another or others who commit the offence of rape;c.Positive identification of the perpetrator.

35. Section 2 of the Act defines ‘penetration’ as:“…the partial or complete insertion of the genital organs of a person into the genital organ of another person.”

36. PW1 was categorical in her testimony that the Appellant was in the company of his co-accused on the material day when the two took turns to defile her. The Appellant’s co-accused and the Appellant were both known to her as the Appellant’s co-accused was PW1’s cousin and the Appellant was a neighbour.The appellant has submitted that penetration was not proved. I have considered this submission. It is now well settled that penetration is proved by the testimony of the victim. Penetration need not to complete insertion of the genital organ of the person into that of another person. Under the above definitions, penetration may be partial or complete insertion. In this case the complainant in her testimony testified that the 1st accused had sexual intercourse with her, “He inserted his penis into my vigina. When he was done accused 2 also had sexual intercourse with her. He also inserted his penis into my vigina.”This evidence of the victim which was corroborated by medical evidence adduced by PW4 established that there was penetration.In the case of Basita –v- Ugand S.C Criminal Appeal No.35/1995 the court stated-“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims own evidence and corroborated by medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to such evidence must be such that is sufficient to prove the case beyond any reasonable doubts.”In this case the testimony of the complainant was corroborated by medical evidence. PW4 being the medical expert corroborated the evidence of the victim with the production of the P3 form and treatment notes. The witness also produced the P.R.C form. The appellant submitted that the PRC form indicated that the victim had sexual intercourse in July. I have carefully perused the P.R.C form and I did not find such remarks on the form. As for the P3 form it indicates that the skirt was torn no blood stains. The genitalia was normal. Broken hymen is indicative of sexual activeness and penetrative sexual intercourse. Whitish virginal discharge was also noted.I find that the testimony of the complainant and the medical evidence as well as the evidence of the PW2 and PW3 proved beyond any reasonable doubts that there was penetration of the complainant by the appellant. Furthermore the learned trial magistrate held that she had no reason to doubt the complainant.

37. PW3, the investigating officer, visited the scene and recovered the sack which PW1 was laid on before being defiled as well as used condoms. He stated that there were signs of struggle at the scene.

38. These pieces of evidence show that Appellant and his co-accused gang defiled the complainant. The Appellant was positively identified by PW1 as one of the persons who gang raped her on the material day. It is my finding that the key witnesses were called by the prosecution and their evidence was sufficient, well corroborated and credible to prove the charge against the Appellant. As submitted by the Respondent, the failure to call LG as a witness was properly explained by the testimonies of PW1 and PW3 who stated that LG did not testify as she was a sister to the Appellant’s co-accused and she had been threatened earlier and at one point she fled away. Further, it is my finding that the trial court did consider the Appellant’s defence and correctly found that the same was an afterthought. All factors considered, it is my view that the prosecution proved its case against the Appellant to the required standard of beyond any reasonable doubt.

39. On the allegation that the Appellant was denied the right to recall the PW1, I have perused the record of proceedings of the trial court when the trial magistrate considered the said application by the Appellant to recall the complainant. The trial court noted the nature of the application and also noted the response thereto that the complainant could not be reached as she had relocated from where she used to stay after the incident that gave rise to this case. The trial court further noted that when the complainant testified, the accused was offered an opportunity to cross-examine her. Considering those circumstances, the court disallowed the application as the investigations officers could not be able to trace the complainant. I have considered this ground of appeal and in my view, it is not merited as the trial court correctly found that the Appellant’s application could not be granted as the prosecution had a challenge in tracing the complainant.

On Sentence 40. Sentencing is in the discretion of the trial court. In Bernard Kimani Gacheru v Republic (2002) eKLR, the Court of Appeal stated that:“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

41. Section 10 of the Sexual Offences Act provides that a person that is found guilty of the offence of gang rape is liable to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.

42. In this case, the Appellant was sentenced to serve 25 years imprisonment. In mitigation, the Appellant apologized and stated that he was sickly with a kidney condition and that he had two children back at home. Before sentencing him, the trial court considered the nature of the offence and the circumstances of the case. The learned magistrate also noted the mitigation tendered by the Appellant. The court observed that neither Appellant nor his co-accused were remorseful throughout the trial. I am in agreement with the trial court’s final finding that the manner in which the Appellant and his co-accused committed the offence and the ordeal they put the minor victim through, called for a deterrent and enhanced sentence. As such, it is my view that the sentence meted out against the Appellant was neither unlawful nor excessive in the circumstances.

Conclusion 43. From the foregoing analysis, it is my view that the present appeal lacks merits. I order that:1. This appeal is dismissed.

DATED, SIGNED AND DELIVERED AT MERU THIS 27TH DAY OF OCTOBER 2023. L.W. GITARIJUDGE