[2022] KEHC 16643 (KLR)

Nginyei v Republic (Criminal Appeal 181 of 2017) [2022] KEHC 16643 (KLR) (Crim) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16643 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 181 of 2017

JM Bwonwong'a, J

December 8, 2022

Between

Kennedy Kamau Nginyei

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence delivered by Hon K. Cheruiyot, P.M, on 20th April 2017 in Milimani Chief Magistrate’s Court in Criminal Case No. 440 of 2015 Republic vs Kennedy Kamau Nginyei)

Judgment

1. The appellant was charged and convicted of the offence of defilement contrary to section 8 (1) as read with 8(4) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve fifteen (15) years imprisonment.

2. Being dissatisfied with the conviction and sentence, he filed an appeal in this court.

3. The appellant raised the following grounds. The trial court erred in failing to find that the appellant was a victim of mistaken identity; the age of the complainant was not proved; the trial court erred in failing to authorize that the appellant be supplied with witness statements; the trial magistrate erred in law and fact in failing to consider the period the appellant spent in the pre-trial remand custody; the mitigating circumstances were not considered during sentencing; the sentence was excessive and manifestly harsh.

4. As this is the appellant's first appeal, the role of this appellate court is well settled. It was held in the case of Okeno v Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oruri 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 own 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.

5. SKW (name withheld) (Pw 1), after voir dire was allowed to testify after being sworn. He testified that he is 17 years old. On March 3, 2015, he had a disagreement with his mother and travelled to Nairobi to seek assistance from his aunt. On arriving in Nairobi, he could not reach her on phone and decided to live on the streets. He narrated to court that on March 7, 2015 at around 1. 00 am midnight, he met a man, who was concerned about his welfare and offered to help him. He promised to get him a place to sleep and he agreed. He told the court that the individual took him to a small room at Jivanjee gardens, where they slept on a mattress, which was on the floor.

6. He testified that while asleep, the man ordered him to sleep face down, pinned him on the floor using his knee. The man then removed his belt and trousers. He then inserted his penis into his anus and proceeded to sexually assault him. After he was done, he went out for a call of nature. Pw 1 dress up and fled. The man who he identified as the appellant followed him until he beckoned a security guard. The guard came and held the man. He thereafter reported the incident at the police station and was taken to hospital for treatment.

7. In cross examination, he told the court that he could not scream because he was scared for his life. Further that he positively identified the appellant during before he took him to the room in Jivanjee and the ensuing struggle.

8. Sahuyia Abdul (Pw 2) of Medicines Sans Frontier ( MSF) testified that Pw 1 was brought to her clinic on March 7, 2015 in a reported case of sexual assault. Upon examination, he was found to have no physical injuries on the genitals and anal sphincter was torn. A swab done revealed presence of spermatozoa. He was treated with anti-retroviral, counselled and later discharged. The PRC form was produced as an exhibit.

9. Paul Maikera (Pw 3), an emergency medical technician at Medicines Sans Frontier (MSF) testified that on March 7, 2015, he received a call from Central Police station. The police wanted him to go and take a boy, who was at the station for treatment. He proceeded to the station and took the boy in an ambulance. After treatment, the boy (Pw 1) was taken back to the station and handed over to Inspector Muthoni.

10. No. 234690 CIP Cecilia Muthoni (Pw 4), the investigating officer testified that she is attached to Central Police station. She told the court that on March 8, 2015, the complainant was brought by doctors from MSF. The complainant had been referred to the hospital after a reported case of defilement. She interviewed the complainant who narrated what had happened. She issued him with a P3 form and took him to Mbagathi Hospital for treatment. She later charged the appellant for the offence of defilement.

11. Dr. Kizzie Shako (Pw 5) of Police Surgery in Nairobi, gave evidence that on March 11, 2015, she examined the complainant who had been allegedly sodomized. On examination, she found as normal the external genitalia, and experienced pain and tenderness on the anus. He experienced pain during defecation. She produced the P3 form in court.

12. After the close of the prosecution’s case, the trial court found that the appellant had a case to answer and he was put on his defence. In his defence, he made an unsworn statement and he did not call any witnesses. In his defence, he denied ever defiling the complainant. He stated that on the material date, he had gone to collect a debt from his friend with whom they agreed to met at Central Police Station. That at the station, he was in the company of Pw 1. He told the court that the evidence of the complainant was a total fabrication. Further, no DNA was ever conducted on him to prove the charges against him.

Analysis and determination 13. In ground 1 the appellant challenged his identification as the perpetrator of the offence. He argued that he was a victim of mistaken identity. It is the appellant’s case that the complainant never identified him with clothing or facial expressions. Further, at the time of the incident, the intensity of the light was not indicated to confirm that it was easy to identify him. He submitted that the only identification that would help the prosecution prove the element of identification is DNA evidence, which was never done.

14. The respondent submitted that appellant was positively identified by the appellant.

15. In cross examination, he complainant was unshaken when asked about how he identified the appellant. He indicated that firstly he had identified him before he took him to the room at Jivanjee Gardens. Secondly, using the street lights as he was fleeing and the appellant was accosting him.

16. In Charles Amboko Anemba & Another v Republic [2015] eKLR, the issue of identification was discussed at length with the court placing reliance on the following cases to reach its determination. R v Turnbull & Others [1976] 3 ALL ER 549, where the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness, and the court held that:“... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?.... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

17. In the case of Wamunga v Republic [1989] KLR 426 the Court of Appeal stated:“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”

18. Similarly, inNzaro v Republic [1991] KAR 212 and Kiarie v Republic [1984] KLR 739 Court of Appeal stated that:“evidence of identification/recognition at night must be absolutely watertight to justify conviction.”

19. Applying these authorities to the present case, I am not persuaded that there is a proper basis for interfering with the lower court’s determination on identification. Here the complainant was with the appellant for a considerable time which enabled him to positively identify the appellant. The ground therefore fails and is hereby dismissed.

20. In ground 2 the appellant argued that the age of the complainant was not proved. He submitted the complainant’s mother was never called as a witness to testify and corroborate the evidence on age. Learned prosecution counsel submitted that the birth date was indicated in the PRC as 28th May 1998. He argued that this was sufficient to prove the age of the complainant.

21. The importance of proving the age of the complainant in sexual offences was emphasized in Chipala v Rep. [1993] 16 (2) MLR 498 in which that court held at 499 that:“It seems to me that other than a certificate of a medical practitioner, or his oral testimony, to the effect that, in his opinion, such a person has or has not attained a specified age, or other documentary proof, or the testimony of a person who has personal knowledge gained at the time of such person's birth, such as parents, no other evidence is receivable as proof of the age of such a person."

22. There is no dispute that the prosecution did not produce the birth certificate of the complainant. The complainant stated that he was aged 17 years. The PRC report indicated that he was born on May 28, 1998 which places him at 17 years at the time of the incident.

23. Therefore, although production of a birth certificate is important to help the court to determine the correct sentence to impose, failure to produce one is not an automatic ground to acquit an accused person if the age is established through other means including parents giving the age of their child, witness testimonies or other means. There are numerous cases that deal with the question of proof of age, including Musyoki Mwakavi v Republic [2014] eKLR, in which it was held that:“…apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense…”.

24. From the record, the age of the complainant was therefore proved as required by law. The ground of appeal of therefore fails and is hereby dismissed.

25. In ground 3 the appellant argued that the trial court erred in failing to authorize that he be supplied with witness statements. He submitted that his right to be informed in advance the evidence the prosecution intended to rely on was denied. He cited the case of Juma vs Republic [2007] EA 461, where the court held that; ‘the state is obliged to provide an accused person with copies of witness statements and relevant documents.’

26. I have perused the entire record of the subordinate court. On June 24, 2015, the appellant told the trial court that he was yet to receive witness statements. The court directed the prosecution to supply the statements to him. The appellant then proceeded to cross-examine witnesses. Subsequently, the appellant raised the issue of witness statements. On September 27, 2016, the prosecution indicated that witness statements had been supplied. The appellant indicated that he could not read and needed time. The trial court proceeded to adjourn the matter to enable the appellant get all the documents. The issue of witness statements was not raised again. The necessary inference to be drawn is that the witness statements were supplied to the appellant. In the premise, this ground fails and is hereby dismissed.

27. In ground 4, 5 and 6 the appellant challenges the sentence. He argues that the trial magistrate failed to consider the period he spent in pre-trial custody, the mitigating circumstances and the sentence was harsh and excessive. In this regard, reference to section 333 (2) of the Criminal Procedure code is important. The said section provides that:“Subject to the provisions of section 38 of thePenal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

28. The powers of the Court under Section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya and the proviso thereto were explained in the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR. The court while applying this provision held that by dint of section 333 (2) of the Criminal Procedure Code, the courts during sentencing ought to take into account the period that the accused had spent in custody before they were sentenced.

29. I have perused the trial court record and I note the appellant was arrested on March 7, 2015 and arraigned in court on March 9, 2015. He was never granted bail during the trial. He was convicted and sentenced on April 20, 2017 to serve 15 years imprisonment. During sentencing the trial court stated as follows:“I have considered the nature of the offence and the circumstances as well as the mitigation. The accused has been convicted of the offence of defilement of a child aged 17 years. He is a first offender. The minimum sentence provided under section 8 (4) of the Sexual Offences Act is 15 years. The accused committed a heinous act against a desperate homeless young man/boy. Having considered the mitigation, I sentence the offender to imprisonment for fifteen years. Right to appeal explained.”

30. It is clear from the foregoing that indeed the court did not consider the period the appellant had spent in custody being two (2) years one (1) month and 13 days.

31. On whether the sentence was excessive or harsh, I find that the trial court considered the appellant’s mitigation and the sentence was lawful.

32. In the premises, the appeal on conviction fails but succeeds on sentence. The appellant will continue to serve his sentence which should be less by 2 years, 1 month and 13 days and should run from the date of conviction.

JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 8TH OF DECEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe appellant in personMs Chege for the respondent