[2022] KEHC 9805 (KLR)

Njagi v Republic (Criminal Appeal E040 of 2021) [2022] KEHC 9805 (KLR) (18 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9805 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E040 of 2021

LM Njuguna, J

July 18, 2022

Between

Devis Murimi Njagi

Appellant

and

Republic

Respondent

(Chief Magistrate Court at Embu in Sexual Offences Case No. E029 of 2021)

Judgment

1. This appeal has been filed by the appellant seeking to overturn the decision in Chief Magistrate Court at Embu in Sexual Offences Case No. E029 of 2021 wherein the appellant was charged with the offence of defilement contrary to Section 8(1) (3) of the Sexual Offences Act and an alternative charge of the offence of committing an indecent act with a child.

2. The trial court heard the matter and subsequently convicted the appellant of the offence of Defilement Contrary to Section 8(1) (3) of the Sexual Offences Act and sentenced him to Twenty (20) years imprisonment. The appellant was aggrieved by that conviction and the sentence hence the present Appeal. The Appeal is premised on the grounds set out in the petition of Appeal dated November 17, 2021 and filed on 22nd November 2021. The appellant raised the following grounds of appeal;i.That the learned trial Magistrate erred in both matters of law and fact by not taking into cognizance that the adduced prosecution evidence was inadequate to sustain a conviction.ii.That the honourable trial Magistrate erred in both matters of law and fact by convicting the Appellant without considering that the adduced evidence was full of contradictions and without corroboration.iii.That the Learned trial magistrate erred in both matters of law and fact by disregarding the appellant’s defence without giving cogent reasons.iv.That, the honourable trial magistrate erred in both matters of law and facts by imposing a harsh and excessive sentence without considering that the appellant was a first offender.

3. The appeal was canvassed by way of written submissions. The appellant argued grounds 1, 2 and 3 together. He submitted that he had no obligation to prove the prosecution’s case, he argued that he had prayed for a DNA test to be conducted to determine the paternity of the child but that this request was not taken into consideration and instead the court fixed the matter for judgment. He relied on the case of Republic Vs Silas Magongo Onzere alias Fredrick Namema(2017) eKLR where the court had stated what constituted reasonable doubt.

4. It was submitted that the court relied on the age of the complainant, her uncorroborated evidence and a positive pregnancy test to convict the appellant yet his request to establish paternity was not considered and contended that should a DNA test be carried out in future and he is found not to be the father of the child, no remedy would be available to him after his freedom had been unjustly taken away from him. To sum it up, he was of the view that his right to a fair trial had been impeded and disregarded by the trial court.

5. On ground 4 of the appeal he submitted that the conviction and sentence were unlawful and ought to be set aside. According to him the conviction and sentence were not clear on whether it was on the main or alternative charge. He submitted that the court was under no obligation to impose the mandatory minimum sentence upon him as he was a first-time offender. To support this, he relied on the case of Francis Matonda Ogeto Vs Republic in Machakos Criminal Appeal No. 49 of 2017. The appellant further placed reliance on the case of Lekishon Senjo and called upon the court to find that the evidence on record was insufficient to guarantee a safe conviction. Ultimately, the court was urged to quash the conviction, set aside the sentence and set the appellant free.

6. The respondent filed their submissions. They argued that the elements of the offence of defilement had been proven beyond reasonable doubt. It was submitted that the evidence of the prosecution witnesses was clear, consistent and well corroborated and that the complainant’s evidence was not challenged by the appellant save for his request for a DNA test. Regarding the issue of DNA, it was submitted that DNA test is not mandatory in a case of the nature as this one. According to the respondent, the trial magistrate had exercised her discretion judiciously in declining the request given the stage the request was made in the proceedings. Further that, the offence of defilement which the appellant had been charged with, had been sufficiently proven without the evidence of a DNA expert.

7. On whether the trial magistrate exercised her discretion judiciously in imposing the sentence, it was argued that the appellant had failed to demonstrate how the trial magistrate abused her discretion while sentencing the appellant. The respondent accordingly relied on the case of Bernard Kimani Gacheru v Republic(2002) eKLR and the Sentencing Policy Guidelines, 2016 to outline the objectives of sentencing.

8. It was also submitted that the appellant had been accorded a fair trial despite the fact that he had no legal representation and it was argued that he had also failed to demonstrate substantial injustice that was occasioned by such lack of such representation. The contention that he was not granted a chance to cross examine witnesses was said to be untrue and that his defence was clouded with mere denials that were not sustainable in the circumstances. In conclusion, the appeal was said to lack merit.

9. At this juncture, I find it worthwhile to summarise the case as presented before the trial court. The particulars of the offence were that; on April 1, 2021at Gicherori location in Embu North Sub-County within Embu County, intentionally and unlawfully caused his penis to penetrate the vagina of AGM, a child aged 14 years. He also faced another count of committing an indecent act with a child contrary to section 11(1) 0f the Sexual Offences Act.

10. The appellant denied both counts and the prosecution called four (4) witnesses in support of their case.

11. The first witness (PW1) was the complainant who stated that she was 14 years old and a primary school going child. She testified that she was at their home when the appellant called her on her sister’s phone and requested her to go to the shop where he, the appellant, sells milk.

12. She went to the shop and together with the appellant went to Kithiria to see the appellant’s cousin. They did not find the appellant cousin who is said to have left but the appellant ordered her to enter the house and he closed the door. The appellant is said to have had sex with the complainant on the couch but she did not report this to anyone as the appellant threatened to kill her if she reported the incident. She then went home and lied to her mother that she had been at her sister’s place.

13. She later felt nauseated and subsequently visited the appellant at his work place and asked him for Kshs. 200/= which she needed to carry out a pregnancy test at Kibugu private clinic. The test was positive and she informed the appellant and then went home and attempted to commit suicide but her mother found the herbicide she intended on using and discarded it. That thereafter, they held a meeting with the appellant’s parents but the appellant denied having sex or impregnating her. The matter was then reported to the police and the appellant was arrested. The pregnancy was also confirmed at Embu Level 5 hospital.

14. In cross examination by the appellant. She stated that the appellant had removed her clothes hence they were not torn. She said that she had lied to her mother for reason that she feared her. It was also her evidence that, that was not her first sexual encounter.

15. PW2 was CN, mother to the complainant. She stated that on 5. 6.2021 her daughter had attempted to commit suicide because she was pregnant. On enquiring from her, she informed her that the appellant was the father of the unborn child. She then arranged a meeting with the appellant and his parents but the appellant denied defiling her daughter. According to PW2, her daughter had stated that the appellant was her friend and that he had only denied because his father would stop paying school fees for him. It was also her evidence that the appellant’s father had offered to raise the child. She stated that she had made a report with the police and her statement subsequently taken.

16. PW3 was Dennis Mwendia a clinician at Embu Level 5 hospital. It was his evidence that on 11. 6.2021 the appellant was sent to him from Kibugu police station for assessment after defilement. He then examined her and confirmed she was 13 weeks pregnant. It was his evidence that there were no injuries to the complainant’s body.

17. On cross examination by the appellant, he stated that the complainant’s clothes had been changed and that at the time of examination, the incident had occurred 2 months prior. He stated that the complainant had been presented to him for the reason that she had been defiled. He further stated that he did not enquire whether the complainant had multiple partners.

18. PW4 was Lyan Kimathi the investigating officer based at Kibugu police post. He stated that the complainant and her mother reported that the complainant had been defiled by the appellant. He interrogated the complainant who said that the appellant had forced her into having intercourse with him. He said that the results had shown that the complainant had been defiled. He further stated that the complainant had positively identified the appellant as the person who had defiled her. He produced the original birth certificate of the complainant as evidence in support of the case. In cross examination, he stated that the complainant’s mother had guided the police to his house, but he confirmed that he was not present during the arrest and did not visit the scene of crime.

19. After the appellant was placed on his defence, he opted to give unsworn evidence and did not call any witnesses. In his unsworn statement he prayed for a DNA test to be conducted to establish who the father of the child was. It was his statement that the DNA would establish whether he was the father or not. With that he closed his case.

20. I have considered the petition of appeal, the submissions by the parties and the record of the trial court in general. My duty as a first appellate court is to re-evaluate the evidence afresh and draw my own independent conclusions of course bearing in mind that I neither saw nor heard the witnesses and give due regard and allowance for that. This duty was espoused in the case of Okeno v Rep 1972 E.A. 32. The Court of Appeal in that case stated that;“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R [1957] EA 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala v R [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the act that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] EA 424. ”

21. The Appellant was charged with defilement contrary to Section 8(1) (3) and an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offence Act 3 of 2006, and he was found guilty of the main charge of the offence of defilement. To sustain a conviction on defilement the prosecution has to prove three elements beyond any reasonable doubt to wit; the complainant must be a child, proof of penetration and the positive identification of the assailant [See the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013].

22. I will address the grounds of appeal as argued by the appellant. He submitted in regards to grounds 1, 2 and 3 that the appellant sought before the trial court that a DNA test be conducted in order to determine the paternity of the child of the complainant. That the court did not make any pronouncement on the same and instead proceeded to deliver its judgment wherein the appellant was convicted. The appellant submitted that his rights were trampled on in that he was never given a fair hearing as contemplated in Article 50 of the constitution. The question therefore is whether failure to order for DNA test fatally wounded the prosecution’s case.

23. On this issue, Section 36 (1) of the Sexual Offences Act 2006 which provides:-“….where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence.

24. In my view and without limiting factors related to the rights especially victims of crimes, requests for independent scientific tests of samples by the defence should be freely allowed. My reading of Article 50(2)(c) of the Constitution guarantees every accused person adequate time and facilities for his/her defence. The extent of that right, however, is limited by the rights of others – especially the victim of the crime – and other practical considerations including the practicality of the request; and the impossibility of carrying out the test without undue inconvenience to the parties or undue delay. [See Rodgerts Nyakundi Nyapara v Republic[2020] eKLR].

25. I have looked at the evidence adduced before the trial court in regard to the request that was made by the appellant. The learned trial magistrate did not address the request when it was made and it was not alleged that it was not possible to carry out the DNA test or that the same would cause undue inconvenience and or delay to the proceedings.

26. Further, the appellant herein has argued that doubt was cast on the evidence allegedly linking him to the commission of the offence. Having in mind that the evidence showed that it was not the first sexual encounter for the complainant, then it would have helped if DNA was done and it would appear from the evidence that the only thing that linked him to the offence is the pregnancy.

27. In view to the foregoing, and also having in mind that the appellant faced a crime that is serious in nature, I agree with the appellant’s counsel that a DNA test should have been conducted to determine the paternity of the child which could have easily tied or exonerated the appellant to the offence herein. [See Court of Appeal on ZNM v R [2021] eKLR; Benson Kipkurui Korir v Republic [2021] eKLR; Stephano Ngigi Maigwa v Republic[2022] eKLR].

28. In the end, I hereby quash the sentence and set aside the conviction by the trial magistrate and order that the matter herein be remitted for a retrial before a different magistrate.

29. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF JULY, 2022. L. NJUGUNAJUDGE…………………………………… for the Appellant…………………………………… for the Respondent