[2022] KEHC 14123 (KLR)

Njau v Republic (Criminal Appeal E028 of 2020) [2022] KEHC 14123 (KLR) (Crim) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14123 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E028 of 2020

LN Mutende, J

October 11, 2022

Between

Samuel Kinyua Njau

Appellant

and

Republic

Respondent

(Appeal against the original conviction and sentence in Sexual Offence Case No. 4 of 2017 at the Chief Magistrates’ Court Kibera by Hon. Esther Boke - SPM. on 21st October 2020)

Judgment

1. Samuel Kinyua Njeru, the Appellant, was arraigned in court following allegations of having defiled GAA a child aged seven (7) years. The act was stated to have contravened Section 8 (1) and (2) of the Sexual Offences Act.

2. In the alternative, it was alleged that he committed an Indecent Act with the child, GAA by intentionally and unlawfully touching her vagina.

3. The offence in issue was stated to have been committed on diverse dates between 1st to October 31, 2016 within Kawangware Congo Area, Nairobi County.

4. The offence was denied by the appellant, but, having been taken through full trial, he was found guilty, convicted and sentenced for the offence of defilement. In the result, he was sentenced to serve twenty (20) years imprisonment.

5. Aggrieved by both the conviction and sentence, he appeals on grounds that court proceedings of February 24, 2020 were incurably defective having been based on an equivocal plea that the Magistrate mistook to be a plea of guilty; evidence tendered was full of contradictions, inconsistencies and uncorroborated; no DNA test was conducted to ascertain that he did defile the complainant; there was no medical or some other evidence to prove penetration; the trial court relied on irrelevant evidence; the defence was not properly considered; and the identity of the perpetrator was not proved beyond reasonable doubt.

6. The appeal was canvassed through written submissions. It was urged by the appellant that the inconsistency in the statement of the complainant was so grave and fundamental such that it prejudiced the appellant. That the decision of the trial court was based on evidence of the prosecution without consideration of the defence and having been denied the right, it was prejudicial.

7. The Respondent/ State opposed the appeal. It was argued that all elements for the offence of defilement were proved.

8. This being a first appellate court, I am guided by the principle pronounced in the case of David Njuguna Wairimu Vs. Republic (2010) eKLR where the Court of Appeal stated that:“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.

9. Facts of the case were that the minor victim was from school when ordered by the assailant to board a motorcycle. She was taken to his place of aboard molested and warned not to divulge the information to her mother lest he killed her. Further she was asked to return to the assailant’s place to collect bread, and, she went but was not given any bread. When her mother went to her grandmother’s place the following day, she informed her. She was taken to Nairobi Women’s Hospital for treatment where she was admitted for five (5) days. An examination carried out revealed that she had bruises on the outer genetalia, the posterior apex near the anus. The hymen was freshly torn and there was incontinence as she could not control urine. It was concluded that it was a case of defilement.

10. Upon being put on his defence, the appellant, said that some youth were sent by the OCS Muthangari to notify him of the requirement at the Police Station. He honoured the summons, but on going to the Police Station his finger prints were taken and he was arraigned following allegations of having defiled a minor. During the hearing of the case he saw the victim, a child who lived on the same plot with him. He urged that it was a case of mistaken identity.

11. He called a witness, SK, his neighbour who testified that the appellant who sells bread uses the premises as a shop as well as the living/sleeping quarter and there is no bed in the room that is squeezed, with a small mattress on the floor. He denied having seen the appellant with the complainant. That the place is heavily populated and had the appellant gone to the house with a child, he would have been seen.

12. The burden of proof in a criminal case rests with the prosecution and the standard of proof is beyond reasonable doubt. It is not the duty of the accused to prove his innocence; where he gives an explanation, it is usually on a preponderance of probability.

13. The act of defilement is defined by Section 8 (1) of the Sexual Offences Act that provide thus:A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.Ingredients of defilement were stated in the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 where court delivered itself thus:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

14. To prove the case to the required standard, the prosecution was required to prove existence of the following ingredients.i.Age of the victimii.Proof of penetration.iii.Positive identification of the perpetrator of the act.

15. It is submitted by the appellant that as required by Section 8 of the Sexual Offences Act, the Prosecution was required to prove the age of the child either by producing a birth certificate, medical age assessment, through direct testimony of the parent, guardian or the victim or through expert testimony; and, the child’s age was proved through production of her birth certificate in addition to medical report confirming her age to be seven (7) years. This perse was an admission that the age of the complainant was proved to the required standard.

16. On the Question of penetration, it is defined by Section 2 of the Sexual Offences Act thus:“Partial or complete insertion of the genital organs of a person into the genital organs of another person;”

17. It is urged by the appellant that, evidence of a P3 (Medical Report) was adduced that confirmed that the victim’s hymen was raptured proving that someone penetrated her, but, to link the appellant to the act, some samples should have been collected and tested to confirm if the DNA matched what was collected from the complainant. On this question of defilement, courts have given varied decisions regarding the need of DNA test, especially so, where the defilement results into pregnancy. It has however, been severally held that, DNA is not a requirement to prove defilement as long as there is some other cogent evidence to prove it. In the case of Jackson Mwanzia Musembi Vs. Republic (2017) eKLR, the court of Appeal stated that:“It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. It is not in dispute that the minor was defiled as verified by Dr. Shabaan. However, the appellant contends that there was no medical evidence connecting him to the offence. As pointed out by this Court time after time, medical or DNA evidence is not the only way in which a charge of defilement can be proved against an accused.”

18. Therefore, to establish whether or not the complainant was defiled by the appellant, this court has to consider some other evidence that was adduced. In the case of Kassim Ali Vs. Republic (2006) eKLR it was stated that:“… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

19. In her testimony the complainant testified that the assailant took her to his “Kibanda” dwelling and forcibly removed her school uniform that she was wearing as she was from school. He tied both her hands and legs. He covered her mouth, removed her pant, pushed her legs apart and did bad manners by inserting his ‘dudu’ into the part that she uses to urinate. It was at 4. 30 pm when the act occurred and she returned to the place the following day as directed but the offender did not give her bread per his instructions. On cross examination the complainant stated that she had been seeing the individual before. In his defence the appellant stated that he knew the victim as they lived on the same plot.

20. Section 124 of the Evidence Act provides thus:Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.

21. The trial court considered evidence adduced by the Prosecution and defence and was of the view that it would not have been a coincidence that the complainant led her mother to the house that the witness called by the appellant confirmed to have belonged to the appellant and indeed he sold bread; and, there were crates of bread. The court dismissed the allegation of mistaken identity. The court chose to believe the minor and recorded reasons for that belief.

22. The first ground of appeal was the question of an alleged defect in the charge sheet that was not apparent and/or addressed in submissions. Therefore, that ground of appeal fails.

23. On the question of contradictions and inconsistencies, it was argued that the complainant claimed that there were four seats and a bed in the appellant’s house but this was not the case as he had to make space for the storage of crates. He cited the case of Philip Nzaka Watu Vs. Republic (2016) eKLR where the court stated that:“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.”

24. AndJoseph Maina Mwangi Vs. Republic (200) eKLR where the court state that:“In any trial, there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 382 of the Criminal Procedure Code whether such discrepancies are such as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.”

25. To that end the argument was that the inconsistency in the complainant’s statement was so grave and fundamental that it prejudiced the appellant as the statement lacked corroboration.

26. A statement having been inconsistent would imply she made two (2) different statements in material particulars regarding the same fact. The complainant stated that:“We entered. Inside there were 4 seats, a bed and a kitchen. The seats were where the bed was”

27. Throughout her testimony, she did not make any other reference to what was inside the house. The fact that the appellant’s argument was that the house did not have a bed cannot be viewed as a contradiction as envisaged in cases cited.

28. The trial court has been faulted for having not accorded the appellant the right to file submissions as envisaged in law. Reference has been made to Section 213 of the CPC Provides thus:The prosecutor or his advocate and the accused and his advocate shall be entitled to address the court in the same manner and order as in a trial under this Code before the High Court.

29. The appellant was represented by Counsel. At the close of the defence case Counsel sought three weeks within which he sought to file submissions, and he was granted. When the matter came up on September 16, 2020 he did not turn up and the appellant in his address to the court stated thus:“My advocate has not come. We can get a judgment date”The court however gave them another opportunity to file the submissions within a week but they did not comply.

30. In a case there are usually two partes, the accused and a victim.Justice must not only be seen to be done but it must be undoubtedly be done. It must be clear and obvious to the eye and mind. The court could not have stayed the matter waiting for a party that was not desirous to comply with directions given. Indeed the appellant expressed himself and the court reached a decision based on evidence adduced. The appellant’s right cannot purport to have been denied and he was not prejudiced as a result.

31. Reliance on the statement of the complainant to convict the appellant by the trial court was pursuant to Section 124 of the Evidence Act. The complainant explained vividly the act of penetration that was committed by the appellant, therefore, the trial court did not fall into error in reaching the conclusion to find him guilty of the main charge.

32. On the issue of sentence, Section 8(2) of Sexual Offences Act provide thus:A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

33. The appellant argues that the sentence was harsh and excessive. It is argued by the Respondent that the trial court relied upon proper law in sentencing the offender. In the cited case of Ogolla s/o Vs. Republic (1954) EACA 270 it was stated that:“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

34. The trial court in meting out a sentence of 20 years imprisonment was not fettered by the minimum prescribed sentence. The appellant was granted the opportunity to mitigate and through his Counsel, he sought leniency and stated the he was a father of minors aged between 16 and 6 years. The court took into account these circumstances hence reduced the severity of sentence. A sentence must be fair and proportionate to the offence committed. The victim was a child aged 7 years and the tear she sustained was a serious one.

35. In the premises, the sentence cannot be dismissed as having been excessive. Therefore, I find the appeal bereft of merit. Accordingly it is dismissed in it entirety.

36. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 11TH DAY OF OCTOBER, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:AppellantMs. Wangui holding brief for Mr. Mwenda for AppellantCourt Assistant - Mutai