[2022] KEHC 12700 (KLR)

Noah Kirui v Republic (Criminal Appeal E014 of 2021) [2022] KEHC 12700 (KLR) (15 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12700 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Appeal E014 of 2021

RL Korir, J

June 15, 2022

Between

Noah Kirui

Appellant

and

Republic

Respondent

(From the Original Conviction and Sentence in Sexual Offence Case No 1 of 2020 in Sotik Senior Resident Magistrate’s Court by Hon J Omwange on March 25, 2021)

Judgment

1. The Appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, No 3 of 2006. Particulars were that on diverse dates between December 30 and December 31, 2019, at [Particulars Withheld] village in Konoin sub-county within Bomet County, intentionally and unlawfully caused his penis to penetrate the vagina of MC a child aged 12 years.

2. An alternative charge of committing an indecent act with a child contrary to section 11(1) was also brought against him. Particulars were that on diverse dates between December 30 and December 31, 2019, at [Particulars Withheld] village in Konoin sub-county within Bomet county intentionally and unlawfully touched the vagina of MC a child aged 12 years with his penis.

3. The Appellant pleaded not guilty to both the main charge and the alternative charge. The Prosecution called 5 witnesses. At the close of their case, the trial court found that the Appellant had a case to answer and he was put on his defence under section 211 of the Criminal Procedure Code. He elected to give sworn evidence and called no witnesses. By judgment delivered on March 25, 2021, the Appellant was convicted of the main charge under section 215 of the Criminal Procedure Code. He was then sentenced to serve 15 years imprisonment.

4. Being dissatisfied with the decision of the trial court, the Appellant instituted the present Appeal through a homemade Memorandum of Appeal filed on April 21, 2021. He raised 5 grounds of appeal reproduced verbatim as follows: -(a)That he pleaded not guilty at the trial.(b)That the learned trial magistrate erred in law and in fact in failing to note that the crucial witnesses were not availed to adduce evidence and upon the evidence of PW2, she confessed that together with the Appellant’s wife, they went to [Particulars Withheld] but did not find them and also the appellant mentioned her in defence that she had a grudge.(c)That the learned trial magistrate erred in law and fact as he did not put into consideration the sentencing policy guidelines that was declared by the Supreme Court and other courts of Kenya that judicial officers have discretion and further declared mandatory nature of sentencing unconstitutional.(d)That the learned trial magistrate erred in law and fact by not considering that I had a grudge with NC, the mother to the complainant.(e)That the learned trial magistrate erred in law and fact in dismissing my sounding defence on the ground that I did not call the person who were together on the day of the event.

5. The Appellant then filed amended grounds of appeal on September 28, 2021. In the said appeal, he raised 5 grounds as follows:-1)That the learned trial magistrate erred in both law and fact by relying on uncorroborated irrelevant evidence.2)That the learned trial magistrate erred in both law and fact by relying on evidence adduced by prosecution side which was inconsistent, contradictory and full of irregularities.3)That the learned trial magistrate erred in both law and fact by failing to analyse the entire evidence adduced by clinical officer who examined the complainant and found that there was no spermatozoa.4)That the learned trial magistrate erred in both law and fact by failing to analyse that he was not medically examined despite his early arrest as stipulated under section 36(1) of the Sexual Offences Act No 3 of 2006. 5)That he wished to be present during the hearing of the Appeal.6)Parties took directions on July 15, 2021, for the Appeal to be canvassed by way of written submissions.

Appellant’s Submissions 7. The Appellant filed his homemade submissions on September 28, 2021. He submitted that the offence of defilement could only be proven by establishing three ingredients namely age, penetration and identification or recognition of the person who is alleged to have committed the act. He cited the case of George Opondo Olunga vs Republic (2016) eKLR. It was his submission that the medical evidence did not confirm the presence of penetration and that a HVS test was not done to confirm the presence of spermatozoa. That the medical report indicated that there were no tears, bruises or discharge which would have ascertained penetration and therefore, that the evidence adduced in respect of penetration was not cogent. It was also his submission that the trial court should have ordered for a DNA test in this regard to satisfy itself that there was actual penetration. He relied on section 36(1) of the Sexual Offences Act and the cases of Robert Mutungi Mumbi vs R Criminal Appeal No 52 of 2014 (Malindi), Williamson Sowa Mwanga vs R Criminal Appeal No 109 of 2014 (Malindi) and Bassita vs Uganda S C Criminal Appeal No 35 of 1995.

8. The Appellant also submitted that the Respondent failed to call including the people who reported the crime. That failure to summon them to testify weakened the Prosecution’s case. Further that the evidence adduced in respect of the type of clothing that the victim was wearing was inconsistent.

9. Lastly, the Appellant submitted that the circumstances of the case should have been considered by the trial court before arriving at a conviction. That the victim seemed to have been sexually active and that her sister, PW4 testified that she heard her enjoying sex with the Appellant. That such behaviour was similar to that of an adult and the Prosecution should have proven its case beyond reasonable doubt instead of shifting the burden of proof to the Appellant to explain what the minors were doing in his house. That the victim presented herself as an adult who wanted to have sex with the Appellant especially because she neither screamed nor tried to refuse to engage in sex and that after the incident, she went to the river to bathe, something that a child who was defiled would not do. It was his submission that the Court ought to treat the child as an adult. For this proposition, one relied on the case of Martin Charo vs Republic (2016) eKLR, Criminal Appeal No 32 of 2015, High Court of Kenya at Malindi. It was his final prayer that the Appeal be allowed, the conviction quashed and the sentence set aside.

Respondent’s submissions 10. The Respondent’s submissions dated March 10, 2022were filed on March 11, 2022. They submitted on three issues. Firstly, that the evidence they adduced was cogent, credible and trustworthy. That it was not in doubt that the victim was 12 years old, that she had been penetrated and that the minor and her sister had positively identified the Appellant. Thus, the three elements of the offence of defilement had been adequately proven. They cited the Court of Appeal case of G O A vs Republic (2018) eKLR, CRA 32 of 2017 in this regard.

11. In addressing the inconsistent evidence, the Respondent submitted that the discrepancies in respect of the colour of clothing were too minute to affect the evidence tendered by the Prosecution since it was impossible for witnesses to recollect the exact same detail when tendering evidence. On this, the Respondent relied on the case of Joseph Maina Mwangi vs Republic Criminal Appeal No 73 of 1993.

12. In respect of the medical examination and the lack of spermatozoa, the Respondent submitted that the presence or absence of spermatozoa was not proof of penetration. Further, they submitted that it was immoral for a person to have sexual relations with a child aged 12 years. That in the present case, whether the hymen was broken or not and whether there was spermatozoa or lack of it, the medical examination still proved that there were signs of penetration and this was sufficient for the trial court to arrive at that conclusion. It was also their submission that penetration need not be deep or complete and cited the case of Mark Oiruri Mose vs R (2013) eKLR andErick Onyango Ondeng’ vs Republic, CRA 5 of 2013.

13. Lastly, on the issue of whether the Appellant ought to have been taken for a medical examination, the Respondent submitted that the offence of defilement did not require proof by DNA. That section 124 of the Evidence Act was sufficient to guide the court in deciding on the sole evidence of the child. They also relied on the case of A M L vs Republic (2012) eKLR. It was their submission that the Appeal lacked merit and ought to be dismissed and that the sentence meted be upheld.

Issues for Determination 14. It is trite that on a first Appeal, an appellant expects the Court to subject the entire evidence to a fresh analysis and arrive at its own decision. The Court of Appeal in Nairobi cited the cases of Pandya vs Republic (1957) EA 336 and Shantilal Ruwala vs Republic (1957) EA 570 when setting out the duties of a first appellate court in the case of Okeno vs Republic [1972] EA 32. They stated thus: -“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala vs 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 finding and conclusion; 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 fact that the trial court has had the advantage of hearing and seeing the witnesses. (see Peters vs Sunday Post [1958] E.A 424).”

15. With the above guidance in mind and having looked at the trial Record, the grounds of appeal and the respective submissions of the parties, I find the main issue for determination in this Appeal to be whether the offence of defilement was proven by the Prosecution to the required legal standard.

Whether the offence of defilement was proven to the required standard 16. The offence of defilement is encapsulated in the Sexual Offences Act No 3 of 2006 under section 8 as follows:8. Defilement1A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.2A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.3A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.4A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.5It is a defence to a charge under this section if—ait is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; andbthe accused reasonably believed that the child was over the age of eighteen years.6The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.7Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap 92) and the Children Act (No 8 of 2001).8The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.

17. For the offence of defilement to be proven, three ingredients must be established. In the case of George Opondo Olunga vs Republic [2016] eKLR, it was stated that, “The ingredients of an offence of defilement are: identification or recognition of the offender, penetration and the age of the victim.” These must be proven beyond reasonable doubt.

18. In the present case, the victim MC who testified as PW3 stated that she was on her way home alongside her sister when they met a person who assisted them with a phone which they used to contact the Appellant, Naoh Kirui. From the Record, the victim knew the Appellant as she stated that he was a boda boda rider who used to carry them and that is why she called him to take them home. She then stated that the Appellant took them to his house and not to their home. It is also clear that the Appellant was no stranger to the two girls since the victim had mastered his mobile number and was able to contact him using another person’s phone.

19. I also consider the evidence of PW4, BC who was the victim’s sister. She testified that they met with K who assisted them with his phone. Her sister, the victim then called the Appellant to come and pick them and take them home, but he instead took them to his house. Both witnesses positively identified the Appellant before court.

20. The evidence of PW3 and PW4 is not only one of identification but of recognition. They both knew the Appellant as he was no stranger to them. The Court of Appeal gave guidance in considering evidence of recognition in the case of Wamunga vs Republic (1989) KLR 426 as hereunder: -“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.”

21. Similarly, in R vs Turnbull & Others (1976) 3 ALL ER 549, the Court held that,“Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

22. From my analysis of the evidence of PW3 and PW4, I am satisfied that their identification of the Appellant as the person who picked them on the date in question and took them to his house was free from error and that the Appellant was properly recognized and identified by the two minors. The two had also spent a significant amount of time with the Appellant and what is more compelling is the fact that the victim was the one who contacted the Appellant by calling him. He was therefore no stranger to them and their identification of him was certain without any possibility of mistake.

23. The second ingredient is penetration and is defined in the Sexual Offences Act under section 2 as follows:“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

24. During examination in chief, the victim testified as follows:“…..the accused undressed me by removing my biker and panty. He raised the skirt and opened his trousers’ zip and removed his male genital organ and inserted his male genital organ into my female genital organ. It took a while, upon finishing, it was painful and I bleeded (sic)….We slept and the accused again did remove my clothes and penetrated me again…”

25. The victim testified that the accused penetrated her two times that night. Her sister, PW4 also testified that she saw the accused having sex with her sister twice while they all lay on the same bed with the victim in the middle. She also heard the victim tell the Appellant “itoshe” to mean it is enough or stop.

26. PW3’s evidence is further corroborated by the evidence of PW1 Daniel Too who was the clinical officer at Mogogosiek Health Centre. He testified that he examined both the victim and her sister on December 31, 2019. He found that the inner pants and inner clothing of the victim had blood stains, her hymen was freshly broken with inflammation and tenderness. Though a High Vaginal Swab (HVS) test was not done there were red blood cells in her urine. It was PW1’s conclusion that there were signs of penetration consistent with defilement. He produced the P3 Form (PEX1), Post-Rape Care PRC Form (PEX2) and treatment notes (PEX3) to this effect. He also positively identified the clothes that the victim was wearing on the date of examination as blue and white skirt, black biker and pant which were produced as PEX7(a-c).

27. The evidence of these three witnesses is overwhelming and no doubt arises in my mind to disprove penetration. As stated by the Supreme Court of Uganda in the case of Bassita vs Uganda S C Criminal Appeal No 35 of 1995: -“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the 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 prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.” (underlining mine for emphasis).

28. It is my conclusion that the evidence adduced by the Respondent being the victim’s testimony, PW1 (medical examination) and PW4’s testimonies all confirm that she was penetrated beyond reasonable doubt. This second ingredient is therefore adequately established. I am therefore satisfied that the Appellant was adequately identified as the person took the victim to his bed and had sexual intercourse with her.

29. On the same breath, I address the fact that the Appellant was not subjected to a medical examination as outlined in his grounds of appeal. Section 36(1) of the Sexual Offences Act provides as follows:-36. Evidence of medical, forensic and scientific nature(1)Notwithstanding the provisions of section 26 of this Act or any other law, 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.

30. In the Court of Appeal case of Williamson Sowa Mwanga vs Republic Criminal Appeal No 109/2014 (UR) it was stated that: -“Section 36 (1) of the Act empowers the court to direct a person charged with an offence under the Act to provide samples for tests including for D N A test to establish linkage between the accused person and the offence.”

31. The Court of Appeal further explained the said section in the case of Robert Murungi Mumbi vs Republic Criminal Appeal No 52 of 2014 thus: -“Clearly that provision is not couched in mandatory terms. Decisions of this court abound which affirm the principle that medical evidence on DNA evidence is not the only evidence by which commission of a sexual offence may be proved.”

32. From the above precedents, it is clear that it is not mandatory to take medical evidence from the accused to prove the offence of defilement. This position was aptly stated by the Court of Appeal in Nyeri in George Kioji vs Republic Criminal Appeal no 270 of 2012 where the Court stated thus: -“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond any reasonable doubts that the defilement was perpetrated by the accused person. Indeed under the proviso to section 124 of the Evidence Act Cap 80 laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone if the court believes the victim and records the season for that believe.”

33. It is my finding therefore that the evidence adduced in the trial court was sufficient to prove penetration and the identity of the perpetrator and it was not mandatory for the trial court to order for a medical examination for the Appellant. The absence of spermatozoa was also not sufficient to weaken the prosecution’s case

34. The last ingredient is age. The importance of proving the age of a victim cannot be gainsaid. The Court of Appeal in Nairobi in the case of Eliud Waweru Wambui vs Republic(2019) eKLR cited the case of Hadson Ali Mwachongo vs Republic [2016] eKLR in which it was stated that: -“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).’”

35. The age of a victim can be proven in several ways. In the case of Francis Omuroni vs Uganda, Court of Appeal Criminal Appeal No 2 of 2000, it was held thus:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense ….”

36. In the present case, the victim testified that she was born on July 27, 2007. PW5 Cpl. Gilbert Nato who was the investigating officer also produced the victim’s birth certificate as PEX8 which confirmed the age of the victim. Throughout the trial, the victim’s age remained uncontroverted. Undoubtedly, at the time of commission of the offence the victim was 12 years old. This ingredient was therefore adequately proved.

The Appellant’s defence 37. The Appellant stated in his sworn defence that he was not at home between December 31, 2019 and January 2, 2020 as he had travelled for a funeral at Kisumu. Secondly, he stated that the complainant’s mother had earlier threatened to frame him with an offence after he insisted on recovering Kshs 15,000/= which she owed him.

38. I have considered this defence against the prosecution evidence. The alibi does not ring true at all and must be dismissed as an afterthought. He never raised it during investigation and while cross examining the witnesses. If anything, his cross - examination of the victim was only concerned about why the victim was in his house and why she did not scream which suggests an admission that he was at the scene. I find the entire defence unbelievable. It does not displace the prosecution case in any way.

39. In the final analysis, it is my finding that all the three ingredients of the offence of defilement were adequately established and proven by the Respondent. The decision of the trial court to convict the Appellant on the offence of defilement was proper and I uphold it.

Whether the sentence was legal and Justitious 40. The Appellant raised no issue regarding his sentence. It is however the duty of this court to consider the same and determine whether it was legal and justitious. In his mitigation, the Appellant stated that he was the sole breadwinner of his family since his mother had an accident and depended on him. It was also noted that he was a first offender. The trial magistrate in delivering sentence stated that he had considered the period which the Appellant had been in custody which was 7 months and sentenced him to 15 years’ imprisonment.

41. I observe however that convicted the Appellant under Section 8(3) of the Sexual Offences, Act, the trial court was in error not to mete out the sentence provided by law. Under Section 8(3) of the Act he was liable upon conviction to serve a sentence of not less than 20 years.

42. Sentencing is a judicial function pegged on legal parameters and the discretion of the trial court. An Appellate Court can only interfere with the sentence where it is shown that the trial court acted on a wrong principle or failed to take into account some mater factor. The exercise of judicial discretion during sentencing must be protected from arbitrary interference. As stated by the Court of Appeal in Bernard Kimani Gacheru vs Republic [2002] eKLR:“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.”

43. In the present appeal, I have considered the mitigation of the Appellant on the one hand and the rights of the victim not to be violated on the other hand. I have also considered the purposes of sentencing. It is detestable that the Appellant defiled the victim in the presence of her younger sister aged 11. The facts of this case demonstrate an act of utmost contempt for the need to protect young children from sexual violence. More than snatching away the innocence of the victim, the Appellant’s actions traumatized the victim’s younger sister who witnessed the sexual act. I consider these to be aggravating circumstances.

44. The Appellant submitted in this appeal that the victim behaved like an adult, enjoyed sex with him and neither screamt nor even attempted to refuse to engage in the act. He cited the case of Martin Charo vs Republic (Supra) to support his submission that he should be acquitted.

45. I am not persuaded that the Appellant can hide behind the supposed willingness of a child aged 12 years to engage in sexual intercourse. Such a child has no legal capacity to consent or intellectual capacity to appreciate the harm she seeks to bring upon herself by such conduct. That is the very reason that the law comes in to protect such a child. The duty was on the part of the Appellant to ensure that he does not mislead, entice or seduce the child. His responsibility as a boda boda rider was to safely transport the two minors to their home and not to his home and for ulterior motive. He must face the consequences of his action.

46. I shall however, temper justice with mercy with the result that I shall not enhance the sentence. For avoidance of doubt, I affirm that the lenient sentence of 15 years’ imprisonment has already taken into consideration the period spent in pre-trial custody.

47. In the end, the appeal is without merit and is dismissed. I confirm both conviction and the sentence of 15 years’ imprisonment.Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 15TH DAY OF JUNE, 2022R LAGAT-KORIRJUDGEJudgment delivered in the presence of Mr. Muriithi for the State, Appellant present in person and Kiprotich (Court Assistant).