[2022] KEHC 13680 (KLR)

Nyaga v Republic (Criminal Appeal E031 of 2022) [2022] KEHC 13680 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13680 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E031 of 2022

LM Njuguna, J

October 11, 2022

Between

Erick Macharia Nyaga

Appellant

and

Republic

Respondent

(Being an appeal against the judgment of Hon J. Gichimu (S.P.M.) sitting at Runyenjes Law Courts in Sexual Offences Case Number 4 of 2019 and delivered on 13. 12. 2019)

Judgment

1. The appellant herein was charged with the offence of defilement contrary tosection 8(1) as read withsection 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the same being that on February 14, 2019 at around 1530 Hrs at [Particulars Withheld] Village, Kigumo sub-location within Embu County, intentionally and unlawfully caused his penis to penetrate the vagina of NJM a child aged 6 years old.

2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 and the particulars being that; on February 14, 2019 at around 1530 Hrs at [Particulars Withheld] Village, Kigumo sub-location within Embu County, intentionally touched the vagina of NJM a child aged 6 years with his penis.

3. At the hearing, the prosecution called Six (6) witnesses in support of the charge and in a judgment delivered on December 13, 2019 proceeded to convict and thereafter sentenced him to serve ten years imprisonment.

4. The appellant being dissatisfied with the conviction and the sentence, has appealed to this court and has listed three grounds in his amended petition filed on July 27, 2022 as follows;i.That the trial court erred in law and facts by failing to note that the appellant was a child during the commission of the alleged offence.ii.That the trial court erred in law and facts by convicting and sentencing the appellant without considering that he was a juvenile.iii.That the trial court erred in both law and facts by failing to consider that the prosecution evidence was contradictory and insufficient to sustain a conviction.

5. Reasons wherefore, the appellant prayed that this court quashes the conviction and sets aside the sentence of the trial court.

6. When the appeal came up for hearing, the court directed that the appeal be canvassed by way of written submissions and wherein all the parties complied. The appellant submitted that during the alleged commission of the offence, he was aged 16 years old and that he ought not to have been arraigned in court for trial and further, the state ought to have offered him legal assistance. He further submitted that the evidence by the prosecution witnesses was not only contradictory but also insufficient to prove the alleged charge preferred against him. Reliance was placed on the case Ganzi & 2others v Republic (2005) eKLR and article 50 (2) (h) of the Constitution.

7. The respondent opposed the appeal arguing that the trial court did take into account the sentencing guidelines as set out in the law and further that, the court was well guided by substituting the charge of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act, to sexual assault contrary to Section 5 of the same Act. It was submitted that the charge sheet herein was not defective in as much as the respondent conceded to the fact that the appellant herein ought to have been charged under section 5 of theSOA; that the respondent submitted that justice ought not bleed on the altar of a technicality and such an error did not prejudice the appellant in any way. Reliance was placed on section 186 of CPC. Further that, the prosecution witnesses were all consistent and that there were no contradictions and if at all there were, the same were not fatal to its case. The prosecution relied on the case of Erick Ondeng’ v Republic [2014] eKLR. It was also submitted that the sentence meted out on the appellant was neither harsh nor excessive; that the same rested on the discretion of the trial court. Further reliance was placed on the case of Benard Kimani Gacheru v Republic (2002) eKLR. That the same was tenable given the fact that the appellant did not demonstrate how the trial magistrate abused his discretion while sentencing.

8. I have considered the appeal before me and the written submissions by the parties and I do note that the main issue for determination is whether the appeal herein has merits.

9. This being a first appeal, it is the obligation of the court to reconsider and re-evaluate the evidence afresh and come to its own conclusion on it [see Okeno v Republic [1972] EA 32]; also Joseph Njuguna Mwaura & 2others v Republic[2013] eKLR].

10. The Court of Appeal, in Bernard Kimani Gacheru v Republic [2002] eKLR restated 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.”

11. The appellant has faulted the trial court for failing to recognise that he was a child during the commission of the offence. He has further faulted the trial court for failing to provide him with legal representation. I must note that this court has carefully perused the trial court’s record that shows that the first time the appellant herein was presented before the court to take plea, the prosecution did make an application for the appellant to be taken for age assessment before the said plea could be taken. That, via a report dated February 19, 2019, the appellant herein was found to be aged between 18 and 19 years at the time of the trial. For that reason, the appellant herein was an adult and not a minor at the material time. As such, the contention by the appellant that he was a minor at the time of the commission of the alleged offence and thereafter the trial, is unfounded.

12. In regards to whether he ought to have been provided with legal representation and whether such failure infringed on his rights under article 50(2) (h) of the Constitution. In discussing the import and place of substantial injustice and in reference to the decision inKarisa Chengo & 2others v. R, Criminal Appeal Nos. 44, 45 & 76 of 2014 the court observed as follows: -It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation... This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the State obligation to provide legal representation arise.

13. As such, I am not convinced that the case herein is one where substantial injustice would have occurred for the reason that the penalty of the offence preferred against the appellant was not that attracting a death penalty. [Also see Sheria Mtaani Na Shadrack Wambui v Office of the Chief Justice & another; Office of the Director of Public Prosecutions & another (Interested Parties)[2021] eKLR].

14. In regards to contradictions and inconsistencies that PW5 stated that the complainant’s clothes were soiled while PW6 on the other hand testified that by the time the complainant was presented to the hospital for examination, she had already changed clothes, I rely on the case of John Mutua Musyoki v Republic, (2017) Criminal Appeal No. 11 of 2016 where the court was of the view that it must consider such contradictions to determine if they go to the root of the case. In the case of Joseph Maina Mwangi v Republic (2000) eKLR, the court considered this issue and held,“In any trial, there are bound to be discrepancies. An appellate court in considering these 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”.

15. In effect, the court is under duty to consider if indeed such inconsistency, if at all, is material to affect the conviction. In the instance case, the discrepancy is of no relevance since it does not go to the substance of the charge with which the appellant was charged. As such, that ground of appeal has no merit.

16. The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006 while in the end, the trial magistrate reached a determination that indeed the said offence was never proved but instead, the evidence adduced before the court supported the offence as provided for under section 5 of the SOA. In my view, the same is curable under Second Schedule of SOA No. 3 of 2006. The finding of the court remains legal under Section 184 of theCriminal Procedure Codewhich provides;186. When a person is charged with the defilement of a girl under the age of fourteen years and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under the Sexual Offences Act, he may be convicted of that offence although he was not charged with it.

17. Of importance to note is that the appellant was charged under the wrong provisions of the Sexual Offences Act but nonetheless, this court’s final determination is not any different from that arrived at by the trial court for the reasons explained above.

18. In reference to the sentence meted out, the legal position on sentencing was stated succinctly by the Court of Appeal for East Africa in the case of Ogola S/O Owoura v Reginum (1954) 21 270 as follows: -“The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James v R., (1950) 18 EACA 147:"It is evident that the Judge has acted upon some wrong principle or overlooked some material factor."To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case: R v Shershewky, (1912) CCA 28 TLR 364. "

19. The appellant was convicted under section 5 of the Sexual Offences Act which states that:1).Any person who unlawfully penetrates the genital organs of another person withi).any part of the body of another person; orii).an object manipulated by another …guilty of an offence termed sexual assault.2).A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.

20. In my view, the sentence imposed herein cannot be interfered with for the same is a resultant of the trial court’s exercise of its discretion as the appellant did not justify the interference. He did not prove that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle.

21. In view of the above, I find that the appeal has no merit and it is hereby dismissed.

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE……………………………………..….……for the Appellant……………………………………………for the Respondent