[2023] KEHC 26452 (KLR)

Nyakundi v Republic (Criminal Appeal E017 of 2023) [2023] KEHC 26452 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26452 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Appeal E017 of 2023

KW Kiarie, J

December 7, 2023

Between

Fredrick Nyakanga Nyakundi

Appellant

and

Republic

Respondent

(From the original conviction and sentence in S.O. Case No.71 of 2019 of the Chief Magistrate’s Court at Kisii by Hon. D.O Mac’Andere –Resident Magistrate)

Judgment

1. Fredrick Nyakanga Nyakundi, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No.3 of 2006.

2. The particulars of the offence were that on the 18th day of June 2019 in Nyakoe location Sub-county of Kisii County intentionally and unlawfully caused his penis to penetrate the vagina of AB, a child aged nine years.

3. The appellant was sentenced to life imprisonment. He has appealed against both conviction and sentence.

4. The appellant was in person. He raised grounds of appeal as follows:a.That the trial magistrate erred in law and fact by holding that the prosecution case was proved beyond reasonable doubt whereas it was not proved.b.That the learned trial magistrate erred both in law and fact by passing judgment out of mere fabricated evidence having no credible proof from the prosecution given that the appellant did not commit the said crime.c.That the learned trial magistrate erred in both law and fact by basing judgment conviction and sentence without notwithstanding that there was no proof from the medical officer to support the same allegation as alleged.d.That the trial learned magistrate equally erred in law and fact without noticing that the medical report adduced did not show whether it was the appellant herein who had committed the purported crime.e.That the learned trial magistrate never had an authentic proof since the investigating officer relied on the hearsay report and information adduced by the complainant’s family.f.That the learned trial magistrate never realized that the said complainant was not found with the accused and no proof links the appellant.g.That the learned trial magistrate only relied on strength of mere suspicion that was never proved beyond a reasonable doubt.h.That the learned trial erred in both law and fact by basing conviction without a proper pre-sentencing report.i.The trial magistrate erred in law and in fact in imposing a punitive sentence that was manifestly excessive.

5. The state opposed the appeal, arguing that the prosecution had met the required standards and that the sentence was appropriate. Justus Ochengo represented the state.

6. As a first appellate court, I have thoroughly reviewed all evidence that was presented in the lower court. Despite not having seen or heard any witnesses, I have come to my conclusions. I will be using the precedent set by the well-known case of Okeno vs. Republic [1972] EA 32 as guidance.

7. Section 8(1) of the Sexual Offences Act defines defilement in the following terms:A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

8. An offence of defilement, therefore, is established against an accused person when the prosecution has proved the following ingredients:a.That there was penetration of the complainant’s genitalia;b.That the accused was the perpetrator; andc.The age of the complainant was below eighteen years.These ingredients were restated in Fappyton Mutuku Ngui vs. Republic [2012] eKLR as follows:Going by this definition of defilement, I agree with Mr. Mwenda on the issues which the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.These are the ingredients that the prosecution must prove against an accused person.

9. The complainant (PW1) testified that she was nine years. Her copy of the Certificate of Birth indicates that she was born on the 7th day of September 2010. It was issued on the 28th day of November 2011. As of the 18th of June 2019, she was 8 years and 9 months. Her age, for the compliance with section 8 (2) of the Sexual Offences Act, was proved. The section provides: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.

10. According to the complainant, this was a very harrowing experience for her. Her evidence was that the appellant asked if she could allow him to kiss her or touch her private parts. When she declined, he proposed they move to a more secluded place. He vowed to teach her and her family a lesson. He then pulled her by the stomach and she felt a lot of pain. He caught her by the neck and knocked her down. He strangled and she “slept”. When she woke up, she was feeling dizzy and some of her clothes were missing. This included her skirt, petticoat, and shoes. She was assisted to her home by a lady. Her tongue was painful.

11. It would appear this child passed out and could not tell what transpired to her thereafter.

12. GBM (PW5) is the lady who escorted the complainant to her home. When she encountered her, she was crying and appeared confused. She found her in some Napier grass. She informed her that the appellant wanted to strangle her. She said the complainant had soil on the back of her head.

13. The evidence Daniel Nyameino (PW6) a clinical officer, was that when the complainant went to the hospital for examination, she was taken in the company of a pair of trousers that were soiled. Both eyes were red and the left eye had a subconjunctival hemorrhage. The tongue was bitten on the left side and was painful. She sustained multiple scratch marks on the neck. The neck was tender to the touch. There was redness on the external genitalia and the introitus. There were however no tears on the hymen. He concluded that there was defilement.

14. Section 2 of the Sexual Offences Act defines “penetration” to mean:…the partial or complete insertion of the genital organs of a person into the genital organs of another person;

15. There was proof of penetration into the genitalia of the complainant.

16. The evidence against the appellant is circumstantial. In the case of Mohamed & 3 Others vs. Republic [2005]1KLR 722 Osiemo Judge explained what circumstantial evidence is as follows:Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for reasonable inference of the occurrence of the fact at issue. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

17. In the instant the appellant an alibi. When an accused has pleaded an alibi, the onus is on the prosecution to prove that the alibi is not true. In the case of Kiarie vs. Republic [1984] KLR the Court of Appeal held:An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.

18. This burden does not leave the prosecution even when it is raised during defence. In the case of Victor Mwendwa Mulinge vs. Republic [2014] eKLR the Court of Appeal rendered itself as follows on the issue of alibi:It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja V R, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.I will therefore endeavour to find out if the prosecution discharged this burden.

19. Contrary to the contention of the appellant that he was at his home picking tea, Francis Ongira Mokaya (PW4) testified that the appellant went to where he was working and greeted them before leaving. This was the home of Peter Mose. Peter Nyangori Obebo (DW2), his witness introduced some doubtful evidence. He said that he met the appellant and Peter, his employer at Nyakoe, the appellant informed him that he was pursuing his debt. Since he did not testify that he was at that moment doubtful of the intentions of Peter Mose, why would he inform DW2 what he was going for with Mose? Secondly, when Peter Nyakundi Mose (PW2) testified that he was asked to rush home from Kisii, his evidence went unchallenged. He was not confronted with the contention of the appellant and his witness.

20. I therefore find that the learned trial magistrate was right in dismissing this alibi as an afterthought. The circumstantial evidence points at the appellant as the perpetrator of the defilement of the complainant.

21. The appellant contended that the sentence was excessive. An appellate court would interfere with the sentence of the trial court only where there exists, to a sufficient extent, circumstances entitling it to vary the order of the trial court. These circumstances were well illustrated in the case of Nillson vs. Republic [1970] E.A. 599, as follows:The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly 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 Vs. REX (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 Vs. Shershewsity (1912) C.CA 28 T.LR 364.

22. Section 8 (2) of the Sexual Offences Act provides that upon conviction, the offender shall be sentenced to imprisonment for life.

23. The appellant was sentenced to serve the prescribed sentence. This sentence is legal and there is nothing unconstitutional about it. There is nothing on record that persuades me to vary this sentence.

24. The upshot of the foregoing, therefore, I find that the appeal lacks merit. I accordingly dismiss it.

DELIVERED AND SIGNED AT KISII THIS 7THDAY OF DECEMBER 2023KIARIE WAWERU KIARIEJUDGE