[2022] KEHC 12013 (KLR)

Nyangaresi v Republic (Criminal Appeal 1 of 2019) [2022] KEHC 12013 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12013 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Appeal 1 of 2019

F Gikonyo, J

June 8, 2022

Between

Samuel Kipesa Nyangaresi

Appellant

and

Republic

Respondent

(From the conviction and sentence of Hon. H. Ng’ang’a (S.R.M) in Narok SOA No. 9 of 2018 on 3rd February 2019)

Judgment

[1]This appeal is challenging the conviction and sentence to serve life imprisonment imposed on the appellant on February 3, 2019 for defilement.

[2]The appellant seems to have amended the grounds in the undated Memorandum of Appeal filed on 08/01/2019. In his written submissions he cited 4 amended grounds of appeal as follows;i.That the trial magistrate erred in law and fact by convicting the appellant yet failed to find that the trial was not fair hence violating articles 25 ( c) and 50 (2) of the Constitution.ii.That the prosecution did not prove penetration as an ingredient of defilement.iii.That the defence of the accused was rejected without weighed.iv.That the trial court meted out a harsh sentence without regard to the mitigating factors.

Submissions [3]The matter was canvassed by way of written submissions.

Appellant’s submissions. [4]The appellant filed written submission which are considered in the judgment below. They also cited the following authorities in support thereof: -i.Articles 25 (c), 27 and 50 (2) (4) of the Constitution.ii.Elijah Njihia WakiandavRepublic[2016] eKLR.iii.Thomas Patrick Gilbert CholmondleyvRepublicCriminal Appeal No. 116 of 2007. iv.RvStinchcombe [192] LRC (Cri) 68v.Simon Githaka MalombevRCriminal Appeal No. 314 of 2016. vi.K W v Republic [2012] eKLR.vii.Julius Kioko KivuvavRepublic [2015] eKLRviii.Stateof PunjabvJagir Singh [1974] 3CCix.NgukuvRepublic[1985] eKLRx.Criminal Appeal 56 of 2016 – Philemon KoechvRepublicxi.Section 333 (2) CPC

The respondent’s submissions. [5]The respondent filed written submissions which are fully considered in the judgment below. They also cited the following authorities in support thereof: -i.Section 107(1) Evidence Act.ii.WoolmingtonvDPP [1935] AC 462iii.MilllervMinister of Pensions[1947] 2 All er 372 at 373. iv.Japheth Gituma Joseph & 2othersvsR [2016] eKLR.v.Section 8(1) and 8(2) Sexual Offences Act.vi.Kyalo KiokovRepublic [2016] eKLR.vii.Mwalango Chichoro MwanjembevRepublic[2016] eKLRviii.Section 216 & 329 of the CPC.ix.Kamaru WanyingivRepublic [2008] eKLRx.RepublicvThomas Gilbert Cholmondeley [2009] eKLR.xi.Joseph Mureithi KanyitavRepublic [2017] eKLR.

Analysis And Determination. Court’s duty [6]As a first appellate court, I shall re-evaluate the evidence and make own conclusions, except, bearing in mind that I neither saw nor heard witnesses; matters of demeanor of the witnesses are best observed by the trial court Okeno v Republic [1972] EA 32

[7]I have considered the grounds of appeal, evidence adduced in the lower court and the rival submissions of the parties. I find the main issues for determination are;i.Whether the prosecution proved its case beyond reasonable doubt.ii.Whether the appellant was accorded a fair hearing.iii.Whether the appellant’s defence was considered.iv.Whether the sentence was manifestly harsh and excessive

Elements of offence of defilement [8]The charge herein was of defilement. According to section 8 (1) of the Sexual Offences Act: -“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.8(2) a person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to imprisonment for life.”

[9]Thus, the specific elements of the offence defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:1)Age of the complainant;2)Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and3)Positive identification of the assailant.

[10]See the case of Charles Wamukoya Karani vs. Republic,Criminal Appeal No. 72 of 2013)

Age of the complainant [11]Defilement is a sexual offence committed against a child. Thus, proof of age of the victim is important element of the offence. Age of the child has also been used as an aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence.

[12]The respondent submitted that the age of the victim was proved; and that no material has been placed before the court by the appellant to dispute the age of the victim. They stated that the appellant did not even submit on this issue.

[13]I hope the foregoing submission does not presume that the accused has the onus of disapproving age of the victim. On the contrary, it is the onus of the prosecution to prove every element of the offence beyond reasonable doubt.

[14]That notwithstanding, the evidence before the court is this: PW1 testified that she was 10 years old and in class 1 at [Particulars Withheld] Primary School. She also informed the court that her age was assessed to be between 9-10 years.

[15]PW2- a clinical officer in his evidence confirmed that PW1 was 10 years old as indicated in P3 form (p exh1).

[16]PW3-an investigating officer stated that she requested for age assessment to be done on PW1. She was found to be 10 years old. She produced the report as P Exh 5.

[17]On the basis of the evidence, I find that the prosecution proved that the complainant was 10 years old, and therefore, a child.

Penetration [18]The appellant submitted that penetration was not proved and the trial magistrate canvassed what was not given in evidence. According to the appellant, it is not possible for a fully grown man to have sex with a 10 year-old while the 10 year old is standing.

[19]The respondent submitted that the ingredient of penetration was proved to the required standards through the evidence of PW1 and PW2.

[20]I dig from the well of evidence. PW1 testified that the appellant removed her under pant and did ‘tabia mbaya’ to her. She was standing as he did ‘tabia mbaya’. The appellant had removed his trouser and removed his thing for urinating and entered into her thing for urinating.

[21]PW2, a clinical officer testified that he examined the victim. She had no bodily injury. On further examination, external genitalia was normal. She had broken hymen with inflamed introitus; that is vaginal canal. There was greenish discharge like pus. Syphilis, hepatitis B were negative. There was pus in the urine. High vaginal swab revealed epithelial cells which is fungi infection. He stated that the torn hymen and inflamed vagina is an indication of defilement. He subsequently filled a p3 form on 1/2/2018 which was produced as P Exh 1. He also produced treatment notes and lab request as P Exh 2 and 3 respectively. During cross examination, he stated that he found the girl had been defiled though no spermatozoa were seen but the hymen was broken.

[22]Section 2(1) of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

[23]Penetration was further explained in the case ofMark Oiruri Mose v R[2013] eKLR by the Court of Appeal, that: -“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.” (Emphasis added).

[24]In light thereof, it is totally indefensible the argument by the appellant that the trial court misconstrued the evidence of PW2, Clinical officer on penetration.

[25]PW2 was very clear that penetration did occur. Notably the incident was done while PW1 was standing. However, this does not rule out penetration. The inevitable conclusion from the analysis of the evidence is that there was ample evidence to prove that penetration did occur. I accordingly find so and reject the appellant’s argument that since PW1 was standing it was not possible to penetrate her.

[26]I find and hold that, the evidence of the complainant as corroborated by medical evidence proves there was penetration of the child. But by whom?

Was the appellant the perpetrator? [27]The respondent submitted that; the appellant was someone well known to the victim; the appellant never denied that he knew PW1; therefore, the appellant was positively identified as the one who defiled PW1. The appellant did not submit on this issue. Nonetheless, what does the evidence evince?

[28]PW1 testified that the appellant was well known to her. She testified that on the material day her mother had sent her to the appellant whom she referred to as ‘moi’ to bring a jiko. She described where the appellant lived; the right side; and where their home was; the lower side. She found him in the house and informed him that her mother had sent her. He directed her to get the jiko. The appellant then closed the door. He then started to defile her. He was later found by the father of PW1 in the act. The appellant was arrested at the scene.

[29]Therefore, there was no mistaken identity. The victim and the appellant were neighbours and so she knew him well.

[30]In his unsworn testimony, the appellant did not dispute he knew the victim. He only alleges of a beating which he did not raise during cross examination.

[31]Accordingly, I find that there was no element of mistaken identity of the appellant as the person who penetrated her genitalia. The evidence by the prosecution leaves no doubt that the appellant caused penetration of the complainant. Before I close of proof of case, matter of fair hearing raised are pertinent.

Of fair hearing [32]The appellant submitted that he was not accorded a fair hearing. The statements were written in English a language he did not understand. That he had indicated to the court that he understood Kiswahili. He was not given all witness statements when the trial began. He took plea and proceeded with the hearing on the same day therefore, was not given sufficient time to prepare for the hearing. He applied to call PW1 but the court denied him the right.

[33]The respondent submitted that it should be noted that the appellant’s submissions are prepared in English language and at no point did the appellant raise the issue of the language.

[34]Article 50 (2) stipulates that every accused person has the right to a fair trial. The said right includes the right;“(j)To be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.”

[35]The record of the proceedings shows that on February 2, 2018 after plea had been taken, the prosecutor applied to have the testimony of the child (pw1) taken on the same day and that the accused will be supplied with pw1’s statement. At 1. 25p.m the same day before Hon. H. Ng’ang’a SRM, the appellant confirmed that he had been given statements and he understood Kiswahili. He indicated that the case can proceed.‘I have been given statements. I understand Kiswahili. We can have the case.’

[36]From the record, the appellant cross examined PW1. Until that stage in the proceedings, the trial went ahead only after the accused had told the Court that he was ready. He did not raise any concern on the language used in recording the statements.

[37]In the circumstances, I hold that the Appellant has failed to prove that Witness Statements were not supplied to him prior to the commencement of the hearing. He confirmed he had received the statements,

[38]On 3/9/2018, the appellant applied to recall PW1. The trial court read to the appellant in Kiswahili language the evidence of PW1. The appellant indicated that he understood what was read to him but still wanted to recall her. The trial court disallowed the application on the ground that the appellant had not specified the nature of further cross examination sought to enable the court rule in his favour. It should be noted that there must be a basis to recall witnesses. The appellant provided none, and so his request was rightfully denied.

[39]On November 21, 2018, the appellant again applied to recall PW1. This time the appellant stated that he wanted to recall PW1 because at the time she testified he did not have her statement. The trial court dismissed his application stating that the prosecution had indicated difficulty in tracing PW1 since they had relocated and her parents could not be reached on phone. Again, there were good grounds to reject his further bid. These grounds fail.

Whether the appellant’s defence was considered. [40]The appellant submitted that his defence was rejected without being weighed. He also argued that the court opined that failure by the prosecution to call the father and mother of the victim was not fatal to the prosecution’s case. He took the view that it was not upon the accused to prove his innocence.

[41]The respondent submitted that the appellant’s defence was duly considered by the trial court.

[42]The appellant gave unsworn statement. He alleged that 3 days prior to the incident he had argued with the complainant’s father over an incident in which the father had beaten PW1. The appellant alleged that the complainant’s father had accused him of having an affair with the complainant’s mother. He confirmed that the mother of PW1 send her to him to borrow stuff and made advances to him. The mother to PW1 had indicated to him in 2017 that she will divorce her husband.

[43]I have noted that the issues which were raised by the appellant in his defence were never raised during cross examination.

[44]The trial court analyzed the defense raised by the appellant and found it to be an afterthought.

[45]I therefore find that the trial court considered the defense of the appellant and dismiss this ground of appeal.

Proof of prosecution case [46]In the upshot, I find that the prosecution proved penetration of a child. The appellant was positively identified as the person who caused penetration of the complainant. There was no mistaken identity or error. Consequently, I find that the prosecution proved their case beyond reasonable doubt. Therefore, the trial court convicted the appellant for defilement on the basis of the evidence adduced. The appeal on conviction therefore lacks merit and is hereby dismissed.

On sentence [47]The appellant submitted that he was sentenced to life imprisonment which was mandatory. He prayed that the time served in remand custody be considered since he has the right to equal benefit and protection of the law.

[48]The respondent submitted that the sentence passed by the trial court was not illegal or unlawful. The court duly considered his mitigation circumstances in arriving at the sentence.

[49]The penalty clause upon which the appellant was sentenced is Section 8 (2) of the Sexual Offences Act which provides: -“A person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to imprisonment for life.”

[50]The offence is serious. I take into account that the accused is first offender. I also take into account that he showed remorse at the trial as was observed by the trial court. It seems, however, from the judgment of the trial court that the trial magistrate believed only one sentence is prescribed in law; life sentence- and to which he condemned the accused. He stated, thus: -‘…the accused however committed a heinous act which will forever cause emotional trauma on the complainant, a child of tender years. The offence is prevalent in the jurisdiction and minimum sentenced prescribed.I sentence the accused to serve life imprisonment.’

[51]In so far as the trial court felt it did not have, and did not exercise discretion in sentencing the applicant, there is lawful justification to inquire whether the sentence passed was appropriate sentence.

[52]I do note that indeed this is a serious offence against a small girl of the age of 10 years which took away her innocence. In addition, sexual offences ordinarily cause trauma to, and compromises the integrity of the victim as a human being. Future references to or flash-back of the incident of the sexual assault, either in the memory of the victim or by others or by whatever circumstances reminds of the trauma, shakes the very foundation of the life of the victim. It is such an offence with dire post traumatic consequences. Nonetheless, whereas the applicant should pay for his crime, and act as a deterrent for such debauchery, I should also give the applicant an opportunity to be re-integrated back into society and be a productive citizen. Life sentence may not achieve these purposes. Accordingly, I set aside the life sentence and in lieu thereof sentence him to 25 years’ imprisonment.

Of Section 333(2) CPC. [53]The appellant submitted that the trial magistrate did not exercise discretion given mandatory nature of the sentence of the offences under section 8(1) (2) of S.O.A. and did not take into account time spent in custody.

[54]I have perused the trial court record and found that the appellant was first arraigned in court on 2/2/2018. The sentence will run from the date he was first arraigned in court; 2/2/2018. It is so ordered.

[55]Right of appeal explained.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 8TH DAY OF JUNE 2022F. GIKONYO MJUDGEIn the Presence of :1. The Appellant2. Ms. Torosi for Republic3. Mr. Kasaso - CA