[2023] KEHC 26308 (KLR)

Ochieng v Republic (Criminal Appeal E012 of 2023) [2023] KEHC 26308 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26308 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E012 of 2023

DR Kavedza, J

December 8, 2023

Between

Ooko Washington Ochieng

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence imposed by Hon. I. M. Kahuya (P.M) on 5TH JULY 2022 in Sexual Offence No. 34 of 2018; Republic vs Ooko Washington Ochieng)

Judgment

1. The appellant was convicted and sentenced to serve 20 years imprisonment for the offence of defilement contrary to Section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006. Being dissatisfied with both the conviction and the sentence, the appellant filed an appeal in which he raised 2 grounds.

2. In both grounds the appellant contended that the prosecution did not proof their case beyond reasonable doubt.

3. As this is the Appellant’s first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno vs. Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oruri Mose vs. R [2013] e-KLR that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.

4. PW1 CN the complainant herein stated that on 9/11/2018 at 7pm, she was sent by her mother to buy vegetable and on her way back she met the appellant who was in company of another person at the gate. The appellant invited her over to his house and she accepted. They proceeded and after a short while the other man walked away and when the complainant stood up to leave, the appellant invited her to sit on the bed. The other man bolted the door from outside.

5. Shortly after the appellant sat on the bed then removed her inner wear before they had sexual intercourse. Thereafter the other man opened the door from outside. The complainant went home and found her mother looking for her. She explained where she had been and they proceeded to Isinya police station. On cross-examination she stated that there had developed some familiarity between her and the appellant and that is why she accepted the invitation.

6. PW2 P. B the complainants mother testified that on the material day the complainant went to the shop to fetch items for supper. When she returned home PW1 had however not returned prompting a search within the area. She reported the incident to the police and with their help they managed to find the complainant. On inquiry the complainant stated where she had been and what had happened. The appellant was arrested.

7. PW3 JGK the caretaker stated that on the material day at about 7. 30pm when PW2 reported that her daughter was missing. Together they searched the locality of the complainant and after 1hour they returned and found the complainant at home.

8. PW4 SSN the father to the complainant testified that he was at the market but when he went home he did not find his wife. Upon inquiry he was told that his wife had gone to look for the complainant he also went to look for them.

9. PW5 NO. 20010055 Sgt Thomas Mailu the arresting officer testified that on the material day, PW2 and PW3 went to the police station and reported about the disappearance of the complainant. He then effected the arrest of the Appellant.

10. PW6 John Njuguna stated that the complainant was examined at Nairobi Women hospital and the following was noted; she had small lacerations on her vagina and the hymen was missing. The general appearance was normal. The conclusion made was that the complainant had been sexually assaulted.

11. PW7 NO. 97882 PC Leonard Rotich the investigating officer stated that he compiled the relevant evidence before passing charges against the said appellant.

12. After the close of the prosecution’s case, the trial court found that the appellant had a case to answer and he was put on his defence. In his defence he gave unsworn defence he stated that on the material day he was walking home at around 10. 30pm when he passed by a grocery store and heard some noises. This prompted him to peep so that he could make some purchase and while his torch shone he spotted a minor seated inside. On inquiring what she was doing inside there, she kept quit even as blood oozed from under her clothing. He denied ever defiling or threatening the complainant.

Analysis and Determination 13. In his appeal, he challenged the totality of the prosecution's evidence against which he was convicted. He submitted that the elements of the offence of defilement were not proven beyond reasonable doubt. In rebuttal, the respondent submitted that the minor’s age was conclusively proven by her birth certificate, which showed that she was 15years old. Secondly, the appellant was positively identified, and penetration was proved beyond reasonable doubt. It was argued that the prosecution proved the elements of the offence charged.

14. Section 8(1) of the Sexual Offences Act, No. 3 of 2006 provides thus: -8. Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)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.(3)Any 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 not less than fifteen years.

15. Bearing in mind the above provisions, I will now analyze the evidence on record to ascertain whether the essential ingredients of the offence preferred against the appellant were established to the required standard of proof. I wish to state at the outset that the importance of proving the age of a victim, proof of penetration, and positive identification of the assailant in sexual offences is paramount.

16. The age of the complainant was not contested since the prosecution produced enough evidence which is the complainant’s birth certificate to proof the age of the complainant. Age was therefore proved beyond reasonable doubt.

17. In regards to penetration, it was the evidence of the complainant that the appellant asked her to accompany him to his house. The appellant then requested her to sit on his bed and they had sex. It is not indicated anywhere that the complainant screamed for help. Instead she quietly walked back home. The medical officer who examined the complainant said very little about the general condition of the minor. Her comments were that the complainant had small lacerations and that her hymen was not intact. The conclusion made was that there was sexual assault.

18. Regarding the identification of the appellant the complainant stated that she met a man at the gate who asked her to accompany him to his place. On cross examination she stated that she had met the appellant on other occasions. She equally directed the police officer to the place where the appellant stays. The appellant was therefore positively identified.

19. For the foregoing reasons, I have come to the same conclusion as the learned trial magistrate that in this case, the prosecution proved its case against the appellant beyond any reasonable doubt. I am thus satisfied that the appellant was properly convicted.

20. On sentence, the appellant sentenced to serve 20 years imprisonment. He was a first offender. Although sentences are intended, inter alia, to punish an offender for his wrongdoing, they also aim to rehabilitate offenders to renounce their criminal tendencies and become law-abiding citizens. I have no doubt that the sentence imposed by the trial court, in this case, was lawful but considering that the appellant was a first offender. However, I am satisfied that the sentence was harsh and manifestly excessive.

21. For the above reason, I hereby set aside the sentence of twenty (20) years imposed by the trial court and substitute it with a sentence of seven (7) years imprisonment. The sentence shall take effect from the date of the appellant’s conviction.Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023. ................................D. KAVEDZAJUDGEIn the presence of:Nyariota for the StateAppellant presentMateli C/A