[2022] KEHC 1076 (KLR)

Oloo v Republic (Criminal Appeal E026 of 2021) [2022] KEHC 1076 (KLR) (23 March 2022) (Judgment)

Simon Oduor Oloo v Republic [2022] eKLR

Neutral citation: [2022] KEHC 1076 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Appeal E026 of 2021

RE Aburili, J

March 23, 2022

Between

Simon Oduor Oloo

Appellant

and

Republic

Respondent

(An appeal against the judgement and sentence delivered by the Hon. Muthoni Mwangi Resident Magistrate on 28. 10. 2021 in Siaya Sexual Offences Case No. of 2019)

Judgment

1. The appellant herein Simon Oduor Oloo 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. Particulars of the offence being that on 18. 2.2019 at [Particulars Withheld] in North Gem location within Siaya County, he intentionally caused his penis to penetrate the vagina of MA, a child aged 4 years old. The appellant further faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The complainant and place of alleged offence are the same as in the main charge.

2. The appellant pleaded not guilty to both the main charge and the alternative charge. The matter proceeded to hearing and the trial magistrate Hon. Muthoni Mwangi after considering the evidence of the prosecution witnesses and that of the appellant found that the prosecution had proved their case against the appellant beyond reasonable doubt and proceeded to convict and sentence the appellant to serve life imprisonment.

3. The appellant filed his undated petition of appeal on the 24. 11. 2021 setting out the following grounds:a.That the trial court failed to observe that the sentence imposed is/was manifestly harsh and disproportionate.b.That the trial court failed to consider that my fundamental constitutional rights was/were violated and thus no ample time was the appellant given to defend himself.c.That the trial court did not consider that the investigation tendered was shoddy.d.That the trial court failed to consider that the subject was based on fabrication and afterthought.e.That the appellant herein beseeches the superior court to indulge into the same and or be pleased to reduce the sentence proportionately as enshrined in article 50 (2) p of the constitution.f.That I wish to be present at the hearing of this appeal and or be supplied with trial record to enable me erect more grounds.

4. The appeal was canvassed by way of written submissions.

The appellant’s submissions 5. The appellant submitted that the trial court erred in facts to consider that the circumstances and the particulars that formed the offence was not altogether put into much emphasis given that the record is mute on both aspects.(sic)

6. It was further submitted that the trial court failed to give explanations as to why it could not believe the appellant’s claim that offence in question was instigated by land issue, something that the appellant raised from the commencement to determination of the case. The appellant submitted that the trial court took his pauperism and laymanship to account and thus prejudiced him.

7. The appellant submitted that his statement of alibi was not considered by the trial court as was held in the case of Victor Mwenda Mulinge v R. It was further submitted that the trial court ought to have considered the circumstances of each case as well as mitigating factors by the appellant given that the appellant is/was a first offender and thus remorseful. Reliance was placed on the case of Simon Kipkurui v R (2019) eKLR.

8. The appellant submitted that there were various instances where the trial magistrate rested the burden of proof on him without considering the provisions of section 107 of the evidence Act that placed the burden of proof on the person who asserts.

9. The appellant further submitted that the mandatory nature of the sentence deprived the court of the legitimate jurisdiction to exercise discretion and thus submitted that he was entitled to the least severe of the prescribed punishment for an offence pursuant to Article 50 (2) (p) and Article 28 of the constitution and that as such, this court ought to disregard the harsh, unjust, unfair and unconstitutional sentence imposed on him.

The Respondent’s submissions 10. Opposing the appeal, the Respondent through the Senior Principal Prosecution Counsel Mr. Edward Kakoi submitted that the appellant who was the complainant’s uncle lured the complainant into his house, gave her a mandazi and banana then defiled her.

11. It was submitted that the age of the minor was proved vide age assessment which proved the minor was 5 years old as evidenced by the age assessment report produced as PEX 1.

12. Mr. Kakoi further submitted that penetration was proved by the testimony of PW1, the complainant, PW3 and PW5 who examined the complainant. Further, that the credibility of the witnesses was never an issue even in cross-examination.

13. On the identification of the appellant, it was submitted that the incident happened during the day and the appellant was well known to the complainant, PW2 and PW3. Regarding the sentence passed on the appellant, it was submitted that the mandatory sentence provided by law was life imprisonment.

14. Regarding the alleged violation of the appellant’s right to adequate time to prepare for his case, Counsel submitted that the appellant was supplied with witnesses’ statements on the 23. 1.2019 whereas the trial commenced on the 20. 2.2020 which was adequate time for the appellant to prepare for his case and further that the appellant at no time requested for more time to prepare his defense.

15. It was further submitted that investigations were properly and fully done and that the case was based on solid cogent evidence and that none of the witnesses who testified was shaken on cross examination and further that the appellant’s allegations that the case was based on a land dispute were correctly dismissed by the trial court.

Analysis 16. I have considered the appellants’ grounds of appeal, his submissions and the opposing submissions by the State before making my determination, I must, as a first appellate court, reconsider and re-evaluate the evidence on record, bearing in mind that I did not see or hear the witnesses, and reach my own independent conclusion -See Okeno v R [1972] EA. 32 and Mohamed Rama Alfani & 2 Others v Republic, Criminal Appeal No. 223 of 2002.

17. The evidence adduced before the trial court was as follows: PW1, the complainant minor child was taken through a voire doire examination and found appreciating of the nature of and oath. She testified that on 18. 11. 2019 a man, whom she called ‘m’ asked her to be his friend and then asked her to get bananas from his house and that they should do ‘tabia mbaya’. The complainant stated that the boy was big like her father.

18. It was her testimony that the said man then proceeded to do the said ‘tabia mbaya’ on the bed behind the curtain and that she felt pain during the incident. She also felt pain on her hand and knees. It was her testimony that she was wearing a trouser which the appellant removed before doing the ‘tabia mbaya’ to her.

19. The complainant further testified that the appellant then told her to leave his house and she went back home and told TA of the incident and she also revealed the person who did bad manners to her. She further testified that she did not know her assailant prior to the incident and that though he gave her a banana she did not eat it but gave it to T.

20. The complainant who, according to the trial court record appeared visibly scared in court identified the appellant as the person who defiled her. In cross-examination, the complainant was recorded t have been firm and restated her assertions against the appellant. She further denied the appellant’s assertion that her mother had told her to lie in court.

21. PW2 JA testified that on the 19. 11. 2019 at 5pm, the complainant told her that Bier, the appellant’s village name, had given her mandazi and taken her to his house where he locked her up and did ‘tabia mbaya’ to her. PW2 further testified that the complainant informed her that the appellant released some whitish discharge on her private parts. PW2 then reported the incident to the complainant’s mother. She further testified that the appellant was well known to her as he was her cousin. In cross-examination, PW2 stated that she did not see any sperms on the complainant and that the complainant walked normally after the incident. She further stated that the appellant had warned the complainant from disclosing to anyone what had happened.

22. PW3 VA testified that the complainant was 5 years old having been born on the 13. 3.2015 though she had not taken up a birth certificate for her but only had a child clinic card. It was her testimony that on 20. 11. 2019, one IA informed her that the complainant had told her that Bier lured the complainant with mandazi and a banana and did ‘tabia mbaya’ to her.

23. PW3 testified that she later interrogated the complainant who demonstrated to her what had happened and further stated that Bier poured something that looked like milk on her. It was her testimony that her daughter feared to tell her what had happened and instead told I who subsequently told her. It was her testimony that at the time of washing the complainant, she realised that the complainant was in pain and so she took her to Mutumbu where she was examined and tests carried out. It was her testimony that she knew B very well as he was a relative of her husband.

24. In cross-examination, PW3 stated that as she washed the complainant’s legs, the complainant did not want to part her legs as she indicated that she felt pain in her private parts. She further stated that the complainant told her that it was the second time that Bier had done ‘tabia mbaya’ to her and that he had given her a banana and told her not to tell anyone what had transpired.

25. PW4 No. 112539 PC Wekesa Vollin testified that she took over the case from one P.C. Judith who had since gone on transfer to Rongo. It was her testimony that on the 20. 11. 2019 a woman named VAwent to the station and reported that her daughter had been defiled by a person known as BA. She testified that they went to hospital where the P3 form issued to them was duly filled and subsequently an age assessment was carried out on the complainant that indicated the child was 5 years old. She produced the age assessment report as PEx 1.

26. In cross-examination, PW4 stated that the P3 form was duly stamped and if that of the appellant did not show a stamp then it was probably due to the fact that it may have faded owing to passage of time. She further stated that the appellant was not medically examined and that the complainant reported the incident on the 19th and the incident reported at the station on the 20th November.

27. PW5 Shadrack Kennedy a clinical officer from Yala gave evidence on behalf of his colleague Everline who had since been transferred from the hospital, evidence that the complainant was taken to the hospital on the 18th and 19th November 2019 with a history of having been defiled by a person well known to her.

28. It was his testimony that the complainant reported feeling a lot of pain during the defilement and on examination of her genitalia, there was a foul smelling vaginal discharge. He stated that there was no tear however there was pain and tenderness on vaginal examination.

29. PW5 further testified that on high vaginal swab there were pus cells as well as numerous epithelial cells seen. It was his testimony that there was evidence of penetrative coitus though it was not deep. He further testified that the complainant was seen 48 hours after the incident.

30. PW5 testified that the P3 form was filled at Malanga by his colleague Everline who noted that there was vaginal pain when she attempted to do the examination. He further testified that there were numerous epithelial cells which indicated that there was some friction. PW5 produced the P3 form as PEx 2.

31. In cross-examination, PW5 stated that there were no spermatozoa but there were numerous epithelial cells seen. He further stated that the complainant reported that it was the appellant who had defiled her. She added that the appellant was not examined.

32. At the close of the prosecution case, the appellant was placed on his defence and he opted to give sworn testimony in which he stated that on 15. 11. 2019 as he was returning home from work, he found that someone had planted crops on his farm and that he also saw PW2 cutting down trees and she told him to stand where he was.

33. It was his testimony that he went and found a police woman who handcuffed him and he was placed in a land cruiser and taken to the police station and subsequently brought to court after 11 days.

34. In cross-examination, the appellant testified that he did not know the complainant before this case and that the medical evidence was a lie. It was his testimony that he was being framed so that his land could be taken as there was an old man who wanted to sell it to PW2. The appellant further testified that all the dates given in the case against him were a lie.

Determination 35. I have considered the grounds of appeal herein as well as the evidence for the prosecution and the defence in the trial court. I have also considered the submissions for and against the appeal herein. I find the following issues for determination:a.Whether the appellant was given adequate time to prepare his defenceb.Whether the investigation done was shoddy and what is the resultant effectc.Whether the sentence imposed on the appellant was manifestly harsh and should be interfered with.

36. On Whether the appellant was given adequate time to prepare his defence, it is the appellant’s case that he was not given adequate time to prepare his defence thus infringing on his constitution

37. Article 50 (2) (c) of the Constitution guarantees every accused person the right to have adequate time and facilities to prepare his/her defence. This means that every accused person has the right to a fair trial which includes the right to have adequate time and facility to prepare his or her defence.

38. The aforementioned right cannot be met if the accused is not given the evidence that the prosecution intend to rely on during the trial so as to enable him/her prepare his/her defence.

39. In this case, the appellant claims that he was not given adequate time to prepare for his trial. On the part of the State, Mr. Kakoi Senior Principal Prosecution Counsel submitted that the appellant was supplied with witnesses’ statements on the 23. 1.2019 whereas the trial commenced on the 20. 2.2020 which was adequate time for the appellant to prepare for his case and further that the appellant at no time requested for more time to prepare his defense.

40. I have perused the trial court record and note that what the prosecution have stated is the true position. The time between the issuance of witnesses’ statements to the commencement of trial is of over a year. This, in my humble view, was more than sufficient time for the appellant to prepare for his defence.

41. In the circumstances, this ground of appeal is devoid of any substance and is hereby dismissed.

42. On Whether the investigation done was shoddy and its resultant effect, the appellant pleaded in his grounds of appeal that the investigations done were shoddy and that the trial court failed to consider that the subject matter before it was a result of fabrication and an afterthought. In essence, the appellant faults the evidence gathered against him and deems it not to be sufficient to sustain a conviction against him. It must be recalled that the appellant stated that the case against him arose out of a land dispute.

43. In response to the above assertion, Mr. Kakoi for the state submitted that investigations were properly and fully done and that the case was based on solid cogent evidence and that none of the witnesses’ evidence was shaken on cross examination. Further, that the appellant’s allegations that the case was based on a land dispute were correctly dismissed.

44. I will now turn to the evidence adduced by the prosecution in order to determine whether the same was sufficient to sustain a conviction.

45. Section 8 of the Sexual Offences Act provides as follows:“8. (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.”

46. To sustain a conviction in a defilement charge, certain elements must be proved beyond reasonable doubt. The first element is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child and of what age; and finally, whether the penetration was done by the Appellant. See the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, where it was stated that:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

47. The age of the complainant in this case was proved by the testimony of the complainant’s mother, PW3 who testified that the complainant was 5 years old at the time of giving her testimony on 20. 2.2020. PW4 PC Vollin Wekesa corroborated PW3’s testimony on the complainant’s age by producing PEx 1 an age assessment report which showed that the complainant was aged 5 years old.

48. On the identification of the appellant as the perpetrator of the offence, the complainant minor testified though visibly nervous, that on 18. 11. 2019, while her mother was away, B went to her, told her that he wanted her to be friends with him then he told her to go for some bananas at his house and when she went to his house, he did tabia mbaya on his bed behind the curtain after removing her trousers. She felt pain she felt pain on her knees. He then told her to leave which she did and she told TA PW2 about what Bier had done to her.

49. She described the appellant and the trial court observed that she was firm the trial court believed her testimony on identification of the perpetrator as it was during daytime when the offence took place and the minor identified the appellant in court. The trial court warned itself of the dangers of relying on evidence of a single identifying witness who was also a minor but observed that the appellant lived only about 30-40 meters away from their home and that the child told PW2 exactly what the appellant had done to her. The child even carried a banana which she told PW2 that it was B who gave her. The child mentioned the appellant as B- his village name meaning she knew him by name. The minor r also told PW3 that it was B who did to her tabia mbaya. The appellant was well known to PW2 and PW3 who did tabia mbaya to her. Therefore, although the minor stated that she did not know the appellant before that incident, the evidence that followed clearly showed that she knew the appellant well. That discrepancy in my view is minor considering that this was a very young child aged 5 years and was visibly shaken in court as observed by the trial court that she had signs of trauma and was afraid every time she looked at the appellant in the dock. In S O O v Republic [2018] eKLR Criminal Appeal 37 of 2017 this Court observed that:“That notwithstanding, a bit of inconsistencies in the evidence of a child of 10 years, which does not go to the core of the case and which is not material as was in this case. That in itself did not in any manner distort or dislodge the defilement of the material day subject of the charge and of the other days as there was indeed penetration. The court must consider the evidence adduced as a whole and not selectively and the victims age and ability to recollect in a concise form ought to be factored in. These expositions are confirmed in the case of In DICKSON ELIA NSAMBA SHAPWATA & ANOTHER V. THE REPUBLIC, CR. APP. NO. 92 OF 2007 where the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view I respectfully adopt:“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”[emphasis added].

50. I find no ground upon which to differ with the trial court’s finding of fact that the complainant was firm in her identification of the appellant even though she testified that the appellant was not known to her prior to the defilement.

51. On whether the element of penetration was proved beyond reasonable doubt, it is worth noting that in Sexual Offences, the evidence of the victim is enough to convict the accused person as provided in Section 124 of the Evidence Act, if that evidence is found by the trial court to be soundly credible and believable.

52. The complainant vividly testified of how the appellant lured her into his house claiming that he was to give her a banana before proceeding to defile her on his bed behind the curtain. The complainant was firm even in cross-examination despite the fact that the trial court noted that she was scared of the appellant.

53. Further, PW5, a clinical officer at Yala testified and produced the P3 form, as PEx 2, concluding that that the Clinician who examined the minor concluded after examination that there was penetration thou not deep penetration.

54. From all the above evidence it is clear that the prosecution proved beyond reasonable doubt that there was penetration. I find no gaps in the prosecution case to warrant this court make a finding that the investigations were shoddy or that the trial court erred in any way in its findings of fact and law.

55. The appellant also submitted that the trial court failed to consider his alibi. A perusal of the trial court’s record of proceedings and judgement reveals that the trial magistrate considered the appellant’s defence and noted that none of the issues raised therein were raised by the appellant in cross-examination and deemed them as a mere afterthought. I have also perused that defence and I find nothing in the form of alibi being raised by the appellant who simply stated how he was coming from work when he was arrested and claims that this was on 15/11/2019 and not on the date when the offence took place on 18th November, 2019 or thereafter. I find the alleged defence of alibi not to have been raised at all. It follows that an alibi defence cannot be raised on appeal as the trial court did not have the benefit of hearing and addressing it in her judgment. It is an afterthought and is hereby dismissed. In addition, the allegation that there was a land dispute which was the cause of the complainant’s family framing the defilement case against him did not dislodge the prosecution’s evidence against the appellant.

56. On Whether the sentence was manifestly harsh and should be interfered with, the appellant submitted that the sentence passed on him was excessive and manifestly harsh and that the trial court failed to individualize the circumstances of the offence thus leading to his over punishment. He further urged the court to reconsider his sentence taking into account the provisions of Article 50 (2) p of the Constitution.

57. The offence the appellant was charged with carries a life imprisonment sentence upon conviction. In his mitigation, which the trial court considered, the appellant stated that he had a wife and 3 children with one child who was disabled. He further stated that he had a mother whom he was her caretaker. The appellant reiterated that he did not commit the offence and urged the trial court to set him free. The trial Magistrate called for a presentencing report which was filed. She applied herself to the lengthy report which revealed how the appellant was a very violent person and how upon his arrest, his relatives invaded the home of the victim and threatened her family until her mother had to relocate to Nairobi.

58. Sentencing is in the discretion of the trial court. In Bernard Kimani Gacheru v Republic (2002) eKLR, the Court of Appeal stated 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.”

59. In the circumstances, having found that the trial magistrate exercised her discretion correctly and judiciously and meted out a lawful sentence, I see no reason to interfere with the sentence meted out on the appellant considering the circumstances of this case. The appellant herein methodically set out to lure the complainant, a minor of 4 years at the time of the offence with a banana, before defiling her. The traumatic effect of the incident on the complainant is far reaching and life changing as was similarly noted by the trial magistrate.

60. Moreover, contrary to the submissions by the appellant that the mandatory nature of the sentence passed against him was contrary to the ruling in the Muruatetu case, it is noteworthy that on the 6th of July 2021, the Supreme Court in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR issued directions to the effect that Muruatetu 2017 as it stands now is inapplicable to other offences that carry mandatory sentences other than under Section 204 of the Penal Code, for the offence of Murder.

61. Accordingly, the sentence of life imprisonment as provided for in section 8 (2) of the Sexual Offences Act remains legal and constitutional.

62. Taking all the above into consideration, I find and hold that the appeal herein against conviction and sentence is devoid of merit. I dismiss it and uphold the conviction and sentence imposed on the appellant by the trial court.

63. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 23RD DAY OF MARCH, 2022R.E. ABURILIJUDGE