[2024] KEHC 10904 (KLR)

Omia v Republic (Criminal Appeal E001 of 2022) [2024] KEHC 10904 (KLR) (20 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10904 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E001 of 2022

JRA Wananda, J

September 20, 2024

Between

Benard Ouma Omia

Appellant

and

Republic

Respondent

Judgment

1. The Appellant was charged in Eldoret Chief Magistrate’s Court Criminal Cause (Sexual Offences) No. 266 of 2019 with the offence of defilement contrary to the provision of law described as “Section 8(1)(2) of the Sexual Offences Act, No. 3 of 2006”.

2. The particulars were that on 16/11/2019, at [Particulars withheld] at Moiben sub-County within Uasin Gishu County, he intentionally and unlawfully caused his penis to penetrate the vagina of KJ, a child aged 10 years. He was also charged with the alternative offence of committing an indecent act with the same child, contrary to Section 11(1) of the same Act. The child-victim was stated to be the daughter of the Appellant’s “mistress” as the Appellant had separated with his wife.

3. The Appellant pleaded not guilty to the charge and the case then proceeded to full trial in which the prosecution called 6 witnesses. At the close of the prosecution’s case, the Court found that the Appellant and his co-accused had a case to answer and placed him on his defence. He then gave a sworn statement and called no other witness. By the Judgment delivered on 22/12/2021, the Appellant was convicted on the main charge and on 23/12/2021, he was sentenced to serve life imprisonment, the learned trial Magistrate noting that the same was the only one sentence provided in law.

4. Dissatisfied with the said decision, the Appellant instituted this appeal in person on 4/01/2022, against both conviction and sentence. His Petition of Appeal reproduced verbatim is crafted as follows:i.That I pleaded not guilty to the charge.ii.That the trial Magistrate grossly misdirected himself in law and fact by convicting me based on a defective charge sheet.iii.That the trial Magistrate grossly misdirected himself in law and in fact by convicting me without proper evaluation of my defence.iv.That the trial Magistrate erred in law and facts by convicting me without proper analysis of the fact that there existed a long standing grudge between the Appellant and the minor’s mother (PW2) revolving around merry go round money.v.That the trial Magistrate grossly misdirected himself by convicting me based on evidence that did not adhere to Section 35 and 36 of S.O.A No. 3 of 2006. vi.That the trial Magistrate grossly erred in law and facts by convicting me based on hearsay, fabricated, far-fetched and incompetent evidence.vii.That the trial Magistrate greatly erred in law and facts by convicting me without enquiring into the fact Section 150 of CPC was greatly breached by denying to recall for the witnesses when I demanded for the case to start afresh.viii.That the trial Magistrate greatly erred in law and facts by convicting me without enquiring into the fact that there was no potential, reliable witness other than just family members eg PW3, PW2 & PW1 are all related meaning that they were just family members.ix.That more grounds to be adduced at the hearing thereof after being furnished with law Court proceedings and also pray to be present during hearing.

5. Subsequently, the Appellant, on 5/01/2024, filed a Supplementary Grounds of Appeal in the following terms:i.That the learned trial Magistrate of the subordinate Court erred in both fact and law in unreasonably, injudiciously and wrongly finding that the prosecution had proved its case beyond reasonable doubt thereby convicting and sentencing the Appellant to life sentence, yet he failed to note that age, as a paramount element in sentencing was not proved conclusively.ii.That the learned trial Magistrate erred in law and in fact to find and rule that the evidence adduced by the prosecution on penetration by the Appellant was insufficient to sustain the conviction and sentence against the Appellant and in convicting him against the weight of the same.iii.That the learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant on PW1’s evidence of identification which was not conclusive, coached, coerced and lured to give for the purpose of incriminating the Appellant.iv.That the learned trial Magistrate of the subordinate Court erred in law and in fact by failing to acknowledge and consider the defence of the Appellant.v.That the learned trial Magistrate erred in law and in fact in sentencing the Appellant to harsh mandatory minimum sentence of life imprisonment.

Prosecution evidence before the trial Court 6. PW1 was the child-victim. She stated that she was 10 years old and a class 2 pupil. Because of that age, the victim was taken through a voire dire examination after which the learned Magistrate ruled that she would give unsworn evidence which she then proceeded to do. She stated that she was sleeping when “Baba” (Appellant) put his thing into hers which she described in Kiswahili as “dudu yake kwa yangu”. She stated that she wanted to scream but the Appellant blocked his mouth, that when her mother came, she told her about the incident, that they then went to Mama Chiri, the village elder and later to the Chief and then to the Police Station and afterwards, to the hospital where she was examined and given drugs. She stated that by “dudu”, she meant “private parts”. She identified the Appellant in Court as the “Baba” that she was referring to by pointing him out in Court and further stated that the Appellant was not her real father. She testified further that the Appellant removed her biker to her ankle level, that the Appellant lives with them and that she was sleeping with “Junior” who however did not hear anything.

7. PW2 was the victim’s mother. She stated that the victim was 10 years old and referred to a clinic card as evidence. She then stated that on 16/11/2019, she had gone to visit a bereaved family, that the Appellant was her husband and step-father to the victim, and that she left the victim and another child with the Appellant. She stated further that she came back at 11 pm when the victim called her and told her that the Appellant had lay on her and did “tabia mbaya” to her, that upon examination, she noted that the victim’s private parts were wet and there was semen on her vagina although there was no blood. She testified further that when she asked the Appellant about it, he instead quarrelled her, that she then reported the matter to the village elder and later to the Assistant Chief and the police and that the victim was taken to hospital. In cross-examination, she admitted that the Assistant Chief is her relative and added that the Appellant was assaulted by members of the public. She also stated that she took the victim to the hospital before bathing.

8. PW3 was the Assistant Chief. He stated that he was at home on 16/11/2019 when the village elder reported to him that a man had defiled PW2’s child, that he directed them to the police and hospital, and that he later arrested the Appellant. He conceded that the victim is her relative and stated that he rescued the Appellant from the mob.

9. PW4 was Dr. Taban Tokosang. She stated that she examined the victim on 17/11/2019 and who was brought by her mother, that the victim stated that she was asleep and on waking up she found her father on top of her defiling her. She stated that she examined the victim found a tear on the hymen although it was healed, that the victim had lacerations on the labia minora although there was no discharge and no spermatozoa was seen and that HIV test was negative. According to her, there was penetration and the victim was defiled, that what was used was a blunt object and that the victim had infections. In cross-examination, she testified that the victim had both fresh and old injuries, that she had changed clothes and that she was 10 years old.

10. PW6 was Police Constable Naomi Ongweno. She stated that she was the Investigating Officer in this matter, and that the victim reported that she had been defiled. PW6 testified that she issued the victim with a P3 Form and that she was aged 10 years old. She recited the account which the victim gave to her as being that on 16/11/2019, while her mother had gone out for a visit, her step-father (Appellant) went to her bed and defiled her, that she was naked and realized her inner pant had been lowered and the Appellant’s private part was inside hers, that she tried to scream but the Appellant used his hand to block her mouth, that the Appellant returned to his bed after the incident and that when her mother returned home, she reported to her the incident. PW6 testified further that at the hospital, it was ascertained that the victim had been defiled. According to PW6, when he interrogated the Appellant, he told PW6 that he committed the offence while drunk

Defence evidence 11. As aforesaid, the Appellant gave sworn testimony as DW1 and called no other witness. He stated that on 14/11/2019, he went to work at Kapsowar Marakwet and remained there till 17/11/2019 when he returned home, that on that date, at night, his door was knocked and he saw 5 men and the victim’s mother (his supposed mistress-PW2), that 4 of them were PW2’s relatives, including PW2’s estranged husband, children, the Chief and the village elder, that they beat him up on allegations that he had defiled a child, that when he regained consciousness, he realized that he was at the Police Station and he was later charged. He testified further that he had enrolled in PW2’s “chama” (merry go round) and that he was about to receive a sum of Kshs 300,000/- before he was arrested. He then denied that he committed the offence. In cross-examination, he conceded that PW2 is his mistress and that he has 1 child with her. He denied any knowledge of the victim or where she lives but stated that the victim was 10-12 years.

12. At the close of his case, the Appellant made submissions. He submitted that the people who arrested him told him that the victim’s name was “CA” but which was later changed in this case to “CJ”. He then pointed out that PW2 stated that the victim had not bathed when she was taken to hospital but that on his part, the doctor stated that the victim had bathed. He also challenged the failure to produce a Birth Certificate and reiterated that the Chief and PW2 were relatives and alleged that PW2’s estranged husband was the Chief’s brother.

Hearing of the Appeal 13. The Appeal was canvassed by of written Submissions. The Appellant filed his Submissions on 5/01/2024 while the State had filed its Submissions earlier on 23/01/2023 through Prosecution Counsel, Mark Mugun.

Appellant’s Submissions 14. The Appellant took issue with the manner in which the age of the victim was allegedly proved. He pointed out that no age assessment Report or Birth Certificate or Baptism Certificate was produced and submitted that the purported clinical card produced was a photocopy and that it is the original which should have been produced and that in any case, the copy produced was visibly tampered with.

15. In respect to proof of “penetration”, he cited the case of John Mutua Munyoki vs Republic [2017] eKLR and pointed out that the doctor stated that she found a tear on the hymen but which was healed. He then observed that the date of the defilement having been alleged to have been on 16/11/20219 and the examination having been conducted on 17/11/2019, the day after, he wondered how long a hymen tear takes to heal. He submitted that the healed hymen tear was indication that the victim had engaged in sexual activities previously. He also observed that there were no traces of spermatozoa yet the victim was examined within 12 hours of the alleged incident and the victim is alleged not to have bathed.

16. On “identification”, the Appellant submitted that the lights were off in the room and that the victim at no time stated that she lit the lights and that as such, the victim’s identification of the assailant was doubtful. He also pointed out PW2’s evidence that when she returned to the house at around 11 pm, she found the door open.

17. He submitted further that his alibi defence was not considered. He then however proceeded to make the incorrect submission that he called 2 witnesses and produced documentary evidence to prove the alibi defence. As aforesaid, this portion of the submissions is wholly incorrect.

18. In respect to the sentence, the Appellant submitted that mandatory minimum or maximum sentences such as the life prison sentence imposed by the trial Magistrate Court are unlawful and that by reason thereof, his mitigation was not taken into account.

Respondent’s Submissions 19. On his part, in respect to the allegation of defective charge sheet, the Prosecution Counsel readily admitted that there was an error in that instead of reading “Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006”, the charge sheet reads “Section 8(1)(2) of the Sexual Offences Act, No. 3 of 2006”. He conceded that the latter provision does not exist but cited Section 382 of the Criminal Procedure Code and submitted that by dint of that provision, it is not in all cases in which a defect detected in the charge sheet on appeal will render a conviction invalid. He also cited the case of Fappyton Mutuku Ngui v Republic [2012] eKLR and submitted that in this case, the Appellant was an active participant in the trial going by the manner in which he cross-examined the witnesses and he cannot be said to have been rendered unable to mount a defence by virtue of the minor defect in the charge sheet.

20. On “penetration”, Counsel submitted that the same was proved by the evidence of the doctor who stated that the victim had a healed tear on the hymen and lacerations on the labia and also had an infection. On “positive identification” of the Appellant, Counsel submitted that the same was provided by the victim to whom the Appellant was the step-father and whom she referred to as “Baba”, that the victim’s mother confirmed this familiarity and that the Appellant does not deny that he was known to the complainant. He submitted that this was therefore a case of “recognition” rather than identification of a stranger which is more reliable and believable. He cited the case of Anjononi v Republic [1980] eKLR.

21. In respect to “age” of the victim, Counsel submitted that proof of the age of 10 years was provided by the doctor and also by the victim’s clinical card. He submitted that the Appellant was the victim’s step-father whom he knew well and that if there was evidence to the contrary, the Appellant would have challenged the age during cross-examination and in his sworn defence.

22. On “sentence”, Counsel submitted that recently, there has been divergent opinion from the Courts regarding the constitutionality of the mandatory minimum sentences under the Sexual Offences Act. He cited the Court of Appeal cases of Onesmus Safari Ngao v Republic [2021] KECA 154 (KLR), and John Bundi Koome v Republic [2022] KECA 1065 (KLR) and Hassan Mutwiri v Republic [2022] KECA 471 (KLR) as compared to the same Court of Appeal decision in the case of Joshua Gichuki Mwangi v Republic [2022] KECA 1106 (KLR). He however submitted that the point of convergence in these theories of sentence is that life imprisonment is still a legal sentence. On this, he cited the other Court of Appeal case of Athanus Lijodi v Republic [2021] eKLR.

23. In conclusion, Counsel submitted that in the event that this Court finds that it has jurisdiction to alter the sentence, then there are aggravating circumstances which favour upholding the mandatory sentence, namely, the victim was still a girl of tender age, that she was a vulnerable person and that just like the Appellant’s other children, the victim needed protection and guidance from the Appellant. He submitted further that the trust of the victim’s mother was crushed by the Appellant’s heinous act, that instead of being her protector-in-chief, the Appellant turned out to be the very rapacious monster he was supposed to protect the Appellant against, and that the victim will suffer lifelong trauma resulting from the act and will forever remember that her chastity was robbed from her by the very same person who was supposed to protect her. He also contended that the victim’s mother is also a silent victim of the act and she is no doubt also suffering from trust issues.

Determination 24. As a first appellate Court, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32)

25. Before I delve into identifying the issues, I note that although as one of his grounds of Appeal, the Appellant has alleged that the trial Magistrate erred by declining the Appellant’s request for recall of witnesses or for the case to start afresh, there is no indication in the Record of any such request having been made. There is therefore no basis for this allegation as a ground of Appeal. I note that the Appellant has not raised or addressed this allegation in his written Submissions and I therefore presume that he has correctly abandoned it.

26. Another ground raised by the Appellant but which he also did not take up in his Submissions was that the Charge Sheet was defective. He also did not raise this issue before the trial Court. Since however the defectiveness or correctness of the Charge Sheet is a matter that would be apparent from the record, I will go ahead and tackle it.

27. In light of the foregoing, the issues for determination are evidently now the following:a.Whether the charge sheet was defective and whether such defect renders the conviction a nullityb.Whether the defilement charge against the Appellant was proved beyond reasonable doubt.c.Whether the sentence of life imprisonment was proper.

28. I now proceed to analyze and determine the said issues.

Whether the charge sheet was defective and whether it affected the conviction 29. As aforesaid, in his Submissions, the Prosecution Counsel readily admitted that there was an error in the Charge Sheet. He admitted that instead of reading “Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006”, the charge sheet incorrectly read “Section 8(1)(2) of the Sexual Offences Act, No. 3 of 2006”. He readily conceded that the latter provision does not exist

30. In regard to what should be contained in a Charge Sheet, Section 134 of the Criminal Procedure Code provides as follows:“Every charge or information shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

31. In addition, it was held in Sigilani vs Republic, (2004) 2 KLR, 480 that:“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence."

32. Applying the test above and upon keenly perusing the charge sheet, I find that the particulars of the offence were clearly spelt out as were the date of the offence, the place of the offence, the act constituting the offence and the name of the victim. Although therefore the Charge Sheet was evidently defective, I find the same to have been a minor defect that did not go the root of the matter. Although I acknowledge that the Appellant is a layman and was unrepresented at the trial, I note that he did not raise any objection before the trial Court or raise any contention that the charge sheet was defective. He fully participated in the trial in clear demonstration that he understood the charge, he cross-examined the witnesses and was able to put up an appropriate defence. This is sufficient indication that the Appellant understood the particulars of the charge he faced. The offence was disclosed and stated in a clear and unambiguous manner, there is no allegation that because of the way that the charge sheet was drafted or framed, the Appellant was unable to plead to a specific charge that he could not understand or that he was unable to prepare his defence. In the circumstances, the Appellant cannot be said to have been prejudiced.

33. In any event, the defect is curable under Section 382 of the Criminal Procedure Code which provides as follows:“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

34. Similarly, the Court of Appeal, in the case of Fappyton Mutuku Ngui v Republic [2014] eKLR, while dealing with the exact similar error as herein, namely, inaccurate reference to “Section 8(1) as read with Section 8(2)” as “Section 8(1)(2)” of the Sexual Offences Act, held as follows:“30. We now turn to the issue of the defective charge sheet. The appellant argues that he was charged contrary to ‘section 8(1) (2)’ of the Sexual Offences Act when in fact there is no such section. We note that the appellant did not raise this issue in his first appeal. Despite this, the High Court addressed it in its judgement in light of any prejudice or miscarriage of justice that the appellant may have faced as a result. The High Court relied on Section 382 of the Criminal Procedure Code which provides that:……………………………………………………

31. The first appellate court was of the opinion that this defect was curable under section 382 cited above; the appellant had participated fully in his trial because he knew the charge that was facing him, and the trial process was fair. There was no prejudice that faced the appellant. We concur with the High Court and learned counsel for the respondent that the appellant was well aware of the charges he was facing, he had sufficient notice of the charges facing him and that he participated vigorously in the trial process. Furthermore, the charge sheet outlines the essential ingredients and particulars of the offence. We therefore find no merit in this ground of appeal and dismiss it.”

35. Further, in Senator Johnstone Muthama v Director of Public Prosecutions & 2 others; Japhet Muriira Muroko (Interested Party) [2020] eKLR, a three Judge High Court bench held as follows:“46. The law contemplates that there may be occasions when there may be an error, omission or irregularity in a charge sheet. In addition, there may be errors, omissions or irregularities that may defeat a charge. However, whether such an error, omission or irregularity is incurable will depend on whether it occasions a miscarriage of justice. This is the foundation of Section 382 of the Criminal Procedure Code ………….”

36. In light of the foregoing, coupled with the fact that the Appellant never challenged the Charge Sheet before the trial Court, I am not persuaded that the error in failing to accurately cite the correct provisions of the Sexual Offences Act under which the Appellant was charged resulted into any error, omission or irregularity that may be said to have occasioned a failure of justice. This ground therefore fails.

Whether the charge was proved case beyond reasonable doubt 37. It is trite law that for the offence of defilement to be established, 3 ingredients must be proved, namely, the age of the victim, penetration and positive identification of the offender.

38. Section 8(1) and 8(2) of the Sexual Offences Act provide 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.”

39. The importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo v Republic [2016] eKLR, as follows:“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: -“In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”.

40. In this case, evidence of the victim’s age was provided through the Clinical Card and which indicated that the victim was born on 8/09/2009. The incident of defilement having been alleged to have occurred on 16/11/2019, the indication is that at that date, the victim was about 10 years and 2 months which would therefore tally with the age of 10 years stated in the Charge Sheet. On his part, the Appellant avers that age ought to have been proved by way of age assessment Report or Birth Certificate or Baptism Certificate.

41. The manner of proving age was well explained in the Ugandan case of Francis Omuroni v Uganda, Court of Appeal; Criminal Appeal No. 2 of 2000, as follows:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”

42. Age may therefore be proved by way of Certificate of Birth or age assessment by a qualified doctor or through other credible evidence such as baptismal card, notification of birth or school records or the evidence of parents or guardian. I find that a clinical card too falls within this category as a document in proof of age and I do not therefore find any basis for faulting the trial Magistrate on her conclusion that age was proved through the clinical card.

43. Although the Appellant has also contended that the clinical card produced was a photocopy and that it is the original which should have been produced, I note that he never raised this objection before the trial Court. The same applies to his claim that the copy of the clinical card produced was visibly tampered with. Having not raised the said objections before the trial Court, which was the Court of first instance, it will be improper, at this appellate stage, to consider the same. In the circumstances, this ground, too, fails.

44. In respect to proof of “penetration”, the doctor (PW4) stated that she found a tear on the victim’s hymen although it was healed. This inevitably raises the possibility that the victim had previously, before the incident the subject hereof, already engaged, or had been engaging, in sexual activities. That is not however conclusive since the hymen can also be broken as a result of other non-sexual activities, including insertion of any other foreign object into the vagina or even through accidents. Breakage of the hymen cannot therefore be always attributed to penetration by the penis of a male person. Just as presence of the hymen cannot alone rule out “penetration” in sexual offence cases, similarly, absence of hymen alone cannot also alone prove “penetration”. In this case therefore, absence of the hymen is of minimal evidentiary value.

45. Although I was not able to locate the copy of the P3 Form either in the lower Court file placed before me or in the Record of Appeal, I note that the doctor’s testimony was that she found lacerations on the victim’s labia minora, that the victim had infections and that the injuries on the victim’s genitalia consisted of both fresh and old injuries. She further stated that in her expert opinion, what was used was a blunt object and, in the end, her conclusion was that there was sexual penetration and that the victim was defiled.

46. Although the doctor also stated that there was no discharge, no spermatozoa was seen and that HIV test was negative, I find that the rest of the findings set out above sufficiently proved “penetration” and by extension, defilement.

47. Although the Appellant wondered how there was no trace of spermatozoa yet the victim was examined within 12 hours of the alleged incident, this fact is not of any serious value since it is now generally agreed that “penetration” for the purpose of proving an offence of defilement does not have to be complete or result in ejaculation of spermatozoa to amount to the “penetration” envisaged under Section 8(1) of the Sexual Offences Act. Proof of even partial penetration is enough to prove penetration. Penetration can be proved by direct evidence of the complainant and/or by medical examination. The fact that there was no evidence of spermatozoa in the vagina of the complainant when she was examined on the next day does not therefore necessarily rule out penetration. In regard thereto, in the case of Mark Oiruri Mose v R (2013 eKLR, the Court of Appeal guided as follows:“….. In any event the offence is against penetration of a minor and penetration does not necessarily end in release of sperms into the victim. 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 if 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.”

48. Indeed, 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.”

49. In view of the above, I cannot also find any reason to fault the trial Magistrate’s finding that “penetration” was proven. This ground, too, therefore fails.

50. On the issue of “identification”, the Court of Appeal in the case of Cleophas Wamunga v Republic [1989] eKLR expressed itself as follows:“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.

51. In this case, although the Appellant denied any knowledge of the victim or where she lives, I find that denial to be obviously dishonest. This is because the victim (PW1) identified the Appellant in Court as the “Baba” that she was referring to by pointing him out in the dock and further stated that although the Appellant was not her real father, he lives with them (the victim and her mother) in the same house. This testimony by the victim was sufficiently corroborated by the victim’s mother (PW2) and also by the Investigating Officer (PW6). Further, the Appellant, in cross-examination, admitted that indeed, PW2 (the victim’s mother) was his “mistress” and that he has 1 child with her. He did not deny that he lives with PW2 in the same house. Since it was demonstrated that the victim was PW2’s 10-year-old daughter and was residing with PW2 in the same house, it follows that the Appellant, PW2 and the victim were all residing in the same house. How then can the Appellant feign ignorance of the victim or where she lives? This denial therefore proves that the Appellant has not been forthright with the Court.

52. I therefore find that the Appellant was the victim’s step-father whom she knew very well. In the circumstances, it is evident that this was a case of “recognition” rather than identification of a stranger. Such evidence of “recognition” is clearly more reliable and believable in “identification”. In respect thereto, in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR, the Court of Appeal guided as follows:“…….. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported).We consider that in the present case the recognition of the appellants by Wanyoni and Joice to whom they were previously well known personally, the first appellant also being related to them as their son-in-law, was made both possible and satisfactory in the two brightly-lit torches which two of the appellants kept flashing about in Wanyoni’s bedroom in such a manner that the possibility of any mistake was minimal. In addition, immediately after the robbers left, Wanyoni reported their names to the owner of the farm where he worked. He also later on the same night gave the names of the three appellants to the police as the robbers who had robbed him.We are satisfied that there was no mistake as to the identity of the three appellants and they were properly found guilty of the offence with which they were charged in count 1. ”

53. In light of the foregoing, I am also satisfied that the trial Magistrate correctly found that the Appellant had been positively identified.

54. On this issue of “identification”, I also observe that the Appellant has submitted that the lights were off in the room and that the victim at no time stated that she lit the lights and that as such, the victim’s identification of the assailant was doubtful. I am curious about this contention since it makes me wonder how the Appellant came to know that it was dark in the room if at all he was not there at the time of the act. In my view, this contention by the Appellant contradicts his defence and exposes him as dishonest since it places him right at the scene of crime.

55. The ground of Appeal challenging the Appellant’s identification also therefore fails.

56. In his defence, the Appellant raised the inference that the PW2’s evidence should not be believed because she had a grudge against the Appellant. He alleged that he had enrolled in PW2’s “chama” (merry go round – welfare group) and that he was just about to receive a sum of Kshs 300,000/- before he was arrested. I note however that the Appellant did not produce any evidence whatsoever to prove these allegations of membership of the “chama” or the impending “payout”. He also did not explain how the mere fact that he was about to be paid the dues, if at all, amounted to a motive by PW2 to “fix him”. I therefore do not find any fault on the part of the trial Magistrate for disregarding this defence.

57. The Appellant also raised an alibi defence. He claimed that on 14/11/2019, he went to work at Kapsowar Marakwet and remained there until 17/11/2019 when he returned home. In short therefore, the Appellant was claiming that he was nowhere near the scene of crime on 16/11/2019, the date when the defilement is alleged to have been committed. It is however strange that he called no witness to bear him out nor did he produce any kind of evidence to prove his alleged alibi. It is true that where an accused person raises a defence of alibi, the burden of disproving the alibi is on the prosecution. In other words, when an accused person pleads an alibi, the burden of proving the falsity, if at all, of the alibi lies, not on the accused person, but with the prosecution. In respect thereto, the Court of Appeal, in the case of Victor Mwendwa Mulinge vs. R [2014] eKLR stated as follows:“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 vs. 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.”

58. Did the prosecution in this case therefore discharge this onus? Taking into account the above guidelines, having carefully perused the record and considered the testimonies of the Prosecution witnesses as already set out above, I am satisfied that the Prosecution witnesses’ testimonies satisfactorily displaced the Appellant’s alleged alibi defence.

59. In the end, I find that the trial Court had before it sufficient material to support its finding that the prosecution proved its case beyond reasonable doubt. I cannot therefore find any ground to suggest that the trial Court erred in convicting the Appellant for the offence of defilement. The appeal on conviction therefore lacks merit and is hereby dismissed.

Whether the sentence of life imprisonment was justified 60. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the 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 the wrong material, or acted on the 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”.

61. In applying the above guidelines, it is to be recalled that Section 8(2) of the Sexual Offences Act under which the Appellant was charged, provides as follows:“(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.”

62. In view of the above, it is clear that the sentence imposed by the trial Court was within the law. Nevertheless, it is also true that there has recently been emerging jurisprudence that strict adherence to mandatory or minimum sentences should now be discouraged and that Courts should retain the discretion to depart from such mandatory sentences. In connection to this issue, the Supreme Court in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR, while dealing with a case of murder, stated as follows:“(66)It is not in dispute that article 26(3) of the Constitution permits the deprivation of life within the confines of the law. We are unconvinced that the wording of that article permits the mandatory death sentence. The pronouncement of a death sentence upon conviction is therefore permissible only if there has been a fair trial, which is a non-derogable right. A fair hearing as enshrined in article 50(1) of the Constitution must be read to mean a hearing of both sides. A murder convict whose mitigation circumstances cannot be taken into account due to the mandatory nature of the death sentence cannot be said to have been accorded a fair hearing.”

63. The Supreme Court then directed the Attorney General, the Director of Public Prosecutions and other relevant agencies to prepare a detailed professional review in the context of the Muruatetu Judgment with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the Petitioners therein. The Attorney General was then given 12 months to submit a progress report on the same.

64. On the strength of the said Murautetu decision and reasoning, the High Court and even the Court of Appeal routinely reviewed mandatory minimum sentences imposed on convicts for different offences other than murder, including for sexual offences and robbery with violence. Examples are the Court of Appeal decisions in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR, the case of GK v Republic (Criminal Appeal 134 of 2016) [2021] KECA 232 (KLR), and also the case of Joshua Gichuki Mwangi vs Republic [2022] eKLR. I may also mention the oft-cited decision of Odunga J (as he then was), in the case of Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR).

65. Further, the constitutionality of the life sentence has also now been questioned. In dealing with a matter where, as herein, the Appellant had been sentenced to life imprisonment under Section 8(2) of the Sexual Offences Act, the Court of Appeal, in the case of Manyeso vs Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment), stated as follows:-“… an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under article 28, and we are in this respect persuaded by the reasoning of the European Court of Human Rights in Vinter and others v The United Kingdom (Application Nos 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved …. we are of the view that having found the sentence of life imprisonment to be unconstitutional, we have the discretion to interfere with the said sentence … We, therefore in the circumstances, uphold the appellant’s conviction of defilement, but partially allow his appeal on sentence. We accordingly set aside the sentence of life imprisonment imposed on the appellant and substitute therefor a sentence of 40 years in prison to run from the date of his conviction.”

66. However, by the clarification made by the same Supreme Court in its subsequent directions given in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), the Supreme Court made it clear that Muruatetu only applied to murder cases, and not to any other type of case, not even sexual offences. This is how the Supreme Court put it:“7. In the meantime, it is public knowledge, and taking judicial notice, we do agree with the observations of both Mr. Hassan and Mr Ochiel, that while the report of the Task Force appointed by the Attorney General was awaited, courts below us have embarked on their own interpretation of this decision, applying it to cases relating to section 296(2) of the Penal Code, and others under the Sexual Offences Act, presumably assuming that the decision by this court in this particular matter was equally applicable to other statutes prescribing mandatory or minimum sentences. We state that this implication or assumption of applicability was never contemplated at all, in the context of our decision..................................................................................................

10. It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it, In that paragraph, we stated categorically that;……………………………………………………………Reading this paragraph and the Judgment as a whole, at no point is reference made to any provision of any other statute. The reference throughout the Judgment is only made to section 204 of the Penal Code and it is the mandatory nature of death sentence under that section that was said to deprive the “courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases”.

11. ...........................................................................We therefore reiterate that this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute............................................................................................

14. It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.................................................................................................

18. Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the Courts below us as follows:i.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code;……………………………………………………………………………”

67. Recently, just 2 months ago, the Supreme Court reiterated and restated the above directions when dealing with an Appeal emanating under the Sexual Offence Act. This was in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment). In setting aside the decision of the Court of Appeal which had applied the Muruatetu reasoning in setting aside the mandatory minimum sentence of 20 years imprisonment imposed on the Appellant, the Supreme Court stated as follows: 52. We therefore find that in this matter the Court of Appeal did offend the principle of stare decisis. Notably, we observe that the Court of Appeal determined that the ratio decidendi in the Muruatetu Case on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the mandatory nature of minimum sentences provided for in the Sexual Offences Act. In doing so, and with respect, the Court of Appeal failed to abide by the clear principles provided in both the Muruatetu case and the Muruatetu directions in this instance.........................................................................................................

57. In the Muruatetu case, this court solely considered the mandatory sentence of death under Section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital offences, are vastly different from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting different sentencing for criminal offences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities...................................................................................

61. Having so stated, we are aware that mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, USA, Australia, South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed. ……………………………………………………….………………………………………………………………….

62. Before Kenyan courts can determine whether or not the above trends and decisions are persuasive, we reiterate that there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. This was our approach and direction in Muruatetu which must remain binding to all courts below.………………………………………………………………….

68. Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.

68. In view of the decision and guidelines expressly set out by the Supreme Court as above, this Court will be acting ultra vires were it to set aside the sentence of life imprisonment on the basis that the same, being a mandatory sentence stipulated by statute, is unconstitutional. As clearly spelt out by the Supreme Court, Muruatetu is not applicable to cases under the Sexual Offences Act.

Final Order 69. In the circumstances, this Appeal fails on both limbs of the challenge against conviction as well as the challenge against sentence. The Appeal is therefore accordingly dismissed.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 20THDAY OF SEPTEMBER 2024WANANDA J.R. ANUROJUDGEDelivered in the Presence of:Appellant present virtually from Naivasha Maximum PrisonOkaka for the StateCourt Assistant: Brian Kimathi