[2023] KECA 1519 (KLR)

Omondi v Republic (Criminal Appeal 10 of 2022) [2023] KECA 1519 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KECA 1519 (KLR)

Republic of Kenya

In the Court of Appeal at Malindi

Criminal Appeal 10 of 2022

SG Kairu, P Nyamweya & GV Odunga, JJA

December 8, 2023

Between

Denis Otieno Omondi

Appellant

and

Republic

Respondent

(An appeal from the judgment of the High Court of Kenya at Malindi (Nyakundi, J.) delivered on 29th October 2021 in High Court Criminal Appeal No. 9 of 2020 Criminal Application 9 of 2020 )

Judgment

1. The appellant, Denis Otieno Omondi was on December 24, 2019 convicted by the Chief Magistrates Court at Malindi for the offence of defilement contrary to section 8(1) as read with section 8 (4) of the Sexual Offences Act and sentenced to a prison term of 15 years. The particulars of the offence were that on November 3, 2018 a in Magarini Sub-County within Kilifi County, he intentionally and unlawfully caused his male genital organ, namely, penis, to penetrate the female genital organ, namely vagina, of CK, a girl aged 16 years old. His unsuccessful first appeal against the conviction and sentence was heard and determined by the High Court at Malindi (R. Nyakundi, J.) in a judgment delivered on October 29, 2021.

2. In this second appeal, which by reason of Section 361 of the Criminal Procedure Code must be restricted to matters of law (see in Karani v R [2010] 1 KLR 73), the appellant complains that the High Court: failed to discharge its role of re-evaluating the evidence; failed to appreciate that the prosecution evidence was inconsistent and contradictory; failed to appreciate that his defence was not considered and was not accorded a fair trial; that he was denied an opportunity to mitigate; and that the minimum mandatory sentence meted out is contrary to sections 216 and 329 of the Criminal Procedure Code.

3. The facts, in brief, are that CK’s mother was said to have been travelling to Mombasa on November 3, 2018 and requested LM (PW2), to check up on her children. At about 8. 00 p.m. that evening, PW2 went to check on the children, but on knocking at the door, there was no answer. A neighbour, one Ibrahim, informed her that the children had left. A search began and the children, except the complainant, were traced at a video place near the road at about 11. 00 p.m. At the video place PW2 learnt that the complainant CK had informed the other children that she had gone to buy paraffin. PW2, who was in the company of her husband, called the head teacher, presumably at the complainant’s school, one Mr. Cyrus, and explained to him what had transpired. They searched for the complainant in the school without success. Mr. Cyrus, the headteacher, proposed they wake up another teacher, Mr. Omondi, the appellant, to assist with the search.

4. In her testimony before the trial court on April 16, 2019, CK, stated that she was 16 years old in Form 1 in [Pariculars withheld] High School. She stated that on November 3, 2018 at about 7. 00 pm, she and her friends and cousins left home in [Pariculars withheld] to go to a video place within [Pariculars Withheld]. She left her friends and cousins at the video place under the pretext that she was going to buy paraffin at a petrol station, when in fact she was going to her teacher’s place, the appellant’s house. There, she explained:“We had finished exams and he said he wanted to go to their home. He then had sex with me. We were talking first. He said he wanted to go back to Kisumu but wanted to have sex with me. I removed all my clothes, and he also removed all his clothes. We went to the room, and he removed his penis and put it on my vagina. It was the second time. I had gone to his place and had sex. I then heard head teacher Mr. Cyrus knocking.”

5. CK went on to say that on hearing the knock on the appellant’s door, the appellant answered, whereupon the headteacher inquired from him (the appellant) whether he had seen CK. In response, the appellant said he had not. CK testified further that Mr. Cyrus, the headteacher then requested the appellant to accompany him in the search for CK and thereupon the appellant left CK in the house. Upon the appellant’s return to the house, CK went on to say, he escorted her “to another boy’s house place” (Masha’s place) and instructed or coached her to say “I was with him” but at that boy’s place. They then went to school where PW2 and her husband found them and on enquiring from her where she had been, CK informed them, as she had been directed to do by the appellant, that she had been at Masha’s place; that they then went to Masha’s place and found it locked and then went to Marereni Police Station where Mr. Cyrus “explained himself” and she made a statement to the police. The following morning, she was taken to hospital. At the police station, she was given a P3 Form which was filled at Malindi Sub-County Hospital. Under cross examination, CK maintained that she had sex with the appellant and that the appellant had coached her to say that she was with Masha.

6. At the Malindi Sub-County Hospital, Ibrahim Abdullahi (PW3) examined and filled the P3 Form relating to the CK who had been treated at Marereni Dispensary. On examination, he noted that her hymen was broken and remarked that there was vaginal penetration. He produced the treatment notes and the P3 Form.

7. Police Constable Abdalla Mawazo (PW4) of Marereni Police Station took over as the Investigating Officer from Police Constable Jemima who had investigated the matter but was on leave. He stated that the complainant made a report at the station on 4th November 2018 that she had been defiled by the appellant, also known as Odhiambo; that she recorded a statement and was taken to hospital, escorted by her aunt and grandmother, and a P3 Form filled out; that a certificate of birth indicating the complainant’s date of birth as June 8, 2003 was produced on the basis of which the complainant’s age was determined to be 15 years at the time of the offence; that the appellant was then arrested and charged with the offence.

8. In his sworn defence testimony, the appellant stated that he is a teacher and lives in [Pariculars Withheld] and that between November 1, 2018 and November 7, 2018 he had travelled from Marereni to Malindi to attend a camp meeting returning to [Pariculars Withheld] on November 7, 2018 where he was living with his aunt; that on the same day, he was called by his head teacher Mr. Cyrus who informed him that if he was back from the camp meeting, he should go to the police station as he was being called by his girlfriend LA , the mother of the complainant; that he tried calling the said LA , but she was unreachable; that on getting to the police station, he found the head teacher Mr. Cyrus Omollo and LA and on enquiring from Mr. Cyrus Omollo what was the matter, he told him to enter the police station; that after identifying himself as Dennis Otieno Omondi, he was informed that he was under arrest and placed in the cell and thereafter taken to court on November 8, 2018 and charged with the offence. He stated that he was framed by his girlfriend, Loise Achieng for breaking up with her; that on the day he went for training, she had wanted him to stay with her at her place, but he declined. Under cross examination, he stated that he knew the complainant as a pupil but denied defiling her.

9. The learned trial magistrate was satisfied that all the ingredients of the offence of defilement, namely the age of the victim, penetration, and identification of the appellant as the perpetrator had been established; that the alibi defence by the appellant that he was attending a camp and that he had been framed by the complainant’s mother did not hold; convicted him and subsequently sentenced him to serve 15 years imprisonment.

10. The appellant was dissatisfied with the decision of the learned magistrate and appealed to the High Court at Malindi on the grounds as amended that PW1’s was an unreliable witness; that he was not accorded a fair trial because he was not given a chance to mitigate; and that his defence was not appreciated.

11. Upholding the conviction and sentence, the learned Judge of the High Court found that the ingredients of the offence had been proved and that there was no basis for interfering with the sentence. Still dissatisfied, the appellant lodged this second appeal on the grounds already set out above.

12. At the hearing of the appeal before us on 15th May 2023, the appellant appeared in person virtually from Manyani Prison while learned Senior Prosecution Counsel Mr. Mwangi Kamanu appeared for the Respondent. The appellant relied entirely on his written submissions in which he urged that the evidence of PW1 and PW2 was unreliable, inconsistent and un-corroborated contrary to sections 43 and 124 of the Evidence Act and the courts below erred in relying on that evidence; that the prosecution had not discharged its burden of proof, in accordance with section 107 of the Evidence Act, to establish the offence beyond reasonable doubt and in that regard the ingredients of the offence were not proved; that the evidence of PW2 did not corroborate that of the complainant as she (PW2) stated that she did not know whether the complainant had been defiled but learnt of it at the police station. The appellant argued on the strength of the case of Maina v Republic [1970] eKLR, that in sexual offences, “it is dangerous to convict on the evidence of a woman and girls alone” and that the High Court erred in concurring with the trial court and in failing in its duty to evaluate the evidence.

13. The appellant submitted further that the head teacher, Cyrus, and the complainant’s uncle Mr. Rama should have been called as witnesses for the appellant to cross examine them to explain the reason for his sudden arrest; that those witnesses not having been called to testify, the appellant was convicted based on an assumption that he had defiled the complainant. The appellant submitted further that the trial court and the High Court erred in rejecting his defence without giving it appropriate consideration.

14. Regarding sentence the appellant submitted that mitigation is part of the trial process; that he was denied the right to mitigate; that the right to mitigate is non-derogable and that the mandatory sentence does not conform to fair trial; and that his right to fair trial was therefore violated.

15. In opposition, counsel for the respondent in his written submissions on which he relied submitted that the conviction is well founded; that the High Court analyzed the evidence, found that the complainant was truthful and was not inconsistent and gave a vivid account of what transpired, and her testimony could not be dislodged by the defence given by the appellant.

16. It was submitted that the appellant’s generalized complaint that his right to fair trial was violated is not supported; that he was accorded time to prepare for his defence and was able to cross examine all the prosecution witnesses; that his defence was duly considered and the trial court found that it did not dislodge the prosecution case; that all the ingredients of the offence were established; and that the High Court reviewed and evaluated the evidence before upholding the conviction and sentence.

17. As already indicated, our remit on a second appeal is limited by Section 361 of the Criminal Procedure Code and as pronounced by this Court in Karani v R[2010] 1 KLR 73, the Court on a second appeal is:“… enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.”

18. The issues that arise are whether the trial court and the High Court erred in concluding that the prosecution had established the ingredients of the offence of defilement to the required standard; whether the appellant’s defence was duly considered; and whether the appellant’s right to mitigation was violated in reference to sentencing.

19. Regarding the question whether the trial court and the High Court erred in concluding that the prosecution had established the ingredients of the offence of defilement to the required standard it is the appellant’s case that the prosecution did not meet the threshold of proof and that there was inconsistency in the victim’s evidence. It was further his case that the first appellate court did not reevaluate or revisit the evidence on record. In that regard, he also complained that his defence was not considered and that he was not accorded a fair hearing. The respondent on its part refuted inconsistency in the prosecution evidence and urged that the appellant’s defence did not dislodge the evidence against him.

20. It is evident from the judgment of the trial court that the learned magistrate found the testimony of the complainant credible and that of the appellant, that he was attending a camp on the material day and had been framed, as incredible. The learned trial magistrate noted that:“it was also not in dispute that the accused was the complainant's teacher and the complainant even described how his house was and positively identified him as the person whom she had sex with.”

21. As observed in Joseph Kariuki Ndungu & another v Republic [2010] eKLR:“…the trial judge is best equipped to assess the credibility of the witnesses and that it is a principle of law that an appellate court should not interfere with those findings by the trial court which are based on the credibility of the witnesses unless no reasonable tribunal could have made such findings or it is shown that there existed errors of law.”

22. In the same vein, the learned Judge of the High Court upon evaluating the evidence noted that “the complainant vividly narrated what transpired on the material date”; that the complainant described when she entered the appellant’s house, removed her clothes and the appellant did the same and “they proceeded to have sexual intercourse” before concluding that penetration had indeed been established; that the appellant was positively identified as the perpetrator of the offence as the “matter was one of identification by recognition” with little room for mistaken identity; and that the complainants age was established by production of her birth certificate.

23. On our part, and based on our review of the record, apart from the mix up by the trial court as to whether PW2 was the mother or aunt of the complainant, we are unable to see any inconsistency in the evidence of either PW1 or PW2. There was evidence in the form of the birth certificate regarding the age of the complainant; PW1’s testimony regarding penetration was supported or corroborated by the medical evidence; and the appellant is a person well known to the complainant. Indeed, under cross examination the appellant confirmed that “I know the complainant as a pupil”.

24. The basis on which the appellant impugned the testimony of PW1 and PW2 is unfortunately the misogynist attitude exemplified in the decision in Maina v Republic [1970] eKLR, that in sexual offences, “it is dangerous to convict on the evidence of a woman and girls alone”. As the High Court (Kasango, J.), observed in Shadrack Maina Mwangi v Republic [2016] eKLR the Maina v Republic case relied upon by the appellant was decided in a different era. It has no place in our society. There can be no basis for discrediting the credibility of evidence on basis of gender.

25. As regards the complaint that the headteacher, Cyrus, was not called by the prosecution to testify, perhaps his testimony would have further buttressed the prosecution case to the extent that he was said to have been involved in the search of CK. It is not clear what value his testimony would have added to that of PW1 in establishing the ingredients of the offence. Moreover, as stated in various decisions including the decision of this Court in Richard Mbaabu Ithalie v Republic [2017] eKLR, “there is no law that requires a multiplicity of witnesses to prove a fact. Section 143 of the Evidence Act is clear on that.”

26. The complaint that the appellant’s defence was not considered is not borne out by the record. Both courts below found the defence to have been displaced by the prosecution evidence.

27. Based on the foregoing, we have no basis for interfering with the conviction.

28. As regards the sentence, the record shows that upon delivery of the judgment by the trial court on December 24, 2019, at the request of the prosecution, the trial court directed that a pre-sentence report be obtained. On January 22, 2020, the trial court noted that the same had been filed and adjourned to January 24, 2020 for sentencing. On that date, the trial court noted that “the POR is not favourable [read to the accused]”. The appellant was then sentenced to serve 15 years imprisonment. It is not apparent from the record that the appellant was granted an opportunity to mitigate. The learned Judge of the High Court while stating that the appellant did not bring himself within the ambit of the decision in Bernard Kimani Gacheru v Republic [2002] eKLR, did not address itself to the appellant’s complaint in this regard.

29. We hold that the appellant’s right to mitigate was violated.The order that commends itself to us is to remit the matter back to the trial court for the appellant to have an opportunity to mitigate and thereafter for the trial court to consider and give out appropriate sentence in accordance with the law.

30. In the result we uphold the conviction. We however set aside the sentence of 15 years meted out by the trial court and confirmed by the High Court. We remit the matter back to the trial court, the Magistrate’s court at Malindi, for purposes of mitigation and sentencing. In sentencing, the trial court to take into account the period the appellant has been in custody. We direct that the matter be mentioned before the Chief Magistrate at Malindi within the next 30 days for appropriate directions regarding mitigation and sentencing.

DATED AND DELIVERED AT MOMBASA THIS 8TH DAY OF DECEMBER 2023. S. GATEMBU KAIRU, FCIArb……………………………JUDGE OF APPEALP. NYAMWEYAJUDGE OF APPEAL……………………………JUDGE OF APPEALG.V. ODUNGA……………………………JUDGE OF APPEALI certify this to be a true copy of the originalSingedDEPUTY REGISTRAR