[2022] KEHC 16486 (KLR)

Onyango v Republic (Criminal Appeal 97 of 2019) [2022] KEHC 16486 (KLR) (16 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16486 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 97 of 2019

RN Nyakundi, J

December 16, 2022

Between

Nicholas Otieno Onyango

Appellant

and

Republic

Respondent

(An appeal against Judgment, conviction and sentence passed in Eldoret Criminal Case No. 57 of 2018, delivered by Hon. Naomi Wairimu (P.M.) on 29. 5.2019)

Judgment

1. The Appellant was convicted of the offence of defilement contrary to section 8 (1) as read with sub-section 8 (3) of the Sexual Offences Act No. 3 of 2006 and sentenced to life imprisonment. The particulars of the charge were that on 5th day of March 2018 in Eldoret West District within Uasin County, the Appellant intentionally caused his male genital organ (penis) to penetrate the female genital organ (vagina) of MN a girl aged (10) years.

2. He was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.

3. He was aggrieved by both the conviction and the sentence and filed this appeal raising the following grounds: -1. That the learned trial Magistrate erred in law and fact when she convicted the Appellant but failed to appreciate the contradictions in the prosecution case.2. That the learned trial Magistrate erred in law and fact when she convicted the Appellant in the present case merely relying on writings of section 124 of the Evidence Act Cap 80 Laws of Kenya and yet the same was not proved.3. That the learned trial Magistrate erred in law and fact when she only convicted the Appellant and failed to take note of breach of the Appellant’s rights under Article 50 (2)(g)(h) and (4) of the Constitutionof Kenya.4. That the learned trial Magistrate erred in law and fact when she convicted the Appellant without taking into account that the Appellant had an alibi.5. That the sentence imposed was harsh and excessive and unconstitutional.

4. The Appellant wants the appeal allowed, conviction and sentence set aside and he be set at liberty.

The Evidence The Prosecution Case 5. The prosecution called 6 (six) witnesses in support of the charges.

6. PW1 JM testified that the complainant is her daughter. She told the Court that the complainant is ten years, three months and was born on 10/2/2008.

7. She told the Court that she knows the Appellant as they live in the same plot. On the material date, she told the Court that she was at her shop when one Baba Sandra a customer came to buy mandazi but she didn’t have mandazis. When the mandazis were delivered she told the Court that she called the complainant to deliver the mandazi to Baba Sandra.

8. She told the Court that she thought that the complainant had run the errand and returned home. She testified it was at the time that she heard Baba Sandra calling her and he informed her that his neighbour the Appellant wanted to defile the complainant. She told the Court that she went inside the Appellant’s and found him in an inner wear while the complainant was standing inside his house.

9. She thereafter called Central police station and officers who were on patrol came and found the Appellant still in his under garments and they left for the station. At the station she told the Court that she was afraid to go to hospital alone, so when the Appellant said nothing had happened, they returned home.

10. The following day in evening, she told the Court that she found the complainant after school washing her clothes. The complainant informed her that she smelt some foul smell and when she inquired about it, the complainant informed that the Appellant had poured some water on her when she was smelling foul.

11. She told the Court that she then took the complainant to hospital where she was given medication and was informed to go for the results the following day. She then reported the matter to the police station and later the complainant informed her that on the material day after she had delivered the mandazi to Baba Sandra, the Appellant had called her to light his jikoand when she went into his house, he started touching her and he put her on the mattress. When the Appellant then tried to penetrate her, she screamed and Baba Sandra rescued her.

12. PW2 the complainant gave a sworn testimony after a voir dire exercise, where she told the Court that she is (10) years old. She told the Court that she knows the Appellant as they live in the same plot. On the material date, she testified that her mother had called her to deliver some “kangumu” to Baba Sandra and after delivering, the Appellant called her to go and light his jiko.

13. She told the Court that after lighting the jiko, the Appellant told her to go inside his house and he started touching her. The complainant testified that the Appellant then put her on his mattress which was on the floor. She told the Court that the Appellant was wearing his under wear. He lay on her and begun removing her pant before putting his thing to her thing of urinating. She told the Court that she felt pain and screamed when baba Sandra came to rescue and called his mother. Her mother then called the police and the Appellant was arrested. The following day she told the Court she went to school and in the evening, she told her mother what had transpired and she was taken to hospital where she was treated.

14. PW3 Baba Sandra, told the Court that he knows the Appellant as they are neighbours. On the material date, he told the Court that he was at his house and had prepared tea and needed some accompaniment to drink the tea with. He told the Court that he then proceeded to PW1’s shop to buy mandazi but same were not available at the time but PW1 informed her that she would send the complainant to take the mandazi to him once they got delivered. He told the Court that the complainant then delivered the mandazi to him and shortly after leaving his house, he heard the Appellant calling the complainant. Shortly thereafter, he had the complainant screaming. He when to the complainant’s house pushed the door and found the Appellant holding the complainant who was screaming. He told the Court that Appellant was standing and was taking the complainant to his bed. He then slapped the Appellant and asked him what he was doing before calling the complainants mother and thereafter reported they reported the matter to Central police station.

15. PW4 Sharon Mutai told the Court that she is a medical practitioner at Moi Teaching and Referral Hospital. She informed the Court she was there to testify on behalf of Dr. Temet who was away on further studies. She told the Court that on 6/3/2018 the complainant reported to the said facility and stated that she had been defiled by the Appellant. On examination, PW4 told the Court that the complainant had injuries on her private part, erythematous vesicular and posteriorly faucet, fresh hymeneal tears at position 8 and 2 O’clock and there no discharge. PW4 further testified that the urinalysis test revealed that the complainant had an infection. PW4 told the Court that the findings were consistent with defilement.

16. On cross-examination, PW4 told the Court that the complainants private parts had injury on the hymen which was fresh and the vaginal opening was swollen and had bruising indicating that there was penetration.

17. PW5 Corporal Joseph Kimilu, told the Court that on the material date, he on patrol at Huruma area when he received a call from one JM who informed him that one of her tenants, Nicholas Otieno Onyango had been found having locked her daughter MN aged (10) years in his house. PW5 told the Court that when they arrived at the scene, they did not find the complainant but found the Appellant wearing a vest without a trouser. PW5 told the Court that members of the public were baying for the for the Appellant’s blood and he had to remove the Appellant from the scene. PW5 then arrested the Appellant and took him to the police station where he was booked under OB No. xxxx.

18. PW6 Corporal David Mutai, the investigating officer in matter told the Court that after the officers who were in Huruma had arrested the suspect, he begun investigations and recorded witness statements. PW6 told the Court that the doctor confirmed that the complainant had been defiled.

19. The defence was based on the sole unsworn testimony of the Appellant. He basically denied all the charges levelled against him and alleged that on 27/3/2018, his landlady asked him to have an affair with him but he declined. On 1/3/2018 DW1 told the Court that the landlady again sent a neighbour’s daughter to call him and when he went to where she was, she informed him that if he didn’t shop from her shop, then he should move out. On 2/3/2018 DW1 told the Court that he was going to his house when he met two people who informed him that his landlady was calling him. DW1 told the Court that when he went out, they pulled out handcuffs and arrested him. DW1 told the Court that he was then taken to the police station, where his finger prints were taken and on 8/3/2018 he was taken to Court where he charged with defiling a (10) year old child. DW1 denied the charges and told the Court that he is on HIV medication.

Submissions 20. The Appellant in his undated submissions filed on 22/10/2021 argued that the prosecution’s case lacked corroboration. Regarding the credibility of the witnesses, the Appellant termed PW1 as a hostile witness and also pointed out that testimonies of PW1, PW2 and PW3 were full of inconsistencies and contradictions.

21. The Appellant also faulted the trial Court for failing to inform him of his Constitutional rights as envisaged under Article 50 (2) (g) (h) and (4). The Appellant submitted that he was never afforded a fair trial.

22. Regarding the sentence, the Appellant submitted that the mandatory life sentence deprived him of the right to protection and full benefit of the law as the trial Court did not take into consideration his mitigation.

Determination 23. In determining this appeal, this court being a first appellate court is alive to and takes into account the principles laid down in the case of Okeno v Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R 1975) EA 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala v R [1957] EA 570. It is not the junction of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see (Peters v Sunday Post 1978) EA 424. ”

24. I have considered the evidence on record, the grounds of appeal and the submissions by the Appellant, the issues for determination is whether the prosecution proved its case beyond any reasonable doubt and whether there were material discrepancies in the prosecution case which may make the conviction and sentencing of the Appellant unsafe.

25. The Appellant challenged the conviction and sentence on the basis that the prosecution failed to prove its case beyond reasonable doubt, particularly on the question of penetration. He alleges in his submissions that the medical evidence produced before trial court was marred with discrepancies and inconsistences. He argued that penetration was not proven and that the age of the minor was also not proved.

26. This being a case for defilement what was to be proved are the ingredients of the offence of defilement and in the case of George Opondo Olunga v Republic [2016] eKLR, it was stated that the ingredients of an offence of defilement are; identification or recognition of the offender, penetration and the age of the victim.

27. Section 8(1) 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."

28. In this case the issue of identification has not been challenged in this appeal. The complainant evidence is that of recognition and has not been disputed. Therefore, the two critical elements that must be proved to sustain a conviction for the offence of defilement under these provisions of the law are the act of penetration and the age of the victim.

29. In regard to the age of the complainant herein, the same is not in dispute, as the clinic card on record indicates that the victim was born on 10/2/2008, thus the complainant at the time of commission of the alleged offence was (10) years old.

30. The next element is proving of penetration. “Penetration” is a term of art and is defined under Section 2 of the Act to mean“the partial or complete insertion of the genital organs of a person into the genital organs of another person”.

31. The evidence of PW1 is that on the material date, her mother had called her to deliver some “kangumu” to Baba Sandra and after delivering, the Appellant called her to go and light hisjiko.

32. She told the Court that after lighting the jiko, the Appellant told her to go inside his house and he started touching her. The complainant testified that the Appellant then put her on his mattress which was on the floor. She told the Court that the Appellant was wearing his under wear. He lay on her and begun removing her pant before putting his thing to her thing of urinating. She told the Court that she felt pain and screamed when baba Sandra came to rescue and called his mother.

33. It is worth noting that key evidence relied by the Courts in rape cases and defilement in order to prove penetration Is the complainant own testimony which is usually corroborated by the medical report presented by the medical officer. In this case since the complainant was a minor, the evidence of the Clinical Officer is key so as to corroborate such testimonies. I have critically analyzed the evidence of PW4 the clinical officer who testified herein.

34. It was her testimony that the complainant had injuries on her private part, erythematous vestaitral and posteriorly faucet, fresh hymeneal tears at position 8 and 2 O’clock and there no discharge. PW4 further testified that the urinalysis test revealed that the complainant had an infection. PW4 told the Court that the findings were consistent with defilement.

35. From the above I note that there no discrepancy or inconsistency in the prosecution case as far as the medical evidence produced is concerned. The medical evidence available on record is cogent and consistent, as well as corroborating the testimony of the complainant. Although no DNA test was done, the same is not a legal requirement to prove penetration.

36. Regrading sentence, the Appellant challenged the sentence imposed by the learned Magistrate on the basis that it is harsh and excessive. The Appellant was sentenced to life imprisonment. The Appellant in his submissions argued that the trial Magistrate failed to consider his grounds for mitigation. TheSexual Offences Act, No. 3 of 2006 prescribes different punishments for victims of different ages. For victims aged 11 years or less, the punishment is imprisonment for life. For victims aged between 12 and 15 years, the punishment is imprisonment for a term not less than 20 years. For victims aged between 16 and 18 years, the punishment is imprisonment for a term not less than 15 years.

37. With regards to mandatory minimum sentences, the Court of Appeal had occasion to express itself in Jared Koita Injiri v Republic [2019] eKLR, thus:“Arising from the decision in Francis Karioko Muruatetu & Another v Republic, SC Pet. No. 16 of 2015 where the Supreme Court held that the mandatory death sentence prescribed for the offence of murder by section 204 of the Penal Code was unconstitutional. The Court took the view that;“Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives that the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case. Where a Court listens to mitigating circumstances but has, nevertheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to the accused persons under the Article 25 of the Constitution; an absolute right.”In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis."

38. In Kenya, sentencing is governed by the Judiciary Sentencing Policy Guidelines 2016. In order to safeguard decisions made through the exercise of judicial discretion, the Guidelines 2016 exist to ensure that judicial officers do not, in a whimsical manner met out sentences that are not only disparate and inconsistent but also disproportionate and unjustified under the circumstances of each case. The guidelines outline the purposes of sentencing at page 15, paragraph 4. 1. as follows:Sentences are imposed to meet the following objectives:(1)Retribution: To punish the offender for his/her criminal conduct in a just manner.(2)Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.(3)Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.(4)Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.(5)Community protection: To protect the community by incapacitating the offender.(6)Denunciation: To communicate the community’s condemnation of the criminal conduct.

39. In the Supreme Court in the case of Francis Karioko Muruatetu & Another v Republic, Petition Number 15 of 2015, the Court in considering the provisions of section 329 of the Criminal Procedure Code gave guidance on sentencing as follows:“The court may, before passing sentence, receive such evidence as it thinks fit in order to inform to inform itself as to the proper sentence to be passed…It is without a doubt that the court ought to take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at the appropriate sentence.”

40. Similarly, the Court of Appeal in Joshua Gichuki Mwangi v R, Criminal Appeal No. 85 of 2015 observed as follows;“We acknowledge the power of the Legislature to enact laws as enshrined in the Constitution. However, the imposition of mandatory sentences by the Legislature conflicts with the principle of separation of powers, in view of the fact that the legislature cannot arrogate itself the power to determine what constitutes appropriate sentences for specific cases yet it does not adjudicate particular cases hence cannot appreciate the intricacies faced by judges in their mandate to dispense justice. Circumstances and facts of cases are as diverse as the various cases and merely charging them under a particular provision of laws does not homogenize them and justify a general sentence.This being a judicial function, it is impermissible for the Legislature to eliminate judicial discretion and seek to compel judges to mete out sentences that in some instances may be grossly disproportionate to what would otherwise be an appropriate sentence. This goes against the independence of the Judiciary as enshrined in Article 160 of the Constitution. Further, the Judiciary has a mandate under Article 159 (2) (a) and (e) of the Constitution to exercise judicial authority in a manner that justice shall be done to all and to protect the purpose and principles of theConstitution. This includes the provision of Article 25 which provides that the right to a fair trial is among the bill of rights that shall not be limited. This was well articulated by this Court in Dismas Wafula Kilwake v. Republic [2019] eKLR as follows;“Being so persuaded, we hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.”In the end, courts have a duty to dispense justice not only to the complainants but also to accused persons. For these reasons we allow this appeal and we set aside the 20- year sentence and substitute it with a 15-year sentence to run from the time the trial court imposed its sentence.”

41. Having said so, I take judicial note of the rampant incidences of defilement, and the purposes of sentence. Of course, there is an emerging jurisprudence that even life imprisonment ought to have a determinate period. From the foregoing I set aside the life sentence and substitute it with (30) years’ imprisonment with commencement date of 8th March 2018. To that extent the committal of warrant be amended to reflect the review order on sentence.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 16TH DAY OF DECEMBER, 2022. R. NYAKUNDIJUDGEIn the presence of:1. The appellant2. Mr Mugun for the state