[2023] KEHC 26627 (KLR)

Orumoi v Republic (Criminal Appeal E006 of 2021) [2023] KEHC 26627 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26627 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E006 of 2021

DR Kavedza, J

December 8, 2023

Between

Moses Orumoi

Appellant

and

Republic

Respondent

(Being an appeal against the original conviction and sentence delivered by Hon. C. Ndumia, RM on 17th June 2020 at Kajiado Chief Magistrate’s Court Sexual Offences case no. 23 of 2019 Republic vs Moses Orumoi)

Judgment

1. The appellant was charged and after a full trial convicted for the offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006. He was sentenced to serve 20 years imprisonment. Being aggrieved, he filed an appeal challenging his conviction and sentence.

2. The grounds of appeal raised have been summarised as follows: He challenged the totality of the prosecution’s evidence against which he was convicted. He contended that the trial court was in error in finding that he was positively identified as the perpetrator of the offence. He argued that the prosecution did not prove penetration of the complainant’s genital organ. He thus urged the court to set aside his conviction and quash the sentence imposed.

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

4. The prosecution called six (6) witnesses in support of their case. LMB (PW1)(Name withheld) after voir dire examination told the court that she was in class 8 at [Particulars Withheld] Academy. She stated that in 2016, the appellant approached her and asked about her sister, T. The appellant then asked her to pass by the following day so that he could take her to his house and meet his children. The following day, the complainant went to meet the appellant but she did not find his children. The appellant opened the door to his house and they entered. He then started touching her breasts, made tea and later left to buy snacks.

5. When the appellant returned, he gave the complainant Kshs. 200 and told her that if she reported the incident, he would kill her. The following day she also went to his place for he told her that if she did not go, he would kill her. She stated that the appellant defiled her while covering her mouth with his hand. The appellant then went outside and left the complainant in bed crying. She put on her clothes and the appellant gave her Kshs. 200. She also returned to the appellant the following day and he gave her Kshs. 150. She stated that she had an affair with the appellant from class 5 to class 8.

6. She however stated that Seisa (PW2) found out on 4th September 2019 and reported the incident. On the said material date, PW2 followed her to the appellant’s home and confronted her to ask her to ask what she was doing at the appellant’s place. She told PW2 that she was looking for her friend by the name Susan but PW2 told her that there was no one by that name in that area and that she should go to school. She proceeded to school but was later called to the principal’s office where she informed her teacher, the headteacher and PW2 of the incidents. She stated that on that day, the appellant did not defile her. On cross examination she stated that she used to have sex with the appellant four times a week. She was then taken to Loitoktok police station where she reported the matter.

7. PW2 told the court that on 4/9/2019 at about 6. 15am, she was taking her child to school when she saw the complainant who at that time was meant to be in school as she was a candidate. She then followed the complainant and saw her enter a certain house. She went to the said house and called her but the appellant opened the door and the complainant came out. She then told the appellant to come out and tell her what he had being doing with the complainant but he did not come out. She then asked the complainant what she had been doing there and she told her that she had gone to pick a friend. When she told her to call out her friend, the complainant then confessed to her that the appellant used to give her money and that he used to ask her to pass by his house every morning before she went to school. The complainant then asked her not to report her to her brother. She promised that she would not report the incident and asked the complainant to go to school. PW2 however called the complainant’s brother and told him what had transpired. She then met with the complainant’s brother and headed to the appellant’s place where they got hold of him and took him to Loitoktok Police Station. They left the appellant at the police station and went to pick the complainant from school who then identified the appellant as her assailant.

8. SMM (PW3), the complainant’s brother, told the court that he was informed by PW2 that the complainant used to pass by a certain place when going to school. On the said date, PW2 called him and showed him the house where the complainant used to pass by on her way to school. He knocked on the door and the appellant opened. The appellant however denied defiling or being with the complainant and it is then that he took hold of his hand and took him to the police station where they all recorded statements. On cross examination he reiterated his evidence and added that he used to get complaints from teachers that the complainant used to get late to school and used to arrive around 6. 45am as opposed to 6. 30am.

9. OSM (PW4), the head teacher at [Particulars Withheld], told the court that pupils from class 4-8 were meant to be in school by 6. 30am but the complainant was always late and he informed her guardian.

10. Francis Maina (PW5), a clinician from Loitoktok Sub-county hospital identified the P3 form in respect to the complainant. He stated that the complainant gave him a history of how she had been defiled and that she was last defiled about I month ago. He examined her and found no hymen or bruises to her labia majora or any infections. He produced the P3 form as an exhibit.

11. PC Annmary Wandera, (PW6) and the investigating officer, told the court that she was assigned the case having been reported by the complainant’s brother. She and another officer took the complainant and the appellant for examination. The P3 and PRC forms were filled confirming a case of defilement. She then recorded statements and charged the appellant with the offence. She confirmed the complainant to be 14 years old and produced a certified copy of her birth certificate as an exhibit.

12. After close of the prosecution’s case, the appellant was put on his defence and tendered sworn evidence with no witness. He denied committing the offence and stated that the charges against him were a lie. Further, he stated that he did not know the complainant and only saw her for the first time in court. He stated that the matter had been brought against him due to family differences. He further denied being a bodaboda operator on re-examination.

Analysis and determination. 13. I will now analyse the evidence on record to ascertain whether the essential ingredients of the offence preferred against the appellant were established to the required standard of proof. I wish to state at the outset that the importance of proving the age of a victim, proof of penetration, and positive identification of the assailant in sexual offences is paramount.

14. The complainant told the court that she was in class 8. She identified her birth certificate in court indicating that she was born on 1/12/2005 and was 13 years and 7 months at the time of the alleged incident. Her clinical card further confirmed that she was 14 years. The prosecution, therefore, adduced credible evidence to prove that indeed the complainant was a child at the time the offence was allegedly committed.

15. The question I must now grapple with is whether the prosecution adduced sufficient evidence to prove penetration of the complainant. PW 1 gave a sworn statement in which she told the court how the appellant took hold of her hand, threw her on the bed, took off her clothes and defiled her. She further stated that the incident happened severally from when she was in class 5 to class 8. However, on the day that the appellant was arrested he had not defiled her. PW 5 produced the P3 and PRC form which both confirmed repeated defilement of the complainant. On examination of the complainant, there was no hymen and no bruises on the labia minora and majora. This is however understandable and consistent with the evidence of PW1 that her last sexual encounter with the appellant was before she closed school in July which was more than a month ago.

16. Furthermore, under section 124 of the Evidence Act the court may convict on the evidence of the alleged victim alone provided that the court is satisfied that the alleged victim was truthful. From the record it appears that the trial court was satisfied that the victim told the truth. Her evidence was consistent and remained unshaken on cross examination. I conclude therefore that the second ingredient namely penetration was adequately proven based on the victim’s evidence and the medical evidence.

17. Regarding the identity of the perpetrator, the complainant told the court how she first met the appellant who called her by her name and inquired about her elder sister. The appellant invited her to his house to meet his children but when she went, the appellant told her that the children had travelled. She narrated how the sexual abuse continued for years from when she was in class 5 to class 8 and how each time the appellant would give her money to buy snacks after defiling her. Her evidence is corroborated by PW2 who followed her to the appellant’s home and upon calling her name while outside the house, the appellant opened the door. PW2 then confronted the appellant and asked him what he was doing with the complainant but he declined to respond. The complainant confided in PW2 that she had been having an affair with the appellant and pleaded with her not to report her to her brother. PW3 stated how he was called by PW2 informed what had been going. He went to the appellant’s house to confront him and took him to the police station. I have considered the defence raised by the appellant that the charges against him were instigated by a family feud over land and that he did not know the complaint. I however find the same to be mere denial and did not rebut the evidence tendered by the prosecution. From the evidence, the complainant was very clear on the events that took place and the identity of the perpetrator.

18. After my appraisal of the evidence on record, I am unable to fault the finding of the learned trial magistrate. The prosecution evidence leaves no doubt in my mind that the appellant defiled the complainant and the elements of the offence have been proven. I therefore affirm the conviction.

19. Regarding the sentence, the court should bear in mind the principles of proportionality, deterrence and rehabilitation and as part of the proportionality analysis, mitigating and aggravating factors should also be considered. The trial court considered that the appellant was old enough to have been the complainant’s father. He however took advantage took an unfair advantage to secure and satisfy his sexual desires on a child for 3 years since she was 11 years old and possibly longer if PW2 had not followed her and reported the incident. Section 8(3) of the Sexual Offences Act provides that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. The appellant was sentenced to serve twenty (20) years imprisonment.

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

21. For the above reason, I hereby set aside the sentence of twenty (20) years imposed by the trial court and substitute it with a sentence of ten (10) years imprisonment. The sentence shall take effect from the date of the appellant’s conviction.

Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8THDAY OF DECEMBER, 2023. _________D. KAVEDZAJUDGEIn the presence of: