[2023] KEHC 23087 (KLR)

Ouma & another v Republic (Criminal Appeal E001 of 2023) [2023] KEHC 23087 (KLR) (4 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23087 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E001 of 2023

RE Aburili, J

October 4, 2023

Between

Ronald Odhiambo Ouma

1st Appellant

Isaac Otieno Abala

2nd Appellant

and

Republic

Respondent

(From the original conviction and sentence in Winam Senior Principal Magistrate’s Court Sexual Offences Case No. E010 of 2022 delivered on 28th October 2022 by Hon. R. M. Oanda (SPM)

Judgment

1. This appeal was filed on 31st January 2023 by the Appellants Isaac Abala and Ronald Ouma. The appeal was admitted to hearing on 23rd May 2023 upon receiving the trial court record on 16th May 2023.

2. The appellants herein Isaac Abala and Ronald Ouma were jointly charged with the offence of gang defilement contrary to Section 10 of the Sexual Offence Act No. 3 of 2006.

3. The particulars of the charge are that on the 1st day of January 2020 at around 9. 00hrs at Kango Sub-location in Muhoroni Sub-county within Kisumu County they jointly with another not before court intentionally and unlawfully caused their penis to penetrate the genital organ (vagina) of C.A.O a child aged 17 years.

4. They were also charged with the alternative charge of committing an indecent act with the same child contrary to Section 11 of the Sexual Offences Act.

5. The appellants pleaded not guilty to both the main and he alternative charges when they appeared before Winam Senior Principal Magistrate’s Court on 19th January 2020.

6. The 1st accused was released on bond on 16th February 2021. After a full trial, the appellants were both found guilty of the main charge of gang defilement, convicted and sentenced to serve fifteen (15) years imprisonment on 28th October 2022.

7. Aggrieved by the conviction and sentence, the appellants filed their joint petition of appeal on 8th January 2023 setting out the following grounds of appeal:i.That the learned trial magistrate erred both in law and facts by convicting and sentencing the appellants for a period of fifteen (15) years imprisonment without considering the circumstances of the case.ii.That the offence of gang defilement was not proved beyond reasonable doubt hence making their conviction unsafe.iii.That the trial magistrate failed in both law and facts in convicting the appellants herein in relying on a poor and unreliable medical report.iv.That the trial court failed to observe that the case was marred with a lot of contradictions and inconsistencies which would not be used to secure the conviction.v.That the appellants are seeking this Honourable court to serve them with the certified trial records to enable them erect more grounds of appeal.

8. The Appellants were served with the trial court record of appeal on 24th June 2023 through the prisons authority at Kisumu Maximum Prison and the appellants filed their written submissions on 20th June 2023 together with the 2nd Appellant’s supplementary grounds of appeal.

9. In the latter grounds, the 2nd appellant assert that:i.The trial court erred in law and fact in convicting the appellant relying on uncorroborated inconclusive evidence of penetration. Possibilities were remote.ii.That the trial court erred in law in appreciating sworn testimony of PW 1 without stating her demeanour on record and without recording the reasons to why it was satisfied she was telling the truth uncorroborated contrary to Section 124 of the Evidence Act.iii.That the trial court erred in law in not weighing the 2nd accused’s defence case against the prosecution evidence.iv.That the trial court erred in law and in fact in not considering the evidence of 1st report PW 1 to the authority and the people who she ran (sic) rescue.v.That, the mandatory nature of sentence under Section 10 of the Sexual Offence Act No. 3 of 2006 is unconstitutional and not warranted on plea.

10. The Appellants therefore prayed that their conviction be quashed, sentence set aside and the appellants be set free.

11. The appeal was canvassed by way of written submissions. The appellants filed their written submissions separately on 20th June 2023.

The 1St Appellant’s Submission 12. Ronald Odhiambo submitted under the following headings:

i.Unfair Trial Process 13. It was submitted that the evidence of the 4 prosecution witnesses levelled doubt of their integrity and truthfulness and that they were untrustworthy. That PW 1 narrated a series of events in a manner that makes it senseless. According to the 1st Appellant, PW1 would not have the energy to escape from a gang after being raped for 11/2 hours and that even if the rapists were exhausted, there was the third man whom PW 1 claimed slapped her. That PW 1 does not state where certain events took place from, whether by the roadside or in the sugarcane plantation.

14. It was submitted that the trial court did not analyse the evidence of PW 1 vis avis the evidence of other people at Lawi’s home. Further, that the court did not order for a forensic audit to know exactly which phone was used to call the complainant’s mother. He poses a question as to whether accused persons were mad to offer their phone for calls thereby trapping themselves.

15. The 1st Appellant reproduced evidence of DW 3 at lines 13-14 and questioned why the court did not use its powers to ascertain the truth. Further, that ignoring the evidence of Fredrick, Mzee and Lawi vitiated the circumstances of this case, making it weak and unbelievable.

16. Attacking the evidence of PW 4, the Appellant submitted that there is no information or detail in his evidence suggesting that defilement took place. That no witness from the village testified of alleged case of defilement and that it defeats logic for only the mother and the complainant to be picked to testify on alleged defilement yet the evidence was that of assault as per the evidence of PW 4 at lines 14-15 page 14 and 23. That the conclusion that the girl was sexually/physically assaulted was not consistent with the findings that on genital examination, nothing was found. It was submitted that the prosecution should have called Mzee before closing its case, to unearth the truth. He urged this court to evaluate the evidence afresh as was stated in Okeno vs Republic (1972) EA 32 and come up with an acceptable and appropriate decision.

ii.Harsh And Excessive Sentence. 17. The 1st Appellant submitted that in light of the evidence adduced and the circumstances of the case, sentence of fifteen (15) years imprisonment was overly punitive, too harsh, excessive and based on bad faith. He relied on Machakos Constitutional Petition No. E017 of 2021 where the court directed courts to exercise power on Judicial discretion and mete out sentence that is commensurate and proportionate to the circumstances of each case. He urged that this court interferes with the sentence imposed and substitute it with the least severe sentence considering the appellant’s age per his birth certificate and the fact that he was young and still in school.

18. Further submission was that the sentence was unconstitutional and relied on Jared Koita Injiri vs Republic Criminal Appeal No. 93 of 2014. He also relied on CRA No 66 of 2019 Kilum Mangondu vs Republic where life imprisonment for defilement was allegedly substituted with a term of 20 years’ imprisonment. Further reliance was placed on Harrison vs Republic (1997) 93 Cr. R. 314.

The Second Appellant’s Submissions 19. On the part of the 2nd Appellant Isaac Otieno Abala, he submitted that there was no corroboration of the evidence of PW 1 and that the evidence of penetration was inconclusive and uncorroborated. He posed several questions and submitted that two (2) men could not have committed only surface penetration without protection. Further, that the evidence of PW 4, DW 1, 2, 3, 4 and 5 completely absolved him from wrongdoing. He relied on several cases to advance his argument that DNA evidence was crucial in establishing his guilt. He urged that although medical examination was carried out a few hours after the alleged incident yet no significant findings were noted by the clinical officer after all tests were done on genital examination of PW 1 that could indicated penetration.

20. Further, that PW 1 was not a reliable witness. That she told DW 1 – DW 5 that she had been cut by Mzee, not that she was defiled. That PW 1 did not give names and description of the three men who allegedly defiled her, in her first report to the police yet she claimed that her defilers were known to her. He relied on Simiyu & Another vs Republic (2005) 1 KLR 192 on identification by name which he claimed was the best mode of identification. He submitted that the trial court failed to evaluate the evidence of PW 1, PW 4, DW 1, 2, 3, 4 and DW 5 and that he also failed to point out the demeanor of PW 1 and failed to warn himself of the dangers of relying on the evidence of a single witness which evidence was not corroborated, as was held in Chila vs Republic (1976) EA.

21. It was further submitted that at page 35 line 26-28 and page 36 lines 1-3, the trial court shifted the burden of proof.

22. On the part of the Respondent, it was submitted that the prosecution proved all the elements of gang defilement under section 10 of the Sexual Offences Act, that there were no inconsistencies in the evidence of the prosecution witnesses. Further, that the sentence imposed was too lenient and that the same should be enhanced as the section provides for fifteen years imprisonment which can be enhanced to life imprisonment. He urged the court to uphold the conviction, enhance sentence imposed and dismiss the appeal.

Determination 23. I have considered the appeal herein, the submissions for and against the appeal and the evidence adduced by the prosecution and the defence proffered by the two appellants.

24. The main issue for determination is whether the prosecution proved its case in the charge of gang defilement beyond reasonable doubt. The appellants were jointly charged with the offence of gang defilement under section Section 10 of the Sexual Offence Act which provides that:“Any person who commits the offence of rape or defilement under this Act in association with another or others or any other with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of the offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen (15) years but which may be enhanced to imprisonment for life.”

25. The Sexual Offence Act defines the term ‘gang’ as “gang means two or more persons.”

26. Therefore, to sustain the charge of gang defilement, the prosecution must prove the following essential elements:a.Commission of defilement/rapeb.Penetration as defined under Section 2 of the Sexual Offences Act without the consent of the victim.c.The offender is in association with another or with others or any other with common intention, is in the company of another or others who commit the offence of defilement/rape.d.The age of the victim in the case of gang defilement must be proved to be under 18 years.e.The perpetrator is positively identified.

27. I will start with the element of proof of defilement and its ingredients as stipulated in Section 8(1) of the Sexual Offences Act which provides that:“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”

28. On proof of age of the complainant, the birth certificate Entry No. 0621714455 issued on 27th September 2017 shows that the complainant C.A was born on 10th November 2002 and PW 2 Agnes Awino Ojwang is named as her mother. The birth of the complainant was registered on 26th September 2016. The offence is stated to have taken place on 1st January 2020 meaning the complainant was 17 years less 11 months to attain 18 years hence there was proof beyond reasonable doubt that she was 17 years old hence a child as defined under the Children Act.

29. On whether there was proof of penetration, Section 2 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.”

30. In Mark Oururi Moses vs Republic (2013) eKLR the Court of Appeal stated that:-“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 of 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.”

31. Part of the complainant’s evidence on penetration was that the 1st appellant was the first person to rape her by putting his penis in her vagina after which the 2nd appellant put his penis in her vagina repeatedly and that they defiled her repeatedly for one and a half hours. She stated that the 1st accused had a panga and a metal axe handle while the 2nd accused had wore a rubber with spikes on his right hand and an empty soda bottle. That they held her two hands after they threatened her with death if she screamed and led her to the sugarcane plantation where the 2nd appellant hit her with the bottle on the back of her head and the 1st appellant said they had been looking for her severally. That the 2nd appellant commanded her to remove her clothes. That she told them she was in her menses but the 2nd appellant forcefully removed her skirt and the 1st appellant removed her vest tightly on her neck slapped her telling her to remove it then the 2nd appellant removed her pant and biker.

32. The incident is said to have taken place at around 9. 00am when PW 2 had send PW1 to collect rice from PW 1’s grandmother. From what PW 1 testified, the journey was to take about 30 minutes walking. The two appellants are said to have accosted her and raped her for 11/2 hours before she escaped to Lawi’s home where she got them to call her mother PW 2 who received the call at 3. 00pm from Lawi that PW 1 had been badly injured. On the other hand, PW 1 testified that her mother arrived 10 minutes upon being called. She came by a motorcycle.

33. The appellants have pocked serious holes/gaps in the evidence of PW 1 and PW 2 stating that there were inconsistencies. They have also contended that the medical evidence did not support the charge of gang defilement. They denied committing the offence. They also lament that the trial court erred in law and fact in shifting the burden of proof to the appellants by stating that their defence was an afterthought merely because they did not say anything to do with defilement.

34. The prosecution submits that the medical evidence tendered corroborated the evidence of PW 1, that she was raped repeatedly for 11/2 hours by the appellants.

35. What does the Medical Report state? The P3 form for the complainant was produced as P. Exhibit 2 while the Post Rape Care Report was produced as P. Exhibit 3. These medical documents were produced by PW 4 Zablon Odhiambo a Clinical Officer stationed at Ahero Sub County Hospital who testified that on 1st January 2020 the complainant aged 17 years was seen at the medical facility with claims of being assaulted by three men who attacked her on her way home and cut her with a panga and use of a bottle and forcefully had unprotected sex with her.

36. The witness stated that the physical injuries that they found to have been sustained by the complainant were: On genital examination, they found nothing, “No significant findings.” The complainant had changed clothes but carried the blouse which was torn. They gave her painkillers, dressed the wounds and gave her antibiotics. Other tests were done but nothing significant was noted. The conclusion was that the girl was sexually/physically assaulted.

37. I have examined the evidence of PW 4, the P3 and PRC forms and the testimony of PW 1. I find significant inconsistencies in that evidence. Although PW 1 testified that she was defiled repeatedly by the two appellants, there was totally no scintilla of evidence to show that she was defiled whether partially or completely. The medical evidence available, as the complainant was treated on the same day of the alleged offence, were cuts on the left cheek and on the left shoulder, left thumb and left knee for which she was treated.

38. In addition, although PW 1 claimed that she was admitted at Ahero Hospital for 1 week, no treatment notes or even the P3 form does not and neither does PW 4 say that the complainant was treated as an impatient.

39. Furthermore, the P3 form is clear that there were no laceration, nor any trauma seen at the labia majora, labia minora, vagina and cervix, no discharge, no bleeding and nor any sign of infection from the genitalia.

40. What was clear is that the complainant had cuts on her body other than the genitalia which has no sign of defilement, partial or complete, leave alone on the surface area of or near her genitalia.

41. In the premises, I am unable to find that penetration was proved beyond reasonable doubt.

42. On identification, the evidence of PW 1was that she knew the appellants as they came from her neighbourhood. The appellants too confirmed in their defence that they knew her. They called her by name as “C” and even knew her mother. The incident took place during early morning hours in broad light. From the evidence on record, I am satisfied that the Appellants were positively identified as persons who were in contact with the complainant on 1st January 2020 albeit there is no evidence that they penetrated her genitalia.

43. Having found that there is no evidence of penetration, I would not belabour to delve into the other elements of gang defilement.

44. However, there was sufficient evidence adduced by PW 1 to show that she was assaulted by the two appellants who accosted her on the road enroute her grandmother’s place to collect rice. It was in broad morning light at about 9. 00am and the witness vividly narrated what weapon each appellant was holding and who used what weapon to assault her as corroborated by the P3 form and PRC form produced as exhibits.

45. The degree of injury as assessed by PW 4 the clinical officer who attended to the complainant and who and filled the P3 form on 6th January 2020 was ‘harm’.

46. For the above reasons, I find that there was proof beyond reasonable doubt that the two appellants jointly with another, Fredrick who slapped PW 1, assaulted the complainant herein thereby causing her actual bodily harm.

47. Having said so, the question is whether this court has power to substitute the charge of gang defilement with that of assault causing actual bodily harm which is an offence under Section 251 of the Penal Code and if so, under what legal authority?

48. Section 179 of the Criminal Procedure Code provides that:“(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.(2)When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.”

49. In John Irungu vs Republic (2016) eKLR the Court of Appeal citing James Maina Njogu vs Republic Criminal Appeal No. 38 of 2004 – Nyeri stated as follows:“It is clear from this Section that the power of the court to convict an accused person of an offence lesser than the offence with which the person is charged is only available when the “remaining particulars are not proved; the “remaining particulars being the particulars necessary to prove the major offence and which particulars are not required to be proved in respect of the minor offence.”

50. In Robert Mutungi Mumbi vs Republic Criminal Application No. 5 of 2013, the Court of Appeal stated that:“An accused person charged with a major offence may be convicted of a minor offence if the main offence and the minor offence are cognate, that is to say, both are offences that are related or alike of the same genus or species. To sustain such a conviction, the court must be satisfied on two things. First, that the circumstances embodied in the major charge necessarily and according to the definition of the offence imputed by the charge, constitute the minor offence. Secondly, that the major charge has given the accused person notice of all the circumstances constituting the minor offence of which he is to be convicted.”

51. In the above case, the Court of Appeal found that the evidence on record disclosed the offence of sexual assault, which is a cognate offence of defilement with which the appellant was charged. They allowed the appeal, quashed the conviction for the offence of committing an indecent act with a child contrary to Section 11 of the Sexual Offences Act set aside the 15 years’ imprisonment and in lieu thereof substituted a conviction for the offence of sexual assault contrary to Section 5(1) of the Sexual Offences Act and imposed a 10-year jail term.

52. In the said case, the High Court on appeal had substituted the defilement charge with one of committing an indecent act with a child which the Court of Appeal found was erroneous because there was evidence of penetration.

53. In this case, and from the injuries sustained by the complainant, it is clear that the appellants accosted the complainant with the intention of assaulting her and causing her actual bodily harm which they did accomplish. The question whether assault is a cognate offence for gang defilement.

54. Black’s Law Dictionary defines a cognate offence as:-“A lesser offence that is related to the greater offence because it shares several of the elements of the greater offence and is of the same class or category.”

55. In the instant case, I am satisfied that assault causing actual bodily harm is a lesser or cognate offence to that of defilement. For the above reasons, I hereby allow this appeal to the extent that the conviction and sentence for the offence of gang defilement is set aside and substituted with conviction for assault causing actual bodily harm. The sentence imposed on the appellants is hereby quashed.

56. On the cognate offence of assault causing actual bodily harm, Under Section 251 of the Penal Code, any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five (5) years.

57. Accordingly, I find the appellants herein guilty of the offence of assault causing actual bodily harm and I convict them accordingly.

58. On sentence, the five (5) years imprisonment under section 251 of the Penal Code is the maximum penalty. The Appellants attacked and injured the complainant with crude weapons, a panga and a bottle. There is no given motive for such a vicious attack on an unarmed young girl. That attack and intention to harm her was no doubt deliberate and the weapon used to injure her could have caused her greater harm had she not escaped from her assailants who followed her to the homestead where she sought refuge. They also went at large and were arrested only after ten (10) months from the date of the offence.

59. Accordingly, I hereby exercise discretion and sentence each of the appellants herein Ronald Odhiambo Ouma and Isaac Otieno Abala to serve twelve (12) months imprisonment, considering they are first offenders and their young ages of 18 years and 21 years respectively as at the time of commission of the offence.

60. As the Appellants were arrested on 18th November 2020 and released on bond on 27th November 2020, in accordance with the provisions of Sections 333(2) of the Criminal Procedure Code, I order that the twelve (12) months imprisonment shall take into account the 11 days that the Appellants spent in custody which shall be discounted as being part of the prison term served.

61. Having said so, and as the appellants have almost completed serving the 12 months imprisonment, and are a few days away from completing the twelve months imprisonment on 28th October 2022, in the spirit of prison decongestion, I hereby order that the remainder of the 12 months prion term be and is hereby suspended.

62. Therefore, unless otherwise lawfully held, the appellants herein Ronald Odhiambo Ouma and Isaac Otieno Abala are hereby set at liberty.

63. This file is closed.

64. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 4TH DAY OF OCTOBER, 2023R. E. ABURILIJUDGE