[2022] KEHC 16271 (KLR)

Owenga v Republic (Criminal Appeal 222 of 2019) [2022] KEHC 16271 (KLR) (Crim) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 16271 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 222 of 2019

JM Bwonwong'a, J

November 9, 2022

Between

Andrew Onyango Owenga

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence of Hon. J. Kamau, S.R.M, in Kibera Chief Magistrates Court in Criminal Case No. Sexual Offences Case No. 54 of 2016 Republic vs Andrew Onyango Owenga)

Judgment

1. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with 8 (2) of the Sexual Offences Act No 3 of 2006. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11 (1) of the same statute.

2. He pleaded not guilty on both charges and was tried and convicted on the main charge by the trial court.

3. He was sentenced to serve life imprisonment.

4. Being dissatisfied with the conviction and sentence, he has now approached this court by way of a memorandum of appeal, in which he has raised seven grounds of appeal.

5. The main grounds raised are as follows. That the evidence relied upon as a basis of his conviction was full of contradictions and fell short of the requisite standard of proof required in law, the trial magistrate erred in law and fact by failing to appreciate that the identification of the appellant did not pass the test of the law, the trial court erred by failing to summon essential witnesses for the determination of the case, the trial magistrate erred in law and fact in shifting the burden of proof to the appellant, the trial magistrate erred by failing to find that the investigating officer did not conduct investigations and if she did, they were shoddy, and the trial magistrate erred in law and fact by failing to give the appellant’s defence due consideration.

6. As this is the appellant's first appeal, the role of this appellate court is well settled. It was held in the case of Okeno v R [1972] EA 32 and further in the Court of Appeal case ofMark Oiruri Mose v R [2013] e-KLR, 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 demeanor of the witnesses and hearing them give evidence and give allowance for that.

7. MMM (PW 1) testified that she is the mother of the complainant, who was born on December 18, 2004. On March 29, 2019 at around 3. 00 pm while she was at the salon in Kenyatta market, she received a call from a neighbour (Mama Stacy), who informed her that her daughter CMB (name withheld) had been defiled. On arriving home in Kibera, she noticed that she was in distress and was crying. Upon inquiry, the complainant informed her that she had been defiled by the appellant. She narrated that together with Mama Stacy they took the complainant to MSF hospital in Olympic for treatment. That she was given medication and the next day, she reported the incident at the police station. There she was issued a P3 form which she took to the government doctor, where the complainant was examined. She testified that she knew the appellant who was their caretaker in the plot,where she had lived for over two years.

8. On cross-examination, she told the court that on March 29, 2013, she arrived home at around 8. 00 pm and the complainant refused to eat. Further, she only found out that the complainant had been defiled on March 30, 2013 and on March 29, 2013, after she was informed by her neighbour Mama Stacy. The witness denied having a grudge against the appellant and his wife as alleged.

9. CMB (name withheld) (PW 2) gave evidence under oath after the court conducted a voir dire and testified that she is 11 years old and a pupil at [particulars withheld] primary school. She narrated that on March 29, 2013 after lunchtime, she wanted to use the toilet and she went to the appellant's house to collect the keys. On returning the keys to him, the appellant sent her to the shop with Kshs 5 to buy a match box which she did. On returning, the appellant again sent her with another Kshs 5 to buy juice cola, which she did. That the complainant’s younger brother also came to the appellant’s house with whom they shared the juice and then the appellant told him to leave, leaving the complainant and the appellant in the house.

10. The complainant testified that the appellant closed the door, and directed her to go between his legs, whereby he opened his zipped trousers and pulled them to his knees, and pulled up her t-shirt. She testified that the appellant used his penis to painfully poke her anus and before she could scream, the door opened and her friend (Stella) came in. When the appellant saw her, he ordered them to go and play outside as he hurriedly dressed up.

11. The complainant told the court she did not report the incident to anyone, because she was afraid that her mother would beat her. That her mother only found out the next morning, after Stella informed her mother, who in turn informed the complainant's mother (PW 1). Thereafter, she was taken to hospital and later to the police station, where she explained what had happened.

12. Pacific Awour (PW 3), a clinical officer gave evidence on behalf of Esther, her colleague at Olympic response children’s centre (MSF) in Kibera, formerly Tumaini clinic, who had examined the complainant. It was her evidence that the complainant visited the clinic on March 30, 2013 at around 1. 30 pm accompanied by her mother. She complained of abdominal pains and pain in her anus as she attended to the toilet. The findings of the examination were as follows. Complainant had no physical injuries, her blood pressure was normal, her HIV test was negative, her VDRL was negative, her hymen was annular with a slight tear, her anus had signs of abrasion, and she had changed clothes. She was treated and discharged. A post-rape care form was also filled. It was her opinion that the complainant was defiled.

13. Dr Joseph Maundu (PW 4) of Nairobi police surgery testified that he examined the complainant on April 4, 2013. Upon examination, his findings were that her hymen was broken and there was discharge from the vagina, which was foul-smelling due to an infection. He completed out a P3 form, which was produced in court as an exhibit.

14. No xxxx Lilian Moraa (PW 5), the investigating officer testified that on April 1, 2013, while at Kilimani police station she was assigned a case of defilement that had been reported on March 31, 2013. Upon investigating, she discovered that the complainant was 8 years old having been born on December 18, 2004 as per the produced birth certificate. After the incident, the complainant did not tell her mother but her friend Stacy, who reported it to her mother who in turn told the complainant's mother. That after the incident was reported at the police station, she examined the PRC report and recorded witness statements. She then proceeded to arrest the appellant and charged him with the offence. She told the court that the appellant was identified by the complainant’s mother as he was their caretaker on the premises, where they were living in. She also interrogated the child who also confirmed that it was the appellant who had defiled her.

15. The trial court found that the appellant had a case to answer and put him on his on his defence. He gave sworn evidence and told the court that indeed he lived in the same plot as the complainant. That he worked as a security guard and on March 29, 2013 he was from a night shift and slept until 10. 00 pm then he left the house for the bank. That when he came back, he asked his neighbour (Dw 2) to assist him with some money as he prepared for his night shift at 4 .00 pm. In his testimony, he denied defiling the complainant and testified that PW 1 had a grudge against him which was the reason why she had incited her daughter, the complainant to fabricate a case against him.

16. It was his evidence that he never kept the toilet keys as alleged and that every tenant had a key of their own.

17. Jared Orwaro (Dw 2) testified that he also lived in the same plot as the appellant and the complainant. On March 29, 2013, the appellant who kept the keys to the toilet washed the toilets in the morning hours. At around 1 .00 pm he spoke briefly to him and returned to his house in time to catch the lunch time news before 1. 30 pm. That he left for work at 3. 00 pm without speaking to the appellant again.

18. In ground 1 of the appeal, the appellant contended that the evidence relied upon as a basis of his conviction was full of contradictions and fell short of the requisite standard of proof required in law. He submitted that the complainant testified to being defiled in her anus and yet the evidence of PW 4 was that there it was her vagina that was infected. Secondly, the appellant challenged the age of the complainant in court submitting that she is not 11 years old as alleged. The appellant also challenged the evidence of the complainant that he kept the toilet keys arguing that there was no evidence adduced to show that he kept the toilet keys or was employed to clean the toilets.

19. In rebuttal, learned prosecution counsel submitted that the evidence of the complainant was consistent and was corroborated by the medical evidence of both PW 3 and PW 4. It was submitted that the trial magistrate correctly directed herself on the law and the facts and arrived at a proper finding in convicting the appellant for the offence of defilement.

20. On the totality of the prosecution evidence, PW 2 gave an account of the actions of the appellant on March 29, 2013. She was very clear and her testimony was not shaken on cross-examination by the appellant. Her evidence was confirmed by the evidence of PW3 and her evidence was that her hymen was missing, and her vagina was overstretched with visible bruises at the labia majora and vaginal entry. Further, her anus had signs of abrasion. The medical report produced indicated by PW 3 concluded that the complainant had been defiled. I find that in law the medical evidence did not amount to corroboration of the evidence of the complainant. This was further confirmed by the evidence of PW 4 who found her vagina infected and her hymen missing. It is common place that penetration can be proved by the evidence of the complainant alone as provided by section 124 of the Evidence Act, which provides that:

21. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

22. In the instant case, the complainant’s testimony was credible and it proved the element of penetration. On the age of the victim, her birth certificate was produced in court to confirm that she was born on December 18, 2004 and was 8 years old and a child of tender years at the time the incident took place.

23. On the identification, the appellant was positively identified as the perpetrator of the crime he was charged with. PW 1 and PW 2 both confirmed that they knew the appellant having lived as neighbours for over two years. PW 2 testified that she played with the appellant's child and the appellant was well known to her. This was therefore a case of recognition. The allegation that he was not positively identified therefore fails and is hereby dismissed.

24. From the prosecution’s evidence, the complainant was defiled, the complainant was proved to be a child of tender years and the perpetrator was positively identified to be the appellant. This is so, because the identification of the appellant was positive. The age of the victim was well established by a birth certificate and the medical evidence also demonstrated that she was defiled.

25. In ground 3 the appellant argued that the trial court erred by failing to summon essential witnesses to testify. It was his submission that the essential witnesses were not called such as Mama Stacy, who was informed of the alleged incident by her daughter. Secondly, Stella was also never called to testify and was an eyewitness to the alleged act. He relied on the case ofPaul Kanji Gitari v Republic [2016[ e–KLR, where it was held that, “the state of the evidence tendered with all its vital inconsistencies means that the appellant’s complaint that some vital witnesses were not called is not idle.”

26. This court is alive to the fact there is no legal requirement in law on the number of witnesses to prove a fact. Section 143 of the Evidence Act (cap 80) Laws of Kenya provides: -143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

27. In the case of Bukenya &othersvUganda [1972] EA 549 court addressed itself thus: -(i)The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.(ii)That court has a right and the duty to call witnesses whose evidence appears essential to the just decision of the case.(iii)Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.”

28. The evidence in the instant case proved the ingredients of the offence the appellant was charged with. This ground therefore fails and is hereby dismissed.

29. In ground 4 the appellant argued that the trial court shifted the burden of proof to him contrary to the provisions of the law. With regard to this ground of appeal, no submissions were made and the same therefore fails and is hereby dismissed.

30. In ground 5 the appellant argued that the trial magistrate erred by failing to find that the investigating officer did not conduct investigations and if she did, they were shoddy. Similarly, no submissions were made with regard to this ground. From the record, PW 5 narrated to the court how she conducted her investigations leading up to the arrest and charge of the appellant. The ground therefore fails and is hereby dismissed.

31. In ground 6 the appellant argued that the trial magistrate erred in law and fact by failing to give the appellant’s defence due consideration. From the record, the appellant gave evidence under oath denying his involvement in the sexual assault on the minor. He also called a witness who placed him at the scene of the crime at the time the offence he was charged with, took place.

32. In reaching a verdict, the trial court reiterated the appellant's defence and noted that it had considered it before making a determination. This indicates that the trial magistrate indeed considered the appellant's evidence but found it unbelievable and dismissed it. The contention that his defence was never considered is not correct. This ground of appeal therefore fails and is hereby dismissed.

33. The upshot of the analysis is that I find no merit in his appeal against conviction, which is hereby dismissed.

34. The appellant was sentenced to life imprisonment. His mitigation was that he was 62 years old and sickly. He was a first offender. His wife depended upon him and had a land case in respect of his land.

35. The aggravating factor was that he defiled a minor leaving her with permanent injuries.

36. The Court of Appeal (Karanja, Kiage & Mohamed, JJJA) in Joshua Gichuki Mwangi v Republic, Criminal Appeal No 84 of 2015, held that the mandatory sentence of imprisonment in respect of sexual offences is unconstitutional.

37. In view of the decision of that court, I find that the law has changed as envisaged in article 50 (2) (p) of the Constitution of Kenya, in that this provision direct that a lesser harsh sentence be imposed. I therefore find that the sentence cannot stand with the result that I hereby quash it.

38. After considering all the mitigating and aggravating factors, I hereby impose a sentence of 15 years imprisonment, which is to run from the date of this judgement.

JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 9TH OF NOVEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe appellant in personMs Chege for the Respondent