[2020] KEHC 9501 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO. 162 OF 2018

(An Appeal arising out of the conviction and sentence of Hon. C. NJAGI – RM delivered on 27thJuly 2018 in Nairobi CMC. CR. Case No.92 of 2015)

PETER KIMANI NJOKI………………………………………APPELLANT

VERSUS

REPUBLIC……………………………………………………..RESPONDENT

JUDGMENT

The Appellant, Peter Kimani Njoki was charged with the offence of defilementcontrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 1st December 2013 and 12th January 2015 at [Particulars Withheld] Village in Kajiado County, the Appellant intentionally and unlawfully caused his male genital organ namely, penis to penetrate the female genital organ namely, vagina of DK, a minor aged 14 years. He was alternatively charged with committing an indecent act with a childcontrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that between the above dates, and at the same place, the Appellant intentionally and unlawfully touched the female organ namely, vagina of DK, a minor aged 14 years with his male genital organ namely, penis.

When the Appellant was arraigned before the trial magistrate’s court, he pleaded not guilty to the charge. After full trial, he was convicted as charged on the main count. He was sentenced to serve twenty (20) years imprisonment. The Appellant was aggrieved by his conviction and sentence. He filed an appeal to this court challenging the same.

In his petition of appeal, the Appellant raised several grounds of appeal challenging his conviction and sentence. He was aggrieved that he had been convicted after the trial court had failed to properly evaluate the evidence, which in his view showed that the charge brought against him was trumped up and was motivated by malice on the part of the complainant’s mother. The Appellant faulted the trial magistrate for convicting him on the charge yet essential ingredients to prove the charge were not established. The Appellant pointed out that there were errors and contradictions in the testimony of the prosecution witnesses. He therefore urged the court to resolve the contradictions in the Appellant’s favour. The Appellant was aggrieved that the trial court failed to call for a pre-sentence report before convicting the Appellant yet evidence had been adduced that the Appellant, who was then aged 19 years old, was in a romantic relationship with the complainant that resulted in their cohabitation for a period.

The Appellant further pointed out that during the entire period of their cohabitation, the complainant presented herself as a mature girl who was ripe for marriage. Indeed, the complainant threatened to commit suicide if the Appellant did not marry her. The Appellant was aggrieved that the trial court failed to make a finding that the Appellant and the complainant repeatedly had consensual sex and therefore he could not be accused of having defiled the complainant. The custodial sentence that was meted out of twenty (20) years imprisonment, was in the Appellant’s view draconian, harsh and excessive in the circumstances. He urged the court to allow the appeal, quash the conviction and set aside the sentence that was imposed on him.

During the hearing of the appeal, this court heard oral rival submission made by Ms. Odembo for the Appellant and by Ms. Akunja for the State. Ms. Odembo for the Appellant submitted that the complainant was medically examined five months after the alleged defilement. The Appellant denied that he had defiled the complainant. On the contrary, he told the court that he had a romantic relationship with the complainant. He did not know the age of the complainant. He was 19 years old at the time. The sexual intercourse was consensual. The complainant told the court that he was 16 years old at the time. Ms. Odembo submitted that it was not clear from the evidence what age the complainant was at the time of the alleged defilement. No documentary evidence was produced to establish the complainant’s age. The evidence adduced by the complainant clearly pointed to the fact that she had cohabited with the Appellant for about five months before she returned to her mother’s home with a view to attending a funeral. She did not return back to the Appellant’s home.

Soon thereafter, a report was made to the police culminating in the Appellant’s arrest and subsequent charge. Ms. Odembo reiterated that a child was born out of the relationship. The Appellant was not denying paternity. Indeed, he was willing to take up responsibility before the complainant’s mother interfered with the relationship and instituted criminal charges against him. Taking into consideration the totality of the evidence adduced by the prosecution witnesses, it was clear that the complainant had presented herself to the Appellant as a mature woman and not a minor. Even if the court were to reach a finding that the prosecution had proved its case, learned counsel wondered why the trial court did not call for a pre-sentence report to be prepared before sentencing the Appellant to serve the draconian custodial sentence. She urged the court to allow the appeal.

Ms. Akunja for the State opposed the appeal. She submitted that the prosecution had established to the required standard of proof beyond any reasonable doubt the three ingredients that support the charge of defilement. Penetration was established by the DNA report which was produced. It established that the Appellant was the father of the child born of the complainant. The age of the complainant was established by the P3 form and the post-rape care (PRC) form which were produced into evidence. It established that the complainant was 14 years of age at the time of the incident. The Appellant in his testimony did not deny that he had sexual intercourse with the complainant. In that regard, the identity of the perpetrator was not in doubt.

As regard the allegation that the Appellant and the complainant were in a consensual sexual relationship, learned counsel cited Section 43(4)(f) of the Sexual Offences Act which categorically states that a child has no capacity to give consent to a sexual relationship. The allegation that there was consent was negated and therefore irrelevant. As regard whether there were contradictions in the evidence that was adduced, learned prosecutor submitted that the prosecution established that the sexual intercourse took place for a long period of time. If there was any contradiction, the same was displaced by the evidence that was adduced.

As regard the allegation that the complainant behaved as an adult, learned prosecutor submitted that the Appellant had been warned by the complainant’s mother to leave the complainant alone because at the time she was attending primary school. The Appellant did not heed to this warning leading to the pregnancy and subsequent birth of the child. She reiterated that the complainant lacked capacity to make an informed decision regarding consent. The prosecution therefore established the case against the Appellant. On sentence, in light of the Muruatetu case, Ms. Akunja submitted that the Appellant should be ordered to serve a minimum sentence of ten (10) years imprisonment from the time he was convicted in July 2018. Otherwise, she urged the court to dismiss the appeal.

This being a first appeal, this Court is mandated to re-evaluate the evidence presented before the trial court afresh. The Court of Appeal in the case of Gabriel Kamau Njoroge –vs- Republic [1987] eKLRstated this on the duty of the first Appellate court:

“It is the duty of the first Appellate court to remember that parties are entitled to demand of the court of first appeal a decision on both questions of fact and of law and the court is required to weigh conflicting evidence and draw its own inferences and conclusions, but bearing in mind always that it has neither seen or heard the witnesses and make due allowance for this.”

In the present appeal, the issue for determination is whether the prosecution established the charge of defilementcontrary Section 8(1) as read with Section 8(3) of the Sexual Offences Act to the required standard of proof beyond any reasonable doubt.

For the prosecution to establish the charge of defilement, it was supposed to prove penetration, the age of the complainant and the identity of the perpetrator. In the present appeal, penetration and the identity of the perpetrator has not been disputed. Indeed, the Appellant freely admits that he had sexual intercourse with the complainant. The complainant herself told the court that when she realized that she was pregnant, she left her home and went to reside with the Appellant. She lived with the Appellant for a period of approximately four months before she was asked to go to their rural home to attend to a funeral of her uncle.

When she returned to Nairobi from the funeral, which had been held at Kisii County, the complainant did not return to the Appellant’s house. During the period of their cohabitation, they freely admit that they repeatedly had sexual intercourse. A child was born out of the sexual relationship. Again, the Appellant does not deny being the father of the child. If there was any doubt as to the paternity of the child, that doubt was removed by the DNA evidence that was adduced by the prosecution that confirmed the Appellant to be the father of the child. Penetration was therefore proved. Similarly too, the identity of the perpetrator.

The issue that came to the fore for determination by this court is the age of the complainant at the time the offence is alleged to have been committed. According to the prosecution, the complainant was a school going child at the time of the incident. Her mother testified that the complainant was born on 3rd May 2000. She however did not produce the birth certificate or any other document to establish that the complainant was indeed born on the said date. The prosecution asserted that other than this testimony, the medical reports that were produced as exhibits in court indicated that the complainant was of the apparent age of 14 years at the time the offence is alleged to have been committed. The complainant’s mother further testified that he had warned the Appellant to keep off from engaging the complainant because the complainant was still a child and was not ready or could not engage in sexual relationships.

On the other hand, it was the Appellant’s defence that the complainant was apparently of an adult age at the time he formed the romantic relationship with her. The Appellant has invoked Section 8(5)(b) of theSexual Offences Act which grants an accused a defence if hereasonably believes the complainant was over the age of 18 years and therefore legally able to give consent to sexual intercourse.

Upon re-evaluation of the evidence adduced before the trial court and the submission made before this court, it was clear to this court that the apparent age of the complainant was between the ages of 14 and 16 years. The evidence adduced by the complainant, her mother and the medical reports that were produced into evidence, established that the complainant was aged between the above ages. In whatever circumstances, the complainant was a child within the meaning ascribed to the term under Section 2 of the Children Act. That being the case, the complainant lacked capacity under Section 43(4)(f)of the Sexual Offences Actto consent to sexual intercourse with the Appellant. This court therefore holds that the prosecution did indeed establish that the Appellant had sexual intercourse with the complainant, who was a child who could not legally give consent.

However, this court is not oblivious of the fact that the evidence adduced during trial established that the Appellant and the complainant were in romantic relationship. Indeed, the Appellant and the complainant even cohabited together as husband and wife for a period of four months before they separated. Initially, both sets of parents blessed the relationship. From the evidence adduced, it was apparent that the relationship between the Appellant and the complainant deteriorated to an extent that the mother of the complainant took matters in her own hands and reported the incident to the police. This court finds the action by the mother of the complainant odd taking into consideration that she had initially accepted that the complainant was living with the Appellant in the capacity of wife of the Appellant.

What transpired between the Appellant is what is referred to in some jurisdiction as the Juliet and Romeo Law. An example is the Florida Statutes (2008) Section 943. 04354 which was passed in 2007 and was designed to protect individuals from the sex offenders’ list. The victim in the case must be between 14 and 17 years, and a willing participant in the sexual activity and not more than 4 years younger than the offender. The offence must be the only sex crime on the offender’s record. The law does not make it legal to have sexual relations with minors, but merely stops the accused from being held out as a sex offender in the society.

In the present appeal, it is this court’s finding that although the complainant did not have legal capacity to consent to sexual intercourse with the complainant, it was apparent that for some time she lived and cohabited with the Appellant as his wife. She did so with the acquiescence of her mother and the parents of the Appellant. For all intent and purpose, the Appellant thought that he had married the complainant. Likewise, the complainant was of the same view. However, when the relationship went south, the criminal justice mechanism was invoked to resolve an otherwise social issue. This court hopes that with the amendments currently being proposed to the Sexual Offences Act, a provision similar to the above will be included to ameliorate the harshness of the current law especially where infatuated teenagers engage in sexual activity.

Having made the above observations, this court holds that as the law currently stands, the issue of whether a girl can give consent to sexual intercourse is one of strict liability. Where a girl is aged below 18 years, like in the present case, the law categorically states that such girl has no capacity to give consent to sexual intercourse. The court therefore holds that the prosecution proved to the required standard of proof beyond any reasonable doubt that the Appellant indeed defiled the complainant.

As regards sentence, this court will not make a determination in respect of the same until it has received a pre-sentence report from a probation officer. When the report shall be prepared, it shall include the views of the complainant and both sets of parents i.e. the parents of the complainant and that of the Appellant. Of course, the views of the local administrators must be sought. This matter shall therefore be mentioned on 26th March 2020 for the court to receive the said report before determining what sentence should be meted on the Appellant. It is so ordered.

DATED AT NAIROBI THIS 11TH DAY OF MARCH 2020

L. KIMARU

JUDGE