[2022] KEHC 490 (KLR)

PMM v Republic (Criminal Appeal E042 of 2021) [2022] KEHC 490 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 490 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E042 of 2021

LM Njuguna, J

May 12, 2022

Between

PMM

Appellant

and

Republic

Respondent

(Being an appeal against the sentence and conviction by Hon. Ndeng’eri in Sexual Offences Case No. 36 of 2019 in the CM’s Court at Embu and delivered on 12. 10. 2021)

Judgment

1. The appellant herein filed the petition of appeal dated 23. 11. 2021 and wherein he challenges the conviction and sentence by the trial court in Embu Chief Magistrate’s Court at in Sexual Offence No. 36 of 2019. The trial court convicted the appellant of the offence of attempted defilement contrary to section 9(1) as read together with Section 9(2) of the Sexual Offences Act No. 3 of 2006 and sentenced him to serve 10 years imprisonment.

2. The evidence available to the court is that, on 30. 09. 2019, the appellant and complainant had left for bed together while the complainant’s mother was left in the sitting room with the youngest child. That after sometime, the complainant started calling her mother but she instead asked her to sleep. It was the second call that got the complainant’s mother to go and check on the complainant. It was stated that on going to the beddrooom, she found the appellant herein undressed and his trouser and underwear were below his loins; he had removed his trouser and only remained with a vest. The complainant was naked from waist downwards and was shaking with fear. When she asked the complainant what was happening, the complainant explained that her dad (appellant) had removed her clothes and asked her to keep quiet, and further that, he placed something on her vagina.

3. The mother to the complainant who testified as PW2 reported the matter to the police following which he was arrested and charged. The matter proceeded and the trial court found him guilty and sentenced him to serve 10 years imprisonment.

4. It is that conviction and sentence that necessitated the instant appeal wherein the appellant raised the grounds of appeal as here below:i)The learned magistrate erred in both points of law and facts by not taking into cognizance that the prosecution did not prove its case beyond reasonable doubts as required by law.ii)The learned trial magistrate erred in both points of laws and facts by not realizing that the appellant is in court due to the complainant’s mother who was in love with another man and who advised the appellant’s former wife (complainant’s mother) to fix the appellant in order to settle personal vendetta using the criminal justice system to inflict pain on an innocent appellant.iii)The learned trial magistrate erred in both points of law and facts when he failed to realize that the medical expert report did not link the appellant with the allegations levelled against him.iv)The learned trial magistrate erred in both law and facts by not realizing that the prosecution case was full of contradiction and inconsistencies which rendered the prosecution witnesses unreliable.v)That the Honourable magistrate erred in both matters of law and facts by rejecting the appellant’s defense without giving cogent reason for the same.

5. At the hearing of the appeal, the parties elected to rely on their written submissions to argue the appeal.

6. The appellant submitted that the evidence adduced before the court could not lead to a conviction. Reliance was made on the case of Barwick CJ in Keely v Brooking (1979) CLR 162; 25 ALR. It was submitted that the appellant herein was framed by PW 2 who had desired to get married to a different man against the wishes of the appellant. That the appellant and the complainant’s DNA were collected but the results returned were negative in that there was no semen or blood detected. He blamed his predicament on the grudges between him and the mother of the complainant. In regard to the allegations that he previously slept with his step daughter (V), he submitted that the same were baseless as no report was ever made to the police in regard to such. In the end, it was prayed that this appeal be allowed.

7. The appeal was opposed by Ms. Mati, the Learned Prosecution Counsel wherein she submitted that the appeal is devoid of merit and thus should be dismissed. The respondent submitted that all the ingredients of the offence of attempted defilement were proved, the first being that the complainant was a minor which was proven vide the notification produced in court that showed that the minor was born on18. 11. 2014 and she proceeded to rely on the case of Charles Nega v RepublicCriminal Appeal No. 38 of 2015 [2016] eKLR. She referred to Section 388 of the Penal code for definition of the word attempt which identifies its two major components namely mens rea and the manner in which it is carried out (actus reus). That the prosecution showed the steps that had been taken by the appellant to carry out the failed act. Reliance was placed in the case of Daniel Simiyu Wanyonyi v Republic [2019] eKLR. It was further submitted that PW3 identified the appellant as her dad while PW2 identified him as her former husband with whom they were living together as husband and wife. Reliance was placed on the case Arthur Mshila Manga v Republic Criminal Appeal No. 24 of 2014 [2016] eKLR. In conclusion, it was submitted that the prosecution proved its case beyond reasonable doubt and thus conviction and sentence were lawful and as such, the same should be upheld.

8. I have considered the appeal before me and the written submissions by both parties. As already indicated, the appeal is on both conviction and sentence wherein the appellant contends that his conviction was not safe and as such, he should be set at liberty.

9. The duty of this court while exercising its appellate jurisdiction was set out by the Court of Appeal in Okeno v Republic[1972] E.A. 32 and re-stated in Kiilu and another v R [2005] 1 KLR 174 where it was held that the evidence as a whole is to be exposed to a fresh and exhaustive examination and thereafter the court should draw its own conclusions. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses. Further, the court should be alive to the principle that a finding of fact made by the trial court shall not be interfered with unless it is based on no evidence or on a misapprehension of the evidence or that the trial court acted on the wrong principles (See Gunga Baya & another v Republic[2015] eKLR).

10. Having considered and analyzed the evidence before the trial court, the issue for determination is whether the case against the appellant was proved beyond reasonable doubt.

11. On the ingredients of the offence of attempted defilement, the court in the case of Benson Musumbi V Republic [2019] eKLR held;"21. The prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; it must prove the age of the complainant, positive identification of the assailant, and then prove steps taken by the assailant to execute the defilement which did not succeed. Attempted defilement is as if it were a failed defilement, because there was no penetration.”

12. Similarly in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013,“ The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

13. In the case herein, the appellant was charged with the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No. 3 of 2006; the particulars of the offence being that on 30. 09. 2019, at about 2200Hrs in Mbeti North location within Embu County unlawfully and intentionally attempted to cause his penis to penetrate the vagina of SAM a child aged 4½ (Four and a half) years.

14. It must be appreciated that under Section 107(1) of the Evidence Act, the burden of proof is on the prosecution to establish every element in a criminal charge beyond reasonable doubt. This was well buttressed in the principle in the cases of Woolmington v DPP 1935 AC 462 and Miller v Minister of Pensions 2 ALL 372-273.

15. In the case of Edwin Nyambaso Onsongo v Republic (2002) eKLR, in which the court cited the case of Mwolongo Chichoro Mwanyembe v Republic, Mombasa Criminal Appeal No. 24 of 2015 (UR) the Court of Appeal held that:….the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents, guardian or medical evidence among other forms of proof…..

16. The question which needs to be answered is whether the above elements were proved to the required standards?

17. As for the proof of age of the victim, the Malindi Court of Appeal in Criminal Appeal No. 504 of 2010 - Kaingu Elias Kasomo v Republic held that;“ Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”The birth notification produced in court as PExbt 3 indicated that she was Four years 9 months at the time of examination while the alleged offence happened on the night of 30. 09. 2019. In the same breadth, PW2, the complainant’s mother testified that the complainant was Four years 9 months old at the time the alleged commission of the offence. The document and the oral testimonies were never controverted or challenged by the defense. It is my view that the prosecution was able to prove that the victim was a child. Section 2(1) of the Sexual Offences Act adopts the definition of a child as used in the Children Act which defines a child as a person under the age of 18 years. The complainant was therefore a child at the time of the commission of the alleged offence.

18. As to whether the appellant was positively identified, it was PW2’s evidence that the appellant and the complainant had left for bed together when she heard the complainant call her and she went to find out what was happening. She found the appellant undressed and his trouser and underwear were below his loins; that, the complainant was naked from waist downwards and was shaking with fear. That the complainant explained that her dad (appellant) had removed her clothes and asked her to keep quiet, and further, that the appellant placed something on her vagina. The appellant’s actions shows a clear intention to commit the said offence. With regard to the identity of the defiler, the appellant was a person who was well known to the complainant since he was the father of the complainant and the incident happened in the house.

19. Although a step father is not mentioned in Section 22 of the Sexual Offences Act they fall within the prohibited degree of consanguinity. As expressed by the court in BNM v Republic, Mombasa Criminal Appeal No. 232 of 2009 [2011] eKLR:“my own understanding is that ‘half father’ is a term which means exactly the same as ‘step-father’ – it means one who is not a biological father of the child. Therefore by dint of this S 22(1) of the Act the appellant being a step-father of the complainant and one who stood in ‘loguo parenthis’ can legally be charged and indeed convicted of the crime of incest with her.”[See DKG v Republic [2018] eKLR].

20. In regards to whether there was an act of penetration which was not successful, Section 2 of the Sexual Offences Act defines penetration to mean the ‘partial’ or complete insertion of the genital organs of a person into the genital organs of another. The Court of Appeal in the case of Erick Onyango Ondeng v Republic (2014) eKLR was of the view that :“In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.” [Emphasis][See also Mark Oiruri Mose v Republic [2013] eKLR].

21. Section 388 of the Penal Code defines attempt in the following terms:(1)Where a person intending to commit an offence begins to put his intentions into execution by means adopted to its fulfilment manifests his intentions by some avert act but does not fulfil his intentions to such an extent as to commit the offence, he is deemed to attempt to commit an offence.(2)It is immaterial except so far as regards punishment whether the offender does all that of necessary on his part for completing the commission of the offence or whether the complete is prevented by circumstances independent of his will or whether he desists of his own motion from further prosecution of his intention.(3)It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.[See Abdi Ali Bare v Republic (2015) eKLR].

22. Section 124 of the Evidence Act (Cap 80 Laws of Kenya) provides that evidence of a minor needs no corroboration in sexual offences. I have considered the evidence adduced by PW1, and PW2 which pointed to the fact that the appellant had attempted to defile the complainant. The court carried out a voire dire on the minor and in her unsworn testimony, it was her case that ….after we ate dinner, I went to bed and I covered myself. My father came and removed my stockings to a level below my knees, he applied oil on my vagina and applied some on himself and placed ‘kakitu’ here vagina….. when my mother found me naked, I got out of bed and explained to her what my daddy had done…..was on the bed when daddy was doing his kakitu….PW2 corroborated the complainant’s testimony that she heard the complainant call her and when she went to find out what was happening, she found the appellant undressed and his trouser and underwear were below his loins. That the complainant was naked from waist downwards. The appellant had even applied oil on the vagina of the complainant which means he was ready to commit the offence. In my view, from the foregoing, it is quite evident that all the ingredients of the offence were proved.

23. The appellant submitted that his mitigation was never considered and in the end, this court should review the trial court’s decision and quash the conviction and sentence meted out on him. The court record shows that the appellant herein was given a chance to mitigate and the court noted that the appellant’s mitigation was considered. As such, there is no merit that his mitigation was never considered.

24. On sentence, the legal position on sentencing was stated succinctly by the Court of Appeal for East Africa in the case of Ogola S/O Owoura v Reginum (1954) 21 270 as follows: -“The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James v R., (1950) 18 E.A.C.A 147:"It is evident that the Judge has acted upon some wrong principle or overlooked some material factor."To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case: R v Shershewky, (1912) C.C.A. 28 T.L.R. 364. "

25. The appellant was charged under Section 9(2) of the Sexual Offences Act which states that:A person who attempts to commit an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.

26. In my view, the sentence imposed despite being harsh, according to the appellant, was within the law and within the discretionary powers of the court. This court cannot interfere with the exercise of the said discretion as the appellant did not justify the interference. He did not prove that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle.

27. In view of the foregoing, I find that the appeal has no merit and I hereby dismiss the same.

28. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 12TH DAY OF MAY, 2022. L. NJUGUNAJUDGE………………………………………for the Appellant……………………………..…for the Respondent