[2023] KEHC 23927 (KLR)

PMN v Republic (Criminal Appeal E066 of 2022) [2023] KEHC 23927 (KLR) (17 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23927 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E066 of 2022

LM Njuguna, J

October 17, 2023

Between

PMN

Appellant

and

Republic

Respondent

(ppeal arising from the decision of Hon. W. Ngumi PM in the Senior Principal Magistrate’s Court at Siakago MCSO No. 005 of 2021 delivered on 06 th January 2022))

Judgment

1. The appellant has filed a petition of appeal seeking that the appeal be allowed, conviction be quashed, sentence be set aside and the appellant be set at liberty. The appeal is premised on the grounds inter alia that the trial magistrate erred in law and fact by:a.Failing to consider that the prosecution evidence was insufficient and contradictory thereby incapable of sustaining a conviction;b.Failing to record reasons for believing a single eye witness in order to enforce section 124 of the Evidence Act;c.Rejecting the appellant’s defense without giving cogent reasons;d.Failing to order a DNA test in order to ascertain the identity of the perpetrator; ande.Failing to note that the appellant had not been medically examined to prove that he committed the offence.

2. The appellant was charged with defilement contrary to Section 8(1) as read together with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that, on diverse dates between March 2020 and 28th December 2020 at around 4PM at Karoki Mavuria village in Mbeere South Sub County within Embu County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of WNN a girl child aged 14 years.

3. The alternative charge was committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars for this charge were that on diverse dates between March 2020 and 28th December 2020 at around 4PM at Karoki Mavuria village in Mbeere South Sub County within Embu County, the appellant intentionally and unlawfully caused his penis to touch the vagina of WNN a girl child aged 14 years.

4. The appellant pleaded not guilty and a plea of not guilty was duly entered. The prosecution called 6 witnesses in support of its case.

5. PW1 was the victim who gave sworn testimony after the court conducted voire dire. She testified that on 3 occasions starting March 2020, the appellant had been taking her to her mother’s bed and having sex with her. That after these incidences, he would threaten to kill her if she told anyone about it. That PW1 told her grandmother, who was also the landlady about the incidences. That her grandmother informed the area chief who in turn informed the head teacher of the school where PW1 was schooling who took her to hospital where her private parts were examined and she was treated. She stated that no one told her to implicate her father for the offence. On cross-examination, she stated that Aunt Wambui told her to tell the truth to the court.

6. PW2 is the mother of the victim who stated that on 23rd January 2021, she was at her place of work when the area chief told her that PW1 had been defiled by her father, who is PW2’s husband. That the area chief led her to Kiritiri Police Station where she recorded her statement. She stated that PW1 told her that she had been defiled three times by her father. She produced PW1’s birth certificate and immunization card showing the date of birth and that the victim was 14 years old at the time of the incident. On cross-examination, she stated that Auntie Wambui who is also their neighbor told PW1 to implicate the appellant because of differences between her and the appellant. On re-examination, she stated that she wished for the matter to be resolved out of court.

7. PW3 was the area assistant chief, who stated that on 19th January 2021, he met PW4 who told him that she suspects that a child of one of her tenants is being defiled. That PW3 and PW4 went to the school of PW1 and took her to the Children’s department where the issue was reported and the child confirmed that she had been defiled. That the matter was reported to the police where they all recorded their statements and then the child was taken to Kiritiri Health Center for examination and treatment. That the appellant was later arrested and charged. On cross-examination, he said that the child had told the children officer that the appellant had been defiling her for a period of 2 years.

8. PW4 was the appellant’s landlord who testified that PW1 went to her house and told her that the appellant had been defiling her for about a year and that PW1 was afraid that the appellant would make her pregnant. That she told the area chief what PW1 had said and the chief took up the matter. That she did not coach the child to implicate the appellant. On cross-examination, she stated that she does not know if Wambui asked the child to implicate him.

9. PW5 was the investigating officer in the case. She testified that a report was made on 21st January 2021 that the appellant was defiling PW1 while her mother was away. That PW1 was taken to hospital for examination and treatment and the appellant was arrested. That P3 and PRC forms were filled and produced in court as evidence. That the age of PW1 was confirmed through her birth certificate.

10. PW6 was the clinical officer who examined the child at Kiritiri Health Center. He stated that there were no injuries around the genitals, the hymen was absent and there was a white discharge on the vagina. He produced P3 and PRC forms as exhibits. On cross-examination he stated that it was too late to conduct forensic examination as much time had passed since the last defilement incident.

11. Upon close of the prosecution’s case, the appellant was put to his defense. He gave sworn evidence and called one witness.

12. DW1 was the appellant who stated that he was wrongly implicated. That PW4 influenced PW2 to turn against him because of some land which she was given, which land PW4 was interested in. That he once beat PW1 out of anger because he found her with a bodaboda rider. That he also quarreled with PW4 and there was a grudge between them and that is why PW4 told his wife to implicate him and she accepted. On cross-examination, he stated that indeed he beat his wife and daughter while he was drunk.

13. DW2 who is a sister to the appellant stated that the appellant has never committed this kind of offence before. That PW2 told her that the appellant did not commit the offence he was charged with and that PW1 also said that it was a lie. That when the appellant beat up PW1 and PW2, he was drunk and is remorseful of the occurrence and is willing to stop drinking alcohol. On cross-examination, she stated that she did not tell PW1 to come to court to lie about the ordeal but to tell the truth of what had happened.

14. The defense case was closed and the court gave its judgment finding the appellant guilty of the offence and sentenced him to 20 years imprisonment.

15. In this appeal, the court directed the parties to file their written submissions and only the appellant complied.

16. In his written submissions, the appellant stated that he was framed for the offence by PW4. That PW1 testified that Wambui told PW4 that she saw the appellant defiling PW1, which is a lie. That PW6 testified that the hymen was missing, which testimony the appellant decries adding that not all girls are born with a hymen. That Wambui is the one who told the victim to implicate the appellant and the court did not address this issue thereby denying him justice. Further, he stated that the court’s failure to call the alleged eye-witness, Wambui, is an infringement on his rights in the constitution. The appellant also decried the mandatory minimum sentence applied by the trial magistrate, stating that the trial court should have applied its discretion on sentencing. He cited the case of Evans Wanjala Wanyonyi Vs. Republic (2019) eKLR.

17. From the foregoing, the issues for determination are:a.Whether the offence was proved beyond reasonable doubt;b.Whether the evidence was contradictory rendering it inadmissible; andc.Whether the sentence meted out to the appellant was excessive and should be reviewed.

18. On the first issue for determination, the elements of the offence of defilement are entrenched in section 8 of the Sexual Offences Act and the court must satisfy itself of these 3 things:a.The age of the victim- that the complainant was a child;b.Penetration happened; andc.The perpetrator was positively identified.

19. The age of the victim was rightly ascertained through the child’s immunization record produced in court which indicated that she was born sometime in August 2006. PW2 said that the child has a birth certificate although the same was not produced in court. The immunization card is sufficient to proof the age of the child. On the second element of penetration, PW6 stated that upon examination, the hymen was absent. There were no injuries to the genitals. There is proof that penetration occurred. In his submissions, the appellant stated that PW6’s evidence was not sufficient as no DNA was carried out to prove that indeed the appellant’s bodily fluids were present. PW6 has stated on cross-examination that by the time he was examining the victim, it was too late to conduct any further forensic examination, which would include DNA testing.

20. The final element that will show the culpability of the appellant or otherwise, is identification of the assailant. In this case, the appellant was identified by the victim as the assailant. It was not merely a dock identification, but the victim knew the appellant as her step-father and they lived in the same house. In the case of Wamunge Vs Republic, (1980) KLR 424 it was held;“It is trite law that where the only evidence against a defendant evidence of identification or recognition a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility of error before it can safely make it a basis for conviction”

21. The trial court was satisfied that the assailant was positively identified by the victim, and so am I. Section 124 of the Evidence Act provides that corroboration is necessary when it comes to identification of an assailant in criminal cases. However, the proviso to this section allows the court record its findings based only on the evidence of the victim of a sexual offence. It states:“.....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.”(see the case of Paul Ndogo Mwangi Vs Republic, (2016) eKLR)

22. At this point, it is necessary that I address the issue raised by the appellant in his submissions that there was an eye witness who did not participate in the trial. The said Wambui was not a prosecution witness but she was mentioned by the prosecution witnesses. While it may be true that Wambui might have had useful information to present at the trial, the prosecution did not call her as a witness. The prosecution usually has the freedom to choose and lineup its witnesses as appropriate to their case and the court has no role to play in this process. In the case of Mwangi Vs R (1984) KLR 595 the court stated thus:“Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.”

23. The court was satisfied with the testimonies and evidence placed before it and considered the evidence wholesomely in reaching its determination. Therefore, in my view, the offence was proved beyond reasonable doubt.

24. On the second issue of whether the evidence was contradictory, the court will consider whether contradictions barred the trial court from considering the evidence at all. If the appellant should claim that the evidence was contradictory, the contradiction alleged should be to an extent that it should have led the trial court to believe that the evidence ought to have been totally disregarded. For instance, if the evidence veers too far off the course of the trial or it does not relate to the case at all. In the present case, the prosecution attempted to create a chain of evidence with the aim of proving the offence beyond reasonable doubt. Contradictions, if any, do not shake the foundation of the case and can be overlooked. In the case of Erick Onyango Ondeng’ Vs. Republic [2014] eKLR the Court of Appeal cited with authority the Ugandan case of Twehangane Alfred Vs. Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 where it was held:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

25. On the final issue for determination, the appellant has decried the sentence of 20 years imprisonment. For sure it is the mandatory minimum prescribed by the Sexual Offences Act. However, as stated by the appellant in his submissions, the court has discretion to adjust this sentence. This court will be guided by the spirit of the decision of the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (Muruatetu 2), albeit with great caution.

26. Further, as regards the discretion of the courts in sentencing, the subject was rightly explored by the court in the case of Athanus Lijodi Vs Republic (2021)eKLR where the court held thus:“On the issue of sentence, we reiterate that the life sentence imposed by the trial magistrate and affirmed by the High Court is not unconstitutional and can still be meted out in deserving cases Muruatetu’s case (supra) notwithstanding. This Court has on many occasions invoked the Muruatetu decision to reduce sentences that were hitherto deemed as minimum sentences. (See for instance Evans Wanjala Wanyonyi Vs Republic [2019] eKLR). Having said that however, we must hasten to add that this Court will uphold a sentence prescribed by the Sexual Offences Act if upon proper exercise of sentencing discretion and consideration of the facts of each case, such sentence is deserved or merited. This Court expressed the proposition as follows in David Wafula Kilwake & Another Vs. Republic [2018] eKLR.“We hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the Society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by Section 8 to impose the provided sentences if the circumstances do not demand it.”

27. In the end, I find that the appeal with regard to conviction fails and the finding of the trial court on conviction is hereby upheld. However, the sentence of 20 years imposed on the appellant is hereby set aside and substituted with a sentence of 15 years imprisonment to run from the date of the trial court’s judgment.

28. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 17TH DAY OF OCTOBER, 2023. L. NJUGUNAJUDGE