[2023] KEHC 19518 (KLR)

PNO v Republic (Criminal Appeal 15 (E014) of 2022) [2023] KEHC 19518 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19518 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Appeal 15 (E014) of 2022

PN Gichohi, J

June 29, 2023

Between

PNO

Appellant

and

Republic

Respondent

(Being an appeal against the Judgement of Hon. S. N. Abuya (CM) delivered on 10th August, 2022 in Kisii magistrate’s court S.O case No. 37 of 2019)

Judgment

1. The Appellant herein was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, 2006. The particulars of the offence were that on diverse dates between January 2, 2019 and February 9, 2019, at Megogo Sub-Location Marani Sub-County within Kisii County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of JMO a child aged 13 years.

2. He was also charged with the alternative count of indecent act contrary to section 11 (1) of the Sexual fences Act No. 3 of 2006 . The particulars were that on diverse dates between January 2, 2019 and February 9, 2019, at Megogo Sub-Location Marani Sub-County within Kisii County, the Appellant intentionally and unlawfully did commit an indecent act by rubbing his penis against the vagina of JMO a child aged 13 years.

3. He was tried and ultimately convicted and sentenced on the main charge of Defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act, 2006 and sentenced to serve 20 years imprison vide judgment delivered on August 10, 2022.

4. Dissatisfied, he preferred this appeal seeking to have the conviction quashed and the sentence set aside. He cites 6 grounds in his Petition of Appeal dated August 22, 2022 as follows:1. That the learned magistrate erred both in fact and law by not taking into consideration the time the alleged offense was committed, the duration of the pregnancy at the time of the appellant was arrested and the time of the delivery of the baby.2. That the learned magistrate erred both in fact and law and grossly misdirected herself by holding and adapting the testimony of the prosecution witnesses and not carefully analysing the same in order to come to a just and fair determination.3. That the learned magistrate erred both in fact and law by not taking into account the testimony of PW4, the investigation officer as to the age of the complainant as no document was produced in court to enable it ascertain the age of the complainant.4. That the learned magistrate erred both in fact and law by not inquiring and fully interrogating why there was a mix-up in the names of the complainant by not considering the fact that the report by the government analyst indicates the name as N while the appellant who is the uncle to the complainant knows her by the name N.5. That the learned magistrate erred both in fact and law by not questioning and/or taking into account the inordinate delay by the government analyst to produce the D.N.A report from the September 8, 2019 when the buccal swabs were taken on March 23, 2022 when then said swabs were analysed.6. By the reasons of misdirection pointed out herein, the learned magistrate proceeded on the wrong premises as a consequence whereof she arrived at a wrong decision to the prejudice and / or detriment of the appellant.

5. This court has a duty duty to re-evaluate and assess the evidence adduced in the lower court so as to come up with its own conclusions bearing in mind that it did not have the benefit of seeing the witnesses testify- See Okeno v Republic [1972) EA.

6. The Prosecution presented its case through five witnesses and the evidence was that on January 2, 2019 at about 1. 00 pm, the complainant (PW1) aged 13 years was alone in their house when the Appellant removed her under-pant forced her to bend and inserted his penis in her vagina. He warned her not to tell anyone. He gave her Kshs. 10/= and went away. He came again on February 9, 2019 and found her alone and defiled her gain. He told her not to tell anyone.

7. She was in school on March 13, 2019 when her teacher asked her to call her mother to school which she did. She did not know what they discussed but she was told that she was pregnant. She was taken for treatment.

8. Her mother PW2 was called to school and informed by the teacher that PW1 had a problem. She talked to PW1 and she revealed that she had been defiled by the Appellant. They reported the matter to the chief and the police at Rioma Police Station. The complainant was later found to be pregnant.

9. The clinical officer (PW3) from Marani Level 5 hospital testified that the complainant was brought to the facility on March 16, 2019 with a history of having been defiled on January 2, 2019 and February 9, 2019 by someone known to her. The compliant was examined and found not to have any injuries on her external genitalia but her hymen was absent which was evidence of penetration. She had pus cells and had infection. Pregnancy test was positive and the foetus was 20 weeks. The complainant was told to report to police.

10. PW4 No. 241841 PC Mendimo testified that the complainant named the Appellant as the person who had defiled her on the two dates while she was alone at her home. She was accompanied by her mother for treatment and they reported the matter at Kisieka Police Station. The Appellant was arrested by Administration Police Officers and taken to Rioma Police Station. The Appellant was charged on March 18, 2019 and on October 18, 2019, the Appellant, the complainant and her child were taken to Government Chemist for DNA test and the results revealed that the Appellant was the father of the complainant’s child.

11. PW5 Salvin Cherutu Katukai , a Senior Government Analyst was brought by No. 11756 PC John Kenyatta an order from the court on October 8, 2019. A sample was obtained from the complainant, the Appellant and the child (JG) . After analysis, on March 24, 2022, the findings were there were 99 .9 percent chances that the Appellant (alleged father) is the biological father of the child (JG) who is the complainant’s biological mother. She produced the DNA report dated March 25, 2020 on behalf of her colleague Richard Lagat as exhibit.

12. When cross examined by Nyagwecha for the Appellant, PW5 told the court that the swab was from the appellant, the complainant and the accused. That the Court order referred to one JN not N. She testified that she would be surprised if the victim was N not N. She explained that the officers who accompanied the parties to the Government Chemist in Kisumu must have identified the Appellant, the victim and the child .

13. In re- examination, she told the court that the final report was that the Appellant was the biological father of the child JG who is also JN’s (mother) biological child.

14. In his sworn statement in defence, the Appellant told the court that he was summoned by the sub chief to go to his office on March 15, 2019 and on reaching here , he found the complainant and her mother. He was accused of impregnating the complainant which he denied. He was taken to Rioma Police Station and later brought to court where he was charged with this offence.

15. The complainant then gave birth in August 2019. The Appellant, the complainant , the child and the complainant’s mother were escorted to the Government Chemist for DNA test. The results came out that he was the father of the child of JN who he did not know as he had gone to government Chemist with JN.

16. On cross examination by the prosecution counsel, he told the court that his sample, that of JN and the child’s sample were taken. That the results showed that the was the father of JN’s child. That there was no error in the name of the mother and the child. He however denied that he was the father of the said child. He also told the court that JN home is 100m from his home and Jackeline is his step brother’s child.

17. This appeal was canvases by way of written submissions filed by the Appellant and the Respondent on January 23, 2021 and January 18, 2023 respectively.

Appellant’s Submissions 18. While citing the case of Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 on importance of proof of age in sexual offences, counsel for the Appellant submitted that there was no tangible evidence as to the age of the complainant and therefore age was not proved beyond any reasonable doubt.

19. Counsel further submitted that the trial court failed to take notice there was a mix-up of names of the complainant in the report that was presented by the government chemist. He argued that the report indicated the name of the complainant as N while the charge sheet indicated the name as N. He therefore contended that the charge was unsafe as it did not tally with the evidence on record.

20. Counsel also argued that the procedure of plea taking was irregular and unprocedural and that the learned trial magistrate was not impartial throughout the proceedings. He submitted that throughout the proceedings, there was no indication of the language of choice during the trial and this is a mistake that might have contributed to the Appellant’s failure to cross-examine the witnesses. He argued that the conduct of proceedings by the trial court denied the appellant his right to a fair hearing.

21. Lastly, counsel submitted that the sentence of 20 years was far too harsh and callous. He urged the court to allow the Appeal as prayed.

Respondents Submissions 22. Counsel for the Respondent submitted that the victim’s testimony, her health record book, her P3 Form and the clinic card (produced in court as exhibits) all indicated the age of the victim as 13 years and therefore age was proved.

23. Further, counsel submitted that the child testified how the Appellant defiled her on January 2, 2019 and February 9, 2019 at her home . She gave the same information to her mother (PW2). The Clinical Officer examined the victim and found her hymen absent hence an indication of penetration. The victim was examined on March 16, 2019 and confirmed to be pregnant as captured by the P3 form (Exh, 2).

24. Counsel further submitted that the child clearly identified the Appellant as the person who defiled her. That PW5 testified how swabs were obtained from the victim, the child and the Appellant and results showed that there were 99. 99 percent plus chances that the Appellant was the biological father of the child and that the victim was the mother of the child.

25. Lastly , he urged the court to find the evidence against the Appellant cogent and proceed to find no merit. In the appeal and in the circumstances uphold the conviction and affirm the sentence.

Determination 26. From the evidence on record before the trial court and the submissions by parties, two issues that arise for determination are:1. Whether the offence of defilement was proven to the required standard thereby warranting a conviction.2. Whether the 20-year sentence meted on the Appellant was harsh.

27. Age is critical in a charge under the Sexual Offences Act No. 3 of 2006 as it determines the sentence that is applicable in case of a conviction. It is now settled law that age of a child can be determined by baptism cards, birth certificate, oral evidence of a child who is found by the court to be possessed of sufficient intelligence, evidence from the guardians or parents, school documents , medical records among other credible documents that may be availed before court but these must be credible and reliable.

28. In this case, the Appellant was charged under Section 8(1), (3) of the Sexual Offences Act which provides that:(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

29. Contrary to submissions by counsel for the Respondent, complainant’s age was proved by not only her testimony but also the oral evidence of her mother, health record book form, her P3 Form and the clinic card.

30. Penetration is crucial in the said charge. The complainant testified that the Appellant inserted his penis in her vagina. The medical evidence on record is that complainant’s the hymen was broken. There is no doubt that there was penetration.

31. Further, the Appellant was identified by the complainant as the person who defiled her twice and on specific dates. In his defence, the Appellant acknowledged the victim was his step brother’s child who lived 100 meters from his home. From the evidence on record , there was no issue of any mistaken identity whatsoever. It was the Appellant who defiled her.

32. Lastly, the complainant gave birth to a child after this act. Paternity is proved by DNA which is 99. 9 % accurate. The spirited argument by the defence that there is mix up of the name N and N in the DNA report reference to the mother of the child allegedly fathered by the Appellant does not aid the Appellant at all. He acknowledges that the complainant gave birth to a child. That himself, the complainant and the child were taken to the Government Chemist and samples from the three of them were taken.

33. In cross examination, the Appellant acknowledged that there was no dispute as to whether the compliant was the mother of the said child. His denial does not suffice. He is the biological father of the complainant’s child. In any event, DNA was not mandatory to prove this offence.

34. The Prosecution therefore proved all the elements of the charge of defilement being age of the minor, penetration, identification of the perpetrator. A look at the judgment by the trial magistrate shows that she properly analysed the evidence before her, framed the issues for determination, applied the law properly on the facts before her and arrived at proper determination that the prosecution had discharged its burden by proving the case beyond any reasonable doubt.

35. The submissions by counsel for the Appellant accusing the trial magistrate of lack of impartiality in the manner she conducted the proceedings is an afterthought and without any basis.

36. On the issue of sentence, it is clear from the record that the Appellant was given time to give his mitigation which the trial magistrate considered before passing the sentence of 20 years imprisonment. There is nothing to show that the trial magistrate handed over the sentence on the basis of mandatory minimum sentence which would perhaps call for intervention by this Court. Considering the nature of the offence and circumstances under which it was committed, there is nothing to show the sentence was excessive or harsh.

37. In the upshot I find no merit in this appeal. The same is dismissed. The conviction herein is upheld and the sentence affirmed.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISII THIS 29TH DAY OF JUNE , 2023PATRICIA GICHOHIJUDGEIn the presence of:N/A for Appellant and his CounselMr. Ochengo for RespondentKevin Isindu, Court Assistant