[2022] KEHC 2599 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL APPEAL NO. 70 OF 2020

PROTUS WAKHUNGU MAKOKHA......................................................................APPELLANT

VERSUS

REPUBLIC................................................................................................................RESPONDENT

(Being an appeal from the judgement and sentence of Hon. I.G. Ruhu, RM,dated22nd May, 2020

in the SPM’s Court at Kimilili, in SOA Criminal No.55 of 2019,

Republic vs Protus Wakhungu Makokha)

JUDGEMENT

The appellant has appealed against his conviction and sentence of fifteen (15) years imprisonment in respect of the offence of attempted defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act No. 3 of 2006.

In this court the appellant has raised six (6) grounds of appeal in his petition of appeal.

For convenience, I will start with ground the appellant has faulted the trial court for convicting him on the prosecution evidence that was contradictory, uncorroborated, weak and full of speculation. The evidence of the complainant (Pw 1) whose name initials are MNW, was taken on oath, after successfully undergoing a voire dire examination. She testified as follows. She recalled that in December 2018 the appellant told her he was going to assist her if agreed to be his girlfriend.

They then began to date in August 2018 and in November 2018 they had sex in his house. They never used protection when they had sex. The appellant never gave her any money. In May 2019 she began to vomit. Her grandmother suspected that she had become pregnant. As a result, she was taken to Brigadare Hospital where she tested and was found pregnant. She was the taken to Brigadare police station where she recorded a statement. She testified that the appellant impregnated her.

She identified her birth certificate which was later produced as exhibit 2. Pw 1 was taken to Makutano health centre where she was examined 20/5/2019 by Simon Simiyu Were (Pw 3). Upon examination pw3 made the following findings. He tested her for pregnancy and STIS and found her to be positive. Hymen was missing. Pw 3 confirmed that Pw 1 had been exposed to sexual intercourse. He produced the report as exhibit Pexh 3.

The complainant was taken to the hospital by her father, AWK (Pw 2). His daughter had told her that it was the appellant who impregnated her.

The appellant testified on oath and denied the offence. He denied knowing the complainant. He further testified that when he was splitting wood, he received a call on 21/5/2019 that he was required at Brigadare police station. He went there and was arrested. He further testified that he was indebted to the complainant’s father (Pw 2) and he thought that was the reason for being arrested. He also testified that he was shocked to be charged with defilement as he has never defiled anyone. He further testified that he is married to Rebecca Nafula.

This is a first appeal. As a first appeal court I have re-evaluated the entire evidence. I find that the evidence of the complainant did not require corroboration since it was taken on oath. I therefore reject as lacking in merit the contention of the appellant that the evidence of the complainant required corroboration. Furthermore, I also reject the contention by the appellant that there are contradictions in the evidence of the prosecution witnesses.

In the circumstances, I reject ground 1 for lacking in merit.

I further find that the age of the complainant was established by her birth certificate which clearly proved that she was 16 years when the offence was committed. The contention by the appellant in ground 4 that age was not proved lacks merit and is hereby rejected.

Furthermore, the evidence of the complainant and that of the clinical officer namely Simon Simiyu Were (Pw 3), conclusively proved that the appellant impregnated the complainant. Therefore, the contention by the complainant that pregnancy was not proved is lacking in merit and is hereby dismissed.

In the premises, I find that the appellant was convicted upon ample evidence. In therefore dismiss his appeal against conviction.

The appellant has faulted the trial court for imposing a manifestly harsh and excessive sentence of 15 years imprisonment in view of the fact that he was a first offender.

I find that the sentence imposed by the trial court was the minimum statutory sentence that is prescribed by law and that the court had no discretion in the matter.

However, I find that the trial court erred in law in failing to take into account the period the appellant had been in pre-trial custody. This period has to be taken into account in terms of section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya. For avoidance of doubt, let me make it clear that any prescribed statutory minimum sentence of imprisonment when imposed is subject to the provisions of section 333 (2) of the Criminal Procedure Code. This provision ensures that an appellant is not subject to double sentence for the same offence. The appellant was in pre-trial custody from 21st May 2019 to 22nd May 2020. Thereafter he was in post judgement custody from 22nd May 2020 to date. The total pre-trial and post judgement custody works to about two years and eight months. This period should be subtracted from the fifteen years imprisonment which works to twelve years and four months. It therefore follows that the appellant will now serve twelve years and four months imprisonment; which will begin to run from the date of this judgement.

JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI VIDE

VIDEO CONFERENCE THIS 2ND DAY OF FEBRUARY, 2022

J M BWONWONG’A

JUDGE

In the presence of:-

Mr. Kenya: Court Assistant

The appellant in person

Ms Kimaru for the Respondent