[2023] KEHC 25814 (KLR)

Rhaya v Republic (Criminal Appeal 37 of 2019) [2023] KEHC 25814 (KLR) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25814 (KLR)

Republic of Kenya

In the High Court at Garsen

Criminal Appeal 37 of 2019

SM Githinji, J

November 15, 2023

Between

Enock Dey Rhaya

Appellant

and

Republic

Respondent

(Being an appeal against the decision of Hon E.M.Kadima – SRM as matter upon me in respect of S.O Case No.E008 of 2019 delivered at Garsen on 19th day of September, 2019)

Judgment

CORAM: Hon. Justice S. M. GithinjiAppellant in personMs Mkongo for the State 1. Enock Deye Rhaya the appellant herein was charged in the lower court with a main count of defilement of a child contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No.3 of 2006. 2. The particulars of this offence being that on the diverse dates between 1st April, 2019 and 19th April, 2019 in Tana Delta Sub-County within Tana River County, the appellant unlawfully caused his penis to penetrate into the vagina of MHA, a girl aged 12 years.

3. In the alternative the appellant faced a charge of indecent act with a child, contrary to section 11 (1) of the Sexual Offences Act No.3 of 2006.

4. The particulars hereof being that on the diverse dates between 1st April, 2019 and 19th April, 2019 in Tana Delta Sub-County within Tana River County, the appellant herein intentionally touched the vagina of MHA, a child aged 12 years with his penis.

5. The prosecution case is that at the time of the alleged offence, the complainant in this case who gave evidence as Pw-1, was aged 12 years. She referred the court to her birth certificate No.83xxxxx showing she was born on 18/6/2007. In her voire dire, she told the court that she was schooling at [Particulars Withheld] Primary school in class 5. Pw-1 is the last born in a family where there are nine children. She stated that in their family they were living with M (Pw-4) as she had no sister. The appellant herein was their neighbour at [Particulars Withheld] Sub-Location. The complainant alleged in April, 2019 the appellant defiled her three times by placing his urinating organ into hers. She went further to narrate how one morning the mother woke her up and sent her to assist her sister to wash utensils. On her way she passed by the appellant’s house and heard someone crying therein. She got curious and peeped inside. She saw him defiling M. When he saw the complainant he dressed up, picked a knife and threatened to stab them if they told anyone. The complainant escorted M to her home and went to assist her sister.

6. There is a time, according to the complainant when M called her saying the appellant wanted to see her. M escorted her to the appellant’s house. When they entered he shut the door. He led her to his bedroom and placed her on bed. He tore her dheera dress, as he urged her to remove the pant. She refused and he removed it himself. He then inserted his penis in her vagina. M at the time was at the verandah. He gave her 20 kshs after the incident. M had her mouth tied with a piece of cloth. He placed her also on the bed and defiled her. M was aged 10 years and was schooling at [Particulars Withheld] Primary School in class two.

7. On her part (Pw 4), she alleged she was introduced to the appellant by the complainant. The appellant had defiled her numerous times. There is a day she saw the complainant entering into the appellant’s house. She got curious. She went and peeped therein. She witnessed as the appellant defiled the complainant.

8. On 17/7/2019 the complainant’s mother reported about the incident to Pw-2. Pw-2 reported it to the area chief. According to Pw-3 the complainant was examined on 1/5/2019 at Ngao Hospital. It was noted that the hymen was absent and two fingers could enter into her vagina. Urinalysis revealed presence of epithelial cells. No spermatozoa were noted. Pw-3 filled her P-3 form. Pw-6 investigated the case and had the appellant charged with the offences.

9. The appellant in his defence stated he was a farmer aged then 69 years old. He denied the offences and alleged the children were being used. At the time of the alleged offence he had given his house to his nephew who was living therein with his children. It was during the school holiday. The chief called him and handed him over to the police. Pw-1 and Pw-4 were in the habit of begging for money from him. He had chased them away and Pw-4’s father knew of that. Dw-2, his witness stated that between 1/4/2019 and 19/4/2019 he lived in the appellant’s house. He has 6 children and a wife. He never witnessed or heard of the incidents alleged by the prosecution during the said period.

10. The trial court evaluated the evidence and found that the three ingredients for the offence in the main count were proved by the prosecution beyond reasonable doubt. The appellant was convicted of the offence and sentenced to serve 20 years imprisonment.

11. The appellant dissatisfied with the said conviction and sentence appealed to this court on the grounds that; -1. The prosecution did not prove the offence beyond reasonable doubt.2. Prosecution case was full of contradictions and invariances.3. The prosecution case was poorly investigated.4. The defence was not properly weighed.

12. The appeal was canvassed by way of written submissions. The appellant in his submissions appears to have abandoned his grounds of appeal and the appeal against conviction as he addressed only the issue of sentence, on the submissions headed “written submissions on appeal mitigation”, in it he challenges the minimum mandatory sentences provided for under Sexual Offences Act No.3 of 2006.

13. The prosecution submitted on the three ingredients for the offence of defilement; the age of the complainant, penetration and identification of the appellant. They alleged the three were established beyond reasonable doubt and the conviction was proper. The sentence, it was submitted is within the law and should be maintained.

1. The appellant in his submissions opens by saying that, “I the appellant herein has preferred appeal on mitigation and sentence.” This definitely is a firm indication by himself that he had abandoned the appeal on conviction and proceeded only on sentence. I therefore need not get back there again.

1. On sentence, section 8 (1) (3) of the Sexual Offences Act states that; -“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.”

1. The appellant herein was sentenced to 20 years imprisonment as the complainant was within the given age bracket.

1. The court considered the mitigation and circumstances under which the offence was committed. What probably was not weighed was the period spent in custody during the trial. Such needed be weighed to his advantage or benefit in sentencing. The charge sheet shows he was arrested on 30/4/2019. The only additional thing I can add to the said sentence of 20 years imprisonment is that it runs from the date of arrest, the 30th day of April, 2019. To the said extent the appeal succeeds but fails in any other respect. This court so finds.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 15THDAY OF NOVEMBER, 2023S.M.GITHINJIJUDGEIn the Presence of; -1. The Appellant in Person2. Ms Mkongo for the Prosecution