[2019] KEHC 4523 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

(CORAM: CHERERE-J)

CRIMINAL APPEAL NO. 50 AND 52 OF 2017 (Consolidated)

BETWEEN

ROBERT SIMIYU WAFULA.................................................1ST APPELLANT

DANCUN ASIEMBA ADUFUGA........................................2ND APPELLANT

AND

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

(Appeal against Conviction and Sentence imposed in Criminal Case Number 924 of 2013

in the Senior PrincipalMagistrate’s court at Kimililiby Hon D.O.Onyango (SPM) on 26. 04. 17)

JUDGMENT

The trial

1. ROBERT SIMIYU WAFULA (hereinafter referred to as the 1stAppellant) has appealed against sentence and conviction in the 1st count of benefitting from child prostitution contrary to section 15(d) of the Sexual Offences Act (hereinafter referred to as the Act) by taking advantage of the influence he had over the complainant herein, ENN aged 14 years (hereinafter referred to as the 1st complainant). DANCUN ASIEMBA ADUFUGA (hereinafter referred to as the 2nd Appellant) has appealed against conviction and sentence for the offence defilement of the 1st complainant’s herein contrary to section 8(1) as read with section 8 (3) of the Act. The offences were committed between 17th June, 2013 and 25th June, 2013 at Naitiri Location, Bungoma North District within Bungoma County.

The prosecution’s case

2. The prosecution called 6 witnesses in support of the charges. PW1 IGNATIOUS OKUMU, a clinical officer testified that he examined the complainants herein. He noticed that the 2nd complainant had bruises around the labia minora and vagina and a broken hymen an indication that she had been defiled. He produced her P3 form as PEXH. 1. Upon examining the 1st complainant, he noticed that she had an old tear on her hymen with bruises around the labia minora and vagina an indication that she had been defiled. He produced her P3 form as PEXH. 3.

3. PW2, SNK, the 2nd complainant testified that on 16. 06. 13 at 06. 00 pm, she met the 1st complainant who told her that the 1st Appellant had promised to get them jobs. She stated that she collected her clothes and together they went to 1st Appellant’s house. It was her evidence that the 1st Appellant took them to the house of the 2nd Appellant where they spent the night and 2nd Appellant defiled her. The 1st complainant stated that the following day, the 1st complainant went away with one Benjamin and she stayed with the 2nd Appellant in his house until the date of her arrest and that the 2nd Appellant defiled her every day that she stayed in his house.

4. PW3 NNMthe 1st complainant’s father stated that she was born on 04th April, 1999 as shown on her certificate of birth. It was his evidence that the 1st complainant disappeared from home on 17th June, 2013 and was found on 25th June, 2013 together with the 2nd complainant locked in a house from where the 1st Appellant was found standing outside and from where the 2nd Appellant and one Benjamin escaped from.

5. PW4 BKA the 2nd complainant’s father stated that the complainant was sent to fetch water at about 6. 30 pm on 17. 06. 13 but did not return home and was found 25th June, 2013 together with the 1st complainant locked in a house from where the 1st Appellant was found standing outside and from where the 2nd Appellant and one Benjamin escaped from. PW5 ALEXANDER SIMIYU MASIKAarrested the 2nd Appellant on 27th June, 2013 and handed him over to the police.

6. PW6 PC SILAS CHERONOstated that on 18. 06. 13, PW3 and PW4 reported that their daughters, the complainants herein, had disappeared from home. He recalled that on 25. 06. 13, the 1st Appellant and the two complainants were taken to the police station and it was reported that the 1st Appellant had been arrested near the house where the complainants were found locked. It was his evidence that one Benjamin and the 2nd Appellant were handed over to him on 26. 06. 13 and 27. 06. 13 respectively and it was reported that they had defiled the minors. He stated that the complainants were examined and the Appellant were charged. He produced the complainants’ certificates of birth as PEXH. 3 and PEXH. 4 respectively which show that the 1st complainant was born on 04. 04. 99 and the 2nd complainant on 27. 03. 98.

The Defence Case

1st Appellant’s case

7. The 1st Appellant denied the offence and stated that he was framed by the 2nd complainant’s father who was his former employer and who had refused to pay his 3 years ‘salary.

2nd Appellant’s case

8. The 2nd Appellant denied the offence and stated that he was arrested on 27. 06. 13 and charged with offences that he did not commit.

9. The 1st complainant did not testify. The learned trial magistrate considered the evidence and acquitted the 1st Appellant of count 1 but convicted him of the 3rd count and sentenced him to 10 years imprisonment. The 2nd appellant was convicted and sentenced to 20 years imprisonment.

The Appeal

10. Aggrieved by the conviction and sentences, the appellants lodged the instant appeal on 12th May, 2017. From their separate 5 grounds of appeal and written submissions, I have deduced the following issues: -

1. That the trial court shifted the burden of proof to the Appellants

2. That the sentences were harsh

11. When the appeal came up for hearing on 05th August, 2019, both Appellants submitted that he was wholly relying on the grounds of appeal and written submissions. Ms. Nyakibia, learned Counsel for the state opposed the appeals and submitted that the complainants’ ages were proved by way of certificates of birth, penetration by way of a P3 forms and that the 1st Appellant was well known to the complainants while the 2nd Appellant interacted with the 2nd complainant for a considerable length of time such that he was able to identify him.

Analysis and Determination

12. This being the first appellate court, I have to start by reminding myself that I am duty bound to re-evaluate the evidence on record and come to my own conclusions and inferences. (See Okeno v Republic [1972] EA 32).

13. In order to consider this appeal, it is important to remind myself of the key ingredients necessary to establish a sexual offence under the Sexual Offences Act which are:

i. Whether the 1st Appellant benefitted from child prostitution

ii.. Age of the victims.

iii. Identity of the offender

iv. Penetration

i. Whether the 1st Appellant benefitted from child prostitution

14. Section 15 of the Actprovides that:

Any person who—

(d) takes advantage of his influence over, or his relationship to a child, to procure the child for sexual intercourse or any form of sexual abuse or indecent exhibition or show

15. Evidence has been led that the 2nd complainant knew the 1st Appellant well since he was employed by her father. Evidence was led by the 2nd complainant that it was the 1st Appellant that convinced her to leave home with the promise of a job and later took her and the 2nd complainant where she was defiled.

16. From the evidence on record, I find that the trial magistrate rightfully found that the 1st Appellant was employed by 2nd complainant’s father and that he was well known to the 2nd complainant. I also find that the trial court correctly found that the 1st Appellant took advantage of the relationship he had cultivated with the 2nd complainant to procure her for sexual intercourse with the 2nd Appellant. From the foregoing, I am convinced that the 1st Appellant was rightfully convicted.

ii.Age of the victim

17. The 2nd complainant’s certificate of birth PEXH. 4 shows that she was 15 years at the time that the offences were committed.

Iii. Penetration

18. Concerning the question of penetration, the law under Section 2 of Sexual Offences Act defines penetration to entail: - “partial or complete insertion of a genital organ of a person into the genital organ of another person.”

19. 2nd complainant’s evidence of penetration by the 2nd Appellant was corroborated by medical evidence contained in the P3 form produced as PEXH. 1 by PW1 IGNATIOUS OKUMU, a clinical officer who testified that complainant had a broken hymen with bruises around the labia minora and vagina an indication that she had been defiled.

iv.Identification of the 2nd Appellant

20. The 2nd Appellant was not a stranger to the 2nd complainant before the material date. 2nd complainant also stated that she stayed with the 2nd Appellant from 17th June, 2013 until on 25th June, 2013 and that he defiled her daily. The 1st complainant who’d have corroborated the 2nd complainant’s evidence did not testify. The foregoing notwithstanding, Section 124 of the Evidence Act is clear that the court may convict on the evidence of the alleged victim alone provided that the court is satisfied that the alleged victim was truthful.

21. I have considered the judgment of the trial court and I am convinced that the trial court arrived at the accurate conclusion that the prosecution case that 2nd complainant was defiled was well corroborated by the medical evidence contained in the P3 form. The 2nd complainant and the 2nd Appellant stayed together for 8 days which is a considerable length of time and I am convinced that the 2nd Appellant was properly identified as the one that defiled the 2nd complainant. From the foregoing, I am convinced that the 2nd Appellant was rightfully convicted.

v. Are the sentences harsh

22. The 1st Appellant was convicted of an offence under Section 15 of the Act which attracts a minimum sentence of ten years whereas the 2nd Appellant was charged under section 8 of the Act which carries a minimum sentence of 15 years. These are mandatory minimum sentences under the Act. The Court of Appeal has in several cases considered the constitutionality of mandatory minimum sentences under the Act; BW v Republic KSM CA Criminal Appeal No. 313 of 2010 [2019] eKLR, Christopher Ochieng v Republic KSM CA Criminal Appeal No. 202 of 2011 [2018] eKLR. In Jared Koita Injiri v Republic, KSM CA Criminal Appeal No. 93 of 2014the court adopted what the Supreme Court held in Francis Karioko Muruatetu & another v RepublicSC Petition No. 16 of 2015 [2017]eKLRthat the mandatory death sentence prescribed for the offence of murder by section 204 of the Penal Code was unconstitutional; as the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; and that a mandatory sentence fails to conform to the tenets of fair trial that accrue to the accused person under Article 25 of the Constitution.

23. Since the mandatory minimum sentence has been declared unconstitutional, I am bound to re-examine the sentence having regard to the fact that the legislature had taken the view the offences under the Sexual Offences Act are serious offences that merit stiff sentences and there has to be a good reason to depart from the indicative sentence prescribed by the legislature. In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Act. It observed as follows:

[W]e 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. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.

24. The Sentencing Policy Guidelines require the court, in sentencing an offender to a custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful.

25. Section 354 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) provides for the powers of this court upon hearing an appeal if it considers that there is no sufficient ground for interfering, to dismiss the appeal or it may, under subsection 3(b), “in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence”.

26. I have considered the fact that the 1st Appellant took advantage of the relationship he had cultivated with the 2nd complainant to procure the 14-year-old complainant for sexual intercourse with the 2nd Appellant The Appellants are relatively young persons. They are first offenders and considering the totality of the circumstances, a long custodial sentence would not serve the interests of justice. On the other hand, the law recognizes the seriousness of the act of defilement and procuring a minor to be defiled.

27. From the foregoing, I am persuaded to interfere with the mandatory minimum sentences imposed on the Appellants. In respect of the 1st Appellant, the sentence of 10 years is substituted with a sentence of 5 years and that sentence of 20 years against the 2nd Appellant is substituted with a sentence of 10 years. The sentences will run from the date of conviction which is 26th April, 2017.

DELIVERED AND SIGNED AT BUNGOMA THIS09thDAY ONAugust2019.

T. W. CHERERE

JUDGE

In the presence of-

Court Assistant - Brendah

Appellants -Present in person

For the State -Ms. Nyakibia