[2023] KEHC 25549 (KLR)

Rono v Republic (Criminal Appeal E045 of 2022) [2023] KEHC 25549 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25549 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Appeal E045 of 2022

RL Korir, J

November 21, 2023

Between

Charles Rono

Appellant

and

Republic

Respondent

(From the Conviction and Sentence in Sexual Offence Case Number E048 of 2021 by Hon. Kiniale L. in the Principal Magistrate’s Court at Bomet)

Judgment

1. The Appellant herein was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the charge were that on 20th October 2021 in Mugengo location within Bomet County, he intentionally and unlawfully caused his penis to penetrate the anus of D.C, a child aged 7 years.

2. The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the charge were on 20th October 2021 in Mugengo location within Bomet County, he intentionally and unlawfully touched the vagina of D.C, a child aged 7 years with his penis.

3. The Appellant pleaded not guilty to the charges before the trial court, and a full hearing was conducted. The prosecution called four (4) witnesses in support of its case.

4. I proceed to consider the case before the trial court in the succeeding paragraphs.

The Prosecution’s Case. 5. It was the Prosecution’s case that the Appellant (then Accused) defiled D.C (PW2) on 20th October 2021. The victim (PW2) testified that on the material day, the Appellant went to their house, removed her clothes and his “panya” and did bad manners to her. That the Appellant thereafter bought her silence by giving her Kshs 20/= and warned her not to tell anyone.

6. Joyce Chepkirui (PW1) who was the victim’s mother testified that on the material day, she found the victim emitting a discharge from her private parts and that the victim told her that Charles (Appellant) did bad manners to her.

7. Julius Magut (PW3) testified that he was the clinical officer who examined the victim (PW2). That he examined her on 25th October 2023 and found that she had a freshly torn hymen. PW3 further testified that PW2 did not have bruises or lacerations. It was PW3’s conclusion that a freshly torn hymen was consistent with vaginal penetration.

8. No. 248209 PC Kiprotich (PW4) was the arresting officer who also testified on behalf of the Investigating Officer. He summarized the evidence of the witnesses.

9. At the close of the prosecution case, the trial court ruled that a prima facie case had been established against the Appellant and he was put on his defence.

10. The Appellant Charles Rono gave unsworn testimony and denied committing the offence. He stated police officers came and told him that he had defiled a child and they subsequently arrested him.

11. It was his testimony that the victim’s mother (PW1) stated that she did not see him commit the offence. That they later went to Longisa Hospital where they were both examined and the doctor stated that the victim had not been touched. He stated that the victim’s mother (PW1) had framed him because she had a grudge with him for reason that he had refused to give her something she had borrowed.

12. At the conclusion of the trial, he was convicted of the offence of defilement and sentenced to serve the mandatory life imprisonment.

13. Being dissatisfied with the Judgment dated 19th October 2022, Charles Rono appealed against the conviction and sentence on the following grounds which I reproduce verbatim as follows:-i.Thatthe learned trial Magistrate erred in law and fact in convicting me on evidence which did not meet the required standard of proof in accordance with the law.ii.Thatthe learned trial Magistrate erred in law and fact by relying on extrinsic evidence that was not adduced I court during the trial.iii.Thatthe learned trial Magistrate erred in law and fact by depending on evidence which was based on conspiracy theory between me, the complainant (PW1) and PW2 and the case was not proved beyond reasonable doubt.iv.Thatthe learned trial Magistrate erred in law and fact by convicting me on charges that were not tallying and favourable.v.ThatI wish to be present during the hearing of my appeal and also request the court proceedings.

14. This being the first appellate court, I have a duty to re-evaluate the evidence on record afresh. Explaining this duty, the Court of Appeal in the case of Mark Ouiruri Mose v Republic [2013] eKLR, held that:-“That this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that”

15. On 7th March 2023, I directed the Appeal to be canvassed by way of written submissions.

The Appellant’s Submissions. 16. In his undated submissions filed on 2nd May 2023, the Appellant abandoned his appeal against conviction and submitted on his sentence only. He asked the court to consider his grounds of appeal as amended accordingly.

17. It was the Appellant’s submission that the sentence of life imprisonment was harsh considering that he had mitigated in the trial court and that he was a first offender. It was his further submission that no life had been lost and that the case was born out of a grudge.

18. The Appellant submitted that the mandatory minimum sentence of life imprisonment took away the court’s discretion in sentencing. That recent case law had shown that the court can depart from the mandatory minimum sentences. He relied on Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment). He also cited several decisions of this court including Brian Chepkwony v Republic, Bomet High Court Criminal Appeal Number E008 of 2022 and Nicholas Kipkurui Kigen vs Republic, Bomet High Court Criminal Appeal Number E037 of 2021.

19. The Appellant submitted that the life sentence did not serve the objectives of the Sentencing Policy Guidelines issued by the Judiciary and that mandatory sentences took away the discretion of the court.

20. The Appellant submitted that he reached out to the victim’s mother and sought forgiveness. He stated that this demonstrated that he was remorseful and regretted the offence which he regrets to date.

21. The Prosecution did not file their written submissions despite being granted extension of time within which to comply.

22. I have gone through and given due consideration to the trial court’s proceedings, the grounds of appeal filed on 21st October 2022, and the Appellant’s written submissions filed on 2nd May 2023. The following issues arise for my determination: -i.Whether the Prosecution proved its case beyond reasonable doubt; andii.Whether the Sentence preferred against the Accused was just and fair.

23. In this Appeal, the Appellant abandoned the appeal against the conviction. I shall however evaluate the evidence which led to the conviction because the same has a bearing on the sentence.i.Whether the Prosecution proved its case beyond reasonable doubt.

24. It is trite law that for the offence of defilement to be established, the age of the victim, penetration and positive identification or recognition of the offender have to be proved.

25. In sexual offences, the age of a victim is an important ingredient to be considered when deciding the penalty to be meted out to an Accused person. The age of the victim may be proved through the production of a birth certificate or a parent’s testimony.

26. Rule 4 of the Sexual Offences Rules of Court 2014 provides that:-When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.

27. JC (PW1) who was the victim’s mother testified that the victim (PW2) was aged 7 years. She produced a Birth Certificate and the same was marked P.Exh 4. The Birth Certificate indicated that D.C (PW2) was born on 2nd January 2014. The authenticity of the Birth Certificate or its production was not challenged during the trial.

28. Flowing from the above I find the Birth Certificate (P.Exh 4) admissible and based on its contents and the testimony of the victim’s mother (PW1), it is my further finding that the time of the commission of the alleged offence, D.C was aged 7 years old.

29. With regard to the issue of identification, the Court of Appeal in the case of Cleophas Wamunga vs Republic[1989]eKLR expressed itself as follows:-“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger……”

30. The victim (PW2) testified that on the material day, the Appellant did bad manners to her and thereafter gave her Kshs 20/= to buy her silence. When she was cross examined by the Appellant, she confirmed that it was the Appellant who had done bad manners to her. I have noted from the court record that the victim identified the Appellant in court by his full names.

31. JC (PW1) was the victim’s mother and she testified that the Appellant was their neighbour. That his house was opposite their house. PW2 further testified that she used to pluck tea with the Appellant since they lived in the same tea estate.

32. From the evidence above, it is clear to me that the Appellant and the family of the victim were neighbours. This evidence in my view is more of recognition than identification. The English case of R v Turnbull [1977] QB 224 is useful in this regard:-“If the quality (of identification evidence) is good and remains good at the close of the accused’s case, the danger of mistaken identification is lessened; but the poorer the quality, the greater the danger. In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it; provided always, however that an adequate warning has been given about the special need for caution”.

33. There is no doubt in my mind that the Appellant was well known to PW1 and PW2 as they were neighbours and they interacted frequently. There was no possibility of mistaken identity as the victim (PW2) also called him by his two names in the trial court. It is my finding therefore that the Appellant was positively identified.

34. With regards to penetration, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. The Prosecution has to prove penetration or act of sexual intercourse to sustain a charge of defilement.

35. Penetration can be proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred.

36. D.C (PW2) testified that on the material day (20th October 2021), the Appellant removed her clothes. That he then removed his “panya” and did bad manners to her. PW2 testified that the Appellant defiled her for a long time and that it was painful.

37. For victims of defilement who are of tender years, courts have accepted the use of the euphemisms such as “bad manners” or “tabia mbaya” as definitions of defilement. In this case the court understood the word ‘panya’ to refer to the Appellant’s sexual organ. In the case of Muganga Chilejo Saha v Republic [2017]eKLR, the Court of Appeal held:-“Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms such as “alinifanyia tabia mbaya”.

38. Julius Magut (PW3) who was the clinical officer testified that he examined PW2 on 25th October 2021 and found that she had a freshly broken hymen and that she had pus and epithelial cells. That further, PW2 did not have lacerations or bruises. PW3 further testified that the freshly broken hymen was consistent with vaginal penetration. PW3 produced a P3 Form and a PRC Form and the same were marked as P.Exh 3 and 2 respectively which findings captured his that there had been penetration.

39. From the medical evidence presented by PW3 above and the testimony of the victim (PW2) it is clear that PW2 was penetrated on the material day. The victim was very vivid in her testimony as to how she had been defiled. She even showed the trial court where the Appellant defiled her. Medical evidence of a freshly torn hymen corroborated the victim’s testimony that she had been penetrated.

40. Having established the age of the complainant, proof of identification and proof of penetration, it is my finding that the Prosecution proved its case against the Appellant beyond reasonable doubt. As stated earlier, the Appellant abandoned his Appeal against his conviction and therefore there was no need to consider his defence. I therefore uphold the conviction.ii.Whether the Sentence preferred against the Accused was fair and just.

41. Sentencing is at the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. An appellate court would be entitled to interfere with the sentence imposed by the trial court if it is demonstrated that the sentence imposed is not legal or is so harsh and excessive as to amount to miscarriage of justice, and or that the court acted upon a wrong principle. The above position was enunciated by the Court of Appeal in the case of Ogolla s/o Owuor vs. Republic, (1954) EACA 270, where it pronounced itself on this issue as follows:-“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

42. The penal section for this offence is found in section 8(2) of the Sexual Offences Act which states that:-A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life

43. As earlier stated, the trial court sentenced the Appellant to life imprisonment.

44. The Appellant submitted that this court could depart from the mandatory minimum sentence provided in the Sexual Offences Act. He cited this court’s decision in Nicholas Kipkurui Kigen vs Republic, Bomet Criminal Case Number E037 of 2021. In this case, this court reduced the Appellant’s sentence of 20 years to 15 years’ imprisonment for the defilement of a child aged 16 years.

45. The Appellant also cited this court’s decision in Brian Chepkwony vs Republic, Bomet Criminal Appeal Number E008 of 2022. Equally, in this case, this court reduced the Appellant’s sentence of 20 years to 15 years’ imprisonment for the defilement of a child aged 14 years.

46. Two authorities were clearly distinguishable. In Nicholas Kipkurui Kigen vs Republic (supra), the Appellant was convicted of defiling a child aged 16 years. He had offended section 8 (4) of the Sexual Offences Act which provided for a minimum sentence of 15 years. In reducing the sentence, the court after considering the circumstances of the case noted that the Accused had been sentenced to 20 years and granted him the benefit of the minimum sentence which was 15 years. Clearly the defilement of a 16-year-old though abhorable cannot be compared with the defilement of a 7-year-old.

47. In Brian Chepkwony v Republic (supra), the Appellant was convicted of defiling a child aged 14 years. The Appellant had offended section 8 (3) of the Sexual Offences Act which provided for a minimum sentence of 20 years. In this case, the court reduced the Accused’s 20 year sentence to 15 years after considering the circumstances of the case which were in stark contrast to the circumstances in the present case. As earlier stated, the defilement of a 7-year-old must attract a higher sentence.

48. As stated earlier, the present case offended section 8 (2) of the Sexual Offences Act which provided for a mandatory sentence of life imprisonment. I agree with the submission of the Appellant that in recent jurisprudence courts have interrogated the justice in application of mandatory sentences. The ratio decidendi has been that the nature of the mandatory sentences takes away the court’s discretion in sentencing when in essence courts should have discretion in sentencing after considering the circumstances of the case and the Accused’s mitigation.

49. The above was well articulated by the Court of Appeal’s in Dismas Wafula Kilwake v Republic [2019] eKLR in which it expressed itself as hereunder: -“Here at home in a judgment rendered on 14th December 2017 in Francis Karioko Muruatetu & Another v. Republic, SC Pet. No. 16 of 2015, the Supreme Court concluded that the mandatory death sentence prescribed for the offence of murder by section 204 of the Penal Code is unconstitutional. While appreciate that the decision had nothing to do with the Sexual Offences Act, we cite it because of the pertinent observations that the apex Court made regarding mandatory sentences…….………. In principle, we are persuaded that there is no rational reason why the reasoning of the Supreme Court, which holds that the mandatory death sentence is unconstitutional for depriving the courts discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply to the provisions of the Sexual Offences Act, which do exactly the same thing.”

50. Similarly in Jared Koita Injiri v Republic [2019] eKLR, the Court of Appeal held that:-“In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis. The appellant was provided an opportunity to mitigate in the trial court where it was stated that he was a first offender. He pleaded for leniency. However, it cannot be overlooked that the appellant committed a heinous crime, and occasioned severe trauma and suffering to a young girl. His actions have demonstrated that around him, young and vulnerable children, like the complainant could be in jeopardy. Needless to say, pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic (supra), we would set aside the sentence for life imposed and substitute it therefore with a sentence of 30 years from the date of sentence by the trial court.”

51. In Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment) Odunga J. (as he then was) held:-“It may be argued that these decisions of the Court of Appeal ought not to be followed on the ground that they are per incurium in light of the clarification in Muruatetu 2. However, it is my view that the Supreme Court in Muruatetu 2 did not address itself to the constitutionality of mandatory minimum sentences. It simply clarified that Muruatetu 1 only dealt with murder. I agree with that clarification. However, the Supreme Court left it open to the High Court to hear any petition that may be brought challenging inter alia mandatory minimum sentences and make a determination one way or another. The Supreme Court did not hold that the High Court ought not to apply the reasoning in Muruatetu 1. In my view, even without the application of the ratio in Muruatetu 1, based on what I have stated hereinabove, I find that whereas the sentences prescribed under the Sexual Offences Act are not unconstitutional by the mere fact of such prescription and the trial courts are at liberty to impose them, the imposition of the same as the minimum mandatory sentences does not meet the constitutional threshold particularly section 28 ofn (sic!) the Constitution.”

52. Guided by the above authorities, this court would only be minded to reduce the Appellant’s life sentence if the circumstances of the case so demand.

53. I have considered the circumstances of the case and the Appellant’s mitigation in the trial court and in his written submissions filed on 2nd May 2023. In this case it is clear to me that there were aggravating circumstances. The Appellant being a man aged 50 years or thereabouts defiled D.C a child of tender years and who did not even comprehend the gravity of the violation. At only 7 years, the child was barely developed and the physiological and psychological trauma she suffered is unimaginable. This in the mind of the court was a proper case for a deterrent sentence.

54. It is my finding therefore that the sentence of life imprisonment handed down by the trial court was not only lawful but just and fair. I see no reason to interfere with it.

55. In the final analysis, the Appeal does not have merit and the same is dismissed.

56. In the end, I uphold the conviction and sentence passed by the trial court. The Appellant has 14 days’ right of appeal to the Court of Appeal.

57. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 21ST DAY OF NOVEMBER, 2023. ..........................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of the Appellant acting in person, Mr. Njeru for the Respondent and Siele (Court Assistant)