[2022] KEHC 14774 (KLR)

Sammy v Republic (Criminal Appeal E042 of 2021) [2022] KEHC 14774 (KLR) (1 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14774 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E042 of 2021

GMA Dulu, J

November 1, 2022

Between

Mwendwa Sammy

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence of Hon. J.O Magori in Makindu Senior Principal Magistrate’s Court S.O Case No. 25 of 2018)

Judgment

1. The appellant was charged in the magistrate’s court with defilement contrary to section 8(1) (4) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on diverse dates between November and December 2017 at [Particulars Withheld] Village of Kibwezi Sub-County within Makueni - County intentionally and unlawfully caused his penis to penetrate the vagina of AMM (name withheld) a child aged 14 years.

2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the same diverse dates and at the same place intentionally and unlawfully touched the vagina of AMM a child aged 14 years.

3. He denied both counts. After a full trial, he was convicted of the main count of defilement and sentenced to twenty (20) years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds –1. The trial magistrate erred in law and fact in convicting the accused on a defective charge as the case was abduction (fabrication)2. The trial magistrate erred both in law and fact by failing to undertake through evaluation of the capacity of the minor giving evidence under oath and warning themselves on reliance of the evidence of the minor.3. The learned trial magistrate erred in basing the conviction on suspicion and assumption.4. The learned magistrate erred in law and facts in arriving at conclusions without evidence.5. The learned magistrate erred in law and facts by convicting the appellant in not taking into account the defence of the accused as pertains to the minor’s State of mind and character.6. The sentence meted on the accused is irregular, unlawful and excessive.7. The learned magistrate erred both in law and facts in taking into consideration irrelevant and extraneous facts and matters.8. The learned magistrate erred both in law and facts by shifting the burden of proof to the appellant.

5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.

6. This being a first appeal, I am duty bound to evaluate all the evidence on record and come to my own independent conclusions and inferences – see Okeno –vs- Republic (1972) E.A 32.

7. In proving their case, the prosecution called five (5) witnesses. On his part, the appellant tendered unsworn defence testimony and did not call any witness.

8. In his grounds of appeal, the appellant has raised both technical and substantive grounds of appeal. He has appealed against both conviction and sentence.

9. The appellant contends on appeal that the charge sheet was defective as the case was a fabrication. A charge is meant to be an allegation against an accused person to be proved by the prosecution. Thus the issue of fabrication goes to the proof of the allegation rather than a defect on the charge sheet.

10. Having perused the charge sheet, I find no defect on the charge.

11. The appellant has complained on appeal that the trial court the magistrate did not evaluate the capacity of the complainant (minor) to give evidence on oath.

12. I note that the complainant (PW1) AMM, did not go through voire dire examination before testifying on oath. She was said to be a child, thus below 18. However, in my view the complainant having attained the age of 14 years at the date of testifying on 07/02/2019, there was no legal requirement for her to go through voire direexamination, as she was above the age of a child of tender years. It has to be borne in mind that the Children Act defines a child of tender years to be one who is below 10 years. She testified on oath and was cross examined on oath, and there was nothing on the record to show that she did not know what she was talking about. I dismiss that ground.

13. The other grounds, other than the ground on sentence relate to the credibility of the evidence, and adequate proof of the allegations made by the prosecution, beyond any reasonable doubt.

14. With regard to her age, the complainant PW1, identified her birth certificate. She said that she was born in 2004. Her mother PW2 JMM also testified that the complainant was born in 2004 and relied on the birth certificate which was exhibited in court. I find that the prosecution proved beyond any reasonable doubt that the complainant (victim) PW1 was 14 years old when the incident occurred.

15. I now turn to the second element of penetration. With regard to penetration, PW1 the complainant said that she was sexually penetrated. The evidence of PW4 Dr. Anthony Masila was also that on medical examination, the hymen of PW1 was missing and that she was 3 months pregnant. In my view, the prosecution proved beyond any reasonable doubt that sexual penetration had occurred on the victim (complainant) PW1.

16. With regard to the culprit, the evidence on record which connects the appellant to sexually penetrating PW1, was that of the victim in person. Nobody witnessed the act. This evidence is supported or corroborated by the evidence of PW3 Irene Mwazinga the Government Analyst, whose evidence was that the baby child of PW1 was through DNA analysis, proved to be 99. 9% a biological child of the appellant herein.

17. In my view therefore, the prosecution proved beyond any reasonable doubt that the appellant sexually penetrated the complainant (PW1) as alleged. As a consequence therefore, I find that the prosecution proved beyond any reasonable doubt that the appellant was the culprit. The conviction will thus be upheld.

18. With regard to sentence, the minimum statutory sentence for the offence is 20 years imprisonment, as the complainant had not yet attained 16 years of age at the time of the alleged offence. I thus find that the sentence imposed was neither illegal, nor harsh or excessive.

19. Consequently, and for the above reasons, I find no merit in the appeal. I dismiss the appeal and uphold both the conviction and sentence.Right of appeal explained.

DELIVERED, SIGNED & DATED THIS 1ST DAY OF NOVEMBER 2022, IN OPEN COURT AT MAKUENI.………………………………….GEORGE DULUJUDGE