[2023] KEHC 23985 (KLR)

Sanguga v Republic (Criminal Appeal E086 of 2022) [2023] KEHC 23985 (KLR) (17 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23985 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E086 of 2022

SM Mohochi, J

October 17, 2023

Between

Dishon Ambula Sanguga

Appellant

and

Republic

Respondent

(Appeal against the sentence in CMCC SO No. 163 of 2020 - Eldoret, Republic Vs Dishon Ambula Sanguga, delivered by Hon Mikoyan (CM) delivered on 22. 08. 2022. )

Judgment

Introduction 1. The Petition appeals against the conviction and sentence of Life Imprisonment for the offence of defilement contrary to section 8(1) & (2) of the Sexual Offences Act and is based on the following grounds:a.That, the trial court erred in law and fact, as it failed to hold that the charge sheet was fatally defective.b.That, the trial court erred in law and facts, as it failed to observe that the witness evidence was inconsistence and uncorroborated.c.That, the trial court erred in law and fact, by failing to hold that this case was not proved beyond doubt.d.That, the trial court erred in law and facts, by convicting on manifestly insufficient prosecution evidence.e.That, the trial court erred in law and facts by failing to consider the appellant defense evidence.f.That, the trial court erred in law and fact, as it failed to. Consider that the evidence of identification and recognition was not conclusive.g.That, the learned trial magistrate erred in law and fact, by shifting the burden of prove from the prosecution backyard to the appellant when the evidence failed to link him to the offence.

2. The court however notes that the appellant is serving thirty (30) years imprisonment and not Life imprisonment as alleged by the appellant.

3. The Appeal came up for hearing on the 25th January 2023, the court confirmed that parties had filed their written submissions and the appellant orally prayed that “his sentence be reviewed to enable him to rejoin society by having his sentence include the pre-trial detention period that the appellant spent from arrest to the judgment

appellants Case 4. The appellant filed his written submissions on the 23rd January 2023 and the same regurgitates that he is a first offender that is entitled to leniency.

5. That he is remorseful and rehabilitated since he has learnt a hard lesson while incarcerated so the court considers the time he spent in custody as provided for under section 333(2) of the criminal procedure code that the court considers his mitigation factors and be guided by the judiciary sentencing policy 2016 and review the sentence and exercise its power as provided for in the constitution.

6. The appellants submit that he is remorseful and regret the offence and promises to be a law-abiding citizen if given a second chance and that he has learned a lesson while incarcerated.

7. That he has taken his life positively while incarcerated he has undergone various rehabilitation programs offered at the prison facility to change his behavior considering these factors rehabilitation is key in sentencing since a convict is given a chance to reform and be reconstituted back to society.

8. The appellant relies on petition number 15 of 2020 eKLR where Justice Odunga held that:“sentence should be one that meets the ends of Justice and ensure that the principles of proportionality deterrence and rehabilitation are adhered to”

9. Further reliance is placed on the case of Thomas Patrick Chelmondeley (2009) eKLR where the trial court observed that:“sentencing should have a goal of salvaging and rehabilitating the offender and therefore be treated with compassion and understanding”that the court went further and awarded the accused with a lighter sentence.

10. That based on the above decision the appellant prays that, the court allows his review of sentence since the 30 is meted by the trial court is harsh and excessive to serve and will impact on his future life.

11. On the time spent during pre-trial awaiting judgment, the appellant submits that, the trial court did not take into account the period he had served while undergoing the trial process, that from the record it shows the appellant was arrested on 20th July 2020 arraigned in court on 24th July 2020 and was sentenced on the August 22, 2022 and that by the time the trial was concluded he had already spent (2) two years in remand custody which. the trial court failed to include in a sentence.

12. The appellant relies on the case of Vincent Silicona and 87 otherspetition number 15 of 2020 (2021) eKLR where Justice Odunga (as he then was) stated that:“it is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced must be taken into account in computing the period of sentence”

13. The appellant urges that, the court reviews the sentence to incorporate the period he had served pre-trial custody and that under article 50 (2) q of the Constitution of Kenya the court is empowered by the constitutional provision to hear and determine the appeal arising for review of the sentence and urges the court to allow his appeal.

The Respondent’s Case 14. The Appeal is opposed and the prosecution contends that discharged its duty of proving the case beyond reasonable doubt. Evidence was tendered by first hand witnesses and it was overwhelmingly implicating the appellant herein and that nothing was tendered to shake it.

15. That section 8 (1) (2) of the Sexual Offences Act No. 3 of 2006 provides that;“8(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)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."

16. The state relied on the case of DS vs Republic (2022) eKLR the court observed that:“14. The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator.These ingredients are provided for under section 8 (1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue”.

17. That the first element is age. PW2 the mother of the victim told the court on the June 14, 2021 that the victim was 6 years. She identified the birth notification which was produced as exhibit 1. Though the birth notification is missing in the record of appeal, when the birth notification was produced by PW7 at page 46 of the record of appeal, the trial court recorded that the victim was born on October 2, 2015. The offence was committed on July 19, 2020 meaning that at the time the offence was committed the victim was 5 years old hence the element of age was sufficiently proved.

18. That, the second element is penetration. Penetration is defined under section 2 of the Sexual Offences Act as follows:“The partial or complete insertion of the genital organ of a person into the genital organs of another person.".

19. That PW1 the victim, in this case, told the court that the appellant put saliva on her "cucu' and used his "dudu" to put into her "dudu". It is recorded that the victim was pointing at his groin while narrating the ordeal. PW4 Doctor Irine Simiyu produced the P3 form which was filled by her colleague Doctor Taban who had gone for further studies. She told the court that according to Doctor Taban's examination of the victim, the labia were reddish with a tear but the hymen was not broken. She further told the court that there were epithelial cells a sign of friction and that a blunt object could have caused the tear. She went ahead to produce the P3 form which was marked as exhibit 3 showing that there was penetration.

20. That, the last ingredient is that of identification. PW6 on page 34 of the record of appeal told the court that an identification parade was conducted the same was produced as exhibit 2 showing that the victim identified the appellant as the one who committed the offence. Further, from the record we get to know that the appellant was a neighbor therefore the victim could easily identify him. Based on all these circumstances he submit that identification was proper.

21. That, in the grounds of appeal the appellant raised an issue of defective charge sheet. it is our submission that the charge sheet was proper as per the law and that the charge sheet contained sufficient particulars to enable the appellant understand the charges he was facing and respond to them.

22. That, the Learned Trial Magistrate meted out a sentence of life imprisonment to the appellant. It is our humble submission that the Learned Trial Magistrate in meting out the sentence observed the applicable law that provides for a mandatory sentence of life imprisonment. The seriousness of the offence in sentencing and sexual offences. In the case of Gedion Kenga Maita vs. Republic Criminal Appeal No. 35 of 1997 (unreported)the court stated that:“..We are not saying that a court has no power to impose a sentence of life: a court can do so depending on the circumstances of a particular case which circumstances must include the circumstances under which the offence itself was committed, the circumstances of the accused person such as whether he is a first offender, how long he has been in prison awaiting trial and things of that nature."

23. The respondent submit that the sentence was legal and proper and urged this court to uphold it.

24. In conclusion the respondent urged this court to find that the Appeal on conviction and sentence lacks merit and ought to be dismissed.

Analysis and Determination 25. This is a first appeal. The duty of the first appellate court in criminal cases was restated in the case of Charles Mwita –vs- Republic, C. A. Criminal Appeal No. 248 of 2003 (Eldoret) (unreported) where the court of Appeal, at page 5, recalled that:“In Okeno v R [1972] E.A. 32 at page 36 the predecessor of this court stated: - “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya –v- R [1957] EA. 336) and to the appellate court’s own decision on the evidence”.

26. Being a 1st Appeal court I must weigh conflicting evidence and draw conclusions, (Shantilal M. Ruwalla –v- R [1957]EA 570) it is not the function of a 1st Appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts findings and conclusion; it must make its own findings and draw its own conclusions Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E.A. 424. ”

27. The court has re-valuated the entire body of evidence as it is enjoined to do and as it was established in the case ofGabriel Njoroge v. Republic [1988-85]1 KAR 1134, that:“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on the question of law to demand a decision of the court of the first appeal and as the court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard from the witnesses and to make due allowance in this respect (see Pandya v. R. [1957] E.A 336, Ruwala v. R [1957] E.A. 570). If the High court has not carried out its task it becomes a matter of law on second appeal whether there was any evidence to support the conviction. Certainly, misdirection and non-directions on material points are matters of law.”

28. This court has considered the evidence adduced and submissions by the parties and in line with the decision in the case of Fappyton Mutuku NguivR [2012] eKLR framed issues for determination as follows;a.Was the charge sheet fatally defective?b.Was the witness evidence manifestly insufficient, inconsistence and uncorroborated?c.Did the trial court fail to consider theappellant defense evidence?d.Was the evidence of identification and recognition inconclusive?e.That, the learned trial magistrate erred in law and fact, by was burden of proof shifted to theappellant?

Prosecution’s Case 29. The Prosecution presented six (6) witnesses in aid of its case with PW1 M.C (Name withheld and hereinafter referred to as Victim) testifying that on the 19th July, 2020 at Marura Centre Moiben Sub-County told her mum Caroline Jepleting (PW 2) that, she went to watch movies at a neighbour place (Mzee's place) then he applied saliva to her "cum'', removed his trouser then did bad manners with her. It is from this statement to Caroline Jepleting PW 2 that led to the arrest of the accused and arraignment in court.

30. The Prosecution in order to proof this case, relied on the Victims account given who identifies accused as the person who applied removed skirt, and applied saliva to her "cum." (court records indicate that the minor pointed at her groin area while testifying on the above) and later picked accused in the identification parade. Caroline Jepleting (PW 2) who upon hearing the victim physically examined her and saw "what looked like sperms in her vagina and thighs” escorted the victim for treatment at Moi Teaching and Referral Hospital, reported matter at Chepkanga Police Station where P3 form was issued. Accused reported to the village elder Mr Joel Tanui (PW3) the accusations from Caroline Jepleting (PW2). Later on village elder escorted the accused to the police station and that is when accused was arrested. Dr Irine (PW 4) in her testimony produced P exhibit 3 P3-form confirming that medical examination findings were consistent with defilement. Prosecutor relied on Pexh7-Notification of Birth produced by P.C. Mwaniki (PW5) who took over investigations from Cpl Koskey and IP Kelelong (PW6) produced Parade identification form to mark the close of Prosecution's case.

Defence Case 31. appellant being unrepresented denied the charge and facts adduced. He testified under oath and advanced an alibi defence. In addition, accused states to have taken a day off the next morning to clear his name from this allegation by looking for the village elder and even going to the police over the issue. Accused also filed handwritten submissions in his defence.

32. This court notes that the appellant did not present any arguments in support of his assertion in his petition that the charge sheet was fatally defective, that the witness evidence was manifestly insufficient, inconsistence and uncorroborated, that his defence case was never considered, that the identification evidence was inconclusive and that the burden of proof was shifted to him in the case.

33. The court has nonetheless re-valuated the entire body of evidence, the victim identified accused in a parade amongst other male persons. It is also not denied that the accused person was a neighbour to the victim who is a child of tender years but with social interaction, the victim was able to recognize the accused person and stated the same to PW2 the mother.

34. The court finds no fault or defect in the charge sheet as framed and the prosecution evidence was not insufficient, uncorroborated or contradiction.

35. Thiscourt finds that, the conviction was sound and that the sentence was not excessive as the offence attracted a maximum imprisonment of life while the appellant was sentenced to 30 years with thecourt considering his mitigation with the appellant regretting the incident.

36. The court notes that the sentence imposed was silent as to when the sentence shall run from and this court finds merit in the appellant's plea to review the sentenced

37. The court finds the Appeal to be lacking in merit in his contest against conviction and sentence and dismisses the same.

38. However, in the exercise of its criminal revision this court hereby reviews the sentence that was imposed, by including the pretrial detention period served by the appellant to 30 years’ imprisonment to run from July 20, 2020.

It is So Ordered.

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 17TH OF OCTOBER 2023. ...............MOHOCHI S.MJUDGEIn the Presence of:Appellant in PersonMr. Mugun for the RepublicMr. Kenei C.A