[2023] KEHC 26389 (KLR)

Saningu v Republic (Criminal Appeal 8 of 2020) [2023] KEHC 26389 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26389 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 8 of 2020

DR Kavedza, J

December 8, 2023

Between

Daniel Saningu

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence imposed by Hon. M. Kasera (S. P.M) on 25th November 2019 in Sexual Offence Case No. 17 of 2019 Republic vs Daniel Saningu)

Judgment

1. The appellant was charged and convicted for the offence of attempted defilement contrary to Section 9 (1) as read with 9 (2) of the Sexual Offences Act, No. 3 of 2006. The appellant was sentenced to serve 10 years imprisonment. Being dissatisfied with the conviction and sentence, he filed a petition of appeal raising 3 grounds.

2. The main grounds raised are as follows: in grounds 1 and 2 the appellant asked the court to be merciful to him since he is a first offender who has attended different reform programs while in the prison and has therefore learnt how to live with others in the society. He equally promised not to engage in any criminal activities if released. In ground 3 the appellant stated that the culture where he was brought up from affected his way of living since the community engaged in early marriages. He however promised never to propagate the same.

3. As this is the Appellant’s first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno v Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oruri Mose v R [2013] e-KLR that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze 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 demeanor of the witnesses and hearing them give evidence and give allowance for that.

4. In order to proof their case, the prosecution called 5 witnesses. PW1 SS [Name withheld] the complainant herein told court that she is aged 13 years and in class 7. She further stated that on 16/4/2019 she was at home and at about 11. 00am the appellant went to their home and asked her for water. She then went to sleep and that is when the appellant followed her to the bedroom. The appellant then threw her down and wanted to remove her innerwear when the complainant decided to scratch his face. He failed to remove her innerwear. She acknowledged knowing the appellant as a herdsman to their neighbor.

5. PW2 ML [Name withheld] a minor stated that he is 12years old and attends [Particulars Withheld] Primary School. He stated that the appellant gave him a bicycle and instructed him to go and call a certain boy. On his return he saw PW1 running away, the appellant took his bicycle and left their home.

6. PW3 WL the sister to the complainant stated that PW1 is her sister’s son. That on 16/4/2019 while at the market PW1 went to her crying upon asking her she said that the appellant had defiled her. She then took the complainant to the police station then to the hospital.

7. PW4 Silei Siatet the Medical Officer produced the P3 form and stated that the complainant went to their facility complaining of neck pain. Upon examination she noted that the complainant’s neck was injured, the vagina had no injuries and the hymen was intact.

8. PW5 No. 105710 Police Constable Sarah Adhiambo Irungu the investigating officer state that, the case was assigned to her and she effected the arrest of the appellant. She produced the birth certificate of the complainant. She also produced the age assessment report of the appellant which placed him at 18 years.

9. After the close of the prosecution’s case, the trial court found that the appellant had a case to answer and he was put on his defence. He gave unsworn evidence and he did not call any witnesses. He denied ever threatening the complainant. He stated that he was arrested when he had gone to hospital for checkup.

Analysis and determination. 10. I have considered the Respondent’s submissions dated 20th May 2023. I have also gone through the grounds of appeal and submissions of the appellant dated 20th July 2023.

11. The complainant told the court that the appellant tried to remove the her inner wear but did not succeed. During the ordeal, the appellant scratched the complainant on the face and the lower court noted this in its proceedings.

12. I am in agreement with Makau J when he held as follows in David Aketch OchiengvR, [2015] eKLR:“….For a successful prosecution of an offence of an attempted defilement, the prosecution must adduce sufficient evidence to the required standard to prove an attempted penetration. This may in my view include bruises, or lacerations from complainant’s vagina, and/or bruises or lacerations of culprit’s genital organ and finding made discharge such as semen or spermatozoa outside the complainant’s vagina or innerwear without there being penetration.”Attempted defilement was therefore proved.

13. The age of the complainant was proved by the production of the birth certificate which indicate that she was born on 21/7/2006 hence aged 12 years 9 months at the time of the incident.

14. The appellant was positively identified by the complainant. She has known him as the herdsman in a neighbor’s home. This was therefore not a point of identification but of recognition. The appellant had in fact sent the complainant’s younger brother with his bicycle and that is when he got the opportunity to disturb the peace that the complainant was enjoying in their home.

15. For the foregoing reasons, I have come to the same conclusion as the learned trial magistrate that in this case, the prosecution proved its case against the appellant beyond any reasonable doubt. I am thus satisfied that the appellant was properly convicted.

16. On sentence, the appellant was sentenced to serve 10 years imprisonment. He is a first offender. Although sentences are intended, inter alia, to punish an offender for his wrongdoing, they also aim to rehabilitate offenders to renounce their criminal tendencies and become law-abiding citizens. I have no doubt that the sentence imposed by the trial court, in this case, was lawful but considering that the appellant was a first offender. However, I am satisfied that the sentence was harsh and manifestly excessive.

17. For the above reason, I hereby set aside the sentence of ten (10) years imposed by the trial court and substitute it with a sentence of five (5) years imprisonment. The sentence shall take effect from the date of the appellant’s arrest.

Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER, 2023D. KAVEDZAJUDGE