[2022] KEHC 16462 (KLR)

SC v ODPP (Criminal Appeal E004 of 2021) [2022] KEHC 16462 (KLR) (16 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16462 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Criminal Appeal E004 of 2021

RN Nyakundi, J

December 16, 2022

Between

SC

Appellant

and

ODPP

Respondent

Judgment

1. The appellant herein was charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act. The particulars of the offence are that on May 4, 2016 at [particulars withheld] village, [particulars withheld] sub location within Nandi county he intentionally and unlawfully caused his penis to penetrate the vagina of LC, a minor aged 6 years who to his knowledge was his niece. In the alternative he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence are that on May 4, 2016 at [particulars withheld] village, [particulars withheld] sub location within Nandi county he intentionally and unlawfully caused his penis to come into contact with the vagina of LC, a minor aged 6 years. The accused was also charged with a second count of Incest contrary to section 20(1) of the Sexual Offences Act. The particulars of the offence are that on May 4, 2016 at [particulars withheld] village, [particulars withheld] sub location within Nandi county he intentionally and unlawfully caused his penis to penetrate the vagina of BC, a minor aged 4 years who to his knowledge was his daughter. In the alternative he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence are that on May 4, 2016 at [particulars withheld] village,[particulars withheld] sub location within Nandi county he intentionally and unlawfully caused his penis to come into contact with the vagina of [particulars withheld], a minor aged 4 years.

2. The prosecution called six witnesses who testified in court. The accused was found to have a case to answer and put on his defence. He did not call any witnesses and testified on his own. The trial court, upon considering the testimonies of the witnesses and the evidence adduced in court, found the appellant guilty and sentenced him to life imprisonment.

3. The appellant being dissatisfied with the decision of the court appealed against the conviction and sentence vide a petition of appeal filed on December 5, 2017. The grounds of the appeal are; That the learned trial magistrate erred in law and in facts when she failed to observe that the case was not proved beyond any reasonable doubt.

That the trial magistrate erred in law when she sentenced (me) to life without observing that (my) constitutional right under article 50(2) was violated.

That the learned trial magistrate erred in law when it failed to observe that the clinical officer who adduced the evidence was not the maker of the p3.

That the learned trial court erred in law and fact when she failed to observe that the case was fabricated and emerged as a result of family feud and misunderstanding hence single source.

That the trial court failed in law and fact when it declined to observe that there was no sexual penetration to the alleged minor as per the evidence that was adduced by the prosecution.

That any other grounds shall be adduced during the hearing and wish to be present during the hearing of the same.

Appellant’s Case 4. The appellant filed submissions on March 10, 2022.

5. On the first ground the appellant submitted that his constitutional rights under article 49 of the constitution were violated as he spent 2 days in custody. He cited Natasha Sung v Republic in support of this submission. He Further submitted that his right to a fair trial was violated as well. He contended that he was kept in custody for a longer period in order to coerce him to confess.

6. On ground 2 the appellant submitted that the prosecution witnesses were incredible and inconsistent. The evidence adduced on court was uncorroborated and ought not to have been relied upon. He stated that PW1s testimony that she was not aware of her age, coupled with the fact that she decided to sleep facing up whereas scared people face down when sleeping showed inconsistency.

7. It is the appellant’s case that PW4 was forced to testify against her will. She was detained for 14 days at Kapsabet GK prison and this is an indication that the prosecution wanted time to threaten her. He cited Richard Appella v Republic CA No 45 of 1981 in support of his submission that the prosecution witnesses evidence should not have been used to convict and sentence him.

8. He consolidated his submissions on ground four and five. It was his submission that the more senior a charge, the heavier the burden of proof. The medical expert was incompetent and the P3 form was incredible. The P3 form was not duly filed yet it is a crucial document. The clinical officer testified that bot the victims were infected with gonorrhoea yet it is only LC who was infected. He faulted the findings in the P3 by submitting that most of the findings were negative. There were no blood stains and there was no presence of spermatozoa. The age of the injury was not indicated.

9. He maintained that the prosecution failed to prove their case beyond reasonable doubt and prayed the appeal be allowed.

Respondent’s Case 10. The respondent filed submissions on July 25, 2022. Learned counsel for the prosecution submitted that the evidence of the prosecution witnesses was consistent, coherent and well corroborated. Further, that all the ingredients of the offence of incest were proved beyond reasonable doubt.

11. On the ingredients of incest, the prosecution stated that it was able to prove that L the first complainant was six (6) years old and that B the second complainant was four (4) years old. Pw3 L’s mother testified and confirmed that she was born on 27/1/2010 as such she was six (6) years when the incident took place. The child immunization card was produced as Ex No X On the other part B did not have a birth certificate or a child health card. The honourable court therefore ordered for age assessment to be carried out. The age assessment report indicated that B was four (4) years old. It was clearly ascertained that the appellant was a blood relative to both complainants. In her testimony PW1 stated that her father and the appellant are gogo’s sons meaning that they are sons to her grandmother so that makes the appellant her blood uncle. PW2 referred to the appellant as “Baba” and Pw4 AK confirmed that the appellant was her brother-in-Law since he is the brother to PW3’s husband.

12. On penetration, counsel submitted that PW1 and PW2 clearly stated that as they were playing the appellant came and told them that they accompany him to the forest so that he could pick some fruits for them. Upon reaching the forest he ordered them to lie down on the ground that the forest guards were in the vicinity. At this point the appellant undressed the complainants and defiled them after which he used some leaves to wipe their private parts. PW1 and PW2 stated that they felt pain on their private parts during the incident.

13. The doctor (PW5) who attended to the complainants on 8/5/2016 confirmed that the complainants genitalias had injuries. Lilian’s hymen was broken at position 6 and 3 dock, there were bruises on the labia majora and minora. There was bleeding and there was presence of mucoid discharge around the genitalia and thighs she had been infected with gonorrhoea. She had been earlier seen at [particulars withheld] health centre. The treatment sheet was produced as exhibit No 2 While the P3 form was produced as exhibit No3.

14. On B. She was escorted to hospital by her mother she was four years old. She had bruises on her labia minora and labia majora. There was presence of mucoid vaginal discharge she had been infected with gonorrhoea. The PW3 form was produced as exhibit No5. The appellant was also seen by PW5. He had pus on the urethra he was infected with gonorrhoea.

15. From the evidence adduced it was established that the appellant was infected with gonorrhoea and that he has been on medication. After the incident medical evidence revealed that both complainants PW1 and PW2 had been infected with gonorrhoea. The same doctor who saw PW1 andPW2 also saw the appellant. He confirmed that all of them had been infected with gonorrhoea.

16. Identification was also proved beyond reasonable doubt. The appellant was not a stranger to PW1 and PW2. It was identification by recognition which is of high evidential value. The incident took place during the day Pwl and Pw2 clearly saw the appellant as he defiled them therefore, there is no possibility of mistaken identity.

17. Learned counsel for the prosecution submitted that the sentence was lawful and commensurate to the magnitude of the offence committed.

18. As the first appeal court, my duty is to re-consider and re-evaluate the evidence adduced before the trial court and come up with my own conclusion as to whether the evidence was sufficient to sustain a conviction (SeeOkeno vs R(1972) EA 32. )

Issues For Determination 19. Upon considering the pleadings, the record of appeal, the petition of appeal and submissions herein I have identified the following issues for determination;a.Whether the appellant’s constitutional rights were violatedb.Whether the prosecution proved its case to the required standard

Whether the appellant’s constitutional rights under article 50 of the constitution were violated 20. The implication of the right to a fair trial has arguably been strengthened through case law and judicial discretion. It has been seen that the right to a fair trial is made up of a number of rights whose content cannot be exhaustively defined. However, that right has been distinguished as the most fundamental constitutional right of all. Upon setting my eyes and my mind to the record of appeal it did not illustrate a risk of wrongful conviction or breach of the personified fair trial rights against the appellant.

21. It is trite that where a party claims constitutional violations the same must be set out to a precise degree. The appellant’s claim is that his detention before the trial was a violation of his constitutional rights. He claims that he was made to suffer before the trial by being detained in prison but does not state the particulars of how he suffered. It is procedural to keep suspects in custody before presenting them in court and therefore I find no violation of the appellants constitutional rights.

Whether the prosecution proved its case to the required standard 22. The offence of incest is stated in section 20(1) of the sexual Offences Act as(1)1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years, provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.The ingredients for the offence of incest are; Knowledge that the person is a relative

Penetration or indecent act

Penetration is defined under section 2 of the act. It means “the partial” or complete insertion of the genital organs of a person into the genital organs, of another.

23. Indecent act means “any contact between any part of the body of a person with the genital organs, breast or buttocks of another but does not include an act that causes penetration.”

Whether the appellant had knowledge that the person was a relative 24. PW1 testified that the accused person and her father were sons to their grandmother. He was therefore clearly identified as her biological uncle. PW2 in her testimony was very clear that it was her father who told them to lie down and she explained the act in detail.

The appellant was identified by recognition and therefore this element was satisfied.

Whether there was penetration or an indecent act 25. The victims testified as to the unfortunate events that took place at the hands of the accused person. They described the appellants’ actions of inserting his penis in their vaginas which were corroborated by medical evidence.

26. PW5, WK, a clinical officer attached to [particulars withheld] sub county hospital who examined the complainants on May 8, 2016 and filled the P3 forms produced as exhibit 4,5 and 6. He confirmed that the injuries that the complainants suffered were evidence of complete penetration. He further testified that the he examined the appellant and found that he had a sexually transmitted infection. The appellant did not produce any evidence to the contrary.

27. It is therefore evident that there was penetration and an indecent act was committed by the appellant. Further, as he was clearly suffering from an STI, which he was well aware of, he deliberately infected the complainants with the same.

28. The upshot of the foregoing is that the offences of penetration and committing an indecent act were proven to warrant dismissal of an appeal on conviction. The second limb of this appeal is on sentence. The limits of an appellate court to interfere with the sentence of a trial court is now crystal clear within the bounds of our jurisprudence as illuminated in the following cases. In S v Malgas 2001 (1) SACR 469 (SCA) at para 12 where it was held that: “A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”

29. Further inMokela v The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that: “It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blancheto interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”

30. On their face the above principles are equally domesticated in the case of Shadrack Kipkoech Kogo v REldoret Criminal Appeal No 253 of 2003 the Court of Appeal stated thus:- “sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka v R [1989 KLR 306]”

31. The impugned sentence is being questioned by the appellant as being unjust and disproportionate to the offence. It is not lost that Kenya embraces the mandatory minimum sentences more so in sexual offences to provide effective safeguard and deterrence. The court in R v Radich [1954] NZLR 86 affirmed as follows on this aspect of sentencing that “One of the main purposes of punishment is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so.”

32. The courts in Kenya have ruled that mandatory minimum sentences which gives trial judges very little power in imposing a sentence either higher or lower than those legislated by parliament to be unconstitutional due to the mandatory characteristics. See decisions in Denis Kinyua Njeru v Republic[2017] eKLR, Evans Wanjala Wanyonyi Vs Republic [2019] eKLR,Christopher Ochieng v R [2018] eKLR Kisumu Criminal Appeal No 202 of 2011, Jared Koita Injiri v R, Kisumu Criminal Appeal No 93 of 2014 and Francis Karioko Muruatetu & another v Republic SC Petition No 16 of 2015.

33. It is a basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system. Despite the constrains the trial magistrate had in imposing the mandatory minimum sentence this court took the liberty to admit mitigation and aggravating factors of the offence from both the state and appellant. There is no doubt a reading in of the judgment demonstrates that the sentence by the trial court reflects the gravity of the offence. It is however at this stage to find that a definite term of imprisonment will serve the same purpose as a rationale for the dangerous offender as designated by the trial court. For all these reasons I am of the opinion that under the scheme of the constitution, statutory provisions and the emerging case law the life imprisonment sentence be substituted with a term of forty (40) years imprisonment with effect from the May 10, 2016. As a consequence, the committal warrant be amended to incorporate the new order as a subject of this appeal.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 16TH DAY OF DECEMBER, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:1. The appellant2. Mr Mugun for the state