[2023] KEHC 25111 (KLR)

SE v Republic (Criminal Appeal E004 of 2021) [2023] KEHC 25111 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25111 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Appeal E004 of 2021

RN Nyakundi, J

November 9, 2023

Between

SE

Appellant

and

Republic

Respondent

(Being an appeal from the judgment of Hon. J.M. Wekesa in Kakuma law court cr. SO. N0. 1 of 2020)

Judgment

Coram: Before Justice R. NyakundiMr. Okaka for the State 1. The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006. The particulars of the offences were that on January 1, 2020 in Turkana West Sub- County within Turkana County intentionally caused his penis to penetrate the Vagina of AE a child aged 13 years.

2. Alternatively, 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 offences were that on 1st January, 2020 in Turkana West Sub- County within Turkana County intentionally caused his penis to penetrate the Vagina of AE a child aged 13 years.

3. The appellant was found guilty as charged, convicted and sentenced to serve 20 years imprisonment. He was aggrieved with both conviction and sentencing after which he timeously instituted the present appeal. The appeal is based on five grounds which are couched as follows:1. The trial court erred in law and in fact by failing to find that the offence of defilement was not proved beyond reasonable doubt.2. The trial learned magistrate erred in law and fact by sentencing the appellant to serve 20 years in jail.Parties filed written submissions in support of their arguments.

Appellant’s Submissions 4. The appellant submitted to the effect that the age of the child was not properly proved. That the clinical officer did not conduct an age assessment to ascertain the age of the child, a critical factor in determining the sentence to be meted out. He further submitted that he was not the perpetrator since the victim made reference to one ‘Ekakutan’ yet the charge sheet reflects the name SE. The appellant relied on a number of authorities, which the court has considered.

5. In sum, it was the appellant’s submission that the prosecution did not prove their case to the required standard and as such the appeal herein ought to be allowed and the appellant be set free forthwith.

Respondent’s Submissions 6. Mr Okaka Leonard, prosecution counsel in opposing the appeal submitted that the evidence tendered was sufficient. On age, he submitted that in finding the victim 14, the trial court was entitled to rely on the age assessment form that has been exhibited in page 27 line 7 of the proceedings.

7. It was further submitted for the respondent that the appellant was positively recognized having spent considerable time with the victim and PW2, before setting off after PW2 alighted. According to the prosecution given the encounter between the appellant and the victim, corroboration was not necessary by dint of section 124 cap 80.

8. The prosecution counsel urged the court to reject the ground on unsupplied witness statements for reasons that the appellant did not contest receipt, when the prosecutor on his presence, informed the court that witness statements had been supplied in advance.

9. Finally, the respondent conceded to the error occasioned in the charge sheet and submitted that the same is curable.

10. In sum, the respondent submitted that the jail term of 20 years was proper.

11. This being a first appeal, this court is obligated to consider the evidence afresh in order to reach its own independent conclusion. In doing so, I must bear in mind that, unlike the trial court, I did not have the opportunity of observing the demeanour of the witnesses as they testified.

FINDINGS AND DETERMINATION. 12. In determining this appeal this court shall satisfy itself that the ingredients of the offence of defilement were proved as so required in law; beyond a reasonable doubt. I have carefully perused through the proceedings and the elaborate judgement of the trial court as well as the evidence on record before this court and the written submissions. The issues for determination in this appeal are couched as follow:i.Whether the prosecution proved its case to the desired threshold;ii.Whether or not the sentence was excessive.

Elements of offence of defilement 13. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act which provides:8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.8(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.”

14. The specific elements of the offence defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:1)Age of the complainant;2)Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and3)Positive identification of the assailant.

15. In the case of Charles Wamukoya Karani vs Republic, Criminal Appeal No 72 of 2013 it was stated that:The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

What does the evidence portend? Age of the complainant 16. The age of the complainant is one of the critical ingredients of the offence of defilement which must be proved by the prosecution beyond a reasonable doubt. Under section 8(1) of the Sexual Offences Act, a person is deemed to have committed defilement if he or she does an act which causes penetration with a child. Under section 2 (1) of the Sexual Offences Act, the definition of a child is the one assigned in the Children Act. This entails any human being of less than eighteen (18) years. The onus of proving age resides with the prosecution.

17. The significance of proving the ingredient of age in defilement cases was clearly spelt out by Mwilu J (as she then was) in the case of Hillary Nyongesa vs Republic (Eldoret Criminal Appeal No 123 of 2000) stated that:Age is such a critical aspect in sexual offences that it has to be conclusively proved….and this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.”

18. A similar position was taken in Kaingu Elias Kasomo vs Republic; Malindi Court of Appeal Criminal Case No 504 of 2010, the court emphasized on the importance of proving the age of the victim of defilement as the sentence imposed upon conviction depend on the victim’s age.

19. Therefore, in a charge of defilement, the age of the victim is important for two reasons: i) defilement is a sexual offence against a child, and ii) the age of the child has also been used as an aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence.

A child is defined as a person under the age of eighteen years. Is the victim herein a child? 20. PW7 testified that an age assessment was conducted established that the victim was about 14 years of age. The trial court rightly found that the complainant was 14 years old at the time the charges were being levelled against the accused person. In support of this the prosecution availed age assessment report.

I find the age of the victim was 14 years old.

Penetration 21. Section 2(1) of the Sexual Offences Act defines penetration as:The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

22. In the case of Mark Oiruri Mose v R [2013] eKLR the Court of Appeal stated that:Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”

23. In dealing with this issue, I shall revert to the record. The complainant in her testimony took the court through how the accused defiled her. She stated that the accused tore her inner pants and lifted her inner skirt and pushed away her ‘leso’. He held both her hands after he tore her pants then pressed one of her hand on the ground using his knee as he held her hand using his left hand. The torn pant remained on her body but it had an opening at the centre that exposed her nakedness. That the appellant removed his blue short exposing his nakedness then took out his penis that he inserted inside her vagina and defiled her. The findings of the clinical officer who testified as PW6 support the complaint’s testimony that she was defiled. Upon examining the complainant, he found that there were signs of forceful intercourse. Further the diagrams of the PRC show bruises on both breasts bwizer on upper and lower back side and the hymen together with the vagina walls were swollen. This is prima facie evidence of penetration hence there can be no doubt that penetration was occasioned on the complainant.

Was the appellant the perpetrator? 24. The courts have set out what constitutes favourable circumstances for correct identification by a sole testifying witness. The same was established in Maitanyi vs Republic, (1986) eKLR 196 where it was stated that: -subject to well-known exceptions it is trite law that a fact maybe proved by the testimony of a single witness but his rule does not lessen the need for testing with the greatest care the evidence of the single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error”

25. The appellant was a person known to the complainant. There was no element of mistaken identity of the appellant as the person who penetrated her genitalia.

26. The evidence by the prosecution leaves no doubt that the appellant caused the penetration of the complainant. The appellant was positively identified as the perpetrator, being the complaint’s uncle.

27. Accordingly, I find that the elements of defilement namely, penetration, and the minority age of the victim were proved beyond doubt. The conviction was therefore proper.

28. In the upshot, I find that the appellant was positively identified as the assailant herein; there was no mistaken identity or error. Accordingly, I find that the prosecution proved their case beyond reasonable doubt and that the trial court did not error in convicting the appellant for defilement. The appeal on conviction, therefore, lacks merit and is hereby dismissed.

On sentence 29. The appellant argued that in the absence of a case proven to the required standard, this court should set aside the sentence. Section 8 (3) of the Sexual Offences Act to convict provides as follows:A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”

30. Mandatory minimum sentences place a bar on the trial court ability to set a sentence lower than the one prescribed by the statute. It kind of stripes the Judge or magistrate’s power to exercise judicial discretion on a case to case specifics. Sometimes I consider it as an intrusion by the legislature with regard with the sentencing discretion of Judges and Magistrates. The courts merely becomes rubber stamps. It would seem in this case discretion was fettered for the appellant to be sentenced to the very minimum period of fifteen (15)years imprisonment. In contrast to the above given the guidelines in the Benard KimanivRepublic “It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” the 15 years custodial sentence be and is hereby interfered with a lesser sentence of ten (10) years imprisonment. The court in arriving at this decision, has taken into account the aggravating factors, mitigation, that the appellant is a 1st offender and there is a likelihood of subsequent rehabilitation upon release from prison.

31. In the upshot, the appeal partially succeeds on sentence whereas the order on conviction is affirmed.

DATED AND SIGNED AT LODWAR THIS 9TH DAY OF NOVEMBER, 2023In the Presence ofMr. Okaka for the StateAppellant……………………………R. NYAKUNDIJUDGE