[2022] KEHC 12002 (KLR)

Senge v Republic (Criminal Appeal E012 of 2021) [2022] KEHC 12002 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12002 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal E012 of 2021

JM Mativo, J

June 8, 2022

Between

Ali Juma Senge

Appellant

and

Republic

Respondent

(Appeal against Judgement, Conviction and Sentence in Sexual Offence Number 22 of 2019, R v Ali Juma Senge, at Wundanyi, delivered by E. M. Nyakundi, R.M. on 12. 11. 19)

Judgment

1. This appeal seeks to overturn the conviction and sentence of 15 years jail imposed upon him in Sexual Offence number 22 of 2019, R v Ali Juma Senge at Wundanyi for the offence of attempted defilement contrary to Section 9 (1) (2) of the Sexual Offences Act1(the Act). It was alleged that on the 27th day of May 2019 at around 1. 30 pm in Kishamba Location, Mwarare Sub-County within Taita Taveta County, he intentionally and unlawfully attempted to cause his penis to penetrate the vagina of CM, a girl aged 8 years. There was no finding on the alternative count of committing an indecent act with a child.1Act number 3 of 2006

2. This being a first appeal, this court has a duty to weigh conflicting evidence and draw its own conclusions.2 It is the function of a first appellate court to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, the court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.3 (See Okeno v. R4).2Shantilal M. Ruwala V. R (1957) E.A. 570. 3see Peters V.Sunday Post(1958) E.A. 424. 4{1972) E.A, 32at page 36.

3. On 7th August 2019, the trial Magistrate after a brief voir dire examination formed the view that the complainant was not capable of giving evidence and directed that an intermediary gives evidence on her behalf. The prosecutor prayed that the complainant be treated as a vulnerable witness pursuant to section 31 of the Act. The proceedings went on as follows: Prosecutor: - “I nominate the mother of the child EN to testify on her behalf. I pray that the application be allowed.” Accused: I have no objection. Magistrate: - “application tendered by the prosecutor is allowed pursuant to section 31 of the Sexual Offences Act.”

4. The complainant’s mother, PW1 stated that she was aware that she was an intermediary, and that the complainant was her 5th born child. She said the appellant “put his penis and laid on her.” She said she took her to hospital but she was told he did not defile her but he attempted. She recorded a statement at the police station and she was issued with a P3 form and a PRC. She said the complainant used to come home from school with her friends but on the material day, she came with the appellant. She availed the complainant’s birth certificate and said the complainant was born on 15th April 2011, so she was 8 years old. She identified her treatment cards and P3 forms in court. On cross-examination she said he was not there when the attempted defilement took place. She said she found the appellant’s clothes in her house.

5. PW2, DM, the complainant’s father testified that on the material day he came home around 1. 15pm and found the appellant sitting on his children’s bed covering himself with his hands. His zip was open and he could see his penis. He said the appellant claimed that he had brought the child home and when he asked him why he was naked, he claimed that he wanted to urinate. He said he asked him whether he wanted to urinate on the bed. He said the complainant was next to him and her skirt was raised up but her under wear was still intact. He said he told the child to get out and he locked the appellant in the house. They reported to the chief and later to Mwatate Police Station.

6. PW3 Dr. Furaha Faraji, a Medical Officer at Wesu Sub-County Hospital produced the complainant’s P3 form and PRC form and said that examination revealed she was normal.

7. PW4, PC Amana Rebeca, the Investigating Officer, stationed at Mwatate Police Station sated that upon interrogating the complainant, she said that the appellant attempted to defile her. She said the complainant told her she met the appellant on her way from school and he said he would take her home and upon reaching home, there was no one at home so the appellant opened the door and they entered the house and ordered her to remove her clothes and lay on the bed. She said he had also removed his trouser and underwear, so he was half naked. She said the appellant’s penis had erected but her father came in and found them naked, so, he called neighbours and they arrested the appellant. He said the complainant was aged 8 years having been born on 15th April 2011. She produced her death certificate.

8. In his sworn defence, the appellant said he found the complaint lying next to the road and she called him babu and he took her home and he sat outside as he waited for her parents. He said her father came first and he started beating him lifting a panga and he did not want to listen to him. He said he was injured and he managed to reach to home but the next day the police and the chief came to his home and arrested him.

9. In her judgment, the trial Magistrate analysed the law, authorities and the evidence and he was satisfied that the ingredients of the offence were proved. He convicted the appellant and sentenced him to serve 15 years imprisonment.

10. The appellant seeks to upset both the conviction and sentence citing the following grounds: - (a) that the appellant failed to appreciate that the complainant did not testify; (b) the evidence was insufficient; and that (c) the trial court breached Article 50(2)(h) of the Constitution.

11. The appellant’s submissions are five-fold: - One, that the learned Magistrate failed to consider that the complainant never testified yet there was no evidence that the complainant could not testify. Two, PW1’s and PW2’s testimony was contradictory. Three, he cited Woolmington v DPP5in support of the proposition that the burden of prove in criminal cases lies on the prosecution did not prove its case. Four, failure to assign him an advocate as provided under Article 50(2) (h) of the Constitution; and five failure to consumer his defence.5[1935] UKHL 1.

12. The Respondent’s counsel submitted that: - section 31 of the Act was complied with; under the law an intermediary can testify on behalf of a victim of crime; that the elements of the offence were proved; that that the appellant has not proved that his rights to a fair trial were violated and, in any event, he was able to follow the proceedings and his defence was considered.

13. First, I will address the appellant’s submission that the provisions of section 31 were not complied with. The pertinent question to be addressed is whether the trial court followed the correct procedure in appointing an intermediary as contemplated under the said section. Section 31 (1) provides: -1. A court, in criminal proceedings involving the alleged commission of a sexual offence, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is—a.the alleged victim in the proceedings pending before the court;b.a child; orc.a person with mental disabilities.

14. Section 31 (3) provides that the court may, if it is in doubt as to whether a witness should be declared a vulnerable witness in terms of subsection (2), summon an intermediary to appear before the court and advise the court on the vulnerability of such witness. Sub-section (4) provides that upon declaration of a witness as a vulnerable witness in terms of the section, the court shall, subject to the provisions of subsection (5), direct that such witness be protected by one of the following measures—a.allowing such witness to give evidence under the protective cover of a witness protection box;b.directing that the witness shall give evidence through an intermediary;c.directing that the proceedings may not take place in open court;d.prohibiting the publication of the identity of the complainant or of the complainant’s family, including the publication of information that may lead to the identification of the complainant or the complainant’s family; ore.any other measure which the court deems just and appropriate.

15. Further, sub-section (5) provides that once a court declares any person a vulnerable witness, the court shall direct that an intermediary referred to in subsection (3), be appointed in respect of such witness unless the interests of justice justify the non-appointment of an intermediary, in which case the court shall record the reasons for not appointing an intermediary. Sub-section (6) provides that an intermediary referred to in subsection (3) shall be summoned to appear in court on a specified date, place and time to act as an intermediary and shall, upon failure to appear as directed, appear before the court to advance reasons for such failure, upon which the court may act as it deems fit.

16. Section 31(7) provides that if a court directs that a vulnerable witness be allowed to give evidence through an intermediary, such intermediary may—(a) convey the general purport of any question to the relevant witness; (b) inform the court at any time that the witness is fatigued or stressed; and (c) request the court for a recess.

17. In determining which of the protective measures referred to in subsection (4) should be applied to a witness, the court shall have regard to all the circumstances of the case, including—(a) any views expressed by the witness, but the court shall accord such views the weight it considers appropriate in view of the witness’s age and maturity; (b) any views expressed by a knowledgeable person who is acquainted with or has dealt with the witness; (c) the need to protect the witness’s dignity and safety and protect the witness from trauma; and (d) the question whether the protective measures are likely to prevent the evidence given by the witness from being effectively tested by a party to the proceedings.66See section 31 (8).

18. The court may, on its own initiative or upon the request of the prosecution, at any time revoke or vary a direction given in terms of subsection (4), and the court shall, if such revocation or variation has been made on its own initiative, furnish reasons therefor at the time of the revocation or variation.77See Section 31 (9).

19. Further, section 31(10) provides in absolute terms that a court shall not convict an accused person charged with an offence under this Act solely on the uncorroborated evidence of an intermediary. Also relevant is section 31(13) which provides that an accused person in criminal proceedings involving the alleged commission of a sexual offence who has no legal representation shall put any questions to a vulnerable witness by stating the questions to the court and the court shall repeat the questions accurately to the witness.

20. The above provisions provide the manner in which criminal proceedings involving vulnerable witness are to be conducted. A reading of section 31 shows that it places a duty on the court to follow the steps specified in the act. This must be reflected in the proceedings. It requires the court to undertake an enquiry to properly conclude that the witness is vulnerable. The procedure should consist of two parts: - (1) questioning the witness by the trial Magistrate in order to form an opinion that the witness is vulnerable, and, (2) questioning a parent or a guardian. The learned Magistrate never followed these two steps. He instead recorded that the minor was unable to testify and at this point the prosecutor applied for the mother to be appointed as an intermediary. The court recorded that the application is allowed. To me a reading of the above provisions show that the provisions contemplate an inquiry which will support the finding.The record must reflect the steps taken by the trial Magistrate, the conclusion arrived at and the declaration that the witness is vulnerable.

21. Section 31 (4) provides the steps to be taken to protect the witness once declared vulnerable. The court can either allow the witness to give evidence under protective cover of a witness protection box or direct that the witness gives evidence through an intermediary, or direct that the proceedings may not take place in open court, or prohibit the publication of the identity of the witness or take any other measures the court deems just and appropriate.

22. Any measure that aims to both reduce the trauma experienced by complainant and improve the accuracy of their evidence must not undermine the accused’s fundamental right to a fair trial.8 While appreciating the difficulty presented by witnesses of tender age, it is my view that the drafters of the act were aware of such challenges hence the provisions of section 31. Even though the steps taken do not fully satisfy the inquiry contemplated under section 31, I find no prejudice was occasioned to the appellant. In fact, the record shows that he was asked whether he objected to the application for the complainant’s mother to be appointed as an intermediary and he said he had none.8See generally Dietrich v The Queen (1992) 177 CLR 292; J J Spigelman, ‘The Truth Can Cost Too Much: The Principle of a Fair Trial’ (2004) 78 Australian Law Journal 29.

23. The other argument propounded by the appellant is that the evidence of PW1 contradicts the testimony of PW2. For example, he argued that PW1 said that the complainant was their 4th child while PW2 said she was their 5th child. He also argued that whereas PW2 said the minor was found with her pants, PW1 said the appellant was found lying on her. The court's duty is to determine whether there were contradictions and inconsistencies in the prosecution evidence to the extent that a reasonable person would be left in doubt as to whether the charges were proved, or whether the contradictions (if any), are so material that the trial Magistrate ought to have rejected the evidence. As was stated in Twehangane Alfred v Uganda,9 it is not every contradiction that warrants rejection of evidence. It stated:9Crim. App. No 139 of 2001, [2003] UGCA, 6. “With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

24. Inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected.10The issue is whether the cited contradictions are grave and point to deliberate untruthfulness or whether they affect the substance of the charge. As was held in David Ojeabuo v Federal Republic of Nigeria: -1110See Uganda vs Rutaro {1976} HCB; Uganda vs George W. Yiga {1979} HCB 21711{2014} LPELR-22555(CA), Adamu JA; Ngolika JA; Orji-Abadua JA; & Abiru JA.“Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains."

25. Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial.12 It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. The correct approach is to read the evidence tendered holistically. It is only when inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court that they can necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from.13 In my view the inconsistencies cited are trivial. Viewed together with the rest of the evidence, they do not in any manner affect the final decision.12See Osetola vs State{2012} 17 NWLR (Pt1329) 251. 13See Theophilus vs State {1996} 1 nwlr (Pt.423) 139.

26. I now turn to the core issue in this case, which is whether the offence of defilement was proved to the required standard. As I do so, must mention that the primary objective of criminal law is to maintain law and order in the society, to protect the life and liberty of people and punish the offender. Preparation or attempt to commit a felony falls under the category of offences described as "inchoate" meaning "not completely formed or developed yet, not yet completed or fully developed; rudimentary."14Inchoate comes from a Latin word for beginning. When something is inchoate, although you don’t yet understand what it is fully, you have a strong sense that it is indeed coming. It’s stronger than the wisp of an idea that never turns into anything. But it’s hard to really find the language to describe an inchoate idea.1514http://www.dictionary.com/browse/inchoate15https://www.vocabulary.com/dictionary/inchoate

27. Inchoate crimes are incomplete crimes which must be connected to a substantive crime to obtain a conviction. Examples of inchoate crimes are criminal conspiracy, criminal solicitation, and attempt to commit a crime, when the crime has not been completed. It refers to the act of preparing for or seeking to commit another crime. However, an inchoate offense requires that the defendant have the specific intent to commit the underlying crime. An inchoate crime may be found when the substantive crime failed due to arrest, impossibility, or an accident preventing the crime from taking place.

28. Inchoate crimes are a unique class of criminal offences in the sense that they criminalize acts that precede harmful conduct but do not necessarily inflict harmful consequences in and of themselves. "Inchoate offense" has been defined as: "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent."16 Every inchoate crime or offense must have the mens rea of intent or of recklessness, but most typically intent. Specific intent may be inferred from circumstances.17 It may be proven by the doctrine of "dangerous proximity", and the presence of a "substantial step in a course of conduct."1816Larry K. Gaines, Roger LeRoy Miller (2006). Criminal Justice in Action: The Core. Thomson-Wadsworth Publishing.17See People v. Murphy, 235 A.D. 933, 654 N.Y.S. 2d 187 (N.Y. 3d Dep't 1997)18James W.H. McCord and Sandra L. McCord, Criminal Law and Procedure for the paralegal: a systems approach, pp. 189-190, (3d ed. Thomson Delmar Learning 2006).

29. The dividing line between legal and illegal conduct is whether there is a "substantial step" towards committing a specific crime; similarly, the dividing line between attempt and conspiracy is whether or not there is another person involved or an agreement, plus a substantial step. When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt or to prepare to commit the offence.

30. In a commentary on the Indian Penal Code19 the learned authors defined the essential ingredients of an attempt to commit an offence in the following words: -19The Indian Penal Code (Act XLV OF 1860), by RatanlalRanchhoddas & DhirajlalKeshvalal Thakore (26th Edition (Reprint 1991), at bpage 517“In every crime, there is first intention to commit it, secondly, preparation to commit it, thirdly to commit it. If the third, that is, attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete but the law punishes the act. An ‘attempt’ is made punishable because every attempt, although it fails of success, must create an alarm, which, of itself, is an injury, and the moral guilt of the offender is the same as if he had succeeded”

31. Thus, for there to be an attempt to commit an offence by a person, that person must: -a.Intend to commit the offence;b.Begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve;c.Do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence,2020See Barbeler {1977} QD 80. But in fact, he does not commit the whole offence. For the offence of preparing or attempting to commit an offence to be proved, the prosecutor must prove each of those three elements beyond reasonable doubt.

32. The act relied upon as constituting the attempt or preparation to commit an offence must be an act immediately, not merely remotely, connected with the contemplated offence. As was held in Williams, Ex parte The Minister for Justice and A-G.21what is done must go beyond mere preparation to commit the crime and must amount really to the beginning of the commission of the crime. But it is necessary that the accused should have done his best or taken the last steps towards the intended offence. There can be an attempt to commit an offence where the failure to complete the commission of it is due to ineptitude, inefficiency or insufficient means on the part of the accused person. In fact, the fact that a person, having done something which amounts to an attempt, then voluntarily desists from continuing the attempt, does not relief him from criminal responsibility for the attempt which he made before desisting.21{1965} Q B R 86.

33. For the prosecution to prove the offence of attempted defilement, they must establish that the appellant had the intention to defile the complainant.22 It must be shown that the appellant had put in motion his intention by making preparations to commit the offence. The prosecution must establish that the appellant made the attempt to put into effect his intention to defile the complainant. The question that calls for determination is whether or not the conduct of the appellant constituted an overt act sufficiently proximate to constitute an attempt to defile the complainant.22See Kimar J. in Simon Kandege Ondego v Republic, Nakuru High Court Criminal Appeal No. 142 of 2005

34. As was held in Mussa s/o Saidi v Republic23:-23{1962} E.A. 454“The principles of law involved are very simple but it is their application that is difficult. If the appellant intended to commit the offence of larceny and began to put his intention into effect and did some overt act which manifests that intention, he is guilty of attempted larceny. The burden on the prosecution is therefore first to prove the intention and secondly to prove an overt act sufficiently proximate to the intended offence. The intention will, in the majority of cases, only be capable of proof by inference and it follows in such cases that an act must be of such a character as to be incompatible with another reasonable explanation. Secondly, if the intention is established, the act itself must not be too remote from the alleged intended offence”

35. In Abraham Otieno v Republic,24 it was stated: -24High Court Criminal Appeal no. 53 of 2009, Kisii“For an offence of attempted rape to be deemed to have been committed under the section, the prosecution must prove that the culprit acted in such a manner that there was no doubt at all as to what his intention was. The intention must be to rape. It must be shown that he was about to rape the victim but was stopped in tracks and or in the nick of time. The intention to rape must be manifest. Such intention can be manifested for instance by word of mouth or conduct of the culprit. If the culprit proclaims his intention to rape and directs his efforts towards that goal for instance, by holding the victim or pushing her to the ground, undressing her, removing her pants if at all and also unleashing his male genital organ in preparation thereof but for one reason or another something happens which compels him to stop, again that would be good evidence of attempted rape.”

36. Criminal law seeks to restore order, decency and social equilibrium in society. It is aimed at curtailing or reducing to the minimum grave incidents of anti-social conduct. Punishment of an offender lies at the root of criminal law. Where an offence is committed, the offender or wrong-doers is punished, however, the criminal law also seeks to punish those who intend to commit offences but could not successfully do so. That is, they merely attempted to commit an offence. The fact remains that they intended to commit an act which they know is unlawful and prohibited, but the completed offence was never accomplished. The offence remains inchoate because the accused could not accomplish his desires, or that the end result of his acts or omission is not what he envisaged. He has all the same, attempted to commit an offence. It is a criminal attempt and therefore an offence. Will an accused person be allowed to go scot-free because he could not finish his plans? No. He would be made to face some form of punishment even though he never completed the offence. Any legal system would be defective if criminal liability only arose when substantive offences have actually been committed.

37. Applying the law to the facts of this case and the issue under consideration, here is a man who was found with his zip open and his penis exposed. Here is a man who had removed the complainant’s skirt. He was found in bed and the complainant next to him. At that point the complainant’s further opened the door. To me all the elements of the offence of attempted defilement were proved to the required standard.

38. The appellant argues that he was not provided with an advocate therefore his rights to a fair trial were violated. However, a reading of the proceedings shows that the appellant fully participated in the proceedings and there is no suggestion that he was prejudiced. In a nutshell, find that the appellant was properly convicted. Accordingly, the appeal against conviction is dismissed.

39. As for the sentence, as the Supreme Court of India stated in State of M.P. v Bablu Natt25the principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with. In Alister Anthony Pareira v State of Maharashtra26the court held that:25{2009}2S.C.C 272 Para 1326{2012}2 S.C.C 648 Para 69“Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done. There is no straightjacket formula for sentencing an accused on proof of crime. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep the gravity of the crime, motive for the crime, nature of the of the offence and all other attendant circumstances.”

40. While exercising its discretion in sentencing, the court should bear in mind the principles of proportionality, deterrence and rehabilitation and as part of the proportionality analysis, mitigating and aggravating factors should also be considered.2727See Somanvs Kerala {2013} 11 SC.C 382 Para 13, Supreme Court of India

41. I have carefully considered the facts of this case, the nature of the offence and the prescribed sentence under the law. I find that the ends of justice will be met if I reduce the sentence of 15 years to 10 years. In computing the said sentence, the period the appellant was in custody shall be counted.Right of appeal 14 days

DATED, SIGNED AND DELIVERED AT VOI THIS 8TH DAY OF JUNE2022. JOHN M. MATIVOJUDGE