[2022] KEHC 1534 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL APPEAL NO. E002 OF 2021

SHARON NTHOKI MWANZA............................................................................APPELLANT

VS.

REPUBLIC........................................................................................................RESPONDENT

(An appeal from original conviction and sentence in the Chief Magistrate’s Court

at Thika,Hon. A.M. Maina,SPM dated 22nd December, 2020 in Sexual Offences

Criminal Case No. 63 of 2018)

JUDGMENT

1. SHARON NTHOKI MWANZA,the appellant was convicted before the Chief Magistrate’s Court in Thika of the offence of defilement contrary to Section 8(1) and (2) of the Sexual Offences Act. The trial court sentenced the appellant to imprisonment of 20 years. She was aggrieved by the conviction and sentence and has filed this appeal.

2. This being a first appellate court, it is under a legal duty to re-evaluate the evidence tendered before the trial court and come to its own conclusion but must give allowance to the fact that it did not as did the trial court, have the advantage of seeing and hearing witnesses: See OKENO VS. REPUBLIC (1972) E.A. 32.

3. The complainant BKK, a boy was 8 years old when the offence occurred. The complainant after being subjected to voir dire examination gave his evidence under oath. After taking oath, the complainant stated that he was the first born of the two other siblings and that their mother lived in Nairobi while he lived with his grandmother at (withheld) where the grandmother worked at a children’s home. The grandmother resided at that children’s home when she was on duty. The complainant thereafter refused to answer to any other questions put to him by prosecution. He did however answer a few other questions but on being asked if the appellant did anything to him the complainant refused to respond. Prosecution requested to stand down the complainant and the trial court acceded to that prayer.

4. On being recalled, the complainant confirmed that when his grandmother was on duty at the children’s home, he lived with the appellant and the appellant’s child. He narrated how the appellant sent out her child to get firewood and while that child went out of the house, the appellant requested him to remove his trouser and underwear and placed him on the bed where he and “cucu” (grandmother) normally slept. The complainant described how the appellant who only had a Tshirt, and did not have her underwear on, lay on top of him. The complainant very graphically described what the appellant did in defiling him. He stated:-

“I felt pain when Sharon did that act to me.”

5. He stated he told his teacher and his mother what occurred and that the appellant was arrested by police.

6. EK was an employee of (name withheld) Children’s Home. He stated on 8th July, 2018 he was called by a teacher of (name withheld) school and was informed that there was a pupil “who appeared unsettled and disturbed.” When he went to the school the complainant informed him that the “aunt” who was taking care of him had been sexually molesting him in the evening. Complainant informed him that that person who he later identified as the appellant used to send other children out of the house then would sexually molest him. The last time the molestation occurred was a day before EK spoke with the complainant. Complainant pointed out the appellant to the police and she was arrested.

7. The complainant was taken to hospital.

8. Complainant’s mother was informed of her son’s molestation by telephone. She confirmed complainant was born on 7th January, 2010 and produced his birth certificate.

9. On being cross-examined, complainant’s mother stated:-

“I found (complainant) having been taken to hospital.

I however examined him and noted he had healing bruises on his private parts.”

10. The complainant on further cross examination confirmed she owed appellant salary arrears but stated:-

“I owe you some money which is an unpaid salary.

We have never disagreed over that money.”

11. Doctor Wachira Maina produced the P3 compiled by his colleague. That P3 confirmed complainant was 8 years old and had suffered alleged sexual assault by a person well known to him on diverse dates between May and July, 2018. The P3 noted that complainant had inflamed and swollen private parts. The doctor described in the P3 that the nature of assault as sexual assault on a child. The doctor further stated when examined in chief as follows:-

“It is unlikely for a male to sustain such injuries on their genitalia, unless they have been sexually assaulted.”

12. The doctor discounted suggestion of the appellant, while cross examining him, that poor hygiene could cause the inflammation and swelling found on the complainant but that rather symptoms of poor hygiene would be found in the urine tract and not the swelling and inflamed genitalia area.

13. Appellant offered a sworn defence whereby she denied the charge. She confirmed that her duties included taking care of the complainant and another of his sibling. Appellant stated that the complainant was a dirty child and that he soiled his bedding with faeces since he was not using toilet paper. She also said that he used to touch his private part and she would stop him by beating him. She further stated when she complained to complainant’s mother of the work she was doing in cleaning up after he complainant the complainant’s mother threatened her thus:-

“She threatened if I left that home I would never work anywhere else … she told me to wait for my salary the following day. Instead of receiving my salary, I was framed with the allegations in this case.”

14. Appellant stated that complainant played with girls in the plot where they resided.

15. Appellant by her grounds of appeal raised issues that:-

“The trial court erred to convict her when the prosecution failed to establish the elements of the offence and thereby contravened Articles 25 and 50 of the Constitution.

That the trial court failed to analyse the trial evidence.”

16. The appellant erred to submit that the trial court did not analyse the evidence. The trial court minutely examined the evidence adduced in its judgment. There is no basis in my view for that submission by the appellant.

17. On the other ground appellant based her submission on allegation of violation of her that her constitutional right. She submitted that penetration as defined in the Sexual Offences Act, was not proved by the prosecution.

18. The appellant was charged with the commission of the offence of defilement contrary to Section 8(1) and (2) of the Sexual Offences Act. That Section provides:-

“(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.”

19. Section 8(1) above requires proof of penetration. Penetration is defined under Section 2 of the Sexual Offences Act as:-

“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

20. Appellant submitted that Section 2 above does not contemplate that a woman can defile a male person. Appellant submitted a penetration to means someone “put it into something else”. That that use of the word insertion means “something must be put inside another”. Appellant therefore submitted:-

“From this perspective, … it is ostensible that it is only the way the penis is designed that it can be inserted into the vagina but not the other way round.

21. Appellant submitted the question:-

“… can a woman penetrate a man in the ordinary parlance?

… the law makers did not contemplate a situation where a woman can defile a child or rape a man.”

22. It is view of those submissions appellant submitted that her constitutional right under Article 50(2)(n)(i) was violated, which Article provides that one cannot be convicted of an act or omission which when it was committed or omitted was not an offence in Kenya.

23. In my humble view, the appellant erred in making those submissions that a woman cannot defile a man because her genitalia cannot penetrate a man’s genitalia. Section 2 defines penetration as partial or complete insertion of the genital organ of a person into genital organ of another. In this case the prosecution’s case was that appellant inserted the complainant’s genital organ into hers. That evidence by the prosecution squarely fits into that definition. Even the particulars of the charge the appellant faced, made that very clear as follows:-

“Sharon Nthoki Mwanzaon diverse dates between May and 9th July, 2018 at [name withheld] village in [withheld] East Sub County within Kiambu County intentionally cause her vagina to be penetrated by the penis of [withheld] a child aged 8 years.”

24. Those particulars of offence fully answer to the appellant’s submission on whether the prosecution had proved penetration. I therefore conclude on that issue by stating: Yes, a woman can rape or defile male man/child.

25. I will proceed to consider other issues raised by the appellant.

26. Although in submissions, appellant alleged that the complainant was coached to testify and that his evidence was fabricated it is important note that the trial court which had the advantage of observing the witnesses who testified believed the testimony of the complainant. This is what the trial court stated in its considered judgment:-

“Having considered all the above mentioned factors, I am satisfied that PW1 (the complainant) was defiled on diverse dates, by someone well known to him. …

The victim (complainant) herein had a challenge testifying in this case, whenever the accused person (appellant) was mentioned or whenever he was asked to narrate to the court on what happened to him. He was extremely anxious and nervous. It is however worth noting that PW1 (complainant) was an anxious child… that is why PW3 (EK) was called to counsel him, following reports of anxiety from his school. …

I will therefore not discredit or disregard PW1’s (complainant’s) evidence on the grounds that he was reluctant to testify whenever the accused (appellant) person was mentioned in the proceedings. I instead believe his (complainant) evidence as true. He testified with innocence of a child. I find that he had no reason to just pick on the accused (appellant) person as the perpetrator of the offence and not pick anyone else. His evidence remained consistent even in cross-examination.”

27. A Court of Appeal will not interfere with such finding of fact unless it is based on no evidence. See the case RICHARD KAITANY CHEMOGONG VS. REPUBLIC (1984) eKLR as follows:-

“A court on appeal will not normally interfere with a finding of fact by the trial court whether in a civil or criminal case unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.

28. The trial court had the opportunity to examine the demeanor of the complainant and having done so, determined that he was a truthful but was traumatised witness. There is no reason advanced why this Court should find otherwise.

29. Although the appellant submitted that the swelling and inflammation noted by the doctor was attributable to complainant’s lack of hygiene and could have been caused by bruising while riding a bicycle, it is worth noting that the complainant was not cross-examined on the same. However, the doctor who was cross examined on that issue discounted those act as likely cause of inflammation and swelling of complainant’s private parts. Rather, the doctor was categorical that the same was attributable to sexual assault.

30. The appellant highlighted what complainant told to the counsellor, that he was undressed by appellant whereas in his evidence, the counsellor said complainant stated he was asked by appellant to undress and he undressed himself. Appellant submitted that this showed contradiction in the evidence of the complainant.

31. Those contradictions, if at all, do not create doubt in the evidence of the complainant. A case in point is AHAMAD ABOLFAITHI MOHAMMED & ANOTHER VS. REPUBLIC (2018) EKLR thus:-

“InJOHN NYAGA NJUKI & 4 OTHERS V. REPUBLIC,Cr. App. No. 160 of 2000,this Court expressed itself as follows on the issue:

‘In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.’”

32. Whether or not the appellant undressed the complainant or vice versa does not distract the clear cogent evidence of defilement of complainant.

33. It is this Court’s finding that the appellant’s appeal against conviction lacks merit and it fails.

34. Appellant has also appealed against her sentence of 20 years imprisonment.

35. Section 8(2) of the Sexual Offences Act provides that when one is convicted of defilement of a child aged eleven or less, the sentence is one of imprisonment for life. The trial court therefore erred to have sentenced appellant to 20 years imprisonment after convicting her of defilement of an 8 year old boy.

36. This Court however, cannot alter that sentence by enhancement of the prison term because prosecution did not cross appeal nor did this Court in hearing the appeal warn the appellant of such likely enhancement. See the caseMGK VS. RPUBLIC (2020) eKLRthus:-

“This Court in J.J.W. V REPUBLIC[2013] eKLR held as follows on enhancement of a sentence by the High Court;

“It is correct that when the High Court is hearing an appeal in a criminal case, it has powers to enhance sentence or alter the nature of the sentence. That is provided for underSection 354 (3) (ii) and (iii)of the Criminal Procedure Code. However, sentencing an appellant is a matter that cannot be treated lightly. The court in enhancing the sentence already awarded must be aware that its action in so doing may have serious effects on the appellant. Because of such a situation, it is a requirement that the appellant be made aware before the hearing or at the commencement of the hearing of his appeal that the sentence is likely to be enhanced. Often times this information is conveyed by the prosecution filing a cross appeal in which it seeks enhancement of the sentence and that cross appeal is served upon the appellant in good time to enable him prepare for that eventuality. The second way of conveying that information is by the court warning the appellant or informing the appellant that if his appeal does not succeed on conviction, the sentence may be enhanced or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal.”

37. The appellant however, as provided under Section 333(2) of the Criminal Procedure Code ought to be given credit for the period she was in custody during her trial. The Court of Appeal in the case AHAMAD ABOLFATHI MOHAMMED & ANOTHER VS. REPUBLIC (supra) stated thus in respect to that Section:-

“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required bysection 333(2)of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody.”

38. Appellant is entitled to credit for the period she was in custody awaiting the conclusion of her trial. She was arrested on 13th July, 2018 and remained in custody until the day of her judgment on 22nd December, 2020. She was therefore in custody for 2 years and 5 months. That period shall be taken into account in her sentence.

DISPOSITION

39. The appeal against conviction and sentence has no merit and is dismissed.

40. The appellant is hereby given credit of 2 years and 5 months to her 20 years imprisonment.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF MARCH, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant: Mourice

Appellant: Present in person

For Respondent: - Mr. Kasyoka

COURT

JUDGMENTdelivered virtually.

MARY KASANGO

JUDGE