[2022] KEHC 11996 (KLR)

SMM v Republic (Criminal Appeal 1 of 2020) [2022] KEHC 11996 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11996 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal 1 of 2020

HPG Waweru, J

May 19, 2022

Between

SMM

Appellant

and

Republic

Respondent

(Appeal from Original Conviction and Sentence in Nanyuki CM Sexual Offence Case No.39 of 2016 – W J Gichimu, PM)

Judgment

1. The Appellant, SMM, was convicted after trial of defilement contrary to section 8 (1) & (2) of the Sexual Offence Act, No 3 of 2006. It was alleged that on the September 9, 2016 at [Particulars Withheld] Village in Laikipia County, he intentionally caused his penis to penetrate the anus of one CK, a child aged 5 years. On October 6, 2017 he was sentenced to life imprisonment. He has appealed against both conviction and sentence.

2. In his petition of appeal (filed for him by a firm of advocates), the Appellant as raised the following grounds –i.That the trial magistrate did not warn himself of the danger of convicting the Appellant sorely upon the evidence of the minor complainant.ii.That the evidence presented by the prosecution was inconsistence.iii.That the trial court failed to consider the Appellant’s defence.iv.That the offence was not proved beyond reasonable doubt.

3. At the time of hearing of the appeal the Appellant tendered in person amended/supplementary grounds of appeal. The following additional grounds of appeal were raised therein –v.That the available medical evidence did not corroborate penetration.vi.That looking at the entire evidence as a whole, the conviction is unsafe and should not be upheld.The Appellant also filed written submissions which I have read.

4. Learned counsel for the Respondent supported the conviction upon the ground that the charge was proved beyond reasonable doubt, all the ingredients of the offence having been established to the required standard. I have considered the learned counsels oral submissions. I have also read through the record of the trial court in order to evaluate the evidence placed before that court and arrive at my own conclusions regarding the same. This is my duty as the first appellate court. I have borne in mind however, that I did not see and hear the witnesses, and I have given due allowance for that fact.

5. Four witnesses testified for the prosecution. The complainant testified as PW2. When the child was placed in the witness-box on November 29, 2016 the court, after examining him, ruled that he was too young to understand the nature and purpose of an oath and that therefore he should give unsworn evidence. After stating his name and the name of his teacher, the child merely stated “On the material date my baba did tabia mbaya to me”. The court then noted that the child was not talking and appeared apprehensive, and it stood him down. On March 6, 2017, the same thing happened and the child was again stood down. Eventually on May 10, 2017 the child fully testified and gave an account, in graphic terms, of the alleged defilement by the Appellant. He was offered to the Appellant for cross-examination, but the Appellant did not ask him anything.

6. PW1 (LW) was the complainant’s mother. She gave account of how on the September 9, 2016 at about 4 p.m. she had come from work and found the complainant with the Appellant at home. The Appellant was the child’s step-father. The Appellant had then left and PW1 noted that the child was unhappy and asked him why he was unhappy. The complainant told her that the father had beaten him. She further testified that the child told her that the father had laid him on the bed and inserted something in his buttocks after the father had undressed him. The father had then washed the child’s clothes and hanged them out to dry. PW1 then checked the child’s anus and noted that he was unable to control his bowels. She did not notice any obvious injury on the anus. She reported the matter to the chief and the police and then took the child to hospital, where he was examined. PW1 denied that she had framed the Appellant with a false charge.

7. PW3 (Dr Caren Muthabwa) examined the complainant and filed both the Post Rape Care form and the medical report (P3). She produced both in evidence as Exhibits P2 and P3 respectively. The doctor noted bruise marks bilaterally along the anal opening. She also noted that the anal sphincter tone was reduced. There were also anal fissures in the anterior and lateral walls of the anus. No spermatozoa were seen. A urinalysis revealed a urinary tract infection. Other laboratory tests were negative. The doctor concluded that the child had features of traumatic anal injury due to penetrative sexual assault.

8. PW4 (CPL Emily Akinyi) was the investigating officer. She issued the complainant with a P3 form which was subsequently filled by a doctor after the child was examined. She also visited the home of the Appellant and PW1, and the child showed her where he had been defiled. She also recorded witness statements. She re-arrested the Appellant who had been arrested by members of the public and subsequently had him charged.

9. PW4 produced in evidence the child’s birth certificate as Exhibit P1. It showed that the child was born on September 22, 2010; as the alleged offence was committed on September 9, 2016, the child was in fact six years old.

10. In his own defence the Appellant testified under oath. His evidence-in-chief consisted of a narration of the circumstances surrounding his arrest on September 18, 2016. He denied that he committed the offence charged and stated that when the alleged offence occurred he had already separated from PW1 for about a month and was not living at the home of PW1. In cross-examination he stated that no one knew that he and PW1 had separated but that he had left the home where he had been living with PW1 and their two children (who included the complainant).

11. That then was the evidence placed before the trial court. The age of the complainant was fully established by his birth certificate, Exhibit P1. He was well below 11 years old at only six years. There is also no dispute regarding the identity of the alleged perpetrator as he was the complainant’s step-father living with him and his mother and sibling.

12. The only issue to be determined by the trial court was penetration. There was the complainant’s testimony given in graphic terms, and which the trial court accepted, which showed clearly that he was penetrated in the anus, apparently on several different occasions. He was clear as to who had been penetrating him, the Appellant. Previously his mother PW1 had been none the wiser as to what was happening; however, on September 9, 2016 she noticed the unhappy mien of the complainant and asked him about it. The child then opened up to her and told her what had just happened and had been happening on previous occasions. The child had just been with the Appellant who went away after PW1 arrived. PW1 then immediately reported the matter to the authorities and the child was taken to hospital.

13. Medical evidence placed before the trial court (Exhibit P2 and P3) showed clearly that the child had healing injuries in the opening of the anus and also in its walls. The doctor concluded that all that was traumatic anal injury due to penetrative sexual assault. The child’s testimony that he had been penetrated repeatedly was thus corroborated by the medical evidence.

14. The Appellant raised an alibi only when he testified in his own defence. He never once challenged PW1 that at the time of the alleged defilement he was already separated from her and was no longer living with her and the child. The testimony of both PW1 and the child placed him with the child when he was defiled. His defence was considered by the trial court and properly rejected, as I also would.

15. The trial court believed the testimony of the complainant and gave its reasons for so believing. The child eventually testified clearly and graphically about what had been done to him by the Appellant. The Appellant did not cross-examine him at all when he was offered to him; in other words he did not challenge the child’s testimony when he had the opportunity to do so. Just like the trial court I fully believe the testimony of the child. As already noted, there was full corroboration provided by the medical evidence.

16. The Appellant was convicted upon good and sound evidence. The conviction is safe. I find no merit in the appeal against conviction and the same is hereby dismissed.

17. As for sentence, the Appellant received the mandatory life imprisonment prescribed by law. However, the Supreme Court of Kenya has had occasion to rule as unconstitutional the statutory mandatory nature of the death sentence in murder cases for the reason of interference with the sentencing discretion of the court. This was in the now notorious Muruatetu cases which everyone knows about. There is no reason why that holding of the apex court should not apply to any other similar statutory provision purporting to remove the discretion of the court in sentencing.

18. I have considered the circumstances in which the offence herein was committed. There is no doubt that the Appellant deserved a custodial sentence, and a long one at that. However, I consider life imprisonment to be manifestly harsh and excessive in this circumstances of this case. I will therefore set aside that sentence, and substitute imprisonment for twenty five (25) years effective from the date he was sentenced by the trial court. It is so ordered. To that limited extent only does the appeal against sentence succeed. The appeal against conviction has already been dismissed.

DATED AND SIGNED AT NANYUKI THIS 18TH DAY OF MAY 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 19TH DAY OF MAY 2022