[2022] KEHC 1367 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

CRIMINAL APPEAL NO. E025 OF 2021

SOA...................................................................................................APPELLANT

VERSUS

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

(Being an appealagainst the conviction and sentence delivered by the Hon. L. Simiyu in Siaya CMCC No. E002 of 2021 in a judgement delivered on the 4. 11. 2021 and sentence passed on the 15. 11. 2021)

JUDGMENT

1. The appellant herein SOAwas charged with two counts of offences under the Sexual Offences Act. In the first count, the appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between March and August 2020 at Nyangoma sub-location in Siaya sub-county within Siaya County, intentionally caused his penis to penetrate the vagina of SAO a child aged 12 years. The appellant also faced the alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. The complainant is the same as that in the main count.

2. In count two, the appellant was charged with the offence of threatening to kill contrary to section 223 (1) of the Penal Code. The particulars were that on diverse dates between March and August 2020 at Nyangoma sub-location in Siaya sub-county within Siaya County without lawful excuse he uttered the words, ‘ABONEGOU’ while armed with a panga and threatened to kill the minor SAO.

3. After a full trial, the appellant was found guilty and convicted on both counts and sentenced to serve twenty (20) years imprisonment on the first count of defilement and one (1) year imprisonment on the second count of threatening to kill. The trial court ordered that the sentences run concurrently.

4. Aggrieved by his conviction and sentence, the appellant filed this appeal on the 24th November 2021setting out the following six grounds of appeal:

a)That the trial court failed to observe that the sentence imposed is/was manifestly harsh and disportionate.

b)That the trial court failed to consider that my fundamental constitutional rights were violated and thus no ample time was the appellant given to defend himself.

c)That the trial court did consider that the investigation tendered was shoddy.

d)That the trial court failed to consider that the subject was based on fabrication and afterthought.

e)That the appellant hereby beseeches the superior court to indulge into the same and or be pleased to reduce the sentence proportionately as enshrined in the article 50 (2) p of the constitution.

f)Spent

5. The appeal was canvassed by way of written submissions and only the appellant filed his written submissions.

6. The appellant submitted that the trial magistrate erred in both law and fact by failing to warn himself on the dangers of relying on illogical evidence in regard to the injuries found on the complainant’s genitalia and the evidence of witnesses without independent witnesses. The appellant submitted that the case against him emanated from his estranged wife who threatened to make him suffer in jail because of the grudge between them and that the trial magistrate ought to have taken this into consideration.

7. It was further submitted that the judgement was casual and regrettable as there were various instances in which the trial court shifted the burden of proof to the appellant. It was his submission that this was evident in the judgement were the trial magistrate stated that the appellant did not call any witness/evidence to support his allegations that there were threats issued at the children’s officer.

8. The appellant further submitted that the trial magistrate erred both in law and fact by failing to call the most crucial and essential witness, the children’s officer whose evidence would have verified his claims.

9. Regarding penetration, the appellant submitted that the evidence was inconclusive as it did not show that the partially torn hymen was fresh and as the offence require proof of all three ingredients beyond reasonable doubt, his conviction was wrong. He relied on the case of Hamisi Bakari v R (1987) eKLR.

10. The appellant also submitted that the sentence meted out on him was manifestly harsh considering the issues relating to the offence were not clear. He further submitted that he was a first time offender, a breadwinner and was very remorseful to the parties concerned.

Analysis

11. I have considered the appellants’ grounds of appeal and his written submissions. This being a first appellate court, this court is alive to its duty to reconsider and re-evaluate the evidence on record, bearing in mind that I did not see or hear the witnesses, and reach my own conclusion -See Okeno v R [1972] EA. 32 and Mohamed Rama Alfani & 2 Others v Republic, Criminal Appeal No. 223 of 2002.

12. The evidence before the trial court was as follows: PW1 MA testified that the victim and her sister had been living with their biological father in Kogelo and that by 21. 12. 2020, they had returned to her. She testified that the victim used to complain of pain in her thighs and that she had frequently taken her to the dispensary at Ndere. It was her testimony that on a day that the victim had gone to school, PW1 questioned the victim’s sister, MA who informed PW1 that on one particular night while they lived with their father, as they slept, she heard S screaming and when MA woke up, she found S in bed and their father was standing nearby with a vest on but naked in his lower body.

13. PW1 stated that when the victim returned from school, PW1 questioned her and after some cajoling, the victim revealed that on the first occasion, their father asked her to join him in his bed and that as they slept, she was suddenly awoken when her father inserted his private part in her vagina after which she felt pain and her father cautioned her not to report the incident.

14. According to PW1, S informed her that she bled the next morning and had difficulty walking and that her father threatened to kill her if she reported but she reported her pain to J, her father’s brother who did not take any action. PW1 then reported the incident to Yala Police Station and was told to take the child to hospital. PW1 further stated that she had differed with the appellant and so she had left him with the children in 2017 before taking them to her parents’ in 2018 where the appellant went and took them away and that in 2020, she received a call from a stranger who informed her that her children were looking for her so she spoke to S and told her that she was at Ndere. She later met the stranger at Ndere Police Station with the children and he told her that he had found the children at Ouna, a place on the road from Ngiya-Kogelo.

15. It was her testimony that SAO was 12 years old as shown by the age assessment report produced as a PEX 1 while MA was 8 years old.

16. In cross-examination, PW1 denied going to Ouna to beckon the children to leave with her, stating that the children went to her at the end of August. It was her testimony that on the 14. 9.2020, they met at the children’s office at Kogelo after the appellant had reported the loss of the children where the children’s officer told her to stay with the children until the schools opened but she later learnt of the defilement and the children refused to go back to the appellant. She stated that she believed the defilement accusations after the same was confirmed by the doctor.

17. PW2, SAO, the victim complainant, a minor was taken through voire doire examination and found understanding of the nature of an oath. She testified that she lived in Ndere with her Mother and Father and that she previously stayed in Alego with her biological father, the appellant. PW2 reiterated PW1’s testimony that when her mother, PW1 went to work in Nairobi and left her at her grandparents’ home, the appellant took her and MA to his mother and when he heard that PW1 was coming to take them, he took them to his sister’s place in Kakamega before taking them back to Alego.

18. It was her testimony that one day while they slept on the floor, it started raining and as a result, water poured through the roof and their father went and asked them to sleep with him in his bed. It was her testimony that as they slept, she woke up suddenly and found her father on top of her with only a vest and he had pulled her under-pant off. She testified that her father inserted his penis into her vagina.

19. PW2 testified that she screamed and grabbed MA forcing her father to dash off with his clothes to the sitting room. It was her testimony that in the morning, whilst armed with a panga, her father cautioned her not to report what had happened. She further stated that in the morning, she saw blood oozing from her vagina and she felt so sick.

20. It was her testimony that she informed their neighbour Baba Sharlim and when the latter questioned her father, he became very aggressive. It was her testimony that the days that followed she had a lot of pain while passing urine and that later on her father left home and they went to reside in rental premises. She testified that she was able to get her mother’s phone number from an uncle which number she gave to a motor cycle rider who called her mum the rider took her and her sister to Ndere.

21. PW2 testified that she feared telling her mother what had happened upon inquiry as her father had threatened to kill her if she did. PW2 identified the appellant as her father who had defiled her.

22. In cross-examination, PW2 stated that prior to the offence, they used to live with the appellant and that he threatened to kill them with a panga in the morning after the night of the offence. It was her testimony that the appellant did not take her for treatment after the offence but that her mom did so later as she had difficulty in passing urine. She further stated that she and her sister fled from Ouna and searched for their mother.

23. PW3 Daniel Oduor Juma a resident of Ndere testified that on the 21. 12. 2020 as he was preparing to go to work, he inquired from PW1 what the issue was with the complainant who kept complaining of abdominal pain so PW1 called MA to question her and that MA revealed that when they stayed with their biological father, on one night, the father invited them into his bed and that she was awakened when the complainant screamed and the dad jumped off her and ran.

24. It was his testimony that when the complainant returned, they questioned her and she revealed that her dad had raped her and so that night they reported the incident to the police and the next day the police referred them to the hospital where the complainant was treated and given medicine and a P3 form filled.

25. In cross-examination, PW3 stated that the complainant went to his house on the 31. 8.2020 and that he heard her complaining about 3 days later. It was his testimony that on the 2. 9.2021, they reported to the children’s office that the children had escaped from their father and gone to their mother. He stated that they took the child to the doctor on the 21st December.

26. PW4, MAA a minor was taken through voire doire and found understanding of the nature and seriousness of an oath testified that they used to reside with her mum in Ndere but when her mother left them with their grandmother in Ndere to pursue work in Nairobi, their father went and picked them and took them first to Bumala then to Kakamega and finally to Nyangoma.

27. It was her testimony that one night, as they were sleeping, their father went and asked them to join him in bed which they did but as they were sleeping, S suddenly cried out in pain forcing her to wake up and saw her father naked on the lower body and in a vest only. It was her testimony that in the morning, their father held a panga and threatened to kill them if they reported what had happened. She further stated that when S came out of bed, she had blood running on her thighs and walked with her legs apart.

28. She testified that after their father had left home, PW2 informed Uncle J and he promised to talk to their father and when PW2 returned to the house, they took a bath as usual. It was her testimony that her father later took her to some place where she found one, Sharon, whom she stayed with and the next day, her father brought PW2 and they stayed with Sharon till December. She stated that one day, she was sick and her father gave her medicine and that he also took away her clothes.

29. PW4 testified that they borrowed a phone number from their Uncle and then convinced a motorbike rider to call their mum as they pretended to be lost which he did and he took them to her. PW4 identified the accused as her father whom she saw with a vest on the night he injured PW2.

30. In cross-examination, PW4 stated that they had not slept with the appellant other than on that fateful day as she used to sleep with PW2 while their father the appellant slept on the bed alone. She stated that E had his own house and that it was about 6am when she saw the appellant without his pant and trouser.

31. PW4 reiterated that PW2 never slept on the appellant’s bed and that when he took her to Sharon, she was sick. It was her testimony that she saw E bring PW2 to Sharon’s place though she did not know who instructed him and further that she never saw or hear PW2 complain to Sharon though she used to cry in pain at times.

32. It was her testimony that when they fled, the appellant had gone to work and that nobody fetched them from Sharon’s place and that they managed to convince a rider to call their mum and take them to her. She stated that it seemed PW2 had healed as she no longer cried.

33. PW5 Isaack Imbwagi, a clinical officer at Siaya County Hospital testified that the survivor, accompanied by her mother and step-father, presented with a history of defilement by a known person at Lwala in Siaya. He testified that she did not present clothes that she wore at the time of the incident and that she was in fair general condition with no injury on the body.

34. PW5 testified that the genital examination revealed a normal external genital with redness at vaginal opening with a partial torn hymen and high inflamed vagina. He further testified that there were bacteria and pus cells but no spermatozoa.

35. PW5 concluded that based on the examination and history, there was partial vaginal penetration though he could not ascertain the time when the offence occurred although the survivor claimed that the perpetrator was her biological father. It was his testimony that pus cells were caused by sexually transmitted infection or urinary tract infection. PW5 produced the P3 form as PEx 2, the PRC form as PEx 3, the lab request as PEX 4 and the treatment card as PEx 5.

36. In cross-examination, it was his testimony that he only saw the child after the offence and that the medicine issued were based on the lab results. He stated that the child was treated for bacterial infection and sexually transmitted infection. He further stated that her hymen was partially torn probably by a blunt weapon and thus there was partial penetration which was not recent as there was no fresh wound. He further reiterated that there was normal external genitalia but the vaginal opening was red.

37. PW6 No. 228694 Benson Omollo testified that on 21. 12. 2020, PW1 and her husband PW3 alleged that her daughter PW2 had been defiled by her biological father, the appellant. It was his testimony that he interrogated the child who confirmed the same and further stated that after the incident, she went out to urinate but instead blood poured out.

38. It was his testimony that the child reported the incident to his Uncle J but he did not take action and that later the child’s father armed himself with a panga and threatened to kill her and her sister if they reported him.

39. PW6 testified that he issued them with a P3 form and took them to Siaya Referral Hospital and that the medical report showed partial penetration. He further stated that he recorded statements, arrested the child’s father and later brought charges against him under instructions from the Office of the director of Public Prosecution.

40. In cross-examination, PW6 stated that he received the report on the 21. 12. 2020 whilst the offence happened between March and August according to the child. It was his testimony that the panga used to threaten the complainant was not in court but that when he visited the appellant’s home, his house had a sitting room that leaked, a store and a bedroom.

41. He further stated that he was not a neighbour to PW1 and that he was from Kisumu but previously worked at Ndere. He denied threatening the appellant with death. It was his testimony that the appellant declined to give him the child’s birth certificate so he took the child for an age assessment. He further stated that the appellant’s arrest took time as the file was forwarded to the Office of Director of Public Prosecutions for advice.

42. Placed on his defence, the appellant opted to give sworn evidence in which he stated that on the 17. 1.2021, he was at home with his wife and 3 children when police officers arrived asking, without reason, for his children’s birth certificates.

43. It was his testimony that he went to the police station and met the OCS who took his particulars before locking him up without disclosing any offence and that at 8pm, he was taken to Siaya Police Station. The appellant further testified that the following day, his fingerprints were forcefully taken and he was later charged. He stated that he was shocked to see his own daughter as a complainant lying that he had sex with her.

44. The appellant testified that upon being estranged with his wife, she took away the minors and they lived in Ndere as he lived in Nyangoma, Kogelo. He stated that the case was fabricated by his former wife and that on 14. 9.2020 after a discussion on the children’s welfare at the children’s office in Siaya, PW1’s husband swore that the appellant would rot in jail and that this case was evidence of the same.

45. In cross-examination, the appellant stated that he reported the threat at Kogelo Police Station though he did not have the Occurrence book number. He stated that he reported to the children’s officer. He further stated that at the time of the offence, the child lived in Kogelo and that he did not live with her. He stated that he related well with the child.

Determination

46. I have considered the evidence adduced in the trial court by the peosecution witneses and the accused in his defence, the grounds of appeal and written submissions by the appellant and in my view, the main issues for determination in this appeal are whether the prosecution proved its case against the appellant on both counts and secondly whether the sentence meted out on him was manifestly harsh.

47. The appellant was charged with two counts. On the first count, he was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006.

48. The ingredients of the offence of defilement were set out in the case of George Opondo Olunga v Republic [2016] eKLR,where it was stated that the ingredients of an offence of defilement are; identification or recognition of the offender, penetrationand the age of the victim.The prosecution was under a duty to establish or prove all the above elements of defilement beyond reasonable doubt. That duty or burden of proof does not shift to the accused person who is under no duty to adduce or challenge evidence adduced by the prosecution witnesses.

49. In this case, the issue of identification of the perpetrator is clear. The complainant’s evidence is that of recognition. The complainant and her sister testified that they lived with their father who is the appellant herein in Kogelo and the appellant confirmed that he lived with the two children. This was after their mother left home after what now appears to be a disagreement with the appellant. The children knew that their mother, PW1 had gone to look for work in Nairobi. The complainant knew the appellant as her father very well and there is no dispute that on the date when the offences charged were allegedly committed, she was in full custody of her father, the appellant herein.

50. Regarding the age of the complainant, PW1, the complainant’s mother testified that the complainant was 12 years old. An age assessment report dated 1. 2.2021 was produced in evidence by the investigating officer as PEx 1 which indicated that the complainant’s age was 12 years old. According to the investigating officer, the appellant refused to surrender the child’s birth certificate hence the child’s age had to be assed medically. I find and hold that the complainant’s age was proved beyond reasonable doubt.

51. The next element is proof of penetration. “Penetration” is defined under Section 2 of the Act to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. The complainant testified that she was defiled. The question is whether that evidence requires corroboration. Section 124 of the Evidence Act provides that:

“Notwithstanding the provisions of section 19 of the oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other evidence in support thereof implicating him.

Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

52. The evidence of the complainant on the fact of her being defiled was corroborated by that of the clinical officer (PW5) who stated that there was partial penetration of the child’s genitalia, and this fact was noted in the P3 form and post rape care reports produced as exhibits, which also confirmed this. The partially torn hymen was evidence of penetration. The child’s younger sister, PW4 who was aged 8 years also testified that on the material night, her and the complainant were told to sleep with their father, the appellant on his bed and as they slept, she was woken up by the complainant’s screaming only to see her father with a vest and naked in his lower part of the body. This evidence proved beyond reasonable doubt that there was defilement as contemplated by the Act.

53. The appellant denied committing the offence and elected to adduce and challenge the evidence adduced by the prosecution witnesses. I have evaluated that evidence as adduced by the appellant on oath. The appellant claimed and continues to assert that the case was framed against him by his estranged wife, PW1 and her new husband who wanted to have him jailed. Considering the firm and consistent evidence adduced by the two minors, Iam unable to decipher any material that would suggest that the child’s mother could have coached the two children to frame the appellant with such a heinous offence.

54. I am therefore satisfied that the prosecution proved its case beyond reasonable doubt against the appellant on the charge of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006.

55. On the second count, the appellant was charged with the offence of threatening to kill. The offence of threatening to kill is set out in section 223 (1) of Penal Code as follows:

“223. Threats to kill

(1) Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years.”

56. The evidence of the complainant was that the appellant whilst armed with a panga threatened to kill them if they disclosed the incident to anyone. PW4 also gave similar evidence as she was present when the appellant made the threat. Though minors, the evidence of the complainant and her sister was firm even under firm cross-examination. I am thus convinced that the prosecution proved their case against the appellant on this charge too.

57. I must however deal with what the appellant complained about in this appeal.

a) On violation of the appellant’s constitutional right to defend himself

58. In his grounds of appeal, the appellant claims that his constitutional rights were violated as he was not given ample time to defend himself. Article 50 which provides for the fundamental right to a fair hearing. Article 50 (2) (c) provides for the right of the accused to have adequate time and facilities to prepare his defence.

59. From the evidence on record, the appellant was availed with the requisite witness statements to enable him prepare for his defence and further as the trial proceeded the appellant did not make any indications that he was not in a position to put forth his defence. Further, from the record, the appellant was able to undertake his defence and it was evident from the trial record that he scrutinised the evidence presented by the prosecution through the art of cross-examination which was thorough.

60. It is now settled that where one seeks to prove constitutional infringement, he/she must specifically set out the right infringed and set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed. (see the case of AnaritaKarimi Njeru v Republic [1979] eKLR & Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR). Iam unable to find that any of the rights of the accused under Article 50 of the Constitution were violated. I dismiss that ground of appeal.

b) On whether the evidence tendered was shoddy & based on fabrication

61. The appellant claimed in his grounds of appeal that the evidence tendered against him by the prosecution was shoddy and based on fabrication. Having set out the evidence hereinabove, it is worth noting that in Sexual Offences cases, the evidence of the complainant is enough on its own to convict the accused if the court believes that the complainant is telling the truth. (See Section 124 of the Evidence Act).

62. That notwithstanding it is worth stating that the complainant in this case was firm in cross-examination in insisting that it was the appellant who defiled to her. Further, the complainant’s evidence was corroborated by that of the clinical officer PW5 as set out herein above. The defilement took place in the presence of PW4 who was an 8-year-old child but who, from her testimony, and the testimony of PW2, there is nothing indicative of the two children being couched to frame the appellant with such a heinous offence.

63. Although the appellant’s testimony was that his prosecution was as a result of his estranged wife trying to jail him, the appellant’s defence was a mere denial. Further, the appellant did not disclose in what way he thought the investigation was shoddy. The investigations upon which his arrest and subsequent prosecution was based was manifest in the evidence adduced by the prosecution which as discussed herein was sufficient to sustain his conviction.

64. I am therefore satisfied that the investigations carried out and the evidence adduced by the prosecution were sufficient to convict the appellant.

c) On whether the sentence meted out on the appellant was harsh

65. As to whether the sentences meted out on the appellant were harsh, Section 8(1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006, provides as follows:

“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”

66. While Section 8. (3) of the Sexual Offences Act No. 3 of 2006 provides:

“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.”

67. Having been convicted for the offence of defilement, the trial Court considered the Appellant’s mitigation that he was an only child with another wife and children who depended on him.

68. The trial Court after considering the Appellant’s mitigation sentenced him to serve 20 years’ imprisonment on the first count of defilement and one (1) year imprisonment on the second count of threatening to kill. The trial court noted that the sentences would run concurrently.

69. Sentencing is in the discretion of the trial court. In Bernard Kimani Gacheru v Republic (2002) eKLR, the Court of Appeal stated that: -

“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.”

70. In the circumstances, find no reason to interfere with the sentence meted out on the appellant considering the circumstances of his case, that he wielded authority over his victims which he exploited to his own nefarious ends. The complainant was the biological child to the appellant. She trusted him and expected to be protected from any harm. The father turned out to be the violator. The appellant did not deserve any discretionary lenient sentence, considering the circumstances of the offence and the age of the complainant who was now left traumatized.

71. In the end, the appeal herein against conviction and sentence thus falls on all grounds and is hereby dismissed, save that the concurrent sentences will run from date of arrest on 19/1/2021 instead of 20/1/2021 when the appellant took the plea.

72. File closed.

Dated, Signed and Delivered at Siaya this 15th Day of March, 2022

R.E. ABURILI

JUDGE