[2022] KEHC 1739 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CRIMINAL APPEAL NO. 39 OF 2018

STEPHEN KAMWERU KIMANI......…………………...……………APPELLANT

VERSUS

REPUBLIC………...……………………………………..…………...RESPONDENT

[Appeal from the decision of M. Wachira, Chief Magistrate,in S.O. No. 1 of 2017 at Murang’a dated 2nd July 2018]

JUDGMENT

1. The appellant was convicted for defilement contrary to section 8 (1) of the Sexual Offences Act. He was imprisoned for fifteen years.

2. The particulars were that on diverse dates between the 19th January 2017 and 21st January 2017 at [particulars withheld] within Murang’a County, he intentionally caused his penis to penetrate the vagina of LNM [particulars withheld] a child aged sixteen years and five months.

3. The petition of appeal is dated 11th July 2018 and raises sixgrounds. I will compress them into three. Firstly, that there was insufficient medical evidence to corroborate the penetration; secondly, that the burden of proof was unfairly shifted to the appellant; thirdly, that the learned trial magistrate erred in her analysis of the evidence thereby arriving at a wrong conclusion.

4. In a synopsis, the appellant contends that the offence was notproved beyond reasonable doubt.

5. The appellant’s counsel filed detailed submissions on 2nd September 2020.

6. The appeal is opposed by the respondent. Learned counsel for the Republic filed submissions on 1st February 2022. She relied on Fappyton Mutuku Ngui v Republic, Court of Appeal Nairobi, Criminal Appeal 32 of 2013 [2014] eKLR.

7. On 1st February 2022, I heard further arguments from learned counsel for the appellant and the respondent.

8. This is a first appeal to the High Court. I have re-evaluated the evidence and drawn independent conclusions. I am alive that I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] E. A. 32.

9. From the birth certificate (exhibit 1), I am satisfied that the complainant was above 16 years but below 17 years at the time of the offence.

10. The trial court conducted a detailed voir dire examination. The learned trial magistrate concluded that the complainant had “memory problems as she does not recall things she may have been taught. She also does not know the nature of an oath or the importance of swearing in the name of God as she can’t recall what she learnt about God”.

11. That conclusion is significant and I will revisit the subject. The complainant (PW1) thus gave unsworn evidence. The complainant (PW1) attends the special unit in her primary school. As a result, the court declared her a vulnerable witness and appointed her mother as an intermediary.

12. The complainant knew the appellant who had a nearby farm. She testified that on 17th January 2017, she went to his place to get some mangoes. The following day, the appellant gave her more mangoes and 20 shillings. The next day, he also gave her mangoes. On yet another day, the appellant led her under a mango tree, asked her to remove her underwear and inserted his penis into her vagina.

13. The witness disclosed the matter to Mama Winnie. She told her that the appellant had defiled her many times before. He would entice her with mangoes and threaten her not to tell anyone. She said that her father beat up the appellant and reported the matter to the police. She was taken to the police station and subsequent examination at the hospital. She could not recall the date.

14. Under cross examination, she said that the appellant had at one time come to her home demanding for payment for mangoes but her father didn’t have money. She clarified that the mangoes the appellant gave her were for her consumption but that her mother had taken other mangoes from the appellant.

15. On 20th January 2017, her father (PW2) asked her for some drinking water. He detected that the complainant emitted a strong “foul smell”. When he asked her, she kept mum. But when he threatened to punish her, she disclosed that the appellant had defiled her on at least three occasions on the mango farm. She said the appellant would fetch her from the house and then lead her into the farm.

16. The following day, the complainant showed him three spots on the farm where the appellant had defiled her. When they returned to the house, PW2 heard the appellant calling her daughter. He came out and fought with him before they were separated by neighbours. One of them was PW2’s brother K (PW3). The latter said the public were livid and threatened to lynch the appellant. The village elder then came and took the appellant to the police.

17. From that evidence, I entertain no doubt that the complainant positivelyidentified the appellant. The appellant was a neighbour. He had defiled the complainant on multiple occasions. All the incidents occurred in his mango farm in broad daylight. This was evidence of recognition; far more reliable than simple identification. Wamunga v Republic [1989] KLR 424, Maitanyi v Republic[1986] KLR 198 at 201.

18. Like I stated, the complainant was attending the special unit in her primary school. The trial magistrate observed during the voir dire that she had “memory problems”.The clinical officer (PW4) and Police Corporal Namutale (PW5) all confirmed that the complainant had delayed development. I find that despite those challenges PW1 was clear that it was the appellant who lured her with mangoes and money and defiled her on multiple occasions. The cross examination did not dent her key evidence.

19. Section 2 of the Sexual Offences Act defines penetration as“the partial or complete insertion of the genital organs of a person into the genital organs of another person”.

20. The complainant’s evidence was graphic and pointed to the appellant as the person who penetrated her. Furthermore, the evidence of the clinical officer (PW4) confirmed that the complainant’s vagina could accommodate two fingers. This confirmed that she was sexually active. She also had a whitish vaginal discharge. There were no visible injuries or spermatozoa. However, it is instructive that the examination was done more than 72 hours of the defilement; and, that the complainant had taken a bath.

21. It is true that the appellant himself was not medically examined. But the combined evidence of the complainant, her father and the clinical officer overwhelmingly shows that the appellant took advantage of a vulnerable girl and defiled her.

22. I have juxtaposed that evidence against the appellant’s defence. He denied committing the offence. In his sworn evidence, he claimed that he was fixed to cover up a debt owed to him for mangoes taken by the complainant’s mother. He claimed that on the date he was beaten up by PW2, he had merely gone there to collect the debt.

23. I remain alive that the legal burden of proof lay throughout with the prosecution. Woolmington v DPP [1935] AC 462,Bhatt v Republic [1957] E.A. 332.

24. On the totality of the evidence, I find that the appellant is the man who penetrated the complainant. Secondly, the penetration was corroborated in part by the medical evidence. The evidence of PW1, PW2 and PW4 was also consistent. In any case, I find that the complainant was truthful. Under the proviso to section 124 of the Evidence Act, where the victim of a sexual offence is the complainant, corroboration is not mandatory if the court is satisfied that the witness was truthful.

25. When juxtaposed against that evidence, the appellant’s claims that the charge was trumped up is a red herring. Like the learned trial magistrate, I do not believe him.

26. In the end, I find that the evidence overwhelmingly pointed to the appellant’s guilt. The upshot is that the appeal against conviction is dismissed.

27. I will now turn to the sentence. Section 354 (3) of Criminal Procedure Code empowers this court to review the sentence.

28. The appellant was jailed for fifteen years. The complainant was over 16 years but had not passed her 17th birthday. The trial court correctly found that section 8 (4) of the Act provided for a mandatory sentence of 15 years.

29. However, the Court of Appeal has given fresh guidance on minimum sentences under the Sexual Offences Act. In Jared Koita Injiri v Republic [2019] Court of Appeal, Kisumu, Criminal Appeal 93 of 2014 [2019] eKLR. The court held:

In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis.

The appellant was provided an opportunity to mitigate in the trial court where it was stated that he was a first offender. He pleaded for leniency. However, it cannot be overlooked that the appellant committed a heinous crime, and occasioned severe trauma and suffering to a young girl. His actions have demonstrated that around him, young and vulnerable children, like the complainant could be in jeopardy.

Needless to say, pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic (supra), we would set aside the sentence for life imposed and substitute it therefore with a sentence of 30 years from the date of sentence by the trial court.[Emphasis added]

30. I accordingly set aside the sentence. I have considered that the appellant is over 40 years and a first offender. However, he took advantage of a vulnerable child. The appellant shall now serve a jail term of ten (10) years. For the avoidance of doubt, the new sentence shall run from 2nd July 2018, the date of the original conviction

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 8th day of March 2022.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of-

The appellant.

Ms. R. Kimani holding brief for Mr. Waiganjo for the appellant instructed by Waiganjo Gichuki & Company Advocates.

Ms. A. Gakumu for the Republic instructed by the Office of the Director of Public Prosecutions.

Ms. Susan Waiganjo, Court Assistant.