[2022] KEHC 1592 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL APPEAL 47OF 2020

STEPHEN OKONDA OKUBANO..............................................APPELLANT

VERSUS

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

(Being an appeal Arising from the Judgment, conviction and sentence of the Honourable Senior Resident Magistrate, Makadara (Hon. W. Oketch) on 4. 5.2017, in Makadara Chief Magistrate’s court criminal case No. 934 of 2014)

JUDGMENT

The appellant STEPHEN OKONDA OKUBANOwas charged in the abode case with the offence of Defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on diverse dates between 6. 1.2014 and 15. 2.2014 at Dandora Phase [Particulars Withheld] Estate in Njiru sub-county, Nairobi County, he intentionally caused his penis to penetrate the genital organ of EOA, a child aged 16 years.

He faced an alternative charge of committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. That on diverse dates between 6. 1.2014 and 15. 2.2014 at Dandora Phase [Particulars Withheld] estate in Njiru District, Nairobi County, he intentionally and unlawfully committed an indecent act with EOA, a child aged 16 years by touching her vagina.

The case of the appellant went through a full trial and upon being convicted on main Count I, the appellant was sentenced to serve 15 years’ imprisonment on 4. 5.2017. Aggrieved with the finding of the trial court, the appellant filed this appeal.

The appellant has raised 3 substantive grounds on the petition of Appeal file herein as follows:-

1. THAT the trial magistrate erred in law and fact by failing to observe that the imposed sentence is manifestly harsh and excessive and disproportional with and against the principal of sentence.

2. THAT the learned magistrate erred in law and in fact by failing to observe that various essential/crucial material were not observed during exercising sentence policy.

3. THAT the learned trial magistrate erred in law and fact by failing to observe that the entire mitigating factors/circumstances were not duly considered as required by the law.

The appellant has pleaded that this appeal be allowed, the conviction quashed and sentence set aside. The prosecution opposes this appeal.

By agreement of the parties, this appeal was canvassed by way of written submissions. Both parties duly complied and filed their set of submissions.

It was submitted by the appellants, that in this case, key elements of the defence were not proved beyond reasonable doubt. First, that the age of the victim was never proved since no original of the certificate of Birth was produced. He summed up that age is an essential ingredient of this charge (Hadison Ali Muchango Versus Republic (2016)eKLR.

Secondly, it was submitted that penetration was similarly not proved. That it was not proved which of the diverse dates the act was committed. The appellant also submitted on the contradictions in the evidence of PW1 and PW5 on the age of the complainant. And the prosecution were not sure whether to charge the appellant under section 8(1)(3) or section 8(1)(4).

He relied on Okeno Versus Republic (1972)EA, that the 1st appellate court must weigh the conflicting evidence and draw its own conclusion.

I must state that the submissions of the appellant were rather jumbled up. Numerous decisions were noted with no attempt being made to show their relevance to this particular case. I sincerely did not find much help from the cited decisions.

On the Respondent’s side, it was submitted as follows;-

First, that the fact of penetration was proved by the evidence of PW1 (page 15, lines 20-27) and PW2, and PW6. That proof of this are the medical report (Exh. 1 and the PRC form (Exh.4). Second, it was submitted that the age of the complainant was also proved by the evidence of PW1 and the voire dire and also birth certificate produced. Lastly, that the appellant was also positively identified.

It was further submitted by the prosecution that the appellant in fact ought to have been charged under section 8(1) as read with section 8(3) of the Act, which carries a sentence of not less than 20 years imprisonment. The court was however urged to uphold the sentence in view of the fact that no notice of enhancement of the sentence had been filed.

I have considered the submissions made by the 2 sides in this appeal. The mandate of this court, as rightly submitted by the appellant, is well settled. In Okeno Versus Republic (1972)EA, it was held that as 1st appellate court, this court must weigh the conflicting evidence and draw its own conclusions. And in a more recent case of David Njuguna Kariuki Versus Republic (2010)eKLR, it was held;-

“The duty of the 1st appellate court is to analyse and re-evaluate the evidence which was before the trial court, and itself come to its own conclusion.

But this appeal is unique. It is unique in the sense that the grounds of appeal filed, only challenges the decision of the lower court on the issue of sentence. Indeed even in the submissions filed, the appellant has only made submissions on the single issue of age of the complainant. Obviously, the appellant has chosen this path clearly aware that proof of age of the complainant is pertinent on sentence for offences under the Sexual Offences Act, No. 3 of 2016.

Otherwise, the main ingredients for the offence of defilement are as spelt out in CA Versus Republic (2018)eKLR, (Mrima J) that;

“The key ingredients of the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator of the offence.”

Narrowing down to the single issue of age, the importance of proof of age of complainant can only be over emphasized. In Hadson Ali Mwachoge Versus Republic (2016)eKLR, it was held;

“The importance of proving the age of the victim of defilement cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is the essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victims.”

It is therefore imperative that this court re-evaluates the evidence of the prosecution to determine whether the age of the victim was proved as required by the law.

It is clear that prior to taking the evidence of the complainant (DW1) the trial court conducted a voire dire examination in which the complainant stated that she was 17 years old and a student in form 4. The complainant, giving evidence on oath gave the same evidence. Appellant did not challenge this evidence by way of cross-examination.

The complainant also produced her certificate of birth showing that she was born on 8. 11. 1998 (Exh-3). The P3 form produced in court (Exh.2) confirmed that the complainant was 16 years old on the date of examination. Similarly, the post rape care form (Exh.4) also captured the date of birth of the complainant as 4. 8.98.

With all those evidence, I am convinced that the prosecution proved beyond any shadow of doubt that the complainant was a minor at the time of the offence.

I must only add that there was overwhelming evidence of the 2 other ingredients of the offence of defilement, being penetration and identification of the appellant as the perpetrator of the offence. This possibly explains why the appellant has not based his case and submissions on the same. In the circumstances, I conclude that both these 2 ingredients of defilement were sufficiently proved by the prosecution.

The evidence on record shows that the complainant was born on 8. 11. 1998. if the offence(s) occurred on diverse dates between 6. 1.2014 and 15. 2.2014, the complaint could only have been about 15 years and 2 months in age. The appellant ought then to have been charged under section 8(1) as read with section 8(3) of the Act, attracting a more severe sentence. The prosecution has however, not filed any notice of enhancement of sentence. I therefore shall not interfere with the sentence.

The sum total is that the appeal of the appellant herein totally lacks merit. The same is dismissed wholly

D. O. OGEMBO

JUDGE

15. 3.2022

Court:

JUDGMENT READ IN COURT (ON-LINE) IN PRESENCE OF THE APPELLANT (KAMITI MEDIUM) AND MS. AKUNJA FOR THE STATE.

D. O. OGEMBO

JUDGE

15. 3.2022