[2023] KEHC 25426 (KLR)

Tom v Repuiblic (Criminal Appeal E017 of 2022) [2023] KEHC 25426 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25426 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E017 of 2022

RPV Wendoh, J

November 16, 2023

Between

Richard Osesa Tom

Appellant

and

Repuiblic

Respondent

(From original conviction and sentence by Hon R. K. Langat – Principal Magistrate in Rongo Senior Resident Magistrate’s Criminal Case No. 25 OF 2020 delivered on 28/12/2021)

Judgment

1. Richard Osesa Tom, the appellant, was convicted by the Senior Principal Magistrate Rongo on 28/12/2021 for the offence of defilement, contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act.

2. In the alternative, the appellant was charged with committing an indecent Act with a child contrary to Section 11 (1) of the Sexual Offences Act.

3. The particulars of the charge are that on 9/7/2020 in Rongo Sub County, intentionally and unlawfully caused his penis to penetrate the vagina of S.A.A, a child aged 13 years or that he caused his penis to come into contact with the S. A. A.’s genitalia.

4. Upon conviction, the appellant was sentenced to serve twenty years imprisonment.

5. The appellant is dissatisfied with the whole judgment of the trial court and preferred this appeal citing the following grounds:-1. That the Charge of defilement was not proved;2. That the appellant’s alibi defence was not considered;3. That the sentence is harsh and excessive;4. That the court failed to comply with Article 50 (2) (g) of the Constitution.

6. The appellant prays that the conviction be quashed, sentence set aside. The appellant filed submissions in support of the grounds of appeal.

On whether the offence of defilement was proved; 7. The appellant submitted that although the age of the complainant was proved to be thirteen (13) years old, the other ingredients of penetration and identity of the perpetrator were not proved.

8. On penetration: The appellant submitted that the complainant told the court that she did sex with the appellant and did not explicitly say what happened to her; that the Clinical Officer who examined PW1 did not link her findings to the appellant. He relied on the decision of PKW vs. Republic (2012) eKLR where the court held that a broken hymen was not proof that there was a penetration because a hymen can be broken by other factors and that some girls never even have a hymen.

9. On Identification of the appellant, the appellant submitted that his identification was not conclusive because PW1’s evidence that the appellant worked for a neighbour was controverted by the father (PW2).

10. On the alibi defence, he submitted that it was upon the prosecution to prove its case to the required standard; that the burden never shifts to the defence; that his alibi was not dislodged and those who arrested him were never called as witnesses and so it cannot be ascertained whether or not he recorded a statement upon arrest; that the prosecution should have invoked Section 309 of the Criminal Procedure Code which allows the prosecution to seek leave to adduce evidence to rebut an alibi defence. He relied on the decisions of Victor Mwendwa Mulinge vs. Republic and Karanja vs. Republic (1983) KLR.

11. The appellant also challenges the sentence meted on him as being excessive and harsh; that the trial magistrate fettered himself to Section 8(3) of the Sexual Offences which provides for minimum sentence and hence takes away the court’s discretion. He relied on the decision of Philip Mueke Maingi & 5 others vs. Director of Public Prosecutions & the Attorney General, where J. Odunga stated that the mandatory minimum sentences in the Sexual Offences Act do not meet the Constitution threshold under Section 28 of the Constitution which provides for upholding of the dignity of the individual and urged the court to consider the special circumstances of this case.

12. The appeal was opposed and the prosecution counsel filed his submissions in which he contends that the offence of defilement was proved beyond reasonable doubt.

13. As for age, counsel relied on the case of Mwalango Chichoro Mwanjembe vs. Republic (2016) eKLR where the Court set out how age may be proved in a sexual offence, by documentary evidence, baptism card, testimony of the parent or guardian or other proof; that a birth certificate was produced in evidence as proof of the complainant’s age.

14. Of Penetration, it was submitted that the case of Mark Oiruri Mose vs. Republic (2013) eKLR discussed what amounts to penetration as defined under Section 2 of the Sexual Offences Act; that the act need not be deep or full penetration of the victim.

15. As to identification, PW1 knew the appellant as a worker for a neigbour; that the appellant was arrested in the room where he had defiled the complainant. Counsel added that there were no contradictions in the prosecution evidence and the trial court observed the demenour of the complainant and found her to be bold and believed her evidence and relied on Section 124 of the Evidence Act.

16. Regarding the complaint that the sentence was excessive, it was submitted that the sentence was not excessive and that the trial court exercised its discretion judiciously in sentencing the appellant to twenty (20) years imprisonment; that even after the Muruatetu case, the court in R. vs. Ruth Wanjiku Kamande Criminal Appeal 102 of 2018 still sentenced the accused therein to death. Counsel urged the court to consider the objectives of the legislature in enacting the Sexual Offences Act, which was meant to protect young children from those who prey on them. Counsel urged the court to dismiss the appeal.

17. This being a first appeal, the court is expected to exhaustively re-examine all the evidence tendered before the trial court, analyse and evaluate it and arrive at its own conclusion. However, this court has to bear in mind that it neither saw nor heard the witnesses testifying. The court is guided by the decision of Okeno vs. Republic (1972) EA 32.

18. The prosecution called a total of four witnesses. The complainant PW1 S. A. A., aged 13 years testified that she knew the appellant Richard Osesa Tom who worked for their neighbour. She recalled 9/7/2020, she was sent to the market by the mother about noon. On her way back home, about 3:00pm she met the appellant who had a motor cycle who offered to give her a ride home; that the appellant took her to his mother’s house where they stayed till 5:00 a.m; that he took her to his bedroom, removed her pant, placed her on the bed. He undressed and inserted his, penis in her vagina forcefully. They slept in the bed till morning at 5:00 a.m. when her father and uncle found them asleep. They were taken to hospital where she was treated and examined hen to the police station. PW1 said that there were Solar lights in the house where they slept.

19. PW2 IA, the father of S. A. A., (complainant) denied knowing the appellant. He recalled that on 9/7/2020, he sent the complainant to the Centre to buy food. She did not return and he started searching for her and later traced her in the appellant’s home at about 8:00a.m next day and took both PW1 and appellant to police station. The complainant was also taken to hospital.

20. PW3 Sgt Pamela Masabulu was the investigating Officer in this case. She recalled that on 10/7/2021, the complainant and appellant were taken to the Ogembo Police Post as the appellant was suspected to have defiled the complainant. PW3 took the complainant to Hospital where upon examination, penetration was confirmed. PW3 also obtained a birth certificate which indicated that PW1 was 13 years old. She preferred the charges against the appellant.

21. PW4 Lilian Nyaboke is a Clinical Officer based at Rongo Sub County Hospital. PW4 found that the complainant’s hymen was broken, lacerations to the labia minora and majora and the vagina was reddish and painful to the touch; a whitish discharge; PW4 concluded that penetration had occurred.

22. When called upon to defend himself, the appellant gave unsworn evidence. He stated that on 10/7/2020 he was at home looking after his cows when police came from Ogembo and told him that he had defiled a girl. He was arrested.

23. I have considered all the grounds of appeal and the rival submissions. The appellant was charged with the offence of defilement contrary to Section 8 (1) of the Sexual Offences Act. The prosecution has the duty to prove beyond reasonable doubt the following:-1. That the complainant is a minor;2. That there was penetration of the complainant;3. Positive identification of the perpetrator.See Charles Wamukoya Karani vs. Republic Criminal Appeal No. 72 of 2013.

24. On Age: The complainant testified that she was 13 years old, PW1’s father, PW2 confirmed that she was 13 years old. PW3 produced her Birth Certificate in evidence which confirmed that PW1 was born on 9/6/2007. In the case of Mwalango Chichoro supra, the Court of Appeal considered how age may be proved in a defilement / rape case when it said:The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense.

25. In this case, as of 9/7/2020, the complainant was 13 years old and hence a minor. Age was proved.

Whether penetration was proved: 26. Penetration is defined in 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.” While, “genital organs” includes the whole or part of male or female genital organs and for purposes of this Act includes the anus.”

27. The Court of Appeal in considering when penetration is deemed to have occurred in the case of Mark Oiruri Mose vs. Republic (2013) eKLR, said:-… in any event the offence is against penetration of a minor and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ….”

28. Guided by the above case, the penetration need not be full or deep. PW1 narrated vividly what happened to her. When in the house where she was taken by the appellant, he removed her clothes and inserted his penis in her vagina. PW4 examined the complainant on 11/2/2020 three days later, and found the hymen broken, lacerations to the labia minora majora, vagina was reddish and was painful to the touch.

29. In his submissions, the appellant did not set out all that the complainant told the court nor did he allude to the other injuries found in the complainant’s genitalia. PW1 did not only have her hymen broken but there were other injuries to the labia, minora / majora and reddish vagina walls. This case is distinguishable from the decision of PKW vs. Republic (supra) where the Court of Appeal held that a broken hymen was not per se, evidence of penetration. In this case, PW1’s evidence was corroborated by the findings of PW4 who found other injuries to the complainants genitalia. Penetration was proved.

30. Identity of the perpetrator: PW1 told the court that he met the appellant about 3:00p.m when he offered her a ride on the motor cycle. They did not part till he took her to a house where the defilement took place. While in the house, PW1 said there was solar light.

31. PW2 found PW1 in company of the appellant on 10/7/2023 and both were taken to police station. PW1 knew the appellant as a neighbour’s employee. It is not mandatory that PW2 would know everyone that PW1 knew. It is PW2 who took the appellant to police station. There is no time that the appellant parted with the complainant till he was arrested. This court is satisfied that the appellant was the perpetrator and the issue of identification did not even arise because he was arrested while still in PW1’s company.

32. The appellant claimed to have raised an alibi defence. An alibi defence is raised when a person alleges to be in a different place and not at the scene of crime at the time the offence is committed. See Karanja vs. Republic (supra), in this case, the appellant did not allude to where he was on 9/7/2020. When the PW1 was picked up and defiled. He only addressed 10/7/2020. When he was arrested. No alibi defence was raised. The defence is hollow, and unbelievable.

33. In any event, the prosecution evidence was overwhelming that the appellant committed the offence.

34. One of the grounds of appeal was that the court violated the appellants rights guaranteed under Article 50 (2) (g) and (h) of the Constitution. However, no submissions were made on the said ground to demonstrate how the rights was violated, that ground fails.

35. The appellant complaints that the sentence is harsh and excessive. The charge was under Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act. Section 8 (3) provides for the sentence following a conviction pursuant to Section 8 (1) of Sexual Offences Act. Upon conviction, one is liable to imprisonment for not less than 20 years. It was the appellant’s contention that the magistrate’s discretion was fettered by the mandatory minimum sentence. It is true that though the Muratetu’s case does not apply to Sexual Offences, the courts are tending to move away from the mandatory sentences because they feter the court’s discretion, depending on the circumstances of each case. The appellant was said to be a first offender. He was aged 20 years and hence a very young man. The appellant stole the innocence of the complainant hence a deterrent sentence is called for. The court however takes into account his young age and in exercise of its discretion the court will quash the sentence of twenty (20) years imprisonment and substitute 0it with a sentence of fifteen (15) years imprisonment. The sentence will take effect from the date of plea on 14/7/2020. The appeal succeeds to that extent.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 16TH DAY OF NOVEMBER, 2023. R. WENDOHJUDGEIn presence of; -Mr. Kaino for the stateAppellant PresentMs. Emma / Phelix –Court Assistant