[2022] KEHC 13470 (KLR)

TSW v Republic (Criminal Appeal 101 of 2018) [2022] KEHC 13470 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13470 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 101 of 2018

RN Nyakundi, J

October 5, 2022

Between

TSW

Appellant

and

Republic

Respondent

(An appeal against both conviction and sentence from the judgment of Hon. C. Obulusta (CM) in Eldoret Criminal Case No. 4457 of 2015 dated 2nd November, 2018)

Judgment

1. The appellant, TSW, was charged 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. He had also been charged with an alternative offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. He was also charged with 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.

2. The particulars thereof are; that on diverse dates between January 12, 2015 and August 6, 2015 at Kona Mbaya Village, Nzoia Location in Likuyani Division within Kakamega County, unlawfully and intentionally caused his genitalia organ (penis) to penetrate into the genitalia organ (vagina) of NN a child aged 17 years.

3. He was tried and convicted by Hon C Obulusta, Chief Magistrate and sentenced to serve fifteen (16) years imprisonment for the offence of defilement.

4. Being dissatisfied with the said judgement, on November 7, 2019 he lodged the appeal herein setting out six (6) grounds of appeal challenging both conviction and sentence.

5. The appellant wants the appeal allowed, conviction and sentence set aside and he be set at liberty.

The Evidence 6. The prosecution called 4 (four) witnesses in support of the charges.

7. PW1 NN, testified that in 2015, October at the time of the incident she was 17 years old and had gone to visit her aunt in Misikhu. She told court that at the time is when she met the appellant who instructed her to visit his house. She further told court that upon visiting the appellant, he detained her and begun having sex with her. She testified that the appellant had detained her in house for a period of 6 months and as a result of which, she conceived. She also testified that she was later on discovered at was taken to the chief and an agreement prepared as she was already pregnant. She also told court that her father was later informed who then reported the incident to the police. She was then taken to hospital and issue with a p3 form. She also informed court at the time of hearing that she had given birth in January, 2016 but the child died at 10 months.

8. PW2 CB, testified that she is the complainant’s father. He went to testify that at the time of the incident the complainant was a student and was living with his aunt. He told court that on January 18, 2015 his aunt called him and informed him that the complainant had left home but had not returned. He further testified that he had trying looking for the complainant for a month when on June 1, 2015 the assistant-chief called to inform him that his daughter had been married and she was having marital issues. He told court that he then went to Kona Mbaya village but did not find the appellant. He later on met the Nyumba Kumi elders who informed that his daughter was there. He went back and returned on June 10, 2015 when he met his daughter together with the appellant who was residing with the complainant. He told court that he then reported the incident to the police on who arrested the appellant and the complainant was taken for medical examination. He told court that the complainant had conceived and given birth in 2016 but the child had died.

9. PW3 PC Ndoni Nafata, the investigating officer, told court that it was alleged the appellant had eloped with an underage girl. The complainant was taken for age assessment and was issued with a p3 form.

10. PW4 Kirwa Labatt, a medical officer who had examined the complainant told court that on examination the complainant had bruises on both labia and the hymen was torn. He also told court that at the time of the examination the complainant was pregnant and HIV +.

11. When the appellant was put on his defence, he denied the allegations that he had defiled the complainant. He denied knowing that the complainant was a minor as she had indicated that she was 19 years old at the time.

Submissions 12. The appellant relied on his written submissions filed on the August 1, 2021. He faulted the trial magistrate for failing to notice the inconclusive medical findings by the doctor. The appellant argues that it evident that the complainant was taken for medical examination after she had given birth and not after the incident had taken place. Regarding incredibility of witness, he submitted that PW1 had alleged that after she had given birth the child had died after 10 months whereas PW2 had testified that the child had died at 6 months. The appellant further submitted that proof of the alleged birth by the complainant was never availed. He faulted the prosecution for not producing a certificate of birth and death to that effect. The appellant also faulted the trial court for failing to recognise that at the time of the time of the incident he was equally a child and should been sentenced and convicted as child and that a non-custodial sentence should have been considered at the time.

Determination 13. This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, re-evaluate and analyse it and come to its own conclusions. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanour of the witnesses and the appellant during the trial and can therefore only rely on the evidence that is on record. See Okeno v R(1972) EA 32,Eric Onyango Odeng’ v R [2014] eKLR.

14. I have considered the grounds of appeal, the submissions, and the record and the only issue for determination is whether the prosecution proved its case against the appellant.

15. The evidence on record shows that indeed PW1 was 17 years old at the time of the incident. She testified that appellant was unknown to her when they met. She also told court that he had taken her to his house where they had sex before declining to release her. She also told the court that she had lived with the appellant for a period of 6 months before she was rescued by the assistant-chief. On cross-examination PW1 conceded that she is the one who visited the appellant’s home. She also conceded that there was nothing to show that she was a student at the time.

16. The appellant’s defence that he believed that the complainant was 19 years old. He maintained that he had a relationship with her and had even taken her to his home where they lived together. From the evidence on record it is clear that at the time when the appellant was being arrested, he had lived with the complainant as wife for close to a year. They had in fact had a child who had since died. PW4, the investigating officers confirms this in his testimony when he states that they had received a complaint that the appellant had eloped with the complainant. PW1 also testified that there was an agreement by the “Nyumba kumi” elders to have remain with the appellant as his wife.

17. The complainant does not mention any efforts she made to escape from the appellant’s house during the 6 months period that she allegedly was in his custody. In the circumstances of this I case find it difficult to believe that the complainant would continue staying with the appellant for such a long period without devising a plan on how to escape. It is true that under the Sexual Offences Act, a child below 18 years old cannot give consent to sexual intercourse. However, where the child behaves like an adult and willingly sneaks into men's houses for purposes of having sex, the court ought to treat such a child as a grown-up who knows what she is doing. The appellant was 19 years old when the incident occurred as per the age assessment test. It would be unfair to have the appellant serve 16 years behind bars yet PW1 was after sex for him. The evidence does not show that the appellant knew that PW1was a student or that the appellant took advantage of PW1 being a young girl. It is without a doubt that the relationship between the complainant and the appellant continued for quite a long time to the extent that age became a non-issue.

18. The Act provides as follows in section 8(5) and (6):“(5) It is a defence to a charge under this section if-(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5)(b)is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”

19. Subsection (5) states that it is a defense to a charge of defilement if the child deceived the accused person into believing that she was over the age of 18 years and the accused reasonably believed that she was over 18 years. I would think that once a person has actually been deceived into believing a certain state of things, it adds little to require that his such belief be reasonably held. Indeed, a reading of subsection (6) seems to add a qualification to subsection (5)(b) that separates it from the belief proceeding from deception in subsection (5)(a). We would therefore opine that the elements constituting the defence should be read disjunctively if the two sub-sections are to make sense.

20. I think also that it stands to reason that a person is more likely to be deceived into believing that a child is over the age of 18 years if the said child is in the age bracket of 16 to 18 years old, and that the closer to 18 years the child is, the more likely the deception, and the more likely the belief that he or she is over the age of 18 years.

21. I find merit in the appellant’s contention that in all the circumstances of the case he reasonably believed that the complainant was over the age of 18 years. The burden of proving that deception or belief fell upon the appellant, but the burden is on a balance of probabilities and is to be assessed on the basis of the appellant’s subjective view of the facts. Thus, whereas indeed the complainant was still in school, that alone would not rule out a reasonable belief that she would be over 18 years old. It is also germane to point out that a child need not deceive by way of actively telling a lie that she is over the age of 18 years. The conduct of the complainant plays a fundamental role in a defilement case. Several issues come into focus. Did the complainant report the defilement immediately after the incident? Was she threatened after the incident? How long did it take for her to report? Was there threat on her life? How long was the relationship? Were the parents aware of the relationship?

22. From the medical report on record it is also evident that although, the complainant had bruises on both the labia and vagina wall and that the hymen was torn. The medical officer clearly notes the said wounds were not fresh. The complainant was also pregnant at the time.

23. It is worth noting that, many other jurisdictions criminalize only sexual conduct with children of a younger age than 16 years. I think it is rather unrealistic to assume that teenagers and maturing adults in the sense employed by the English House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 ALL ER 402, do not engage in, and often seek sexual activity with their eyes fully open. They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process, and not a series of disjointed leaps. As Lord Scarman put it in that case (at p421);“If the law should impose on the process of „growing up? fixed limits where nature knows only a continuous process, the price would be artificially and a lack of realism in an area where the law must be sensitive to human development and social change.” At p 422.

24. The law also referred to the judgment of Chief Justice Lord Parker in R v Howard[1965] 3 ALL ER 684 at 685;“…where he ruled that in the case of prosecution charging rape of a girl under 16 the crown must prove either lack of her consent or that she was not in a position to decide whether to consent or resist and added the comment that „there are many girls who know full well what it is all about and can properly consent.?”

25. Where to draw the line for what is elsewhere referred to as statutory rape is a matter that calls for serious and open discussion. In England, for instance, only sex with persons less than the age of 16, which is the age of consent, is criminalized and even then, the sentences are much less stiff at a maximum of 2 years for children between 14 to 16 years of age. See Archbold Criminal Pleading, Evidence and Practice, [2002] p1720. The same goes for a great many other jurisdictions. A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue. Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy calls for serious interrogation.

26. For the reasons we have set out herein, I find that the appellant’s conviction was not safe, given the full circumstances of the case and the sentence, clearly imposed on the basis of a mandatory minimum was clearly harsh and excessive. The appellant falls within the defence under section 8(5) of the Sexual Offences Act. I do find that the appeal is merited and is hereby allowed. The appellant shall be set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5TH DAY OF OCTOBER, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:Mr Mugun for DPPThe appellant