[2022] KEHC 10391 (KLR)

Virimo v Republic (Criminal Appeal E020 of 2021) [2022] KEHC 10391 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10391 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E020 of 2021

JN Kamau, J

May 18, 2022

Between

Ezekiel Orange Virimo

Appellant

and

Republic

Respondent

((Being an Appeal from the Judgment of Hon. E.M Onzere (SRM) delivered at Tamu in Principal Magistrate’s Court in Sexual Offense Case No 20 of 2020 on 16th November 2020))

Judgment

Introduction 1. The Appellant herein 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. 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.

2. He was tried and convicted by Hon E. M Onzere (SRM) and sentenced to fifteen (15) years imprisonment.

3. Being dissatisfied with the said Judgement, on 3rd May 2021, he lodged the Appeal herein. His Petition of Appeal was undated. He set out four (4) grounds of appeal. He later filed Amended Grounds of Appeal on 14th December 2021 in which he set out three (3) Amended Grounds of Appeal.

4. His undated Written Submissions were filed on 14th December 2021 while those of the Respondent were dated 8th February 2022 and filed on even date.

5. This Judgment is based on the said Written Submissions which both parties relied upon in their entirety.

Legal Analysis 6. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.

7. This was aptly stated in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.

8. Having looked at the Appellant’s and State’s Submissions, it appeared to this court that the issues that had been placed before it for determination were as follows:-a.Whether or not the Prosecution had proved its case beyond reasonable doubt.b.Whether or not, in the circumstances of this case the sentence meted upon the Appellant by the Trial Court was lawful and or warranted.

9. The court dealt with the two (2) issues under the following distinct and separate heads.

I. Proof of Prosecution’s Case 10. Grounds of Appeal Nos (1) and (2) of the Petition of Appeal and Amended Ground of Appeal No (1) were dealt with together under this head as they were all related. The court considered the same under the following sub headings.

A. Age 11. The Appellant did not submit on the issue of age. On its part, the Respondent submitted that the Prosecution proved that Beatrice Adhiambo Omondi (hereinafter referred to as “PW 1”) was aged fifteen (15) years at the time of defilement. It added that this was as per the Age Assessment Report that was produced as an exhibit which showed that she was fourteen (14) to fifteen (15) years old. It contended that this fact was corroborated by the evidence of PW 1 and her father, Maxwell Omondi Otieno (hereinafter referred to as “PW 2”).

12. During trial, PW 1 testified that she was fifteen (15) years old. PW 2 corroborated her evidence and stated that she was born in 2005. No 114167 PC Boniface Lugonzo (hereinafter referred to as “PW 6”) tendered in evidence the Age Assessment Report that showed that she was fourteen (14) to fifteen (15) years at the material time of the incident.

13. In the case of Kaingu Elias Kasomo vs Republic Criminal Case No. 504 of 2010 as was cited in NNC vs Republic [2018] eKLR , the Court of Appeal stated that the age of a minor in a charge of defilement ought to be proved by medical evidence and documents such as baptism cards, school leaving certificates. It can also be proved by the victim’s parents or guardian and observation or common sense as was held in the case of Musyoki Mwakavi vs Republic [2014] eKLR.

14. The offence was committed on 11th December 2019. The said assessment was done on 18th July 2020, seven (7) months after the said offence. The Age Assessment put PW 1’s age at fourteen (14) to fifteen (15) years at the material time.

15. In this case, PW 1’s age was proven by medical evidence. The Appellant did not challenge the production of the aforesaid Age Assessment Report and/or rebut this evidence by adducing evidence to the contrary. Consequently, this court was satisfied that the Prosecution had proved that PW 1 was about fourteen (14) to fifteen (15) years which corroborated her evidence and that of PW 2.

B. Penetration 16. The Appellant reproduced the evidence of the testimonies of the Prosecution witnesses and argued that their evidence was full of contradictions which could not warrant a conviction. In this regard, he placed reliance on the case of Augustino Njoroge vs Republic Appeal No 99/98 Nairobi (eKLR citation not given) where the court held that contradicting evidence was not reliable.

17. He submitted that for a trial court to reach its determination in the matter pertaining Sexual Offence Act, a medical report was important and had to be considered because it gave a clear picture of whether there was penetration or not.

18. He argued that PW 1 could not be trusted as she lied to the police, the doctor and the court. He stated that according to the medical notes prepared on 12th December 2019, she had a history of having been defiled without protection while during Trial, she stated that he used protection. He questioned how a whitish discharge could be seen in her vagina if he had used protection during the act.

19. On its part, the Respondent contended that penetration was proved by medical evidence and corroborated by PW 1’s evidence as was highlighted in Charles Wamukoya vs Republic Criminal Appeal No 72 of 2013 (eKLR citation not given). It submitted that she testified that the Appellant had sexual intercourse with her and that he used a condom. It pointed out that she further testified that he held her neck and threatened to kill her if she attempted to scream.

20. It further contended that Kipyegon Alex Ngetich, (hereinafter referred to as “PW 4”), medical officer filled a P3 Form at Fort Ternan Subcounty Hospital. In his physical examination of PW 1, he established that her hymen was broken and that there was a thick whitish discharge from her vagina. It added that he also carried out urinalysis which showed numerous pus cells which was proof that she had been defiled.

21. PW 1 testified that she was in the kitchen cooking at about 8. 00 pm when the Appellant came and grabbed her by the neck and took her to his house where he penetrated her. He had threatened to kill her if she screamed.

22. Her presence in the Appellant’s home was corroborated by his wife, Elizabeth Akoth Orage (hereinafter referred to as “PW 3”) who testified that ordinarily she would call the Appellant to send her children to the Centre to assist her in carrying luggage. However, on the material date, she did not call him to send the children but instead she met them at the Centre and they told her that he had given them money to buy sweets at the Centre.

23. When they got home, she heard noises from her bedroom. On entering, she found PW 1, holding her panty and sitting on the bed. The Appellant was zipping his trouser. When she asked him what he was doing, he did not respond. She then took PW 1 to her home and reported the incident to PW 2. PW 2 confirmed that PW 3 came with PW 1 and informed him of the said incident whereupon he took PW 1 to hospital.

24. On his part, Mathew Mbaga (hereinafter referred to as “PW 5), the Chief of Fort Ternan Location, testified that the case was reported to him and he advised that it be reported to the Police Station. His further evidence was that the Appellant disappeared from home after the incident and was only arrested on 20th July 2020 when he came back.

25. A perusal of the Treatment notes, P3 Form and Laboratory results that were produced by PW 4 corroborated PW 1’s, PW 2’s and PW 3’s evidence that there was penetration of PW 1’s vagina. Although the genitalia were normal and had no bruises, the hymen was broken and there was presence of spermatozoa.

26. The Appellant argued that PW 1 had contradicted herself when she told the Trial Court that he used protection raising the question of where the spermatozoa came from. He also pointed out that no medical examination was done to confirm if indeed the spermatozoa was his. The question of who committed the offence was therefore pertinent.

27. The Appellant’s contention that the Prosecution had not established if the spermatozoa came from him was negated by the fact that PW 1 was taken to hospital the same night she accused him of having penetrated her and on the same night that PW 3 found him and PW 1 in their bedroom.

28. The chain of events was unbroken leading to the court to conclude that the Appellant was the person who defiled PW 1. His assertion that PW 1 had testified that he had used protection was thus neither here nor there. However, had the chain of event been broken, the question of further analysis to medically connect him to PW 1 would have been a relevant issue for determination by the court.

29. In his unsworn evidence, the Appellant did not even allude to his disappearance from his home after the incident as was reported by PW 5 but merely referred to the day he was arrested. In the absence of any other explanation, this court found and held that his disappearance only pointed to a guilty conscience of what he had done. His defence was a mere denial and could not outweigh the Prosecution’s case more so because it was unsworn and not subjected to cross-examination. Notably, unsworn evidence has little or no probative value compared to sworn evidence.

C. Identification 30. The Appellant did not submit on the issue of identification. On its part, the Respondent submitted that both PW 1 and PW 2 testified that the Appellant used to be their neighbour which meant that the Appellant was a person PW 1 had seen before and could therefore positively identify him. It was emphatic that PW 1 pointed at the Appellant in court as the person who had sex with her and therefore, he was positively identified as the perpetrator.

31. As PW 1 and PW 2 had been neighbours for about one (1) year, PW 1 could not have been mistaken when she identified the Appellant as the person who defiled her. Identification was by recognition. Having said so, there could not have been any better identification of the Appellant than by PW 3 who found him with PW 1 as she was his wife and could not have mistaken the person she saw in her bedroom on that material night and time in a compromising position.

32. Without belabouring the point, this court was satisfied that PW 1 and the Appellant were not strangers to each other and that PW 1 positively identified him.

Conclusion 33. The ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR. This court found and held that the Trial Court came to a correct determination that the Prosecution had proved its case against the Appellant beyond reasonable doubt as it had proven that PW 1 was a child, she was defiled and she identified the Appellant as the person who defiled her.

34. In the circumstances foregoing, this court found and held that Grounds of Appeal Nos (1) and (2) of the Petition of Appeal and Amended Ground of Appeal No (1) were not merited and the same be and are hereby dismissed.

II. Sentence 35. Ground of Appeal Nos (3) and (4) of the Petition of Appeal and Amended Grounds of Appeal Nos (2) and (3) were dealt with under this head as they were all related.

36. The Appellant submitted that Article 20(1) and Article 48 of the Constitution of Kenya, 2010 mandates the State to ensure there is justice for all. He added that the mandatory minimum sentence under the Sexual Offences Act No 3 of 2006 was unconstitutional. He argued that as sentencing was at the discretion of a trial court, minimum sentences deprived courts the mandate to practice justice pursuant to the law. He urged the court to set aside his sentence.

37. On its part, the Respondent submitted that the Appellant’s sentence was lawful as provided by the Sexual Offences Act and urged the court to uphold the same.

38. Notably, PW 1 was between the age range of fourteen (14) to fifteen (15) years at the material time. Section 8(3) of the Sexual Offences Act provides that:-“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.”

39. The Trial Court did not therefore err when it sentenced the Appellant to fifteen (15) years imprisonment. Infact, it was lenient in the circumstances. Notably, the sentence was meted out before 6th July 2021 when the Supreme Court directed that the case of Francis Karioko Muruatetu & Another vs Republic [2017] eKLR on resentencing was only applicable in murder cases.

40. In the premises foregoing, Ground of Appeal Nos (3) and (4) of the Petition of Appeal and Amended Grounds of Appeal Nos (2) and (3) were not merited and the same be and are hereby dismissed.

Disposition 41. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal that was lodged on 3rd May 2021 was not merited and the same be and is hereby dismissed. The Appellant’s conviction and sentence be and are hereby upheld as it was safe to do so.

42. The period that the Appellant remained in custody if at all, before conviction, shall be taken into account while computing his sentence as contemplated in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).

43. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 18TH DAY OF MAY 2022J. KAMAUJUDGE