[2022] KEHC 15798 (KLR)

VK v Republic (Criminal Appeal E003 of 2021) [2022] KEHC 15798 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15798 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Appeal E003 of 2021

RL Korir, J

December 1, 2022

Between

VK

Appellant

and

Republic

Respondent

(Being an appeal from the judgment [conviction and sentence] of Hon. J. Omwange, SRM, delivered on 9th September 2021 in the Resident Magistrate’s Court at Sotik in Sexual Offence No. E014 of 2021)

Judgment

1. The Appellant was charged and convicted of the offence of defilement contrary to section 8(3) of the Sexual Offences Act, No. 3 of 2006 by Hon. Jackson Omwange in Sotik Sexual Offence Case No. E014 of 2021. The particulars of the offence were that on the 4th day of July 2020, in Konoin sub-county within Bomet County, he intentionally and unlawfully caused his penis to penetrate the vagina of JC, a child aged 14 years old.

2. The Appellant was also charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006.

3. The Appellant was arrested on 4th March 2021 and arraigned in court on 8th March 2021 where he took plea. He pleaded not guilty to the main count and the alternative charge. The matter proceeded to full hearing and the Prosecution called 4 witnesses. At the close of the Respondent’s case, the court found that the Appellant had a case to answer and placed him on his defence. He opted to tender unsworn evidence and called no witnesses. At the close of the defence case, the trial magistrate convicted the Appellant and sentenced him to serve 20 years imprisonment.

4. Being dissatisfied with the decision of the trial court, the Appellant filed a Memorandum of Appeal on 28th September 2021 against conviction and sentence raising six (6) grounds which were to the effect that the Prosecution did not discharge their burden of proof; that the evidence was contradictory contrary to section 153 and 154 of the Criminal Procedure Code, that there was no medical evidence and in particular DNA, to establish that he was the biological father of the complainant’s child; and, that the trial court did not afford him an opportunity to make submissions. The Appellant also raised the ground that his rights were contravened as the trial court did not give him the opportunity to produce his birth certificate to prove that he was a minor.

5. Subsequently, the Appellant filed an amended Memorandum of Appeal on 25th July 2022 raising three (3) grounds as follows: -i.That the prosecution’s case was not proved as required by law, no DNA test was conducted on the child alleged to be born out of the defilement incident as stipulated under section 36(1) of the Sexual Offences Act No. 3 of 2006. ii.That the learned trial magistrate erred in law and in fact in failing to consider that the Appellant was underage – 16 years old at the time of arrest.iii.That the learned trial magistrate erred in law and in fact in relying on the incredible evidence of witnesses which was not enough to convict and sentence the Appellant to 20 years imprisonment.

6. This Court issued directions on 5th July 2022, for the appeal to be canvassed by way of written submissions.

The Appellant’s Submissions 7. The Appellant filed his submissions n th July 2022. He submitted on the three main grounds. Firstly, that Section 36 of the Sexual Offences Act was not complied with when the trial court failed to order that a DNA test be conducted. Thus, the Prosecution’s case was not proven to the required standard. Secondly, that the trial court never ascertained his age as an accused person and that the Prosecution’s decision to charge him was contrary to the requirement of the DPP to abide by the Constitution and the other principles of law including gender equality. He cited sections 190 and 191 (1) of the Children’s Act and section 35 (1) of the Penal Code to the extent that he ought not to have been treated and sentenced as an adult during the trial proceedings.

8. Lastly, the Appellant submitted that the evidence tendered by the Respondent was inconsistent and contradictory and that the conviction was based on mere suspicion since the victim’s evidence could not be relied on. He urged the Court to consider that the Prosecution’s case was not proved to the required standard and that the conviction be quashed and he be released from custody.

The Respondent’s Submissions 9. The Respondent’s submissions are dated 20th September 2022 and were filed on 21st September 2022. They submitted that the age of the victim (14 years at the time of the incident) was proven by her birth certificate and her mother’s testimony which ought to be considered as the best evidence of proving a child’s age. Secondly, the Respondent submitted that the victim confirmed that she and the Appellant had sex three times on the material night and vividly described the act of penetration. Further, that this evidence was corroborated by PW1's medical evidence and the fact that the victim conceived out of the sexual intercourse. Lastly, the Respondent submitted that the victim spent a considerable amount of time with the Appellant and identified him easily by his name. That the Appellant owned up to being responsible for the pregnancy and even visited the victim’s home to offer his apologies. They concluded that the Appellant’s defence did not dislodge the Prosecution’s evidence.

10. The duty of a first appellate court was restated by the Court of Appeal in the case ofGitobu Imanyara & 2 others v Attorney General [2016] eKLR, where it was held that:-“[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.”

11. This re-evaluation follows no specific format and depends entirely on the circumstances of the case. The first appellate court must be able to demonstrate the manner in which it arrives at a specific conclusion, whether similar to that of the trial court or otherwise. The Supreme Court of Uganda in the case ofUganda Breweries Ltd vs. Uganda Railways Corporation [2002] 2 EA 634, stated thus:-“The extent and manner in which evaluation may be done depends on the circumstances of each case and the style used by the first Appellate Court. In this regard, I shall refer to what this court said in two cases. In Sembuya vs. Alports Services Uganda Limited [1999] LLR 109 (SCU), Tsekooko JSC said at 11:‘I would accept Mr. Byenkya’s submission if he meant to say that the Court of Appeal did not go into details of the evidence, but that is really a question of style. There is really no set format to which the re-evaluation should conform. A first Appellate court is expected to scrutinise and make an assessment of the evidence but this does not mean that the Court of Appeal should write a judgment similar to that of the (trial).’”

12. The above principles are premised on section 347 of the Criminal Procedure Code Cap 75 which provides that:347. Save as in this part provided-A person convicted on a trial held in a subordinate court of the first or second class may appeal to the High Court and an appeal to the High Court may be on a matter of fact as well as on a matter of law.”

13. I have considered the grounds of appeal, the respective submissions from the parties and reviewed the entire trial Record. The following issues are pertinent for my consideration and determination:-i.Whether the Prosecution proved the offence of defilement to the required standard.ii.Whether the Accused was a minor.iii.Whether the sentence was legal and justified.

i. Whether the prosecution proved the offence of defilement to the required standard. 14. The offence of defilement is premised on section 8 of the Sexual Offences Act, No. 3 of 2006 as follows: -8. Defilement1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.2. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.3. 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.4. A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.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; andb.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.7. Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and Children's Act No. 8 of 2001. 8.The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.

15. For the charge of defilement to stand, three ingredients must be established and proved beyond reasonable doubt by the Prosecution i.e. the age of the victim, that there was penetration and the accused must be positively identified as the perpetrator. (See George Opondo Olunga vs. Republic [2016] eKLR).

Age of the Victim 16. The Court of Appeal in the case ofKaingu Elias Kasomo vs. RepublicC.A. Malindi, Criminal Appeal No. 54/20109 (UR) held that: -“Age of the victim of sexual assault under the sexual offences Act is a critical component. It forms part of the change which must be proved in the same way as penetration in cases of rape and defilement.It is therefore essential that the same be proved by credible evidence for the sentence to be imposed upon conviction will depend on the age of the victim.”

17. In the present case, the complainant testified that she was born on 12th December 2006. The complainant’s mother PW3 also testified that the complainant was born on the same date. PW2, P.C. Linet Cherotich also produced as PEX4, the complainant’s certificate of birth serial number (particulars withheld) which indicated that she was born on 12/12/2006. The aspect of age was therefore adequately proved and no contention arose from it in this Appeal. (See also Francis Omuroni vs. Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 and Court of Appeal case of Edwin Nyambogo Onsongo vs. Republic (2016) eKLR).

Penetration 18. Section 2 of the Sexual Offences Act defines penetration as follows:-“penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

19. Penetration can be proved by the testimony of the victim in accordance with section 124 of the Evidence Act, Cap 80 and corroborated with medical evidence. Section 124 of this Act provides as follows:-“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him.Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

20. The above position was enunciated by the Supreme Court of Uganda in Bassita Hussein vs. Uganda, Supreme Court Criminal Appeal No. 35 of 1995, where it was held thus: -“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by medical evidence or other evidence.”

21. In her evidence, the complainant testified that the Appellant had asked her to accompany him to a hotel at Koiwa where they had dinner then they left for his house. During examination-in-chief, she testified as follows:“….He then undressed me by removing the skirt and jumper and the biker and panty. I remained completely naked and he also undressed himself and he covered my mouth and had sex with me. He took his male genital organ and inserted it into my female genital organ. He did this way 3 times that night….”

22. PW1, Daniel Too was the clinical officer at Mogogosiek Health centre who examined the complainant on 2nd March 2021. He testified that the complainant had a mass of about 24 weeks and the pregnancy test was positive. He also testified that the hymen was broken but longstanding. He produced PEX 1-3 which comprised of the P3 Form, the victim’s Clinic Attendance card and Treatment Notes into evidence. It was his conclusion that there was evidence of defilement.

23. The findings from the medical examination adduced in evidence established that the complainant had been penetrated before, that her hymen was broken but longstanding and that she was 24 weeks pregnant at the time of the examination. I however observe that the complainant was examined long after the material date. From the above evidence, it is clear that there was penetration. She must therefore have been penetrated before, on or after the date in question. The child born out of the defilement incident was born on 1st April 2021.

24. It was the Appellant’s argument that the trial court should have ordered that a DNA test be conducted in accordance with section 36 of the Sexual Offences Act to ascertain whether he was responsible for the pregnancy and therefore, had committed the act of defilement.

25. Section 36 provides as follows: -36. Evidence of medical, forensic and scientific nature1. Notwithstanding the provisions of Section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence.”

26. The Appellant submitted that a DNA test could have proven whether he was sexually involved with the complainant and thus responsible for the pregnancy. That in its absence, the Prosecution did not discharge their burden of proof. With respect, there is no requirement in law for DNA testing to prove defilement. In the case of Evans Wanjala Wanyonyi vs. Republic [2019] eKLR, the court held that: -“An essential ingredient in the offence of defilement is penetration and not impregnation.”

27. In the case of Williamson Sowa Mwanga vs. Republic Criminal Appeal No.109/2014, the Court of Appeal interpreted the provisions of section 36 (1) thus: -“Section 36 (1) of the Act empowers the court to direct a person charged with an offence under the Act to provide samples for tests including for D.N.A test to establish linkage between the accused person and the offence…...As the Court of Appeal of Uganda rightly stated, in the Sexual Offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and it is not necessary that the hymen be raptured………It is partly for this reason that Section 36 (1) of the SOA is couched in permissive rather than mandatory terms, allowing the Court, if it deems it necessary for purpose of gathering evidence to determine whether or not the accused person committed the offence, to order that samples be taken from him for forensic, scientific or DNA testing.”

28. The absence of a DNA test therefore would not in any way absolve the Appellant of any responsibility if it was proved that he was the one who penetrated the victim.

Identification 29. I have already found that the complainant was under age and that she was penetrated resulting in a pregnancy. The outstanding issue is whether it was the Appellant who penetrated her on the material night. This Court must therefore consider whether it can rely on the sole evidence of the minor in accordance with section 124 of the Evidence Act.

30. The complainant testified that she was going to her grandmother’s place on the material evening at which point she asked the Appellant for his phone. They ‘stayed’ until 8. 00 p.m. into the night before proceeding to eat and later both ended up in the Appellant’s house where they had sexual intercourse. She further testified that when she went home in the morning, she did not tell her aunt what had befallen her. Instead, she got to learn of her pregnancy much later when her legs began to swell.

31. The court can convict on the sole evidence of the minor but only where there is strict compliance with Section 124 of the Evidence Act. The Court of Appeal in John Mutua Munyoki vs. Republic [2017] eKLR, held that:-“Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt…It is trite that under the proviso to section 124 of the Evidence Act, a trial court can convict on the evidence of the victim of a sexual offence alone. (See Mohamed v Republic (2008) KLR G&F, 1175 and Jacob Odhiambo Omuombo vs. Republic (supra). However, before the court can do so, it first must believe or be satisfied that the victim is telling the truth and secondly it must record the reasons for such belief.As we shall endeavour to demonstrate later in this judgment, much as the trial court believed the testimony of the complainant, there was no strict compliance with the requirements of the proviso to section 124 of the Evidence Act aforesaid. ……..”

32. It was the complainant’s testimony that she spent the whole night with the Appellant who later dropped her home using his motorbike. It is believable therefore that she identified him as they spent the entire evening and night together. A close scrutiny of the complainant’s testimony however is contradicting and confusing.

33. In cross-examination, she testified that she did not know the Appellant prior to the date of the incident and that she was seeing him for the first time when they had sex. At the same time, she testified that they met and spent substantial time together and further that had his mobile number and was able to inform him of her pregnancy.

34. I find the Complainant’s evidence that she did not previously know the Appellant unbelievable and unreliable. It is unlikely that the complainant would randomly request a stranger for a phone while en route to her grandmother’s house only to detour and end up having dinner with the stranger and spending the night with him. There is also no evidence that the Appellant threatened or coerced the complainant. Furthermore, when she discovered she was pregnant, the complainant contacted the Appellant whose number she had, to inform him of her condition. In her testimony, she stated that the Appellant tried to seek forgiveness from her family and ask for her hand in marriage.

35. From the facts of this case and the surrounding circumstances of the material night, it can further be deduced that the Appellant and the complainant must have had sexual intercourse on the material night. The circumstances clearly show that they were on a road to some sort of intimate relationship, the only bar being the minor age.

36. From the foregoing, their interaction on the material night and the totality of the circumstances of this case, it is evident that the Accused and the complainant were not strangers to each other. As earlier stated, they spent an entire evening and right and night together. She could not therefore have mistaken him as the one with whom she engaged in sexual intercourse. I am satisfied that the Appellant was positively identified.

37. Having evaluated the evidence in depth, it is my finding that the ingredients of the offence of defilement were adequately established to the required legal standard. I would uphold the conviction on that score.

ii. Whether the accused was a minor. 38. Having established the above, I grapple with the issue of the age of the complainant and that of the Appellant. It was the evidence of the Appellant that he was 16 years old at the time of the alleged offence. On Record is the Appellant’s certificate of birth which indicates that he was born on 30th August 2004. This confirms that he was also a minor at the time of the offence, 16 years old to be precise.

39. Section 166 of the Children’s Act, 2022 No. 29 of 2022 requires that a court of law should determine the age of an accused person who is charged before it in order to determine how to proceed during the trial. It provides as follows:-166. Presumption and determination of age.1. Where a person appears before any Court for the purpose of giving evidence, and it appears to the Court that the accused, the victim or complainant to whom the proceeding relates is under eighteen years of age, the Court shall inquire as to the age of the accused, victim or complainant, and shall take such evidence, including medical evidence for the purpose of determining his or her age.2. The age presumed or declared by the Court under subsection (1) to be the age of any person appearing before it shall, for purposes of this Act, be deemed to be the person’s age unless the contrary proof is adduced before Court.3. A certificate duly completed and signed by a medical practitioner as to the age of a person under eighteen years of age shall be produced and admitted in evidence in any proceeding before the Court, unless the Court otherwise directs.

40. I note that the trial magistrate only called for the Appellant’s certificate of birth during mitigation when the Appellant stated his age. This fell short of the mandatory provisions. The trial court was required to have comply with section 166 and 235 of the Children Act at the onset of the trial and thereafter, proceed to try the Appellant with the attendant safeguards as provided by Section 235 of the Children Act.

41. As already established, both the complainants and the Appellant were minors at law. I am cognizant of the fact that either of them could argue that they were defiled by the other. The English case of R. vs. G (Appellant) on appeal from the Court of Appeal (Criminal Division) [2008] UKHL 37 was cited in P.O.O. (a minor) vs. DPP & Another[2017] eKLR. Wherein Baroness Hale of Richmond (House of Lords) stated thus: -“As sexual touching is usually a mutual activity, both the children involved might, in theory, be prosecuted…the person penetrated might be the offender…Obviously…there will be wide variations in the blameworthiness of the behavior…both prosecutors and sentencers will have to make careful judgements about who should be prosecuted and what punishment if any is appropriate.”

42. The decision to charge the Appellant was vested in the Prosecution. No explanation was given to the Court why the Respondent chose to charge one minor over the other. In the case of CKW vs. Attorney General & Another (2014) eKLR the Court held thus: -“In Kenya, there is no express or implied requirement that when two children are involved in sexual penetration with each other, both of them should be charged with the offence of defilement. However, there is no legal bar to the prosecution preferring criminal charges against both the children. In effect, if the prosecution had reasonable cause to charge both minors, they could do so.”

43. In the present case, I take the view that both the Appellant and his victim were at fault. It was evident that they both willingly engaged in the sexual encounter and ought to have been treated equally particularly because as I have found, they were both under age and engaged in “consensual” sex. In G.O. vs. Republic Siaya Criminal Appeal No.155 of 2016 Makau J. held: -“I find that the Appellant was discriminated against on the basis of sex in that he was arrested, charged instead of the prosecution charging both the complainant and the appellant for the offence of defilement…in the instant case, I find that at the time of the commission of the offence, both the Appellant and the complainant were minors. I find indeed the complainant was a senior to the appellant and blame should not have been wholly shifted to the appellant, and both being minors, they need protection against harmful sexual activities and none should have been sent to prison.”

44. I am alive to the fact that the law is in place in order to protect children. Indeed, Lord Hope of Craighead stated in the English case of R v G as follows: -“36. I would not go so far as to say that it was disproportionate for a child under 15 to be prosecuted for committing a sexual act with a child under 13 just because it was consensual. The offences which the 2003 Act has created are expressed in very broad terms. They recognize that the circumstances in which mutual sexual activity may take place between children of the same or the opposite sex, and the acts that they may perform on one another as fashions change, will inevitably vary greatly for case to case. But there is great force in the point that McLachlin J made in R v Hess; R v Nguyen [1990] 2 SCR 906 about the need for children to be protected. Their need to be protected against themselves is as obvious as is their need to be protected from each other. There is much to be said for the view that where acts are perpetrated on children under 13 by children of a similar age intervention of some kind is necessary for the protection of their physical and moral health.

37. But this case is about the choices that are available where the prosecutor is satisfied that the conduct was consensual or, as consent could not in law be given, was mutual. Moreover it is about the choices that ought to be made where the participants in sexual conduct which was mutual were both children.”

45. It is my view that both the minor victim and the minor Appellant ought to have been protected by the law and at the same time punished by the law.iii.Whether the sentence was legal and justified

46. The trial court stated that it considered the fact that the Appellant was a first offender and sentenced him to 20 years imprisonment. The Children’s Act requires that where the offender is a minor, they may be punished in accordance with the Act and the Borstal Institutions Act.

47. The Children Act stipulates the manner in which children offenders ought to be dealt. Under Section 239 (g) a child aged between 16 and 18 years may be committed to a borstal institution.

48. Taking the totality of the evidence before me and the legal provisions, it is clear that the Appellant ought not to have been subjected to a custodial sentence. While sexual offences should not be taken lightly, the circumstances of this case did not warrant a harsh punishment as was imposed by the trial court.

49. I am fortified in my holding by the decision of the court of appeal in Dismas Wafula Kilwake vs. Republic[2018] eKLR, where the Court in applying Muruatetu, found the mandatory nature of the minimum sentences in the Sexual Offences Act to be unconstitutional and held thus: -“In principle, we are persuaded that there is no rational reason why the reasoning of the Supreme Court, which holds that the mandatory death sentence is unconstitutional for depriving the courts discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply to the provisions of the Sexual Offences Act, which do exactly the same thing. Being so persuaded, we hold that the provisions of section 8 of the sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it.”

50. I have considered the mitigation from the Appellant. He stated that his mother abandoned them and he was the one who provided for his siblings who were going to school. The Accused person was also a first-time criminal offender. In the circumstances of this case, where the Appellant appears to have persuaded the complainant into having “consensual” sex, I find that the sentence of 20 years imprisonment does not serve the interests of justice.

51. In the final analysis, I find the Appellant liable for the offence of defilement. I however set aside the sentence of 20 years’ imprisonment and substitute therefor a probation sentence of 3 years.

Judgement delivered, dated and signed at Bomet this 1stDay of December, 2022. ...............................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of the Appellant (acting in person), Mr. Njeru for the Respondent and Kiprotich(Court Assistant).