[2023] KEHC 26262 (KLR)

Wakhungu v Republic (Criminal Appeal E166 of 2022) [2023] KEHC 26262 (KLR) (Crim) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26262 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E166 of 2022

K Kimondo, J

December 7, 2023

Between

Alex Mola Wakhungu

Appellant

and

Republic

Respondent

(Appeal from the judgment in S.O. Case No. 213 of 2020 at the Chief Magistrates Court Makadara by M. Kivuti, Senior Resident Magistrate, dated 29th July 2022)

Judgment

1. The appellant was adjudged guilty of defilement contrary to section 8 (1) as read with 8 (2) of the Sexual Offences Act (hereafter the Act). He was imprisoned for life.

2. The particulars were that on the 30th August 2020 at [particulars withheld], within Nairobi county, he intentionally caused his penis to penetrate the vagina of V. A. [particulars withheld], a child aged 11 years.

3. The original petition of appeal was lodged with leave of court on 30th September 2022. It raised five grounds. However, on 27th April 2023, I granted the appellant leave to amend the grounds of appeal as pleaded in his “Amended Grounds of Appeal and Brief Submissions” filed earlier on 25th April 2022.

4. The fresh grounds can be summarized as follows: Firstly, that he was not granted a fair trial as decreed by the Constitution; secondly, that illegally obtained evidence was admitted in violation of Article 50 (4) of the Constitution; thirdly, that the learned trial magistrate misapprehended the evidence; and, lastly, that the sentence meted out was disproportionate or draconian.

5. The appellant relied wholly on the written submissions mentioned above. Their gravamen is that the Republic failed to prove all the elements of the charge beyond reasonable doubt.

6. The appeal is contested by the State. Learned State Counsel, Ms. Otieno, relied wholly on the submissions dated 27th February 2023 and grounds of opposition of even date. In a synopsis, the case for the Republic is that the trial was just; and, that all the ingredients of the offence were proved to the required standard.

7. This is a first appeal to the High Court. I have examined the record; re-evaluated the evidence and drawn independent conclusions. There is a caveat because I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] E. A. 32, Felix Kanda v Republic, Eldoret, High Court Criminal Appeal 177 of 2011 [2013] eKLR.

8. I will begin with the issue of a fair trial. The appellant’s submissions are two-pronged: that he was denied full participation at his trial; and, that the State did not provide him with legal counsel. On 1st December 2020, the appellant informed the trial court that he “did not go to school or understand the law and he be provided with an advocate”. In a brief ruling, the learned trial magistrate correctly advised him to apply to the Legal Aid Committee and adjourned the hearing.

9. I readily find that the nature of the charge did not entitle him to pro bono counsel from the State. The accused was granted bail. He had access to the statements and cross-examined all the five state witnesses. His rights under section 211 of the Criminal Procedure Code were explained on the record. He made an unsworn statement in defence. I am thus unable to find that his rights were violated or that he did not get a fair trial.

10. I will now turn to the age of the complainant (PW1). She testified that on the date of the incident she was 11 years old. This is clear from the birth certificate (exhibit 4) indicating she was born on 12th February 2009. The appellant submits that the original copy was not produced; and, that the copy has discrepancies.

11. My view is that proof of age does not solely depend on a certificate of birth. The complainant testified on her age. Her parents testified as PW2 and PW3. The copy of the birth certificate only fortified the evidence. I find support from the decision of the Court of Appeal in Martin Wanyonyi Nyongesa v Republic, Eldoret, Criminal Appeal 661 of 2010 [2015] eKLR. The learned judges delivered themselves as follows-From the evidence, besides the evidence of PC Paul Mwangi, who we consider was incompetent to ascertain the child's age, all other evidence indicated that ZN was either 12, 13 or 15 years. When this is considered against the backdrop of the charge sheet which specified the complainant's age as 12 years, it is evident that the ages indicated, all fell within the age bracket specified under Section 8 (1) and (3) of the Act, and concerned the defilement of a child within the particular age bracket. As such, we find that, the charge and the sentence preferred were sound, and no prejudice could be held to have been suffered by the appellant. At any rate, we consider that the discrepancies are not material and curable under Section 382 of the Criminal Procedure Code. [underlining added].

12. The next important matter relates to the procedure of taking the evidence of PW1. On 14th February 2022, the trial court conducted a detailed voire dire examination. The learned trial magistrate formed the opinion that PW1 was “confident, maintains eye contact and understands the solemnity of an oath”. The minor thus gave sworn evidence.

13. I am thus satisfied that the trial court complied fully with the procedure of taking the evidence of a child of tender years. See Republic v Peter Kiriga Kiune Criminal appeal 77 of 1982 (unreported), Johnson Muiruri v Republic [1983] KLR 445.

14. I will now turn to identification. The complainant and the appellant were living on adjacent plots. The appellant concedes he knew the complainant and her mother. He used to collect garbage at their plot. When PW1 stepped outside her gate to pour out some water, the appellant beckoned her “to tell her a story” but she declined. It was 7:00 p.m. He held her hand, pulled her into his one roomed house, held her mouth, undressed and penetrated her. The appellant denies it. He says that as he entered his plot, he heard the complainant screaming and claiming he had defiled her.

15. My analysis is that the complainant and the appellant knew each other well. The appellant and the complainant are both placed at the locus in quo. Although it was 7:00 p.m., I find that the appellant was positively identified. This was in fact evidence of recognition. Wamunga v Republic [1989] KLR 424.

16. So, did the appellant defile the complainant? The legal and evidential burden primarily rested on the Republic. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332.

17. The appellant’s line of defence was that he was framed-up. He claimed that the complainant’s mother had at some point invited him to spend the night in her house but she declined it because “I was married and my wife in the house”. He also stated that she tried to seduce him on another date when she emerged from her bedroom “having wrapped only a kikoi on her body” and tried touch him inappropriately. Like I have mentioned earlier, he denied that he defiled the complainant. On the material day, he said that as he entered his plot he heard the complainant screaming and falsely accusing him of this offence. He was arrested by the public, beaten up and handed over to the police.

18. My analysis on that point is as follows: the complainant was emphatic that the appellant inserted his penis into her vagina in his house. When she emerged, her parents were looking for her. She immediately disclosed it to her mother (PW3). The latter confronted the appellant at their gate. Like I have stated, the appellant was arrested shortly afterwards. I find no major discrepancy between the evidence of PW1 and that of her parents (PW2 and PW3).

19. PW4, is a nursing officer at [particulars withheld] Health Center. Regarding the P3, SGBV Summary and PRC Forms, PW4 said that they were all prepared by his colleague, Dr. Kerubo Stephanie, who had since left the institution. PW4 was conversant with her handwriting and signature as they had worked together. The learned trial magistrate explained to the accused the nature of the application by the prosecution. He had no objection. I disagree with the appellant’s submission that PW4 was not a competent witness or that his evidence was inadmissible. I find that the lower court properly exercised its power in allowing PW4 to produce the original P3 Form, PRC Form and SGBV Summary Form.

20. The complainant was examined the same day of the incident. From the PRC Form, the P3 Form and the SGBV Summary Form prepared by Dr. Kerubo (exhibits 1, 2 & 3), the genitalia had no injury. However, there was a “fresh laceration at posterior fourchette” and a “whitish mucoid discharge”. No spermatozoa were detected. PW4 concluded that there was penetration.

21. Penetration is defined in section 2 of the Act as “the partial or complete insertion of the genital organs of a person into the genital organs of another person”.

22. The totality of the evidence of PW1, PW4 and the medical reports above leave no doubt in my mind that the appellant penetrated the complainant in his house on the material day. His defence, which I outlined earlier, is a sham. In the end, I concur fully with the learned trial magistrate that all the ingredients of the offence were proved beyond reasonable doubt.

23. Furthermore, I am alive that under the proviso to section 124 of the Evidence Act, where the victim of a sexual offence is the complainant, corroboration is not mandatory if the court is satisfied that the witness was truthful. As I have stated, there was sufficient corroboration in this case.

24. I thus find that the conviction was safe. The appeal against conviction is accordingly dismissed.

25. I will now turn to the sentence. Section 354 (3) of Criminal Procedure Code empowers this court to review the sentence. Under section 8 (2) of the Sexual Offences Act, the mandatory sentence was life imprisonment. The Court of Appeal has now given fresh guidance on minimum sentences under the Act in Jared Koita Injiri v Republic [2019] Kisumu Criminal Appeal 93 of 2014 [2019] eKLR. The court held:In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court [in Muruatetu’s case] was applied to this provision, it too should be considered unconstitutional on the same basis.

26. I have considered the appellant’s mitigation in the lower court; and, that he is a first offender. Purely in the interests of justice and guided by the authorities, I will set aside the life sentence. I substitute it with a sentence of 10 (ten) years in jail. The sentence shall run from 29th July 2022, the date of his original sentence. Furthermore, and in accordance with section 333 (2) of the Criminal Procedure Code, the period spent in remand custody from the date of his arrest on 31st August 2020 (but excluding any period when he was out on bail) shall be deducted from the sentence.It is so ordered.

DATED, SIGNED and DELIVERED at NAIROBI this 7th December 2023. KANYI KIMONDO............................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARJudgment read virtually on Microsoft Teams in the presence of-The appellant.Ms. Oduor for the Republic instructed by the Office of the Director of Public Prosecutions.