[2023] KEHC 26421 (KLR)

Waluse v Republic (Criminal Appeal 3 of 2020) [2023] KEHC 26421 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26421 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal 3 of 2020

AC Mrima, J

December 14, 2023

Between

Protus Mbarala Waluse

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. C.M. Kesse (Senior Principal Magistrate) in Kitale Chief Magistrate’s Court Criminal Case (S.O) No. 152 of 2019 delivered on 23rd January, 2020)

Judgment

Introduction: 1. The appellant herein, Protus Mbarala Waluse, was charged with the offence of Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act before the Chief Magistrates Court at Kitale in Sexual Offence No. 152 of 2019 (hereinafter referred to as ‘the criminal case’). The particulars of the offence were as follows:On the 3rd day of July, 2019 within Trans-Nzoia County, the appellant unlawfully and intentionally caused his penis to penetrate into the vagina of LNS, a child aged 5 years old.

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. The particulars of the offence were that on the same day and in same place, the appellant intentionally caused the contact between his genital organ namely penis and the genital organ namely vagina of LNS, a child aged 5 years old.

3. The appellant denied all the charges and he was tried. After a full trial, the appellant was found guilty of defilement and was convicted accordingly. He was then sentenced to life imprisonment.

The Appeal: 4. The appellant was utterly aggrieved by the conviction and sentence. He subsequently lodged an appeal.

5. In his petition of appeal, the appellant challenged the conviction as without basis since the prosecution did not discharge its burden of proof to the required standard. In his view, penetration was not proved, there was violation of his rights to be availed before court within 24 hours of arrest, the defence was unfairly rejected and that the sentence was manifestly excessive.

6. In the premises, he prayed that the appeal be allowed, the conviction be quashed and the sentence be set aside and that he be set forthwith at liberty.

7. During the hearing of the appeal, the appellant relied on his written submissions which he filed on May 23, 2023. He expounded on his grounds of appeal.

8. On the part of the prosecution, through its extensive written submissions dated June 19, 2023, it contended that the conviction was safe and that all the ingredients of the offence had been proved as required in law. It urged that the appeal be dismissed.

9. The prosecution relied on various decisions in support of its case.

Analysis: 10. This being a first appeal, it’s the duty of this court to re-consider and to re-evaluate the evidence adduced before the trial Court with a view to arriving at its own independent conclusions and findings (See Okeno v Republic [1972] EA 74). In doing so, this court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial court and, therefore, it ought to give due regard in that respect as so held in Ajode v Republic [2004] KLR 81.

11. Having carefully perused the record, this court is now called upon to determine whether the offence of defilement was committed, and if so, whether by the appellant.

12. It is established by law and settled judicial precedents that the offence of defilement carries three components. They are the age of the victim, penetration and identification of the assailant.

13. Before dealing with the said aspects of the offence, this court highly appreciates the detailed manner in which the trial court summarized the evidence in the judgment. This court adopts that summary herein by reference.

14. Having said so, suffice to state that the prosecution availed 5 witnesses. PW1 was the complainant. She testified on oath on the events that befell her on July 3, 2019 in the hands of a sexual assailant when her mother, who testified as PW2, had gone to get the family sheep back home from the farm. PW2 corroborated the evidence ofPW1.

15. PW3 was a Clinical Officer. He produced medical documents on the victim. He confirmed penetration of the victim’s vagina. PW4 produced PW1’s Age Assessment Report and PW5 was the investigating officer.

16. When the appellant was subsequently placed on his defence, he gave an unsworn defence and denied committing the offence.

17. It is on the basis of the above evidence that this court is to establish if the charges of defilement were committed. The court will now look at the elements of the offence of defilement.

Age of the complainant: 18. The appellant did not challenge the age of PW1. However, from the Age Assessment Report, PW1 was aged 5 years old.

19. Accordingly, the complainant was a child within the meaning ascribed to the term under section 2 of the Children’s Act.

Penetration: 20. Section 2(1) of the Sexual Offences Act defines “penetration” to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

21. This position was fortified in Mark Oiruri Mose v R (2013) eKLR when the Court of Appeal stated thus: -…. 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…. (emphasis added).

22. Later, the Court of Appeal, then differently constituted, in Erick Onyango Ondeng v Republic (2014) eKLR held as such on the aspect of penetration: -In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.

23. The appellant herein vehemently argued that the prosecution failed to establish penetration.

24. From the definition of penetration and the guidance by the court of appeal, it is the position that penetration may only be ‘slightest and to the surface’ to suffice in law. It, therefore, means that there may be instances where the slight penetration, depending on other factors including passage of time, may not be possible to be ascertained by way of medical evidence. Therefore, the failure to prove penetration by medical evidence does not ipsa facto mean that there was no penetration. It all depends on the peculiar circumstances of a case and the extent to which the trial Court believes the victim. However, in such instances, the Court must exercise extreme caution as to weed out miscarriage of justice including instances where a victim is framed up for ulterior motives.

25. This court has, with care and caution, reviewed the evidence on record. The victim was taken to hospital where she was examined. The Clinical Officer,PW3, examined PW1. He found that PW1’s vaginal oryphynx and the hymen were torn and fresh. There was also a laceration on the labia and she was in great pain. PW3 concluded that PW1’s vagina had been penetrated by a male sexual organ.

26. Therefore, by considering the evidence of the victim, PW2 and PW3, the trial Court seems to have correctly settled the issue of penetration.

27. This Court, thus, finds no difficulty in affirming the position that penetration into PW1’s vagina was proved to the required standard.

Identity of the perpetrator: 28. The prosecution had to lastly positively identify the perpetrator of the offence. The prosecution relied on the testimonies of PW1 and PW2.

29. There is no difficulty in making a finding on this issue since the Appellant was caught red-handed by PW2 engaging in the sexual act with PW1. PW2 raised alarm and neighbours turned up and arrested the Appellant. The evidence of PW1 and PW2 seems to seal up the fact that the appellant was the perpetrator of the overt act.

30. On the allegation that there was violation of the appellant’s rights to be availed before court within 24 hours of arrest, this court notes that the issue was not raised with the trial Court at any time. Be that as it may, according to the charge sheet, the Appellant was arrested on July 4, 2019. That was on a Thursday. The time of arrest is not known. If it was past the official working hours of the Court, then there was no infringement of the appellant’s rights since Courts do not operate on weekends. Either way, such an allegation would ordinarily not render a trial otiose unless it can be demonstrated that the appellant was prejudiced. The appellant still has the option of pursuing the alleged derogation of his rights by way of a constitutional Petition.

31. Having ascertained the three ingredients and that the trial was not vitiated, this court finds that the appellant was properly convicted. The appeal on conviction, therefore, fails.

Sentence 32. The appellant was sentenced to life imprisonment. The trial court considered the mitigations.

33. The appellant submitted that the life imprisonment was unproportional and that it ought to be set-aside and that he be sentenced to the period already served.

34. The State opposed the submission and contended that the life imprisonment was upheld by the Court of Appeal as constitutional in Criminal Appeal No 104 of 2021 in Nairobi Onesmus Musyoki Muema v Republic. The decision was rendered on 4th August, 2023.

35. Earlier, on July 7, 2023, the Court of Appeal, differently constituted, in Manyeso v Republic [2023] KECA 827 (KLR) found the life imprisonment unconstitutional.

36. This Court has carefully considered the two decisions from the Court of Appeal. Whereas the matter calls for urgent resolution by the Supreme Court, this Court ought to carefully weigh the rival decisions. After consideration of the said decisions, this Court finds favour in the finding that life sentences are unconstitutional to the extent that they are indeterminate.

37. Unlike the decision in Manyeso v Republic, the latter one did not consider the issue in light of the various provisions of the Constitution, prevailing judicial pronouncements from the Supreme Court including Francis Karioko Muruatetu &another v Republic (Petition 15 & 16 of 2015; [2017] KESC 2 (KLR)) and comparative jurisprudence world-over.

38. Manyeso v Republic had a robust exposition of the relevant constitutional provisions coupled with appropriate legal reasoning which is in tandem with the transformative 2010 Constitution.

39. It is, hence, the finding of this court that life sentences are unconstitutional to the extent that they are indeterminate. This Court, therefore, upholds the Court of Appeal decision in Manyeso v Republic case (supra).

40. Having found as such, the life sentence imposed on the Appellant is hereby set-aside.

41. In considering an appropriate sentence this Court is guided by the statement in Manyeso v Republic case (supra) when the Court was considering the sentence. The Court stated as follows: -27. …… We are also alive to the fact that he [the Appellant] was convicted for defiling a child of 4 years and of the likely ramifications of his actions on the child’s future. We are therefore of the view that while the Appellant should be given the opportunity for rehabilitation, he also merits a deterrent sentence. We, therefore in the circumstances, uphold the Appellant’s conviction of defilement, but partially allow his appeal on sentence. We accordingly set aside the sentence of life imprisonment imposed on the appellant and substitute therefore a sentence of 40 years in prison to run from the date of his conviction.

42. Given the age of the victim in this case, which was 5 years old, and in consideration of the mitigations, this Court finds that a stiffer penalty is called upon as a deterrent measure.

Disposition: 43. Drawing from the above discussion, it is apparent that the appeal fails on the conviction, but succeeds on sentence.

44. In the end, the following orders do hereby issue: -a.The appeal against the conviction fails and is hereby dismissed.b.The appeal against the life imprisonment succeeds. The life imprisonment imposed upon the appellant is hereby set-aside.c.The appellant is now sentenced to serve 40 years in prison. The sentence shall start running from July 8, 2019 when the appellant was first charged.d.The file is marked as closed.

It is so ordered.

DELIVERED, DATED and SIGNED at KITALE this 14th day of December, 2023. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of: -Protus Mbarala Waluse,the Appellant in person.Miss Kiptoo, Learned Prosecution Counselinstructed by the Office of the Director of Public Prosecutions for theRespondent.Chemosop/Duke– Court Assistants.