[2022] KEHC 12249 (KLR)

Wanja v Republic (Criminal Appeal E043 of 2021) [2022] KEHC 12249 (KLR) (29 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12249 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E043 of 2021

LM Njuguna, J

June 29, 2022

Between

Charles Nyaga Wanja

Appellant

and

Republic

Respondent

((An appeal against conviction and sentence by Hon. J.W Gichimu in Sexual Offences Case No. 01 of 2020 at Runyenjes Law Court and delivered on 22. 09. 2021).)

Judgment

1. The appellant herein was arraigned in court before the Senior Principal Magistrate’s court at Runyenjes in Sexual Offence No 1 of 2020 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.

2. The particulars of the offence were that on December 26, 2019 about 2100hrs in Embu East Sub County within Embu County, intentionally and unlawfully caused his penis to penetrate the vagina of CWW a girl aged 15 years.

3. He faced 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, the particulars being that; on December 26, 2019 about 2100hrs in Embu East Sub County within Embu County, intentionally touched the vagina of CWW a child aged 15 years with his penis.

4. The case proceeded with the prosecution calling five (5) witnesses and upon the close of the prosecution’s case, the appellant was put on his defence and he opted to give sworn statement in support of his case.

5. In a judgment delivered on September 22, 2021, the appellant was convicted and thereafter sentenced to 20 years imprisonment. Being dissatisfied with both the conviction and the sentence, he appealed to this court vide a petition of appeal filed in court on December 6, 2021 in which he raised five (5) grounds of appeal which can be summarised as: that the prosecution failed to discharge the burden of proof.

6. When the appeal came up for hearing, the court directed that the appeal be canvassed by way of written submissions.

7. The appellant submitted that the prosecution failed to prove its case against him beyond any reasonable doubt. It was his case that the burden of proof never shifted. The appellant relied on the cases ofDPP v Woolmington (1935) UKHL andKelly v Brooking (1979) 143 CLR 162; 25 ALR. That the evidence adduced by the prosecution was contradictory and ought not to have be relied upon to support a conviction. That the age of the complainant was never proven given that the complainant testified that she was born in the year 2001 while the mother testified that indeed the complainant was 15 years old. It was submitted that this is a major ingredient which would have guided the court on the nature of the punishment to mete out. Reliance was placed on the case of Hadson Ali Mwachongo v Republic [2016] EKLR. It was his case that there was contradiction in the evidence of the complainant and that of her mother, PW2. In his view, the complainant was above 18 years given that she testified that she was born in the year 2001. That given that the complainant was drunk, it could not have been possible for her to out rightly identify him as the one responsible given that there were two men, the appellant and the rider on the material day. In the end, this court was urged to allow the appeal, quash the conviction and set aside the sentence.

8. The respondent on the other hand submitted that the prosecution proved its case beyond any reasonable doubt and as such, the trial court’s determination was proper in the given circumstances. In response to ground two, it was submitted that the complainant testified that she was born in the year 2001 and further, PW2 being the complainant’s mother testified that the complainant was aged 15 years and produced a birth certificate corroborating the same. Reliance was made on the cases of Francis Omuromi v Uganda, Court of Appeal Criminal Appeal No 2 of 2000 and Faustine Mchanga v Republic [2012] eKLR.

9. In response to whether the prosecution evidence was contradictory and inconsistent, it was argued that the alleged inconsistencies and contradictions were never demonstrated by the appellant. That there was no slight indication that indeed the testimonies by the prosecution witnesses were contradictory and/or inconsistent. In the end, it was submitted that the appellant failed to demonstrate that his appeal has merits.

10. This being the first appellate court, I am guided by the principles enunciated in the case of Okeno v Republic ( 1972) EA 32 where the court of appeal set out the duty of the first appellate court as follows;An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R[1957] EA 3365) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.

11. I have considered and analyzed the evidence which was tendered at the trial court by both the appellant and the prosecution, the grounds of appeal and the written submissions by the parties herein and I find that the issue for determination is whether the prosecution proved its case beyond any reasonable doubt.

12. In reference to Section 107 (1) of the evidence act, the burden of proof rests on the prosecution to establish every element in a criminal charge beyond any reasonable doubt. [See Miller v Minister of Pensions 2 ALL ER 372 – 373].

13. The appellant herein was charged with the offence of defilement. Under Section 8(1) of the Sexual Offences Act;A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.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 20 years.

14. In the case of George Opondo Olunga v Republic [2016] eKLR, it was stated that the ingredients of an offence of defilement are;1. Identification or recognition of the offender2. Penetration3. Age of victim

15. For the offence of defilement to be proved, the prosecution must prove each of the above ingredients beyond reasonable doubt. [See the case of John Mutua Munyoki v Republic [2017] eKLR.

16. As to whether the prosecution proved its case beyond any reasonable doubt, Section 2 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. It is trite that the key evidence relied upon by the courts in rape and/ or defilement cases in order to prove penetration is the complainant’s own testimony which is usually corroborated by the medical report presented by the medical officer. In this case, the complainant testified that on her way from Kawanjara, she met the appellant who took her towards [particulars withheld] Bar in the guise of going to meet one N, a friend of the complainant. That upon reaching the bar, the appellant with the help of a boda boda rider forced her to drink some water which later on made her feel dizzy. That when she woke up, she was in the appellant’s house and was bleeding from the vagina and the appellant was beside her on the same bed. PW4, a clinician testified that when he examined the complainant she had a torn hymen with laceration on the vagina, there was tenderness on examination, the injury was recent and the healing process had just started. He thus formed the opinion that there was penetration.

17. In reference to the age of the complainant, the importance of proving age in a Sexual Offence case cannot be gainsaid. In the case of Kaingu Kasomo v Republic, Criminal Appeal No 504 of 2010, the Court of Appeal stated as follows:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”

18. In the present case, the appellant has contended that the age of the complainant was never determined given that the complainant and PW2 gave contradictory testimony. During the hearing, the complainant testified that she was born in the year 2001 while PW2, the mother of the complainant testified that the complainant was 15 years old and further produced a birth certificate in that reference. Upon perusing the court file, I have come across only one birth certificate contrary to the allegation by the appellant that two birth certificates were produced by both the complainant and PW2. The said birth certificate Serial Number 8085XXX belongs to the complainant herein, CWW. It shows that the complainant was born on September 6, 2004. It therefore means that the complainant was aged 15 years at the time of the commission of the alleged offence. Her age was therefore adequately proven.

19. In reference to the identification of the appellant as being the person who perpetrated the offence herein, it is trite that in any criminal offence, the positive identification of a person is what connects them to that offence. It is therefore extremely important that any evidence on identification must be thoroughly and carefully scrutinized to avoid any miscarriage of justice. In the case of Kariuki Njiru & 7 others v Republic, Criminal Appeal no 6 of 2001 (Unreported) the court held as follows:“Law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”

20. The appellant submitted that there was no proper identification given that the complainant testified that she was drunk on the material day and given that they were two of them as correctly stated by the complainant; that it was not proven beyond reasonable doubt that he was the one who perpetrated the offence herein.

21. It is well settled that recognition may be more reliable than identification of a stranger. However, caution must always be taken where a witness is purporting to recognize someone that they know since even in such cases, mistakes may sometimes be made. [ See R vs Turnbull & Others [1976] 3 ALL ER 549].

22. In this case, the complainant testified that after having been forced to drink the water that thereafter made her feel dizzy, the appellant rode the motorcycle to his house, where they went to bed. That when she woke up, she noted that she did not have her pants, was bleeding, and the lights were on. The appellant lay besides her in bed. Of importance to note is that the complainant testified that when she woke up, she found the appellant by her side, and that he had his clothes on. The question then would be, what business did the appellant (and not the rider) have in sharing a bed with the complainant herein during the said hours? It is my humble view that of course the appellant had sexual intercourse with the complainant and thereafter put on his clothes to negate his guilt.

23. The evidence of PW3 is also critical after the complainant knocked on her door, she went out and found her crying. The complainant requested her to take her to the police station after she narrated to her what had happened to her. The complainant told her that the suspect lived at his home at the opposite gate. She gave the complainant Kshs 50/= and escorted her to the road where she took a motor cycle. The complainant told her she could identify the suspect’s house. Later on, the complainant was able to identify the appellant’s house to the police. I find that the complainant was able to positively identify the appellant herein.

24. The appellant contended that the prosecution’s evidence was contradictory but equally, it is trite that not every contradiction warrants rejection of evidence. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. [See Jackson Mwanzia Musembi v Republic [2017] eKLR]. In reference to the case herein, having perused the record, I am unable to agree with the appellant that the evidence adduced by the prosecution was contradictory given that the same never affected the substance of the prosecution’s case.

25. The appellant also challenged the fact that the medical report never linked him to the offence herein. Of importance to note is that even if PW 4 testified that he never knew the perpetrator of the offence herein, it was his evidence that the complainant was penetrated. It is trite that the oral evidence of a single witness is indeed sufficient to warrant a conviction. InKassim Ali v Republic [2006] eKLR it was held;“… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

26. Similarly, in the case ofGeorge Kioji v R Nyeri Criminal Appeal No 270 of 2012 (unreported) that;“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”

27. Though the medical evidence did not connect him to the offence, it is material in that it confirms that the complainant was defiled. The evidence of the complainant and that of PW3 connects him with the offence.

28. The appellant herein having been charged under Section 8(3) of the Sexual Offences Act No 3 of 2006 which stipulates 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 not less than twenty years; and in this case, the learned trial magistrate imposed a sentence of 20 years imprisonment. Having perused the submissions by the appellant herein, I hereby note that the appellant has not submitted directly on the same but that notwithstanding, I note that given that he argued that the age of the complainant was never conclusively determined, the same would have direct impact on sentence. Nonetheless, be that as it may, I hold the view that the trial court did not act on any wrong principle, overlooked any material factor, or took into account some wrong material in meting out the sentence herein. [See Dismas Wafula Kilwake v Republic[2018] eKLR].

29. It is thus clear that the court exercised its discretion in sentencing and in doing so, meted the appropriate sentence and which is lawful. [See Benard Kimani Gacheru v Republic [2002] eKLR.]

30. In view of the foregoing, I find that the appeal herein lacks merit and I hereby dismiss it.

31. It is so ordered.

Delivered, dated and signed at Embu this 29th day of June, 2022. L. NJUGUNAJUDGE…………………………………for the Appellant………………………………for the Respondent