[2023] KEHC 26623 (KLR)

Wanjala v Republic (Criminal Appeal 15 of 2019) [2023] KEHC 26623 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26623 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 15 of 2019

DR Kavedza, J

December 8, 2023

Between

Daniel Wekesa Wanjala

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence imposed by Hon. M. Kasera (S.P.M) on 22nd August 2017 in Sexual Offence No. 13 of 2015 Republic vs Daniel Wekesa Wanjala)

Judgment

1. The appellant was charged and convicted for the offence of defilement contrary to section 8 (1) as read with 8 (2) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve life imprisonment. Being dissatisfied with the conviction and sentence, he filed a petition of appeal raising 7 grounds. He also filed supplementary grounds of appeal together with written submissions.

2. The main grounds raised are as follows: in grounds 1, 2, and 3 the appellant challenged the totality of the prosecution’s evidence as insufficient to warrant a conviction. In ground 4 the appellant argued that his defense was rejected with no cogent reasons in contravention of section 169 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya. In ground 5, the appellant contended that the trial court failed to give points of determination and reasons for reaching the decision in contravention of Article 169 (1) of the Criminal Procedure Code (Cap 75) Laws of Kenya. In ground 6 and 7 the appellant challenged the sentence as being in contravention of section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya and in contravention of the sentencing policy.

3. In response to the appeal, the respondent filed Respondent’s Submissions dated 31st May 2022. The grounds raised are that the appeal lacks merit, is misconceived, and is unsubstantiated. The appeal is an abuse of the court process. The appellant has not demonstrated special or unusual circumstances to warrant this appeal be upheld.

4. As this is the Appellant’s first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno vs. Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oruri Mose vs. R [2013] e-KLR that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.

5. PW1 NM, the complainant’s mother stated that she works as a casual laborer and she therefore left for work on 2/3/2015 and returned at 5. 30pm only to find her daughter looking sickly. The complainant later told her that the neighbor had defiled her. PW1 then asked the appellant about the issue but he denied. She proceeded and took the minor to hospital.

6. PK (name withheld) (PW 2) testified that she resides in [Particulars Withheld] Isinya. On 2/3/2015 she was left behind with her younger brother who later went to the appellant’s house. She in turn decided to go and pick her. The appellant then put her on his bed and undressed her then undressed himself, he then inserted his penis inside her vagina. She tried to scream but the appellant covered her mouth with his hand, she then started moving trying to flee herself and that is when the appellant let go of her. She then dressed and left for home. She later told her mother in the evening about the incident and she was taken to the police station then to the hospital for examination.

7. (PW3) KGO the father to the complainant stated that he left home for work and returned at 1pm where he prepared lunch and they ate. He later left at 5pm and at around 7pm he received a call from his wife informing him that their daughter had been defiled. He came back home and they later went to the hospital.

8. (PW4) Stephen Lekaiyu a medical officer attached to Isinya Health Centre stated that he examined the complainant aged 10years and upon examination noted that the vulva was swollen on the left side, there were no signs of lacerations and there was a white discharge. The general state of the minor was stable.

9. (PW5) NO 88875 Corporal Grace Munga attached to Isinya Police Station stated that he accompanied the minor to the hospital after the matter had been assigned to him. He then charged the appellant of the offence.

10. After the close of the prosecution’s case, the trial court found that the appellant had a case to answer and he was put on his defence. In his defence he gave unsworn evidence and he did not call any witnesses. He denied ever defiling or threatening the complainant. He admitted that indeed on 2/3 2015, the landlady gave him some work to do and he did not go to work, the lady later said that he defiled her daughter yet he did not.

Analysis and determination. 11. In grounds 1, 2, and 3 of the appeal, the appellant argued that the trial Magistrate failed to consider that the prosecution’s evidence as a whole was not sufficient to warrant a conviction on the ingredients of the crime he is convicted of. He submitted that the trial court did not allow him to vigorously participate in the trial. That he was not given an opportunity to cross-examine the case and that he was not represented by an advocate as expected.

12. From the evidence on record the appellant was given ample time to follow the proceedings as well as the opportunity to cross-examine all the witness. When put on his defence he denied the charges levelled against him and did not raise any issues regarding to the proceedings. The grounds therefore fails.

13. The appellant further submitted that the medical evidence presented did not indicate whether the hymen was missing or intact which was not sufficient to prove penetration.

14. From the evidence on record, the complainant narrated how the appellant sexually assaulted her while her mother was away. The medical officer upon examining the minor noted that the vulva was swollen but there were no lacerations, the hymen was broken and old looking. She had however taken a bath before going for the test. It is evident that penetration had taken place and this ground therefore fails.

15. On the age of the minor, the trial court relied on the evidence of the minor who stated that she was 9 years old. The P3 form also indicated that the minor was 9 years old. The trial court did not however note down the demeanor of the child. Relying on the P3 form and the testimony of the minor I affirm that the age of the minor was proved beyond reasonable doubt.

16. Regarding the identity of the perpetrator, the complainant knew the appellant since they were neighbors, hence had known him for some time. The identification was therefore by recognition. From the evidence, the complainant was very clear on the events that took place and the identity of the perpetrator.

17. The appellant challenged the manner in which the trial was conducted stating that he was not accorded a right to a fair trial contrary to Article 50 (1) and (2) of the Constitution of Kenya. The appellant did not submit on this ground. As such, the ground fails.

18. The upshot is that the conviction is safe and upheld.

19. The appellant also argued that the trial magistrate imposed an excessive sentence. It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle.

20. Although sentences are intended, inter alia, to punish an offender for his wrongdoing, they also aim to rehabilitate offenders to renounce their criminal tendencies and become law-abiding citizens. I have no doubt that the sentence imposed by the trial court, in this case, was lawful but considering that the appellant was a first offender, I am satisfied that the sentence was harsh and manifestly excessive.

21. For the above reason, I hereby set aside the sentence of life imprisonment imposed by the trial court and substitute it with a sentence of fifteen (15) years imprisonment. The sentence shall take effect from the date of the appellant’s conviction.Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER, 2023D.KAVEDZAJUDGEIn the presence of: