[2022] KEHC 14680 (KLR)

Wanyonyi v Republic (Criminal Appeal E028 of 2021) [2022] KEHC 14680 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14680 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E028 of 2021

A. Ong’injo, J

October 19, 2022

Between

Lazarus Pepela Wanyonyi

Appellant

and

Republic

Respondent

(An appeal from the judgment of Hon. R.M. Amwayi, Senior Resident Magistrate, delivered on 29{{^th}} day of January 2021 in Mombasa Chief Magistrate Court Sexual Offence Case No. 46 of 2020)

Judgment

1. The appellant lazarus Pepela Wanyonyi was charged 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 were that Lazarus Pepela Wanyonyi on diverse dates between the month of March 2020 and April 13, 2020 within Mombasa County intentionally caused his penis to penetrate the vagina of SC a child aged 15 years. In the alternative the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act.

3. The trial magistrate considered the evidence of four prosecution witnesses as well as the appellants defence and found that the prosecution had proved the offence of defilement against all reasonable doubt against the appellant & he was convicted and sentenced to serve ten (10) year imprisonment.

4. The appellant was aggrieved by the conviction and sentence and he lodged the appeal herein as the following grounds:-i.That the learned trial magistrate erred in law & fact by convicting the appellant to serve 10 years imprisonment without considering that DNA test was not conducted.ii.That the learned trial magistrate erred in law & fact by convicting the appellant without considering that he was denied a right to a fair trial pursuant to article 50(2)(g) of the Constitution.iii.That the learned trial magistrate erred in law & fact by convicting the appellant without the considering that the sentence was harsh and excessive in the circumstances.iv.That the learned trial court erred in law & fact by convicting the appellant and sentencing him to serve 10 years without considering that the period spent in remand prior to conviction.v.That the learned trial magistrate erred in law & fact by convicting the appellant without considering his health status and his reasonable defence.

5. The appellant prayed that his appeal be allowed.

6. The prosecution’s case was that the complainant and the appellant met in a motor vehicle while travelling to Mombasa on February 28, 2020 and exchange contacts. That the complainant was going to stay with her aunt and work as a house-help. That when the complainant failed to cope with her employer.

7. She contacted the appellant who was living in Bangladesh and he was asked if he could marry her. The complainant took a vehicle to Bangladesh and met the appellant who was waiting for her and they went to his house. She said when she went to stay with appellant they had agreed to get married and they were living as husband and wife and they engaged in sexual intercourse. Complainant said they lived for about 3-4 weeks. She said whenever the accused went to work he could lock the door & leave her outside. She said they lived well but they disagreed because he used to leave her outside when going to work.

8. That she was invited by another girl and she could spend the day in their house until the appellant returned. She said sometimes the appellant could deny her access to the house and one time he alleged she had stolen his childrens items. That he then slapped her and she called her mother and reported what had happened. That when the appellant abused her she told another lady who took her to Shageo Offices and accused was arrested and taken to police station whereas she was taken to hospital where she was examined & treated before being taken to a children’s home.

9. The complainant identified MFI P3 birth immunization card. The appellant said he didn’t have any question in cross examination for the complainant.

10. PW 2 Kennedy Ouma Otieno an employee with Shapco Gender Department testified that on April 16, 2020 the complainant was taken to their offices by a neighbour who alleged there was a man who had married her in March & in April started assaulting her. That the man was summoned but he refused to attend.

11. That on April 18, 2020 they went to the suspects house led by the complainant and he was found and arrested and taken to Mikindani Police Station where the offence was reported. The aunt to the complainant was not traced but the parents who lived in Kericho told PW 2 that the complainant had travelled to her aunt. PW 2 said he took complainant for treatment at Port Reitz Hospital. He said the complainant to him she was 16 years and not 20 as alleged by the appellant.

12. PW 3 Dr Benjamin Kahindi produced P3 form filled by Dr Salim in respect to the complainants injuries – Ex P4. He also produced treatment notes from Port Reitz Hospital – ExP1. He also produced lab report and PRC form – ExP2. The appellant didn’t also cross examine the doctor. It is indicated he said he had no questions.

13. PW 4 CPL Peter Makawe investigated the offence of defilement and preferred charge against the appellant. The investigating officer produced clinic card for the complainant – Ex P3. When placed on defence the appellant gave unsworn statement and said that he met the complainant in a vehicle in Nairobi and requested for her cellphone which she gave him. That they then started communicating and that he asked for her age and she said she was 19 years old. That he asked if she was ready to get married to him and she agreed. He said he send her fare to Bangladesh and she went to where she stays and they started living as husband and wife.

14. That later while he was at work at night he learnt his wife was not at home. Ongoing home he found he was not there. That when the complainant returned they quarreled and she took him to police. This appeal was canvassed by way of written submissions.

15. The appellants submission were filed on May 19, 2022. He submitted that the complainants age was not proved in court and therefore he is serving an illegal sentence as age is at the core of offence of defilement. He said there was no age assessment or certificate or birth neither did the parents of the complainant attend to testify on her age. He referred to the authorities in Nakuru CRA no 69 of 2009Kenneth Kiplagat Rono vs Republic and HC at enable CRA no 187 of 2008 where it was held that for one to be convicted for defilement age of the complainant is essential. It was also submitted that the age in P3 form - 15 years was an imagined age as there was no assessment.

16. The appellant submitted that this court should find that conviction and sentence was wrongfully meted out & should be quashed and sentence set aside. The prosecution filed a 7 point grounds of opposition and relied on it.

Analysis and Determination 17. This being a 1st appeal the duties of this court as held in Okeno vs Republic [1972] EA 32 where it was held:-“An appellant on a 1st appeal is entitled to expect the evidence as a whole to be submitted to afresh and exhaustive examination and to the appellate court’s over decision on the evidence. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusions”.

18. Having re-examined the evidence on record, the judgement of the trial court, the grounds of appeal and the submissions by the appellant, this court has established and it is not in-dispute that the appellant and the complainant lived as husband and wife between March 2020 to April 13, 2020 and therefore engaged in consensual sexual intercourse.

19. The prosecution produced evidence that although the complainant engaged in consensual sexual intercourse she was a minor age 15 or 16 years by the time the offence was committed and therefore had no capacity to give consent for sexual intercourse.

20. The appellant in cross-examination of PW 1 put it to her that the complainant had told him she was 20 years and that is why he asked if she was ready to get married to him. He said the complainant went where he was living in Bangladesh and they started cohabiting as husband and wife. The complainant said that she differed with the appellant and that is when the appellants neighbours took her to PW 2’s offices and the matter was reported to police.

21. The issue for determination is whether the appellants defence under section 8(5) was considered by the trial court and whether it could exonerate him when the appellant and the complainant met, they were travelling in the same motor vehicle to Mombasa where the complainant was going to work as a househelp and/or according to PW 2 was going to visit the aunt.

22. In complainant’s own words she said when she was unable to cope with the employer she was called by the appellant who told her they get married. She took a vehicle and went to where the appellant lived. She had the mothers contact but she didn’t call to tell the mother she could not cope with the employer/aunt. She said they lived well until they disagreed because appellant used to lock her outside when going to work.

23. I do find that the appellant having met the complainant in a vehicle while going to work as a househelp and the complainant didn’t deny that she told him she was 19 or 20 years old those circumstances were not such that the appellant would have suspected that she was a minor or that she deceived him about her age.

24. I have gone through the proceedings in the lower court and noticed that the appellant barely cross examined the prosecution witnesses and may not have been accorded fair trial as is alleged in his grounds of appeal.

25. In consideration of the circumstances under which the appellant and the complainant met ie when complainant was going to work as a house-help and considering the complainant allegedly told him she was 20 years, this court finds that the defence he raised is reasonable and the trial court ought to have resolved the benefit of doubt in his favour. The appeal is therefore allowed. The appellant to be released forthwith unless lawfully detained.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 19TH DAY OF OCTOBER 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:-Ogwel – Court assistantMr. Ngiri for RespondentAppellant – present in person from Voi CourtHON. LADY JUSTICE A. ONG’INJOJUDGE