[2024] KEHC 3204 (KLR)

Wanyonyi v Republic (Criminal Appeal E036 of 2023) [2024] KEHC 3204 (KLR) (5 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3204 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E036 of 2023

AC Mrima, J

April 5, 2024

Between

Andrew Simiyu Wanyonyi

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. S. N. Makila (Principal Magistrate) in Kitale Chief Magistrate’s Court Criminal Case (S.O) No. E184 of 2022 delivered on 4th May, 2023)

Judgment

1. Andrew Simiyu Wanyonyi, the Appellant herein, was charged, tried and convicted of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on 19th August, 2021 at Trans Nzoia West Sub-County within Trans Nzoia County, the Appellant intentionally caused his penis to penetrate into the vagina of D.N., a child aged 7 years old.

2. The Appellant faced an alternative charge of 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 19th August, 2021 at Trans Nzoia West Sub-County within Trans Nzoia County, the Appellant intentionally touched the vagina of D.N., a child aged 7 years old with his penis

3. On conviction, the Appellant was sentenced to serve 20-years' imprisonment.

4. His appeal was centered on the contentions that the charge was not proved, that there were contradictions in the evidence, that the defence was not considered and that the charge was defective for omitting the word ‘unlawful’.

5. In the premises, therefore, the Appellant prayed that the appeal be allowed by quashing the conviction, the sentence be set aside and that he be forthwith set free.

6. Parties disposed of the appeal by way of written submissions. According to the Appellant’s undated submissions, the Appellant expounded on the above grounds and referred to several decisions in support of the arguments. For these reasons, the Appellant prayed that the appeal be allowed.

7. The Respondent on its part made brief oral submissions. It was submitted that all the ingredients of the offence that the Appellant had been convicted of were proved to the required standard of proof.

8. Learned Counsel for the State then submitted that the sentencing was proper. For these reasons, the prosecution urged this Court to dismiss the appeal, uphold the conviction and affirm the sentence.

9. 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 Okono 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.

10. Having carefully perused the record, this Court is now called upon to determine whether the offences of defilement and/or indecent assault were committed, and if so, whether by the Appellant.

11. The offence of defilement carries three ingredients which are the age of the victim, penetration and proof of the assailant.

12. Having carefully read the proceedings, exhibits and the impugned judgment, this Court finds that the trial Court handled the matter quite well. The ingredients of the offence of defilement were well captured and properly analyzed. All of them were found in favour of the prosecution.

13. This Court agrees with the rendition by the trial Court. The age of the victim was properly settled by way of a Certificate of Birth which was produced as an exhibit.

14. There was no challenge to the Certificate. The age was, hence, settled at slightly below 7 years old.

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

16. On whether there was penetration of the victim’s vagina, the evidence of the victim (testified as PW1), the mother of the victim (who testified as PW2) and that of the Clinical Officer (who testified as PW3), were a true testament of what befell the victim. There was obvious penetration of the victim’s vagina which was raptured and bled for a long time even during the examination by PW3.

17. PW2, as well, confirmed the destruction of the victim’s vagina and the victim could not even walk when she found her asleep and in pain. Her view of PW1’s vagina could be described as appalling.

18. There is no doubt that for the offence of defilement to be committed, there has to be penetration. 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.”

19. 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).

20. 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.

21. 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.

22. On the above guidance and without any shred of doubt, this Court is satisfied that there was penetration of the victim’s vagina by a penis.

23. As to whether the Appellant was the assailant, suffice to say that the prosecution relied on the sole evidence of the victim as the identifying witness.

24. By dint of the proviso to Section 124 of the Evidence Act, Cap. 80 of the Laws of Kenya, the sole evidence of PW1 is admissible without any corroboration as long as the Court is satisfied that the victim was truthful.

25. In R v Turnbull & Others (1973) 3 ALL ER 549, which decision has been generally accepted and greatly used in our judicial system, the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court stated thus: -... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

26. In Wamunga v Republic (1989) KLR 426 the Court of Appeal stated as under: -…. It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.

27. In Anil Phukan v. State of Assam (1993) AIR 1462 the Court held as follows: -A conviction can be based on the testimony of a single-eye witness and there is no rule of law or evidence which says to the contrary provided the sole eye witness passed the test of reliability in basing conviction on his testimony alone.

28. In the present case, PW1 testified that she knew the Appellant quite well as a neighbour. Likewise, the Appellant affirmed as much. Further, the incident took place during daytime and there was ample opportunity for PW1 to see who her attacker was.

29. The trial Court had an opportunity of assessing the demeanor of PW1 when she testified. No adverse findings or remarks were made in respect of the testimony or PW1’s conduct. The trial Court believed that PW1 was truthful.

30. There seems to be nothing which was put forth likely to make this Court depart from that finding. But what of the Appellant’s alibi defence? The issue did not arise during the prosecution’s case. It was only raised at the tail end of the proceedings. Be that as it may, PW1 placed the Appellant at the scene as the perpetrator.

31. The victim readily informed PW2 that it was the Appellant who had injured her private parts. That consistency was depicted when PW1 was interrogated by the investigating officer who testified as PW4.

32. There was also the aspect of the Appellant disappearing immediately after the offence was committed. He was at large for over one year. That act, on its own, further corroborates the evidence of PW2 and PW4 to the extent that the Appellant was at large on commission of the offence.

33. Looking at the evidence in totality, this Court finds that the defence did not dislodge the prosecution’s case. This Court finds no reason to depart from the finding of the trial Court that it was the Appellant and his friend who had an encounter with PW1. It is, therefore, the finding of this Court that the Appellant was properly identified as the intruder.

34. On the allegation that there were unreconciled contradictions, this Court did not come across any such meaningful ones. Therefore, that argument fails.

35. On the submission that the failure to insert the word ‘unlawful’ in the particulars of the charge of defilement rendered the charge defective, this Court is alive to the standard set by the Court of Appeal in Nyamai Musyoka v. Republic (2014) eKLR, where the Court expressed itself as follows: -The test for whether a charge sheet is fatally defective is a substantive one.......If a defective charge is followed by a series of other procedural or substantive mistakes and which in particular affect the rights of the accused person, or the defect goes into the root of the charge distorting it in a way that the accused person cannot understand the charge, then the Court ought to be reluctant to apply Section 382 C.P.C. to cure the defect... (emphasis added).

36. The above is not the case here. The Appellant understood the charges and took an active role in the hearing of the case. It is this Court’s finding that the plea of defectivity of the charge lacks any legal leg to stand on and is hereby rejected.

37. Having considered all the issues raised by the Appellant, there seems not to be anything that stands on the way that it was the Appellant who was the assailant, that he was properly tried, found guilty and duly convicted.

38. This Court hereby affirms the conviction.

Sentence: 39. The Appellant was sentenced to 20 years’ imprisonment.

40. It is imperative for parties to know that sentencing is a crucial part in the criminal process and the administration of justice and since sentencing Courts are called upon to exercise discretion, then parties are at liberty to even adduce evidence that may aid Courts reach most appropriate sentences (See the Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR).

41. In exercising its discretion, a sentencing Court is called upon to be guided by a raft of considerations. Such are discussed at length in the Sentencing Guidelines published on 29th April, 2016 vide Gazette Notice No. 2970 by the Hon. The Chief Justice of the Republic of Kenya who is also the Chairperson of the National Council on the Administration of Justice (NCAJ) and in case law including the Francis Karioko Muruatetu & another v Republic case (supra).

42. This Court is well abreast of the principles on sentencing and the 2016 Judiciary of Kenya Sentencing Policy Guidelines. As stated by the Supreme Court of Kenya in Francis Karioko Muruatetu & another case (supra), despite their importance, the guidelines do not replace judicial discretion. This is what the Apex Court stated: -(72)We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process.

43. The purpose of sentencing is expounded in page 15, paragraph 4. 1 of the Sentencing Policy Guidelines as follows: -Sentences are imposed to meet the following objectives:1. Retribution: To punish the offender for his/her criminal conduct in a just manner.2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.4. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demand that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.5. Community protection: To protect the community by incapacitating the offender.6. Denunciation: To communicate the community’s condemnation of the criminal conduct.

44. In sentencing, the Court considers various mitigating factors. Some include: -(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender;(h)any other factor that the Court considers relevant.

45. The Court in Wanjema v. Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.

46. In this matter, the Appellant did not establish the infringement of any of the above parameters by the sentencing Court. As a result, and considering the age of the victim and the injuries visited upon her by the Appellant, the appeal on sentence cannot stand.

Disposition: 47. Having said as much, the appeal is now determined as follows: -(a)The appeal is wholly dismissed.(b)This file is marked as closed.It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 5TH DAY OF APRIL, 2024. A. C. MRIMAJUDGEJudgment delivered virtually and in the presence of: -Andrew Simiyu Wanyonyi, the Appellant in person.Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Chemosop/Duke – Court Assistants.