[2023] KEHC 24055 (KLR)

Wawira v Republic (Criminal Appeal 47 of 2019) [2023] KEHC 24055 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24055 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Appeal 47 of 2019

FN Muchemi, J

October 24, 2023

Between

David Munene Wawira

Appellant

and

Republic

Respondent

(Being an Appeal against the judgment of the Resident Magistrate Gichugu Honourable G. K. Odhiambo, in Criminal Case (S.O) No. 5 of 2019 delivered on 6th September 2019)

Judgment

Brief Facts 1. The appellant lodged this appeal against the entire judgment of the Resident Magistrate Gichugu where he was charged and convicted of the offence of defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offences Act No. 3 of 2006 and sentenced to life imprisonment.

2. Being aggrieved by the entire judgment the appellant lodged the instant appeal citing 5 grounds summarised as follows:-a.The learned trial magistrate erred in law and in passing the judgment convicting the appellant whereas the prosecution had not proved its case by discharging the required burden of proof;b.The learned trial magistrate erred in law and in fact by convicting the appellant on a defective charge.

3. Parties disposed of the appeal by written submissions.

The Appellant’s Submissions 4. The appellant relies on Section 124 of the Evidence Act and the cases of John Maina Mariga vs Republic [2018] eKLR and Samuel Warui Karimi vs Republic [2016] eKLR and submits that the trial court did not conduct a proper voir dire examination of the minor. The appellant further submits that the trial court failed to take into account that the child did not fully understand what an oath was and went ahead and allowed the minor to give sworn evidence. The appellant argues that the trial court while making that determination, failed to record the questions posed to the minor as part of the examination. The appellant further argues that the minor lied about her injuries and gave inconsistent evidence about the clothes worn by him and when she saw him again. The appellant thus argues that by the minor not being able to give sworn evidence he was prejudiced since he could not cross examine her as he would have cross examined an adult who understands what an oath is.

5. The appellant further submits that the prosecution did not prove the element of identification as the minor did not give the name of the person who defiled her and the fact that the parents had already formed a perception of who committed the offence prejudiced him. The appellant argues that the identification evidence by the minor had inconsistencies which is evident because she was given the idea by her mother that it was him who committed the offence. The appellant contends that the finding by the trial court that the child was traumatized by him does not hold water because the same happened when she met the prosecutor.

6. The appellant relies on the cases of John Mutua Musyoki vs Republic (2017) eKLR and Philip Nzaka Watu vs Republic [2016] eKLR and submits that the prosecution’s case was riddled with material contradictions, discrepancies and inconsistencies that go to the root of the case, particularly his identification as the perpetrator. He further relies on the case of Mohamed Swale Kaeze Criminal Appeal No. 445 of 2003 and states that the minor was not a credible witness.

7. The appellant argues that the prosecution case is based on a defective charge as the charge is not specific as to when the offence occurred. Additionally, the minor does not state when the incident occurred or whether it occurred on diverse dates thus the prosecution drafted speculative charges that were defective in nature.

8. The appellant relies on the case of Bater vs Bater 1950 ALL ER 458 & 459 and submits that the prosecution did not prove its case beyond reasonable doubt. He further argues that there was no direct, cogent, convincing and compelling evidence to warrant the trial court to convict him.

The Respondent’s Submissions 9. The respondent submits that the prosecution proved its case beyond reasonable doubt. The respondent submits that the prosecution proved the age of the minor as PW7, Corporal Brian Wambugu produced the minor’s birth certificate which indicated that the minor was seven (7) years old at the time the offence occurred.

10. On the element of penetration, PW5 the clinical officer produced treatment notes, P3 Form, PRC Form and lab notes and testified that there were injuries on the external genitalia of the minor and the hymen was freshly broken which indicated that there was penile penetration. Further PW6, the complainant identified the appellant as the perpetrator who she knew very well and identified him at the dock. PW6 testified that the appellant, who she referred to him as Munene, went to the buying centre and held her hand. She further testified that he led her to the road towards Kavote and took her to the coffee plantation where he removed his trouser and removed her clothes before doing what she described as tabia mbaya on her. The witness testified that the appellant closed her mouth using his hands as he defiled her and that he threatened to kill her if she told anyone about the incident. The minor further testified that she knew the perpetrator’s home in Kura Tarasila where he cultivated land and she further stated that she never saw him again after the incident and only got to see him in court on 30th April 2019. The respondent submits that the minor’s evidence was unshaken even during cross examination as she maintained that the appellant had defiled her.

11. The respondent further submits that the appellant was convicted on cogent and unwavering evidence of the prosecution witnesses more particularly the complainant, PW6. The respondent further submits that the prosecution evidence was water tight and did not have any inconsistencies and contradictions as alleged by the appellant. Furthermore, the respondent argues that the trial court had the opportunity to listen to the evidence of the minor and it was apparent that she understood what penetration meant. Additionally, in her description of the actual act, the minor was clear of what the appellant did to her.

12. The respondent submits that all the crucial witnesses testified and the onus is on the appellant to demonstrate and state which crucial witnesses never testified and how the same would have tilted the outcome or how he was offended by the said witnesses not testifying.

Issues for determination 13. The appellant has cited 5 grounds of appeal which can be compressed into two main issues:-a.Whether the charge was defective;b.Whether the prosecution proved its case beyond any reasonable doubt;

The Law 14. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.

15. Similarly in the case of Okeno vs Republic [1972] EA 32 where the Court of Appeal set out the duties of the 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 vs Republic (1957) EA 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958]EA 424. ” This was also set out in the case of Kiilu & Another vs Republic [2005] KLR 174.

16. In order to establish whether the prosecution proved its case beyond a reasonable doubt I shall address the following issues as raised by the appellant:a.Whether the charge was defective;b.Whether there was conclusive evidence of all the ingredients of defilement;c.Whether the prosecution case was filled with material contradictions and inconsistencies;d.Whether the trial court conducted a proper voir dire examination on the complainant.

Whether the charge was defective. 17. The appellant argues that the charge was defective as the charge did not specify the exact date that the offence occurred.

18. Section 134 of the Criminal Procedure Code provides:-“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

19. The charge reads:- “On diverse dates between 1st February 2019 and 25th February 2019……”. The other particulars of the charge have not been challenged save the date. Relying on the case of Elijah Gichangi vs Republic [2017] eKLR, the court held that the mere failure to state the specific date does not render the charge defective. What will make or break the prosecution’s case is the evidence adduced for proof of the time or date of the alleged offence. In the instant case, the wording of the charge sufficiently communicated the nature of the particulars of the offence It provided particulars necessary for the appellant to comprehend the charge that he faced. The court explained the particulars of the charge to the appellant during the plea in the language he said he understood. The failure to give the specific date of the offence did not occasion any miscarriage of justice to the appellant or violate his right to a fair trial. Furthermore, the defect if any was minor and is curable under Section 382 of the Criminal Procedure Code

Did the Prosecution discharge the burden of proof 20. The evidence on record, PW1-PW4, close relatives of the complainant came to learn of the sexual assault on 26/2/2019 after the incident. PW1 told the clinical officer that she was assaulted on 25/2/2019. PW5 testified that the hymen was freshly broken which confirms 25/2/2019 as the date of the assault.

21. Relying on the case of Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013 where it was stated that:- “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

22. On the age of the victim, the court of Appeal in Edwin Nyambogo Onsongo vs Republic (2016) eKLR, the court stated as follows in respect of proving the age of the victim in cases of defilement:“….the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.

23. PW3, the mother of the complainant testified that the minor was born on 27/12/2011 and that she was seven (7) years old at the time the offence occurred. PW7, the investigating officer testified that the child was seven (7) years old and produced her birth certificate which indicated that the minor was born on 27/12/201. This confirms that the minor was 7 years and 2 months at the time of the commission of the offence. The birth certificate and the court record confirm that the prosecution proved the age of the minor.

24. Section 2(1) of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

25. On the element of penetration, PW6 testified that she was at the buying centre on the material day looking for her mother when the appellant came and held her hand. The minor testified further that the appellant led her towards the road leading to Kavote and took her to a coffee plantation. He then removed his trouser and the victim’s school uniform before he lay her on the ground and did “tabia mbaya” on her. The minor further testified that she was crying but the appellant was closing her mouth using his hands. He then threatened to kill her if she told anybody and that he threatened her with death if she told anyone what had transpired on that day.

26. PW5, the clinical officer testified that he examined the minor and found that she had a swollen and reddened outer genitilia. He further testified that the hymen was freshly broken and there was blood oozing from the vagina orifice. He concluded that there were signs of penile penetration, injuries on the external genitilia and the hymen was freshly broken which was bleeding. PW5 produced the outpatient treatment card from Kerugoya Hospital, Post Care Rape Form and the P3 Form as exhibits.

27. The evidence of PW6 was corroborated by the medical evidence of PW5 as far as penetration is concerned. In my view, based on the analysis of the evidence is that there is ample evidence to prove penetration.

28. On the issue of identification, PW2 and PW3 testified that the minor refused to tell them who had defiled her because she was afraid as he had threatened her. On further prodding by PW1 the minor told her that the person who defiled her often passed by her home. PW1 said the appellant wore sandals often and a trouser that looked like the complainant’s mum’s skirt.

29. PW4, the father of the complainant, testified that the minor described to him that she was defiled and that the perpetrator wore sandals of rubber type, open shoes made of plastic and that he always used the route close to their home. The witness further testified that on 2/3/2019 when PW6 was being given medicine by PW3, she saw someone passing by the road, stood up and ran into the house. When they inquired as to what had happened, PW6 told them that the person who had passed by had defiled her. The witness saw the person and identified him as Munene and further testified that the appellant was walking while looking behind like he was afraid. The record identifies the accused by his full names David Munene Wachira. In my considered view, the minor identified the appellant positively for she knew him although not by name. PW6 also identified the appellant after PW1 described him to PW6.

30. The appellant argues that the minor gave contradictory statements as to his identification as the perpetrator. Relying on the case in the Court of Appeal Tanzania of Dickson Elia Nsamba Shapwata & Another vs The Republic Cr App. No. 92 of 2007, addressed the issue of discrepancies in evidence and concluded as follows:-“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”

31. The appellant further argued that the trial court did not conduct a proper voire dire examination on the complainant. On perusal of the court record, the trial magistrate in conducting the voire dire test noted that the minor had some understanding of the nature of an oath and that she understood the consequences of telling lies. The trial court thus directed that she give a sworn statement. The court was satisfied that the minor was telling the truth as she gave her comprehensive narration of events of the fateful day. On perusal of the court record, I do note that the minor gave a consistent and cogent testimony of the events of the material day. It is therefore my considered view that the trial court conducted a voir dire examination on the complainant which passes the test of law.

Conclusion 32. I have done a careful analysis of the evidence and I am of the considered view that all the ingredients of the offence of defilement were established by the prosecution. The defence of the accused did not shake the case of the prosecution.

33. Consequently, I find that the conviction was based on sound and cogent evidence and it is hereby upheld.

34. In regard to sentence, the appellant was sentenced to life imprisonment which is provided by the law. recently the Court of Appeal Mombasa in the case of Manyeso vs Republic (Criminal Appeal No. 12 of 2021) [2023] KECA 827 (KLR), declared as unconstitutional the minimum sentence as provided by the Sexual Offences Act for the reason that such sentences take away the discretion of the court. The Court of Appeal was dealing with an appeal from the High Court where a minimum sentence under Section 8(2) of the Sexual Offences Ac had been upheld. The sentence of life imprisonment was set aside and substituted with one of forty (40) years imprisonment.

35. It is in order to give the appellant the benefits achieved in the emerging jurisprudence. The record shows that the appellant stayed in remand for only one and a half months before being released on bond. This is a negligible period and may not make sense in considering the application of Section 333 of the Criminal Procedure Code.

36. In effect, the sentence of life imprisonment imposed on the appellant herein is hereby set aside and substituted with twenty five (25) years imprisonment.

37. The appeal is only partly successful.

38. It is hereby so ordered.

DATED AND SIGNED AT KERUGOYA THIS 24TH DAY OF OCTOBER, 2023. F. MUCHEMIJUDGEJUDGEMENT DELIVERED THROUGH VIDEO LINK THIS 24TH DAY OF OCTOBER, 2023