[2022] KEHC 446 (KLR)

Wekesa v Republic (Criminal Appeal 30 of 2020) [2022] KEHC 446 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 446 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal 30 of 2020

JM Bwonwong'a, J

May 6, 2022

Between

Stanley Wekesa

Appellant

and

Republic

Respondent

(Being an appeal from the judgement (conviction and sentence) of Hon. J King’ori, dated 4th July, 2018 in the Chief Magistrate’s Court at Bungoma in Criminal Case S.0. No. 2035 of 2011 Republic v Stanley Wekesa)

Judgment

1. The appellant has appealed against his conviction and sentence of fifteen years (15) imprisonment in respect of the offence of defilement contrary to section 8 (1) (4) of the Sexual Offences Act No. 3 of 2006

2. In this court the appellant has raised six (6) grounds of appeal in his petition of appeal and two (2) supplementary grounds in his supplementary grounds of appeal.

3. In ground 1 the appellant has faulted the trial court for failing to observe that the prosecution’s case was full of contradictions hence unsafe to base a conviction. In ground 2 the appellant faulted the trial court for failing to observe that no medical evidence linked him to the offence. Ground 3 is to the effect that the prosecution conducted a shoddy investigation. In ground 4 the appellant has faulted the trial court for failing to consider that the there was no nexus between the first report and the alleged offence. In ground 5 the appellant faults the trial court for dismissing his defence and in ground 6, the appellant urges the court to provide him with trial court record.

4. In the supplementary grounds the appellant has stated that the minimum mandatory sentence is unconstitutional and that the trial court erred in law and fact by not invoking section 11(2) and 8(5) of the Sexual Offences Act.

5. The respondent has supported the conviction and sentence. This is a first appeal. Being a first appeal court I am required to re-evaluate the entire evidence and make my own independent findings while bearing in mind that I did not see and hear the witnesses testify.

6. In ground 1 the appellant has faulted the trial court for failing to observe that the prosecution’s case was full of contradictions.

7. From the record, the prosecution called a total of 8 witnesses in support of their case. The evidence of the complainant (name withheld) (PW1), was that she was aged 17 years old, having been born on 10th August 1994. She was a pupil at [Particulars Withheld] Primary School. In the trial court she identified her birth certificate which was produced as prosecution exhibit 1. She further testified that the appellant was her boyfriend having been in a relationship with him for 3 months. She testified that on 9th October 2011 at around 8 a.m. she went home after spending the night at the appellant’s house. She further testified that her mother was angry and chased her. She then returned to the appellant’s house. She further testified that she had been having sex with the appellant from March, 2011 and by this time she was three months pregnant.

8. PW 1 also testified that on 12th October 2011, the assistant chief went to the appellant’s house where they were arrested and taken to the AP Camp. From there, they were taken to Nzoia Police station where she was issued with a P3 form and later referred to Bungoma District Hospital for medical examination. It was her evidence that she gave birth to the appellant’s child on 28th May, 2012.

9. The complainant was examined by Dr. Kakisa Mwamu (Pw 6) at Bungoma District Hospital. Upon examination he made the following findings. The complainant was 17 years old and was 16 weeks pregnant. Her hymen was missing. Urinalysis was negative. VDLR was negative. STDs test was negative. Pw 7 concluded that she had penetrative sex and was pregnant. Pw 7 then produced the P3 form as exhibit 2.

10. In addition to the foregoing witnesses, the prosecution called CNS (Pw 2), who is the mother of the complainant. She identified the birth certificate of her daughter which was later produced as exhibit 1. She testified that on 9th October 2011 Pw 1 came home in the morning after spending the night away from home. She also testified that she told Pw 1 to return where she came from assuming she had spent the night at her father’s place. She continued to testify that around 4 pm, she confirmed that Pw 1 had not arrived at her father’s place. As a result, she tried to look for her without success. She gave evidence that on 11th October 2011 she received information about a girl who had been living with a boy at [Particulars Withheld]. That subsequently, the two were arrested on 12th October 2011 and she confirmed that it was her daughter and the appellant who had been arrested. That she informed Pw 1’s father who came and escorted them to Nzoia Police station and later on to hospital.

11. FNM (Pw 3) testified that he was a village elder and the appellant’s grandfather. Pw 3 testified that on 11th October 2011 he received information that the appellant had taken a school girl as his wife. Pw 3 reported the matter to the assistant chief who organized a raid which led to the arrest of the appellant.

12. Washington Wafula Maafu (Pw 4), was the Assistant Chief Chekulo of sub location. Pw 4 testified that on 11th October 2011 he received information from Pw 3 that the appellant was living with the girl who was suspected to be a pupil. Pw 4 organized village elders and on 12th October, 2011 proceeded to arrest the appellant and Pw 1.

13. APC Lilian Manyonge (Pw 5) testified that on 12th October while at Bukembe AP post, she received Pw 2, Pw 3 and Pw 4 who informed her that they had arrested the complainant who was a minor and the appellant. Pw 5 the OCS Nzoia Police station sent an officer who took the complainant for medical examination. The appellant was taken to Nzoia Police Station.

14. No. 38464 PC Douglas Nyongesa (Pw 8) testified that he was the investigating officer stationed at Nzoia Police Station. Pw 8 testified that on 12th October 2011 at around 10 am he received a report from Bukembe AP Post about an alleged case of defilement. He proceeded there in the company of his two colleagues to the camp where he found the appellant and the complainant. He testified that he consequently issued a P3 form to the complainant and referred her to Bungoma District Hospital for examination. That her age was also confirmed by the birth certificate as 16 years at the time the alleged offence was committed. Pw 8 testified that the P3 report concluded that she had been defiled by the appellant who had been having sex with her and had made her pregnant. Consequently, he proceeded to record statements and charged the appellant with the offence of de filement.

15. Upon being placed on his defence, the appellant (Dw 1) testified on oath and denied the charge. Dw 1 testified as follows. He is a boda boda operator who dropped Pw 3 at the office of the assistant chief of Chekulo sub-location. That upon arrival at the chief’s office he was arrested and accused of the crime of defilement. He testified that the police were called and he was escorted to Nzoia Police station and on 13th October 2011 he was charged with the offence of defilement. He denied knowing the complainant, impregnating her or siring a child with her.

16. The respondent through Ms. Nyakibia M. Mburu prosecution counsel submitted that the evidence of the complainant was clear that she had been having sex with the appellant and was 16 weeks pregnant. She further that her evidence was corroborated and by Pw 3, Pw 5 and Pw 6, who organized a raid and found the complainant in the appellant’s house where the two were arrested. She further submitted that the evidence of Pw 6 confirmed that the complainant had sexual intercourse and was pregnant.

17. On the age of the complainant, it was submitted that birth certificate produced indicated she was born on 10th August, 1994 and the offences in issue took place between 9th October 2011 and 12th October, 2011. She also submitted that the complainant was therefore 17 years while the assessment placed her at the approximate age of 16. Prosecution counsel argued that the prosecution at the trial was able to prove all the elements of the offence of defilement.

18. I have re-assessed the entire evidence as a first appeal court. As a result, I find the prosecution evidence to be credible that the appellant had sexual intercourse with the complainant; whom he had taken and lived with her in his home. I further find as credible the medical evidence of Dr. Kakisa Mwamu (Pw 6) that the complainant had penetrative sexual intercourse which was evidenced by a missing hymen. I therefore find as credible that sexual penetration was proved by both the evidence of the complainant and the medical evidence of Pw 6. The evidence of the witnesses was clear and was not shaken on cross-examination. The contention of the appellant that prosecution’s case was full of contradictions is without basis and is hereby dismissed.

19. In ground 2 the appellant faulted the trial court for failing to observe that no medical evidence linked him to the offence. The prosecution submitted that this was not a mandatory requirement under the provisions of section 124 of theCriminal Procedure Code.

20. In law penetration can be proved by the evidence of the complainant alone as provided by section 124 of the Evidence Act which reads that:“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth”

21. The foregoing position was succinctly stated by the Court of Appeal (Makhandia, Ouko & M’inoti JJ.A.) in Williamson Sowa Mbwanga v Republic[2016] e-KLR Criminal Appeal 109 of 2014 where that court observed that:“The import of the proviso to section 124 of the Evidence Act is that the trial court can convict an accused facing a charge of defilement solely on the evidence of the victim, if for reasons to be recorded, the court is satisfied that the victim is telling the truth. Medical evidence is not mandatory under that proviso, a position which was reiterated thus by this court in George Kioji v Republic Cr App. No. 270 of 2012 (Nyeri): “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 record the reason for such belief”

22. The evidence of Pw 1 was supported by the medical evidence of Pw 6 as well as that of Pw 3 and Pw 4 who were present when the appellant was apprehended with Pw 1 in his house. I find that the appellant defiled the victim. This ground therefore fails and is hereby dismissed for lacking in merit.

23. In ground 3 the appellant claims that the prosecution conducted shoddy investigations. No submission was made in respect of this ground. I find that the ground fails and is dismissed.

24. In ground 4 the appellant has faulted the trial court for failing to consider that the there was no nexus between the first report and the alleged offence. The issue of the first report does not arise as the appellant and the complainant were both arrested in the house of the appellant. The ground therefore fails and is hereby dismissed.

25. In ground 5, the appellant has faulted the trial court for dismissing his defence which was cogent. The prosecution submitted that the appellant’s defence was a mere denial and did not shake the evidence adduced by the prosecution. In his defence, the appellant denied knowing the complainant or ever having sexual intercourse with her. In this regard, I find that the trial court disbelieved the evidence of the appellant because it was incredible. This was the justification for the rejection of the defence evidence. I therefore reject the appellant’s ground in that regard.

26. In ground 6 the appellant urged the court to grant him the trial court records. The ground is moot because the record of appeal had already been issued to the appellant at the time of filing the appeal.

27. In the supplementary grounds, that the trial court erred in law and fact by not invoking section 11(2) and 8(5) of the Sexual Offences Act.

28. Section 8(5) of the Sexual Offences Act provides that: (5) It is a defence to a charge under this section if -(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)the accused reasonably believed that the child was over the age of eighteen years.

29. From the record, this defence was not raised at the trial before the subordinate court. The issue has only been raised by the appellant in his submissions. I find that this is afterthought. The argument fails and is dismissed.

30. The final supplementary ground raised was that the minimum mandatory sentence is unconstitutional. It trite law that sentencing is at the discretion of the trial court and an appellate court can only interfere with the sentence under very specific circumstances as was emphasized by the Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic [2018] e-KLR. Unless the sentence meted out by the trial court was manifestly excessive, outside the law or inappropriate in the circumstances, an appellate court will hesitate to interfere with the discretion of the trial court.

31. Section 8 (1) as read with 8 (4) of the Sexual Offences Act No. 3 of 2006 provides: “8. (1) 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 sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”

32. The learned trial magistrate, in consideration of the evidence at hand found that the prosecution had proven the case against the appellant beyond reasonable doubt. The appellant was thus sentenced to the minimum mandatory sentence of 15 years. This was a lawful sentence. The argument by the appellant on the mandatory nature of his sentence was no doubt premised on the Supreme Court decision in Francis Karioko Muruatetu & another v R [2017] e-KLR.

33. However, the Supreme Court later clarified the position in its decision in Francis Karioko Muruatetu & Another v R; Katiba Institute & 5 others (Amicus Curiae) [2021] e-KLR. In its clarification, the apex court made it clear that its judgment in the Muruatetu case was only in relation to the offence of murder. The relevant excerpt of the decision reads as follows:

34. ‘We therefore reiterate that, this Court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute’In the premises, the appeal fails and is dismissed in its entirety.

JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE THIS 6TH DAY OF MAY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantAppellant - present in personMs Ayiekha for the Respondent