[2018] KECA 550 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: E. M. GITHINJI, HANNAH OKWENGU & J. MOHAMMED, JJ.A)

CRIMINAL APPEAL NO. 84 OF 2015

BETWEEN

YARA YERINGOLE.......................................APPELLANT

AND

REPUBLIC...................................................RESPONDENT

(An Appeal from a Judgment of the High Court at Kitale (Hon. J.R. Karanja, J) dated 13th November, 2013in Criminal Appeal No. 29 Of 2011)

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JUDGMENT OF THE COURT

Introduction

[1] This is a second appeal by Yara Yeringole (the appellant)following the dismissal of his appeal by the High Court against his conviction and sentence by the Principal Magistrate’s Court at Kapenguria, for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006, Laws of Kenya.

[2] The particulars of the charge against the appellant were that on 29th May, 2010 at [particulars withheld]Village in West Pokot District within Rift Valley Province he caused his penis to penetrate the vagina of SC (name withheld) a child aged 9 years. The appellant was convicted and sentenced to serve life imprisonment by the trial court.

[3] From the record, the complainant who was the victim of the alleged defilement was alleged to be nine years at the time of the commission of the offence and was the victim of the alleged defilement. The circumstances of the offence were that on the material date at about 11 am, the complainant together with her friend one I were herding cattle in the field at [particulars withheld] area. The appellant asked the complainant to go to where he was, to collect firewood. When she went near him, the appellant accosted her, pushed her to the ground, tore her underpants and defiled her. The appellant had chased I away and the complainant was alone with the appellant when he accosted and defiled her. The appellant gave the complainant Kshs. 20/= and ordered her not to tell anyone what he had done to her. He threatened to kill her if she told her parents. The complainant nonetheless reported the incident to her mother who took her to Kapenguria District Hospital where she was examined. The complainant was examined by a clinical officer, one Danson Litole who filled a P3 form which confirmed that the complainant’s hymen was broken and that she had a white discharge.

[4] In his judgment, the trial magistrate found that the evidence was sufficient to prove that the appellant committed the offence of defilement as charged. Aggrieved by that decision, the appellant filed a first appeal to the High Court and challenged the trial court’s decision on the grounds that he was convicted on the basis of evidence which was insufficient and contradictory, and that the learned trial court disregarded his evidence.

[5] During the hearing of the first appeal in the High Court, the appellant was unrepresented and filed written submissions. The learned Judge noted that the appellant’s conviction was essentially based on the credibility of the complainant’s evidence, found no basis of interfering with the trial court’s findings. In dismissing the appeal the learned Judge stated as follows:-

“Suffice to say that the conviction of the appellant by the Learned Trial Magistrate was essentially based on the credibility of the complainant’s evidence and in that regard, this Court does not see any reason to interfere with the finding of the trial court that the appellant was identified as the person who defiled the complainant. Invariably, this Court must also arrive at the same conclusion.”

[6]Aggrieved by that decision, the appellant filed this second appeal and filed written submissions, a Memorandum of Appeal and Supplementary Memorandum of Appeal.

The appellant’s grounds of appeal can be summarized as follows:-

a. The age of the complainant (PW1) was not proved.

b. The charge sheet was defective.

c. The appellant’s defence was not considered.

Submissions

[7] During the hearing of the appeal, the appellant who was unrepresented, relied on his written submissions and urged the court to allow his appeal against conviction and sentence. Ms Brenda Oduor, the Principal Prosecution Counsel, (PPC) appeared for the respondent and made oral arguments opposing the appeal. Counsel submitted that the prosecution called six witnesses whose evidence was consistent, credible and well corroborated; that the six witnesses were able to place the appellant at the scene of the crime; and that the appellant was positively linked to the offence.

[8] Counsel further submitted that all the ingredients of the offence of defilement were established; that an age assessment report was adduced in evidence which confirmed that the complainant was nine years at the time of the offence; that the complainant gave a credible narration of how she was defiled; that this was corroborated by the doctor in the P3 form which clearly indicated that complainant’s hymen was broken and that there was discharge in her genitalia; that the evidence of the complainant was corroborated by her mother who upon examining the complainant noted that her genitalia had injuries which prompted her to take the complainant for medical attention.

[9] It was counsel’s further submission that identification of the appellant was proved beyond reasonable doubt as it was identification by recognition the appellant not being a stranger to the complainant; that the complainant testified that the appellant was a herdsman who worked for the Chief which fact the appellant confirmed to the court; that the complainant’s parents knew the appellant as a herdsman who worked in the area; that the trial court noted the demeanor of the complainant who broke down when threats were mentioned.

[10] Regarding the issue that the appellant’s defence was disregarded, counsel submitted that the defence was discredited as the evidence adduced against the appellant was overwhelming and water tight.

[11] On the issue of sentence, counsel submitted that the sentence was lawful and in accordance with the Sexual Offences Act. Counsel urged the Court to find that the appeal lacks merit and dismiss it in its entirety.

Determination

[12] We have carefully considered the record of appeal, the respective submissions, the authorities and the law. This being a second appeal, our mandate is provided under Section 361 of the Criminal Procedure Code. This Court has pronounced itself on this provision in a host of cases including Hamisi Mbela & Another -v- Republic –[2012] eKLR, in which the Court expressed itself as follows:-

"This being a second appeal, this Court is mandated under section 361 (1) of the Criminal Procedure Code to consider only issues of law. As was held in M'Riungu v Republic [1983] KLR 445, where a right of appeal is confined to questions of law, an appellate court has loyalty to accept the findings of fact of the lower courts and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law and it should not interfere with the decision of the trial or first appellate court unless it is apparent that on the evidence no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law. (Martin -v- Glyneed Distributors Ltd. t/a MBS Fastenings)".

[13] The appellant was charged under section 8(1)as read withsection 8(2) of the Sexual Offences Act No. 3 of 2006 which states as follows:-

8. “1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

2. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

[14] On the ground that the age of the complainant was not proved, the complainant testified that she was nine years old. The clinical officer, Danson Litole who examined the complainant and filled the P3 form also confirmed that the complainant was nine years old. Esther Menachi, a clinical officer who assessed the age of the complainant and produced the age assessment report dated 16th August, 2010, confirmed that the complainant was nine years old.

[15]In the case of Stephen Nguli Mulili v Republic [2014] eKLR,this Court faced with the issue of the age of minor who was a victim of a sexual offence rendered itself thus:-

“In the case ofKAINGU ELIAS KASOMO V R, MALINDI CR. NO. 504 OF 2014,the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence. However, as the Court clarified inTUMAINI MAASAI MWANYA V R, MSA CR.A. NO. 364 OF 2010, proof of age for purpose of establishing the offence of defilement which is committed when the victim is under the age of 18 years should not be confused with proof of age for purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age.”

[18]The learned Judge found that the age of the complainant was proved through evidence of the complainant who testified that she was nine years old. In addition, the evidence of Danson Litole (the clinical officer who filled the complainant’s P3 form and who was familiar with the complainant’s age assessment report) indicated that the complainant was born in 2001 and was therefore nine years old at the time the offence was committed. We therefore find that the learned Judge properly considered the evidence before him and arrived at the correct finding that the age of the complainant was established.

[19]It was the appellant’s contention that the charge sheet was defective as it did not include the words “intentionally and unlawfully”to describe the penetration. This ground of appeal has no merit because the words “intentionally and unlawfully” are not ingredients of the offence of defilement under section 8(1) of the Sexual Offences Act. Defilement itself is unlawful. Those words are only elements of a charge of rape and attempted rape under section 3(1) and section 4 of the Sexual Offences Act respectively.

[18]On the ground that the appellant’s defence was not considered, the appellant alleged that he did not see the complainant on the material day as she was in school; that he was looking after cattle belonging to one Bramwel. In support of his alibi and his innocence, he claimed that he had personal differences with one Mary, the complainant’s aunt hence his evidence that he was framed up. Both the trial court and the first appellate court rejected this defence.

[19]There were concurrent findings of the two courts below that the appellant defiled the complainant. We find no reason to interfere with the concurrent findings of fact. We are also satisfied that in light of the overwhelming evidence against the appellant that we have already adverted to, his defence that he did not commit the offence was properly rejected by the two courts below. His conviction was therefore sound.

[20]As regards the sentence, section 379(1) (b) of the Criminal Procedure Code allows this Court to consider an appeal against sentence, where the sentence is one fixed by law. Pursuant to section 8(2) of the Sexual Offences Act where one is convicted of a defilement offence and the victim is aged eleven years or less, the penalty is fixed by law as imprisonment for life. This was the sentence that was imposed by the trial magistrate and upheld by the first appellate court.

[21]In the circumstances of this case and taking into account that the age of the complainant was nine years at the time the offence was committed, the mandatory sentence prescribed by section 8(2) of the Sexual Offences Act is life imprisonment. This Court has therefore no discretion to revise or reduce the sentence imposed upon the appellant. We therefore uphold the sentence of life imprisonment imposed upon the appellant.

[22] We are satisfied that the High Court carefully scrutinized the evidence and arrived at the right conclusion. The upshot is that the appeal is devoid of merit and is hereby dismissed.

Dated and Delivered at Eldoret this 31st day of May, 2018.

E. M. GITHINJI

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JUDGE OF APPEAL

HANNAH OKWENGU

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JUDGE OF APPEAL

J. MOHAMMED

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR