REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL DIVISION CRIMINAL APPEAL NO. 66 OF 2004 (From Original Conviction and Sentence in Criminal Case No. 52 of 2003 of the Senior Resident Magistrate’s Court at Nakuru) – S. MUKETI (MRS) GEOFFREY GICHANA MUINDI………………APPELLANT VERSUS REPUBLIC ……………………………………RESPONDENT JUDGMENT The Appellant, Geoffrey Gichana Muindi, was charged with the offence of defilement of a girl contrary to Section 145(1) of the Penal Code. The particulars of the offence were that on the 14th of January 2003 at [particulars withheld] in Nakuru District the Appellant had unlawful carnal knowledge of M.A a girl under the age of fourteen years. After a full trial, the Appellant was convicted as charged and sentenced to fourteen (14) years imprisonment. He was aggrieved by the said conviction and sentence and has appealed to this Court. In his Petition of Appeal, the Appellant has raised several grounds faulting the decision of the trial Magistrate’s Court in convicting and sentencing him. The said grounds of Appeal are that; (i) The trial Magistrate erred in Law in convicting the Appellant contrary to the provisions of the Law. (ii) The trial Magistrate erred in Law in convicting the Appellant on insufficient evidence. (iii) The trial was flawed and against the principles laid down in the Children’s Act where the issue of age should have been considered. (iv) The trial Magistrate erred in Law in denying the Appellant the legal right to Counsel. (v) The trial Magistrate erred in Law in denying the Appellant an opportunity to mitigate. (vi) The sentence imposed was illegal and excessive in the circumstance. The Appellant was represented by Mr. Nyagaka while Mr. Koech appeared for the State. In his submissions in support of the Appeal Counsel for the Appellant submitted that the Appellant was a minor having been born on the 23rd of August 1986. He argued that the Appellant ought not to have been tried by the ordinary Law Courts but at the Children’s Court as established under the provisions of The Children’s Act (Act No. 8 of 2001). He therefore argued that the proceedings and the subsequent conviction and sentence of the Appellant were from illegal ab initio . He further submitted that the Appellant was denied a right to legal representation. It was his argument that the proceedings before the trial Magistrate’s Court should not have proceeded when Counsel for the Appellant was absent.
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He further argued that the Appellant ought not to have been sentenced to a term in prison as the said sentence imposed was contrary to the provisions of The Children’s Act (Act No. 8 of 2001). It was his further submission that the evidence on record was not sufficient or corroborated to enable the Court convict the Appellant. On his part, Mr. Koech, Learned State Counsel opposed the Appeal on both the conviction and sentence. He argued that there was sufficient and corroborated evidence which supported the conviction of the Appellant. He further argued that even though it is not disputed that the Appellant is a minor who was tried in an ordinary Court, this fact was not pointed out by either the Appellant or his Counsel at the commencement of the trial or during the trial itself. He further argued that the Appellant was properly convicted as the trial Court which heard the Criminal Case had jurisdiction to hear and determine the Criminal Case facing the Appellant. On the evidence on record, the ends of justice would be served if this Court were to allow the Appeal for the Appellant to be retried, Mr. Koech submitted. He further argued that the fact that the Appellant was tried before a Court other than the Children’s Court did not render the decision arrived at convicting him illegal. He further submitted that the conviction of the Appellant to term of fourteen years imprisonment was an appropriate sentence considering the nature of the offence that the Appellant had committed. He therefore urged this Court to dismiss the Appeal and uphold the conviction and sentence of the Appellant. I have considered the rival argument by both the Counsel for the Appellant and the Learned State Counsel. In my humble opinion the issue for determination by this Court is whether or not the Appellant, who is a minor, ought not to have been tried before a Senior Resident Magistrate who has not been gazetted to conduct cases deemed to be under the provisions of The Children’s Act (Act No. 8 of 2001). The other issue for my consideration is whether in view of the fact that the Appellant is a minor the conviction and the sentence ought to be upheld considering the fact that there was sufficient evidence to convict the Appellant. The Children’s Act (Act No. 8 of 2001) was enacted by parliament to give effect to the principles of the convention on the rights of the child and the African Charter on the rights and welfare of the child. This position is stated in the preamble to The Children’s Act (Act No. 8 of 2001) (hereinafter referred to as the said Act). Section 2 of the said Act defines a “child” to mean any human being under the age of eighteen years. Section 73 of the said Act establishes the Children’s Court whose jurisdiction includes, inter alia , “(b) hearing any charge against a child, other than a charge of Murder or a charge in which the child is charged together with a person or persons of or above the age of eigh teen years Section 73 (vi) of the said Act provides that “Where any conviction or sentence made or passed by a Court other than a Children’s Court is Appealed against or is brought before the High Court for confirmation, or revision and it appears that the person convicted was at the time of the commission of the offence under eighteen years of age, the High Court shall have power to substitute for the conviction a finding of guilty in accordance with Section 196 and substitute for a sentence an order und er Section 125(2) of this Act.” In the instant case, the Appellant was charged with the offence of defilement of a girl under the age of fourteen years.The Complainant in fact was aged about five and half years at the time of the defilement. According to the Section 2 of the said Act, the definition of the Complainant is a “child of tender years.” Evidence was adduced before the trial Magistrates by PW 1 E.A.O the mother of the Complainant that on the 4th of January 2003 she was informed that something fishy was going on at the house where the Appellant was residing. She went to the house and found the Appellant with the Complainant. The Appellant was cooking while the Complainant was crying. She examined the private parts of the girl and discovered that the child had been defiled.PW 1 informed her husband when he came home. They
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reported the matter to the police who advised them not to clean the child but have her examined by a Doctor. A P 3 form was issued to them. When the Complainant was examined by Dr. Vitalis Koguto (PW 4) he found that the Complainant had a bruised vulva. She had a whitish discharge. A high virginal swab showed numerous pus-cells and spermatozoa. He found that the Complainant had been defiled severally. The Complainant gave evidence as PW 3. Though she was a minor child her evidence was received by the Court. She testified that on the material day, the Appellant told her to lie down. He removed her pants and lay on top of her. He defiled her. In his defence, the Appellant denied that he had defiled the Complainant. He stated that he had been framed by the mother of the Complainant. He did not say what grudge the mother of the Complainant could have had with him so that she could have him framed. The High Court is mandated to look at the evidence adduced before the trial Court afresh, re-evaluate it and reach its own decision whether or not to uphold the conviction of the Appellant. (see Okeno – versus- Republic [1972] E.A. 32). In the instant case, it is not in dispute that the Complainant PW 3 was defiled on the material day. This fact was proved by the evidence of PW 4 who examined the Complainant and found spermatozoa and pus-cells inside her vagina. The issue before this Court is whether on the evidence on record, the trial Magistrate was correct in finding that it was the Appellant who had defiled the Complainant. PW 1 was informed that by another boy that the Appellant was sleeping with the Complainant. She went to investigate and found the Complainant in the house with the Appellant. The Appellant was cooking while the Complainant was crying. When PW 1 examined her private parts she discovered that the Complainant had been defiled. The Complainant was not washed or cleaned until she was examined by PW 4 who confirmed that the Complainant had been defiled. The evidence of the Complainant, was that she was defiled by the Appellant. As the offence took place before The Criminal Law (Miscellaneous Amendment) Act – Act No. 5 of 2003 came into effect, the evidence of the Complainant as a child must be corroborated.In the instant case, the evidence of PW 1 corroborated the evidence of the Complainant. Even though she did not see the Appellant defiling the Complainant, the circumstances which she found the Complainant and the Appellant together leads to no other conclusion other than that it was indeed the Appellant who had defiled the Complainant. The Complainant was found in the house of the Appellant with the Appellant. She was crying. When her private parts were examined by PW 1, she discovered that the Complainant had been defiled. PW 4 who examined the Complainant put the time the Complainant was defiled to be within the time that the Appellant was with the Complainant. This evidence was sufficient to prove that the Appellant indeed defiled the Complainant. In her judgment, the Learned trial Magistrate stated that; “In the opinion of the Court, the Doctor’s evidence and to an extent the mother’s evidence corroborated the minor’s evidence. Calling the eye witness would have added some wait (weight?) to the case and so would have been the calling of the Investigating Officer. Their failure to come in the opinion of the Court did not negate the Prosecution’s evidence” I agree. The Prosecution’s case would have been more water tight had the boy who witnessed the defilement been called as a witness. But as it is, it is the opinion of this Court that the Prosecution proved its case against the Appellant. The Appellant was therefore properly convicted. Under the provisions of Section 73 (vi) of the said Act, the fact that the Appellant was tried in a Magistrate’s Court other than the Children’s Court does not render the finding of such Court of the guilt of the Appellant to be unlawful. The said Section provides that the High Court may substitute the conviction of an offender with the finding of guilty and further substitute the sentence with an order upon such finding. (See Section 189 of the said Act). I, therefore make a finding that the Appellant’s conviction and sentence by the trial Magistrate’s Court is substituted by a finding of guilt on the part of the Appellant. The sentence imposed by the trial Magistrate of a term of imprisonment is in conflict with the provisions of Section 191 of The Children’s Act (Act No. 8 of 2001). The said sentence is therefore set aside and substituted with an order upon
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finding of guilt as provided by Section 191(1) of the said Act. I, therefore order that a Probation’s report be prepared by the Nakuru District Probation Officer and the same be availed to this Court on the 4th of May 2004 for further orders of this Court. DATED at NAKURU this 21st day of April, 2004. L. KIMARU AG. JUDGE
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