Criminal Division v Republic

He submitted that penetration was never proved. This was premised on the ground that PW3 testified that medication examination revealed old hymenal remnants. Further that it was not demonstrated that it was the Appellant who had occasioned the torn hymen. In addition, PW4, who produced a medical report from Nairobi Women’s Hospital did not testify that he knew the handwriting of Dr. Nguku who had filled the report. This offended the provisions of Section 51 of the Evidence Act which provides that if the maker of a document cannot be procured, the document can be adduced by another person who was acquainted with the hand writing of the person who wrote the document. Accordingly, the medical report was inadmissible and could not be used as evidence to found a conviction against him. He also took issue with fact that the age of PW1 was not established. His statement was that in the absence of documentary evidence to establish the age, medical evidence ought to have been adduced. He submitted that this was not the case and bearing in mind that incest is related to defilement, the failure to proof age meant that a conviction could not stand. The case of Jacob Mumo Mutia v Republic (2015)e KLR was cited in this regard. The Appellant added that crucial witnesses were never to corroborate the offence. He cited the two brothers of PW1 who it was said lived with her. Their evidence, according to the Appellant, would have vindicated the assertion that the Appellant used to sleep with PW1 and therefore defile her. It was submitted that the failure to call the two children meant that had their evidence been called they would have adduced adverse evidence for the prosecution. The court was referred to the cases Juma Ngodia v. Republic[1982-88] KLR 454 and Paul Kanja Gitari v. Republic[2016] eKLR in this regard. It was the submission by the Appellant that all other witnesses who testified gave hearsay evidence which the court could not rely on. On sentence, the Appellant submitted that the same was harsh, excessive and offended Section 20 of the Sexual Offences Act. According to the Appellant, the proviso to the section is not couched in mandatory terms that a life imprisonment must be imposed where it is establishes that the complainant is below the age of eighteen years. It was his submission that the use of the word ‘Liable’ under the proviso gave the court the discretion to impose a sentence of between ten years and life imprisonment. He stated that had the court taken his account his mitigation into consideration, it would have imposed a more lenient sentence. Therefore, it was clear that the learned magistrate failed to observe the legal principles provided in sentencing. He cited the case of M.K. V Republic (2015)eKLR to buttress the submission. Finally, the Appellant submitted that his defence was not considered, which if it had been considered, the trial court would have arrived at a finding that he was framed up. He urged the court to allow the appeal, quash the conviction and set aside the sentence. Learned State Counsel, Ms. Atina for the Respondent in opposing the appeal submitted that PW1 was a reliable witness. That in the voire dire examination she stated she knew it was wrong to lie and the court thus ruled that she would give an unsworn evidence. Thus, the court exercised the necessary caution in terms of the nature of the evidence she would adduce. She submitted that the medical evidence adduced by PW3 and PW4 clearly proved penetration. She submitted that this corroborated the complainant’s assertion that the Appellant defiled her severally. On prove of age, she submitted that PW1 had testified that she was eleven years old, a fact that was corroborated by the evidence of the doctor as reflected in the respective medical documents. She denied that the evidence relied upon was purely hearsay evidence adding that it was credible and reliable. Miss Atina asserted that the prosecution called sufficient number of witnesses who were necessary for the proof of their case. She referred to Section 143 of the Evidence Act which only requires essential witnesses to be called. She defended the life imprisonment sentence insisting that it was informed on the fact the Appellant was the biological father of PW1 who was entrusted with taking care of her but instead took advantage of her. This necessitated keeping him away from the society. Evidence The Appellant and the complainant H.G. were a father and daughter respectively. From the testimony of

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PW1, at the time she testified she was 11 years old. The Appellant was married but sometime in the year 2012, his wife left the matrimonial home and was never to be seen again. It is from that time for a period of two years until sometime in February, 2014 that the Appellant converted PW1 to be his wife; his wife in the sense that he would have sex with her almost on daily basis. She had two elder siblings who were boys then aged 15 and 12 years respectively. Their house was made of two rooms. One room was occupied by the two boys while the second room was converted by the Appellant as his bedroom with PW1. PW1 testified that the Appellant would use all manner of tricks to ensure that he would have sex with her. He would sometime ask her to remain at home while the boys go to school. At other times he would lie to her that he would take her upcountry while the boys were away. He also so often picked her from the boys’ bedroom into his bedroom from where he defiled her in the morning, during the day and sometimes at night. And the routine was similar on all days that he demanded that she sleeps in his bedroom. Sometime in February, 2014 PW1 went to visit her aunt one R. PW2, C S was a neighbour to R. Being a school day, PW2 got curious to know why PW1 had not gone to school. This fact notwithstanding, it raised eyebrows after PW1 informed her that her two brothers were in school. After prodding her for some time and amidst sobs, she disclosed to her that her father, the Appellant used to defile her and that this had gone on for a period of more than one and a half years since 2012 when her mother left the matrimonial home. According to PW1, before she met PW2, she had spent the previous night in the house of R. She also disclosed to R what her father had been doing to her. She told the two that the last time that this had happened was on 20th January, 2014. In addition, both PW1 and 2 testified that PW1 told them that the Appellant had warned her of killing her if she disclosed what he had done to her. PW2 then reported the matter at a local Children’s office at Embul bul. Thereafter, the matter was reported at Ngong Police Station from where PW1 was referred to Nairobi Women’s Hospital for examination and treatment. A Post Rape Care Form was filled and produced in court as an exhibit. The form was filled on 28th January, 2014 and it indicated that PW1 had an old hymeneal tear. Thereafter a medical examination report (P3 Form) was filled by Dr. Kizzi Shekid of Police Surgery on 29 th January, 2014. The same describes the nature of the offence as defilement after the doctor noted that PW1 had old hymeneal remnants. The same was produced as an exhibit in court. PW4, Daniel Nguku produced the Post Rape Care Form on behalf of one Abdi of Nairobi Women Hospital who had filled it. The matter was investigated by PW5, PC Hannah Wafula of Ngong Police Station. She summed up the evidence of the prosecution witnesses. She also preferred the charges against the Appellant. The Appellant gave a sworn statement of defence in which he categorically denied committing the offence. His defence was that PW1 used to stay with different ladies who were their neighbours after her mother left the matrimonial home. She named the women as; Mama Kiremi, Mama Mutinda, Mama Wangui, Mama Kamau and Mama Musyoka. He stated that he only used to visit the children on weekends and that he had never slept with PW1. He added that he was framed up for reasons he did not understand. Determination It is now the duty of this court to reevaluate the evidence on record before arriving at its own independent finding. In so doing the court must take into consideration of the fact that it has not had the opportunity to observe the witnesses’ demeanor. See: Okeno v.Republic[1972] EA 32. I arrived at the issues for determination to be whether the offence was proved beyond a reasonable doubt and whether the sentence was harsh and excessive. The first issue was predicated by the Appellant’s submission that the offence he was charged with was similar to offences set out under Section 8 of the Sexual Offences Act which require proof of the complainant’s age. He submitted that the age of the complainant herein was not proved and therefore a conviction could not lie. He was charged under Section 20 (1) of the Sexual Offences Act which provides that:

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20.(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. It is clear from the above that the ingredients of the offence of incest are; (i) Identification of the perpetrator, (ii) proof of knowledge of a relation between the perpetrator and complainant that falls within the levels of consanguinity set out thereunder and, (iii) proof that an indecent act or an act that causes penetration has been caused on the complainant. My understanding of this provision is that age is not a critical ingredient of the offence in question but is spelled out under the proviso as a guide in sentencing. This means that if it is alleged that the victim is below the age of eighteen years, the age must be established for purposes of enhancing the sentence. This can be contrasted with the offence set out in Section 8 of the Act, defilement, where age is a critical ingredient. Although Section 8, as opposed to Section 20(1) takes into account age when sentencing it is clear that for a conviction to lie under that provision(Section 8) the complainant must first be determined to be a child before the subsequent ascertainment of age for sentencing purposes. That is why proof of the age of a victim in an offence of defilement is a key element that must be established. I shall therefore revisit the issue of age when addressing the question of sentence. The next issue that this court must determine relates to the Appellant’s submission that PW4’s evidence was inadmissible. This was because PW4 was not the maker of a medical report whose findings he presented in court. He submitted that a basis for the production of this evidence was not laid down since the witness did not shed light on his familiarity with the maker’s handwriting which contravened Section 50 of the Evidence Act. Section 50 of the Evidence Act relates to opinion as to handwriting. That was not the case in the present issue. The witness testified in respect of production of an expert document, a medical report. The same constituted a Post Rape Care Form. No doubt the document was prepared at the Nairobi Women’s Hospital on 28th January, 2014. It has a stamp from the hospital. It does not however indicate the name of the medical officer who filled it. The witness testified that he was producing a report made by Abdi who saw the patient and whom he knew since 2003. In my mind, the witness was adducing the report pursuant to Section 77(1) of the Evidence which allows an expert in the field of the maker of a document to adduce it if he/she was familiar with his handwriting and can attest to his field of expertise. Surprisingly, the witness did not state he was a doctor. He neither stated that the person who filled the form was a doctor. It begged the basis on which he produced the document. It also begs how and on what basis the learned trial magistrate in her judgment indicated that PW4 was a doctor and was producing the document on behalf of a doctor Abdi, yet that is not borne in the original evidence. Without hesitation, I concur with the Appellant that no basis for the production of the document was laid and that it was not produced by a person who was an expert in the medical field. The court ought not to have admitted it as evidence. It could not thus be used a basis on which the Appellant was convicted. On proof of the case, there is no doubt on the relationship between PW1 and the Appellant. The latter was the father to the former. With regards to whether an indecent act or an act of penetration occurred it is clear from the evidence of PW3 that when he examined the complainant he found that she had old hymenal remnants and that they had thinned owing to repeated episodes of defilement. In cross examination, he stated that this was a clear indicator that sexual assault had occurred. The complainant on

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the other hand gave an unsworn testimony in which she shared how after her parents became estranged, leading to her mother’s departure, her father began defiling her. This occurred over a period stretching from 2012 until 20th January, 2014 when she ran away from home. Although the P3 form is an indicator of old hymenal remnants, the same can be explained by the fact the last sexual assault was on 20.1.2014 but examination was done on 29.1.2014, more than a week later. Therefore, fresh hymenal remnants were unlikely to be found. After all, PW1 was candid that the defilement had taken place for a period of one and a half years. Under the proviso to Section 124 of the Evidence Act, the court can convict an accused based on the sole evidence of a minor victim provided it believes in that testimony. The learned trial magistrate believed in the testimony of PW1. This court too is convinced she told the truth. The Appellant’s defence did not oust the strong prosecution evidence. Respectively, I find that all the elements of the offence of incest were proved beyond a reasonable doubt. I now delve into the issue of sentence. The Appellant argued that the same was harsh and excessive owing to the fact that the age of the complainant was never proved. In that case, the trial court misdirected itself in imposing life imprisonment which was not a mandatory sentence under Section 20(1). In the case of MK v. Republic(2015)e KLR the court delivered itself this; “Guided by the decision in Opoya v Uganda [1967] EA 752 and the persuasive dicta of North J. in James v Young 27 Ch. D. at p.655; we are satisfied that the sentence stipulated in the proviso to Section 20(1) of the Sexual Offences Act is not a minimum mandatory sentence of life imprisonment. The proviso simply states that the trial court has discretion to mete out a maximum term of life imprisonment. Read in conjunction with the general provision in Section 20(1) we hereby state that the correct interpretation of the proviso in Section 20(1) is that a person convicted of incest when the female victim is under the age of eighteen years is liable to a term of imprisonment between 10 years and life imprisonment. 22. Based on the foregoing interpretation, we are o the considered view that in the instant case, the learned judge erred in law in holding that the twenty (20) years term of imprisonment meted to the Appellant y the trial court was an illegal sentence. WE find that the twenty (20) years term of imprisonment was not an illegal sentence and was lawful in the context of the decision in Opoya v Uganda [1967] EA 752. It follows that the learned judge erred in correcting and or enhancing he sentence from 20 years to life imprisonment. I entirely agree with both the cited case law and the Statute that the proviso to Section 20(1) of the Sexual Offences Act does not provide for a mandatory life imprisonment where the victim is of the age below 18 years. For avoidance of doubt, the proviso reads as follows: “’provided that, if it is alleged in the information or charge, and proved that the female person is under the age of 18 years, the accused persons shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” In my candid view, the use of the word ‘liable to’ gives the court a measure of discretion to impose a sentence of between the minimum 10 years and life imprisonment. While sentencing the Appellant, the learned trial magistrate stated as follows as follows: “the accused is a first offender. I have considered his plea in mitigation. The accused was the expected protector of the complainant but he turned out to be the predator. The accused deserves to be kept away from the society for long to rehabilitate in prison custody. The accused is hereby sentenced to life imprisonment.” That statement itself did not evaluate the proviso to Section 20(1) before arriving at the sentence. And therefore, it can only be implied that the mandatory life imprisonment imposed was meted without the

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consideration that it was the maximum sentence provided in law. In considering whether to enhance a sentence above the minimum provided by the law, the court must be guided by aggravating factors some of which were set out in the case of Attorney General’s Reference(No. 1 of 1989)[1989] 3 All ER 571, viz: “Other aggravating factors, whatever the age of the girl may be, are, inter alia, as follows: (1) if there is evidence that the girl suffered physically or psychologically from the incest; (2) if the incest has continued at frequent intervals over a long period of time; (3) if the girl has been threatened or treated violently by or was terrified of the father; (4) if the incest has been accomplished by perversions abhorrent to the girl, eg buggery or fellatio; (5) if the girl has become pregnant by reason of the father failing to take contraceptive measures; (6) if the defendant has committed such offences against more than one girl.” No evidence was adduced in court to show the exact age of the complainant. I say so because apart from her own testimony, the actual date of her birth was borne in the Post Rape Care Form which I have ruled was inadmissible. I can then deduce PW1’s age based on the apparent age of the child. I am guided by the definition of age in the Children Act in arriving at a finding that PW1 was below the age of eighteen years. Under Section 2 of the Act, age is defined as “ where is not known means apparent age”. In the instant case the apparent age can be deduced from the fact that the complainant was a class 5 student, the voire dire examination and evidence of all the witnesses. I need then not belabor to state that she was below eighteen years. Based on this fact, the court is enjoined to enhance the minimum sentence if it is persuaded by existing aggravating factors. No doubt that the assault was perpetrated over a long period, spanning from the years 2012 to 2014. The Appellant threatened her of dire consequences if she disclosed the horrible fate that had befallen her. She thus suffered psychological trauma which was exhibited in court when she was testifying. The court noted that she was emotional, withdrawn and had to be encouraged to testify. It is also on record that the heinous act of the Appellant had withdrawn the complainant from school. On the date the incident was discovered, PW1 was not in school and when PW2 enquired about why she had not gone to school, she started sobbing before disclosing that her father had been defiling her. For close to two years, the Appellant had converted PW1 into his wife, a shameful act indeed. She also physically suffered by the damage of her womanhood. The best description that his court can accord to the behavior of the Appellant was that he was a beast to PW1. As rightly noted by the trial magistrate, he ought to be kept away from the society. A deterrent sentence was called for necessitated by these aggravating factors. I therefore hold and rule that the learned trial magistrate did not apply the wrong principles in sentencing. Further, the sentence imposed cannot be deemed as excessive. However, I bear in mind that a sentence as a punishment is intended as a deterrent measure. Therefore, for the single reason that this court intends that the Appellant learns a lesson not to commit a similar offence, I shall reduce the sentence to 40 years. In the result, the appeal partially succeeds. I dismiss it on conviction by upholding the same. I however reduce the sentence from life imprisonment to 40 years imprisonment. In imposing this sentence, I take consideration of the fact that he was in remand for the period of the trial which was less than a year. Due to the nature of the offence, I shall not credit this custodial period to the sentence. It is so ordered. DATED AND DELIVERED THIS 2nd DAY OF NOVEMBER, 2017. G.W. NGENYE-MACHARIA JUDGE In the presence of; 1. Appellant present in person

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2. Miss Sigei for the Respondent.

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