REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET CRIMINAL APPEAL NO. 63 OF 2018 GKM.............................................APPELLANT VERSUS REPUBLIC...............................RESPONDENT [Being an appeal from the original conviction and sentence in Criminal Case No. 2095 of 2015 Republic vs GKM in the Senior Principal Magistrates’ Court at Kapsabet by P. W. Wasike, Resident Magistrate on the 14th day of August 2018] JUDGMENT 1. GKM (the appellant) was convicted on a charge of defilement Contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2006, and sentenced to serve life imprisonment. 2. The particulars of the charge were that on 11 th November 2016 in CHEPKEMEL location within NANDI County, he intentionally caused his penis to penetrate the vagina of TC a child aged 7 years. 3. TC (PW1) told the trial court that their mother went to pick tea leaving her at home in the company of her sisters P and C. The appellant then told her that they would leave to go and look for firewood. Thereafter the appellant ran after them, and told TC he had something to tell her. TC did not respond and instead ran away, but she fell and the appellant caught up with her. He carried her on his shoulders into the blue gum forest. When her siblings E and P followed, the appellant gave them his phone which had CHELELEI’s song. He then removed his trouser and inner wear and told PW1 to lie down. She refused he pushed her down, even as she began to cry and according to the witness. “…He lay on me and did tabia mbaya on me here.” [Pointing in between her legs]. 4. She was in pain and the appellant told her to go home. She then dressed and went home. The appellant followed and took his phone away from her siblings. After her mother had cooked, she examined TC then took her to hospital. She explained that when she screamed, the appellant took leaves and put inside her mouth. 5. CB (PW2) the mother to TC told the trial court that on 11.11.16 she had gone to pick tea at the tea plantation, leaving her children including TC at their home. When she returned home at 1.00pm. She found TC. She woke up, but the child told her she was not feeling well. PW2 then called two women ie the mother-in-law and another woman (neighbour) to join her in examining TC. She stated: “…I examined her, I saw the minor’s private parts were not with whitish matter, my daughter had lacerations on the privates…” 6. She took the child to hospital. She presented the child health card which showed she was born in 1 st August 2009. 7. MUSA CHUMO a resident of TINDERET was and a village elder of ROMEMIO village, was instructed by the chief to go to the appellant’s home. On arrival he found members of the public who had gathered at the home intending to lynch the appellant whom he
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knew. He managed to intervene and apprehend the appellant whom he took to TINDERET. That is when he was informed that the appellant had defiled a minor. 8. REUBEN KIPKOECH TOO (PW4), also a resident of Romemio village cum NYUMBA KUMI official, was among those instructed by the chief to look out and apprehend the appellant who had allegedly defiled a minor. He met PW3 and they strategized on how to apprehend the appellant. PW3 and PW4 handed over the appellant to CPL WYCLIFFE OTIENDE (PW5). 9. The minor was examined by WILSON BIRGEN (PW6) a clinical officer at Miteitei Sub-county hospital who noted that her clothes were not torn, but were blood stained. There was super – public tenderness but no active bleeding, there were bruises in the vaginal wall and the hymen was broken. He concluded that there were all indications of penetration. 10. PW6 also examined the appellant whose age he estimated at 16 years – he had injuries arising from assault by members of the public. 11. The appellant was first taken to court on 17.11.2016, and in the course of the trial, before being placed on his defence, the court on 3.7.2018 recorded; “Accused is 18 years and above, the accused should be remanded at G.K Prison henceforth.” 12. In his unsworn defence, the appellant stated that on 11.11.2016 while having his supper, some people went to arrest him. He was beaten then taken to the police station then arraigned in court. 13. The trial magistrate in his judgment found that the complainant’s age had been proved by the evidence of the mother as well as the health card. As regards penetration, the trial magistrate noted that apart from the minor’s description of the sexual act visited upon her by the appellant, there was also a physical event by her mother who noticed laceration and whitish matter in her private parts, crowned by the medical evidence which established a bruised vaginal wall, broken hymen and this evidence was uncontroverted. Further that the appellant was properly identified by the minor through recognition as she knew him even by name. That there was no suggestion of ill will on the part of prosecution witnesses, and the applicant’s defence was rejected as lacking merit. 14. The appellant now contests these findings on grounds that the trial court did not consider his age while meting sentence and acted contrary to the Children Act and the Constitution of Kenya regarding setting guidelines in conflict with the law. He also faulted the prosecution witnesses whom he described as unreasonable with contradicting evidence. 15. In opposing the appeal, Miss MUMO on behalf of the state submitted that the evidence adequately proved the charge. Further that when he was first arraigned in court, he was remanded at the Eldoret Children Remand Home but he turned 18 years before the trial was concluded and was properly directed to be remanded at the Eldoret G.K Prison. 16. From the evidence presented I have no doubt that; a) The minor’s age was adequately proved, b) The defilement was established not only by the evidence of the minor who gave a graphic description of the prelude to the act and the act of defilement itself, others was further confirmed by the mother who did a physical examination. And as properly noted by the trial magistrate, the ultimate was the medical confirmation which confirmed defilement. The identity of the aggressor was disclosed and there was no question of a mistaken identity as the appellant was well known to her. I cannot fault the trial magistrate on conviction which I find safe and uphold. 17. The critical issue concerns the sentence meted – when the offence was committed, the appellant was a minor aged 16 years – two years into the trial he turned 18 years. That much is not disputed. The question that emerges is – should he have been punished as an adult for an offence he committed as a child, just because he had turned 18 years 18. In my opinion, that is carrying over the sins committed in Egypt into Israel, at the time of the offence, he thought and acted as a child under the law – the children Act defines a child as any human being under 18 years old. Sins committed as a child belong to that arena of childhood and must be punished as such. 19. How does one get punished as an adult for what he did as a child – it defies moral justice and legal sense. I am persuaded that for an offence committed as a child, one must be punished as at the time the offence was committed. It is on account of this that I find it prudent to interfere with the sentence by setting it aside and substituting it with what I deem to be appropriate. Having served a custodial sentence in an adult facility on account of attaining the majority age, I hold the view that he has suffered enough injustice and paid the price. 20. Consequently he shall be referred to probation office for probation officer’s report to be filed on 11.06.19. Ref. to Probation Officer’s Report filed on 11.06.19.
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DATED, SIGNED AND DELIVERED AT ELDORET THIS 26th DAY OF JUNE 2019 H. A. OMONDI JUDGE
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