High Court 5340 of 2019

He tied her hand with a nylon rope covered her mouth and moved her to the ground. He removed her panties unzipped his trouser and removed his thing and did “tabia mbaya” to her. The appellant threatened to kill her if she told anyone. Pw1 went home crying and informed her brother Pw3 about the incident. Pw2 was the elder sister of the complainant she testified that she knew the appellant as hailed from their area. She knew him by his nickname “penda chakula”. She testified that on the material date she went to relieve her younger sister at the shamba at 1.00pm when she went to the shamba did not see the complainant. She went to relieve herself for the short call in a nearby bush she saw the appellant on top of the complainant. When the appellant saw Pw2 he ran away. The complainant was partly naked as she had no pant. The complainant ran toward home crying and Pw2 followed her. The appellant also followed Pw2 and the complainant for a distance. She caught up with Pw2 and promised to give her money if she kept quiet. Pw2 further testified that when she saw the complainant and the appellant in the bush the appellant’s hand was on the mouth of the complainant and his “dudu” was out. She saw it when the appellant ran. Pw3 was a neighbor and she knew the appellant who was their neighbor. She testified that Pw1 and Pw2 were his younger sisters on the material day he saw the appellant walking towards their shamba earlier in the day and after a while he heard screams. He ran towards the shamba and saw his two sisters coming towards home. He also saw the appellant who was a distance behind them. The appellant walked away on seeing him. Pw1 narrated to the witness what had happened. She went to the scene and recovered her pant he then took the complainant to hospital and was among the people who arrested the appellant later. Pw5 is the clinical officer who examined the complainant. In examination he found that the hymen was raptured and there was a blood stained discharge from the vagina. He concluded that he was traumatic penetration. He stated that the age of the complainant was 9 years. The evidence of the witnesses is consistent on what happened that day. The complainant testified that she was 8 years. While the clinical officer testified that she was 9 years. The ages of 8 and 9 years fall under the Provisions of sections 8 (1) and (2) of Sexual Offences Act and therefore did not prejudice the appellant in any way as was held in Criminal case no. 24 of 2015 Mwanjembe v. R (2016) eKLR. I urge the court to dismiss the appeal as the charge was proved. Issue of determination 4. The issues for determination is, therefore, whether the defilement of the complainant was proved beyond reasonable doubt and whether the appellant was shown to have been the perpetrator thereof as charged. Evidence before the trial Court. 5. The evidence before the trial Court was as follows: PW1, of whom the Court minuted to be of apparent age of 8 - 9 years and upon voire dire ruled that “the witness appears to understand why she is here. She is capable of distinguishing the truth from lies, in my view she will not be sworn because of her tender years ”, said as follows: “I am NL I am 8 years old. I am in class 1 at [particulars withheld] primary school. That man did bad things to me. [Points to accused] I did not know him very well. I see him in [particulars withheld] but I do not know his name. On Sunday a few months ago at 1.00p.m I was in our shamba. I was watching over our maize and beans so that birds and other animals did not eat them. The accused appeared near our shamba. He greeted me and I responded. Suddenly he grabbed me by my hands. He tied them with a nylon rope. He also covered my mouth and then moved me to the ground. He removed my clothes by lifting my dress. He removed my panty. He unzipped his trouser and removed his ‘thing’ he did ‘tabia mbaya’ to me. It was very painful and I cried. After he was through he rose and went no one came to my rescue. The accused told me he would kill me if I told anyone. He followed me behind as I went home. When I got home, I told my brother Jones. He called my relatives and they went to look for the accused. I was taken to Marigat hospital on the same day. I was given some medicine. Then I went to the police. In the process, the accused got startled. I do not know if he saw someone but J appeared behind the accused as he followed me then he disappeared. J is my sister. CROSS EXAMINED IN SWAHILI - It was a Sunday.

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- You found me in our shamba. - You just greeted me. - I do not know if Jasima saw you. RE EXAMINATION NIL” 6. Pw2, the complainant’s sister aged 14 years gave sworn testimony as follows: “I am JL I hail from [particulars withheld] marigat. I am 14 years old. I am in class 8 at [particulars withheld] primary school. N is my younger sister. I know the accused. He hails from our area. He has a nickname of ‘penda chakula’ I know him well. On 23.5.10, a Sunday at about 1.00a.m, I was at home. My sister had gone to watch over our crops. I was to relieve her at 1.00p.m I went to the shamba but did not see N I went to the nearby bush for a short call. I saw the accused lying on top of my sister. When he saw me, he fled N was partly naked. She had no pant. She rose and ran crying. I followed her. The accused also followed her. He came to me and said that he would give me money so that I could not tell anyone. I followed N to our compound. My brother J was there N told us what had happened. We called neighbours who went to look for the accused. Later I was called to the police station. The accused’s hand was over N’s mouth his ‘dudu’ was protruding from the zip. I saw it when he rose and fled. CROSS EXAMINATION IN SWAHILI -I saw you lying on top of my sister. -You saw me and rose, zipped up your trouser and walked away. -My sister was lying on the ground. -She rose too and ran towards home. -She was crying. RE EXAMINATION Nil” 7. Pw3, the complainant’s adult brother testified as follows: “I ran towards the shamba. I saw N and J behind her. The accused was at a distance. He walked away when he saw me. N was crying, we went to the scene and I saw N’s panty. I called neighbors and relatives and told them what N had to say. We arrested the accused shortly thereafter. We took the complainant to hospital for treatment. The police gave her a p3 form [MFI-1] our parents were not there that time. CROSS EXAMINED IN SWAHILI My sister came home later that day. RE EXAMINATION NIL” 8. Pw4, the Marigat Police Station Officer at Children and Gender Desk testified as to receiving the accused and the complainant under escort by members of the public, as follows: “I am No. 93055 PC [W] Elizabeth Abaye of Marigat police station, children and gender desk.

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On 23.5.10 I was at the station. The accused was brought by members of the public on allegations of defilement. The complainant was there too. She could not walk properly. I took her to hospital immediately I gave her a p3 form that was filled [MFI -1]I sent the accused to hospital for examination too. His p3 form is here [MFI -2] later I charged the accused. CROSS EXAMINATION Nil” 9. Pw5 was the examining Clinical Officer at Marigat District Hospital who testified as follows: “I am Meshack Kandie Chemjor the Clinical Officer in charge of Marigat District Hospital. On 24.5.10, I examined one NL aged 9 years, who was allegedly sexually assaulted. On examination there was visible inflammation on the labia minora. The hymen examining finger. There was a blood stained discharge from her vagina. was raptured. There were blood stains on the HIV test was negative other laboratory for STD tests were negative. Urinalysis revealed red blood cells. A vaginal snab also revealed red blood cells. I concluded there was traumatic vaginal penetration. The patient was given drugs to prevent HIV infection and other drugs. I wish to produce the p3 form for the girl as EXHIBIT-1. On 24.5.10 I also examined one IBRAHIM BASHIR aged 55 years. He came under police escort. On examination, he tested positive for syphilis a sexually transmitted disease. I produce the p3 form as EXHIBIT 2. CROSS EXAMINED IN KISWAHILI Accused - no questions for him. 10. When put on his defence, the appellant gave an unsworn statement simply as follows: “I am IBRAHIM BASHIR. I live at [particulars withheld]. I deny the charges. I have land disputes with the complainant’s family.” Evidence of defilement 11. On weighing the evidence presented before the trial Court, the bare assertion by the appellant that he had a “ land dispute with complainant’s family” could not dislodge the consistent and corroborative evidence of the complainant’s brother Jones Pw3 and the Clinical Officer Pw5 which supported the complainant’s evidence of sexual penetration by the appellant. That she felt pain upon penetration is consistent with the evidence of “traumatic penetration” given by the Clinical Officer who found blood stains on the examining finger, bloodstained discharge for the complainant’s vagina, visible inflammation of the labia minora and the hymen raptured. Age of the complainant 12. The complainant said she was 8 years old in class 1 at [particulars withheld] Primary School. On voire dire the trial Court, (to which this Court must defer on the principle of Okeno v. R (1972) EA 32 as the Court which observed the witnesses) found that the complainant would “not be sworn because of her tender years” and had estimated the apparent age as “8 – 9 years”. Moreover, the Clinical Officer who examined the complainant also estimated the age at 9 years in section “C” of the Medical Examination Report P3 form. 13. Although no birth certificate or age assessment report was presented in evidence, the fact of age of the complainant was proved by other evidence of the complainant herself, the examining Clinical Officer and the observation of the trial Court as being between 8 years given by the complainant and 9 years as estimated by the Clinical Officer. In accordance with the Court of Appeal decision in Mwalango Chichoro Mwanjembe v. R (2016) eKLR (Makhandia, Ouko and M’inoti, JJA) there was no prejudice on the age question as “ in terms of section 8 (2) [of the Sexual Offences Act] aforesaid a defilement committed against a child aged eleven years or less attracts life imprisonment upon conviction. Whether the complainant was 9 or 10 years, the sentence remains life imprisonment.” Identification of the Appellant 14. The appellant was arrested by the complainant’s brother and neighbours who went to look for the accused after the complainant Pw1 had told them what had happened to her. Pw2 testified that she had seen the accused following the complainant and before that lying on top of her sister complainant. Pw3, the adult brother of the complainant, also testified that he saw the accused, whom he knew as a neighbor under nickname Lemachakula, at a distance after he had gone to respond to “the sound of children crying”. The appellant was placed at the scene

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and the evidence of the complainant showed what he had done to her. The identification evidence of the complainant Pw1 was, therefore, corroborated by the evidence of Pw2 and Pw3. Pw4 the Police Officer at Marigat Police Station finally testified as to escort of the appellant “by members of the public on allegation of defilement”. I find the appellant to have been properly identified as the perpetrator of the proved defilement on the complainant Pw1, and convict him accordingly for defilement contrary to section 8 (1) as read with 8 (2) of the Sexual Offences Act. Sentence 15. I have recently held (see KBT HCCRA No. 144 of 2017 Nickson Kandagor Chesire v. R that applying the ratio decidendi of the Supreme Court’s decision in Muruatetu & Anor v. R (2017) eKLR that mandatory sentences are unconstitutional for taking away the judicial discretion of the trial Court, the mandatory sentence of imprisonment for life in section 8 (2) of the Sexual Offences Act is, as with the death sentence in murder contrary to section 204 of the Penal Code, indefensible. 16. In sentencing the life imprisonment, the trial Court said: “Court: The accused suffers from syphilis a sexually transmitted disease. He could easily have infected the complainant with a terminal disease. The complainant suffered traumatic penetration into the private parts. I hope that she is able to overcome the physical and psychological scars that that the accused has left on her. The accused deserves no mercy at all. He is sentenced to life imprisonment.” 17. On the principle of Arissol (Josephine) v. R (1957) EA 447, 449 that it is unusual for first offenders to be sentenced to the maximum sentence for an offence, and taking the life imprisonment as the maximum sentence for defilement under section 8 (2) of the Sexual Offences Act, and noting the mitigation plea of the appellant that “I pray for leniency. It is the devil who misled me,” I consider that a sentence of imprisonment for life is excessive. Orders 18. Accordingly, for the reasons set out above, I feel justified, on the test of Wanjema v. R (1971) EA 493, 494 to interfere with the sentencing discretion of the trial Court. I sentence the appellant to imprisonment for a term of twenty (20) years from the date of arrest on 23/5/2010, pursuant to section 333 (2) of the Criminal Procedure Code, as the appellant did not get bail pending trial. 19. The appellant’s appeal against conviction is dismissed. Order accordingly. DATED AND DELIVERED THIS 10TH DAY OF JULY 2019 EDWARD M. MURIITHI JUDGE Appearances: Appellant in person. Ms. Macharia, Ass. DPP for the Respondent

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