Peter Saikipor Naiyioma v Republic

form, treatment notes and ultra sound results. 9. When placed on his defence, the appellant gave an unsworn statement and called two more witnesses. The appellant denied knowing PW 1 and stated that the charges against him were untrue. On cross examination, he told the court that he had paid Kshs. 45,000/= to PW 1’s father for medical expenses and an additional 2 cows when PW 1 gave birth to a baby girl. The appellant’s grandfather, DW 2, asked the court to forgive him and let him talk over the matter at home. His uncle, DW 3, testified that as elders, they had decided to resolve the matter when they had found out that the appellant had been arrested and charged with defilement. It was agreed that two cows and some money be paid to forestall the court case. DW 3 testified that he believed the appellant when he told them that he had not committed the offence. 10. In order to prove the offence of defilement under section 8(1) of the Act, the prosecution needed to prove that it was the appellant who caused the act of penetration to the child. Penetration under section 2 of the Act means “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 11. The main thrust of the appellant’s appeal is that the medical evidence failed to link him to the commission of the offence. PW 3 conducted an ultra sound on 21 st September, 2016 and found the complainant to be 25 weeks pregnant at the time of the examination. On her part PW 1 testified that she met the appellant on 22 nd July 2016 and first had sexual intercourse with him that day, a period of 8 weeks before the test by PW 3. The appellant contended that the prosecution did not adduce evidence to show that the appellant and PW 1 had met before, hence the argument that a DNA test to establish the paternity of PW 1’s child during the course of the trial would have exonerated the appellant. 12. The trial court is empowered to direct that the DNA test be conducted on the accused. Section 36 (1) of the Act stipulates; 36. (1) Notwithstanding the provisions of Section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the Court may direct that an appropriate sample or samples be taken from the Accused person, at such place and subject to such condition as the court may direct for the purpose of forensic and other testing, including a DNA test, in order to gather evidence and to ascertain whether or not the Accused person committed an offence. 13. The Court of Appeal in Robert Mutungi Muumbi v Republic MLD CA Criminal Appeal No. 5 of 2013 [2015] eKLR held as follows regarding the aforesaid provision; Section 36(1) of the Act empowers the Court to direct a person charged with an offence under the Act to provide samples for tests, including for DNA testing to establish linkage between the accused person and the offence. Clearly that provision is not couched in mandatory terms. Decisions of this court abound which affirm the principle that medical or DNA evidence is not the only evidence by which commission of a sexual offence may be proved. 14. At the end of the day, the main ingredient of the offence of defilement is penetration and not the fact of pregnancy and where there is sufficient evidence of penetration, the court may proceed to convict. In the case of Ambrose Mwawindo Ngwatu v Republic MLD CA Criminal Appeal No. 54 of 2013 [2016] eKLR where the minor had admitted to having an affair with another boy other than the appellant, the Court of Appeal held; In a defilement case, it is not an essential ingredient of the offence that the complainant must conceive a child. In the instant case, conception was a factual matter that is not part of the actus reus in a charge of defilement. Section 36 (1) of the Sexual Offences Act allows the trial court to direct that a DNA test be conducted. In the instant case, the trial court directed that a DNA test be conducted and none was done. We are satisfied that no prejudice was occasioned to the appellant by absence of the DNA test because penetration was proved by the testimony of PW1. Neither the appellant nor defence witnesses controverted the evidence on penetration. In a charge of defilement, what is required is proof of penetration not proof of paternity. We agree that proof of paternity may be proof of penetration when fertilization and sexual intercourse takes place in accordance with the order of nature. However, paternity is not proof of penetration in in-vitro fertilization. In the instant case, from the testimony of PW1, we are satisfied that there is direct evidence on record to the required standard that proves penetration of the appellant’s genital organs to the complainant’s genital organs. 15. No DNA test was carried out in this case to confirm the paternity of the baby. As already noted above, the medical evidence tendered by PW 3 did not corroborate PW 1’s testimony that the appellant was the perpetrator. In fact, PW 3’s testimony proved that PW 1 had conceived before the time she said she met the appellant. PW 2 and PW 4 simply confirmed that the appellant was known to PW 1 but did not catch them in flagrante delicto. This left the direct evidence of PW 1 as the only evidence implicating the appellant. 16. The proviso to section 124 of the Evidence Act (Chapter 80 of the Laws of Kenya) entitles a trial court to rely on the evidence of the child if for reasons to be recorded, the court is satisfied that the child was telling the truth. In the present case, the trial court did not record in its decision the reasons it believed PW 1’s testimony. The court was content that the prosecution had proved its case through PW 1’s testimony that she had sex with the appellant on several occasions and that he had been in fact arrested with PW 1. The appellant’s defence that he had paid money to the minor’s father for medical expenses and two cows for the baby undermines his defence that he did not know PW 1 or that he did not have a relationship with her. 17. In as much as a DNA test would have clarified the issue of paternity, a failure to conduct the test did not weaken the prosecution’s case as PW 1 gave a clear account of the relationship she had with the appellant which was not weakened on cross-examination or explicitly denied by the appellant. Therefore, her evidence proved that the appellant had sexually assaulted her. The totality of the evidence is that the prosecution proved the case beyond reasonable doubt. I affirm the conviction. 18. I now turn to the sentence. The mandatory sentence for defilement of a child aged between 12 years and 15 years is 20 years’ imprisonment under section 8(3) of the Act. The Court of Appeal has in several cases considered the constitutionality of mandatory

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minimum sentences under the Act; BW v Republic KSM CA Criminal Appeal No. 313 of 2010 [2019]eKLR, Christopher Ochieng v Republic KSM CA Criminal Appeal No. 202 of 2011 [2018] eKLR and in Jared Koita Injiri v Republic, KSM CA Criminal Appeal No. 93 of 2014. It adopted what the Supreme Court held in Francis Karioko Muruatetu & another v Republic SC Petition No. 16 of 2015 [2017]eKLR that the mandatory death sentence prescribed for the offence of murder by section 204 of the Penal Code was unconstitutional; as the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; and that a mandatory sentence fails to conform to the tenets of fair trial that accrue to the accused person under Article 25 of the Constitution. 19. Since the mandatory minimum sentence has been declared unconstitutional, I am bound to re-examine the sentence having regard to the fact that the legislature had taken the view the offences of defilement are serious offence that merit stiff sentences and there has to be a good reason to depart from the indicative sentence prescribed by the legislature. In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Act. It observed as follows: [W]e hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing. The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful. 20. Section 354 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) provides for the powers of this court upon hearing an appeal if it considers that there is no sufficient ground for interfering, to dismiss the appeal or it may, under subsection 3(b), “in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence”. 21. I have considered the fact that the complainant and the appellant were in a relationship. At the time the appellant was charged, he was aged 19 years old according to the charge sheet. He is a first offender and considering the totality of the circumstances, a long custodial sentence would not serve the interests of justice. On the other hand, the law recognises the seriousness of the act of defilement. I therefore sentence the appellant to one (1) year imprisonment to run from the date of conviction before the trial court, that is on 22 nd February 2019. 22. Save to the extent of the sentence, the appeal is dismissed. DATED and DELIVERED at KISII on this 1st day of JULY 2019. D.S. MAJANJA JUDGE Mr Matoke, Advocate for the appellant. Mr Otieno, Senior Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.

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