Simon Moseti Kinanga v Republic

Criminal Procedure Code. Counsel further argued that the prosecution did not discharge its burden of proof. He submitted that the prosecution did not prove that the appellant defiled the victim. He also challenged the sentence imposed by the trial court. He argued that the legal principles applied by the trial court in sentencing the appellant led to a miscarriage of justice hence the conviction ought to be quashed, the sentence set aside and the appellant be set at liberty. Senior Prosecution Counsel Desmond Majale opposed the appeal and urged this court to uphold the conviction and sentence. Mr. Majale submitted that the six prosecution witnesses gave a corroborative and consistent account of how the heinous act was perpetrated upon the victim and stated that the appellant was the second person to defile the victim before locking her in the house and going to call the next perpetrator. Counsel submitted that the key ingredients of the offence of defilement being age of the victim, proof of penetration and identification of the perpetrator were all proved beyond reasonable doubt. On the sentence, Mr. Majale asserted that the Act prescribes a term of imprisonment of not less than twenty years and that the trial magistrate took into consideration the appellant’s mitigation and the pre-sentence report before sentencing him to ten years. Counsel submitted that the sentence was lenient considering the age of the victim and the circumstances of the offence and more especially that the victim was defiled by three people until she could not walk properly. He therefore urged this court to uphold the conviction and sentence. This court sits in this matter as a first appellate court and guided by the principle in the case of Okeno v Republic [1972] EA 32 I am enjoined to re-consider and evaluate the evidence in the trial court so as to arrive at my own independent conclusion while keeping in mind that I did not see or hear the witnesses. I have also carefully considered the rival submissions and the authorities cited by Counsel for the appellant. The issues that call for determination are: 1. Whether the offence of defilement was proved beyond reasonable doubt. 2. Whether the appellant’s right to a fair trial was violated. 3. Whether the sentence imposed by the trial court was proper. 1. Whether the offence of defilement was proved beyond reasonable doubt. The essential ingredients of the offence of defilement are age of the complainant, proof of penetration and positive identification of the assailant. (See Francis Kennedy Owino v Republic [2017] eKLR.) Proof of the actual age of the complainant is also important as the sentence imposed is dependent on it. PW4 the mother of the complainant testified that the complainant was 14 years old and produced a birth notification showing that she was born on 6 th October 2004 hence 14years at the time of the offence. I find therefore that the element of age was proved beyond reasonable doubt. Section 2 of the Sexual Offences Act defines “penetration” as “…. the partial or complete insertion of the genital organs of a person into the genital organs of another person.”. The complainant gave a vivid narration on how she and the appellant had sex in the 1 st accused’s house from 2pm to 4pm. It was her testimony that she had sexual intercourse with three people all at different times. The fact that the medical examination conducted upon the complainant did not specifically indicate that she was defiled by the appellant does not in my view rebut the evidence of the complainant. The argument by the appellant that no examination was done on him to ascertain that the spermatozoa found on her came from him cannot also stand given that the law does not require corroboration of her evidence provided the court for reasons to be recorded believed her evidence (see Section 124 of the Evidence Act). Moreover, in this case her evidence was corroborated by the clinical officer (Pw1). The clinical officer testified that when he examined the complainant he found that she had a painful swelling around the vulva region and that her labia minora and majora were inflamed and very painful. He gave evidence that her hymen was broken and that spermatozoa and numerous epithelial cells were noted. The clinical officer also confirmed that the complainant could not walk properly. He further stated that after piecing his findings together he came to the conclusion that penetration had occurred. I am therefore satisfied that penetration was also proved to the required standard. On the issue of identification, I agree with the prosecution that it was indeed by recognition. The complainant knew the appellant very well prior to the incident as he was her “boyfriend’s” friend. In the case of Peter Musau Mwanzia v Republic [2008] eKLR the Court of Appeal stated: - “We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for sometime, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident.” It was the complainant’s evidence that she knew the appellant through her “boyfriend” Joshua Mwereza Gecheo. She testified that it was after she had had sex with Joshua that they went to a house which was near the road and Joshua asked her to wait outside as he went to fetch the keys only to return in the company of the appellant and Thomas (3 rd accused in the lower court). She stated that the next day, at around 12.00pm the appellant went to that house and requested to have sex with her and they had sexual intercourse between 2.00pm and 4.00pm. This was in broad day light hence leaving no doubt in my mind that she saw and recognized the appellant positively. The amount of time with him also gave her an opportunity to be sure it was him and I am satisfied therefore that this is not a case of mistaken identity. Her evidence was consistent, credible and truthful and I am satisfied it proved the appellant’s guilt to the required degree.

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2. Whether the appellant’s right to a fair trial was violated. On the second issue the appellant contends that he was not accorded a fair trial because after the charge was amended the trial court did not give him an opportunity to recall the prosecution witnesses. In considering a similar issue in the case of Josphat Karanja Muna v Republic [2009] eKLR the Court of Appeal stated: - “On non-compliance with section 214 of the Criminal Procedure Code, we observe that as far as the appellant is concerned, the substituted charge at page 5 of the record did not introduce any new matter into the main charge that would have necessitated recalling of witness. All the substituted charge did was to introduce an amended name of the complainant. When he gave evidence, on 29th September 2002, he gave his name as Ben Cheche Gikonyo whereas his name Ben Chege name in the first charge sheet was given as Gikonyo. The amendment only took care of that. That amended charge was read to the appellant and his co-accused and fresh plea taken. That the spirit of section 214 is to afford an accused person opportunity to recall and crossexamine witnesses where the amendments would introduce fresh element or ingredient into the offence with which an accused person is charged. It certainly was not meant to be invoked every time an amendment is made even if such an amendment is only to introduce a correction of name or of a word. Here the name Ben Chege Gikonyo was amended to read Ben Cheche Gikonyo. We do not accept that the non-compliance with the provisions of section 214 of the Criminal Procedure Code resulted into injustice to the appellant. Then there was the allegation that the provisions of section 211 of the Criminal Procedure Code was also not complied with in that the learned trial Magistrate did not spell out in so many words how she complied with it. This is another ground of appeal which in our view should have not been raised in the first place.” While it is the duty of the trial court to call upon the accused to plead to the amended charge and to inform the accused of his right to recall witnesses it is clear that it is not in all cases that failure of the trial court to comply will be fatal. In the instant appeal the substituted charge did not introduce any new issues that would have required recalling of the witnesses. The amendment concerned the name of the appellant and its effect was to only add his alias Simon Moseti Kinanga. Guided by the above decision of the Court of Appeal and having come to the conclusion that the amendment did not prejudice the appellant I find that the addition of the name in the substituted charge did not substantially alter the charge and was not reason enough to require the recalling of prosecution’s witnesses for cross examination. I find therefore that the appellant’s right to a fair trial was not violated by the omission to inform him of the right to recall witnesses. 3. Whether the sentence imposed by the trial court was proper. From the above conclusions it is evident that the elements of the offence of defilement were proved beyond reasonable doubt as required in criminal cases and that the appellant was properly convicted. The appellant was charged under Section 8(1) as read with Section 8 (3) of the Sexual Offences Act. Subsection (3) of the Act provides that: - “A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” The complainant was a child aged 14 years. The trial court sentenced the appellant premised upon Section 8 (3) of the Sexual Offences Act. Counsel for the prosecution submitted that the sentence imposed is lenient considering the age of the complainant and the circumstances of the offence. The trial Magistrate considered the mitigation by the appellant and the pre-sentence report before imposing the sentence and I agree with Senior Prosecution Counsel that this was indeed a very lenient sentence given the circumstances of the offence. However, the prosecution did not cross appeal and did not give the appellant a notice of enhancement of the sentence and for those reasons I shall not disturb the sentence and the upshot is that the appeal has no merit and it is dismissed in its entirety. Signed, dated and delivered on this 28th day of October 2020. E. N. MAINA JUDGE Judgement delivered Electronically via Microsoft Teams.

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