Peter Theuri Ngichiri v Republic

Appellant let her out then she went to his grandmother’s house within the same homestead. The Appellant followed her there and grabbed her hand. His grandmother demanded to know why he was doing that and ordered him to let go of her but he refused. 7. The Appellant pulled her to his cousin’s house within the homestead and locked her up there. He then demanded to have sex with her but she refused. He threatened to send Mungiki to kill her and her entire family. PW2 got scared and gave in to the Appellant’s demands. The Appellant undressed her, put her on the bed, removed his clothes then defiled her. He also touched her breasts. They spent the night together and had sex about three to four other times without any protection. They spent the whole of the second day together in the village. She did no attempt to escape because the Appellant had threatened to call Mungiki on her and her family. The Appellant brought her food which they ate together then spent another night together and had sexual intercourse. On the third day, they left the house and went to a place called Gikomora where they had some refreshments then walked around until evening. The Appellant then took her to see his parents but cautioned her to tell his parents that she was from Nyeri in case they asked. 8. On the fourth day, they travelled together to Thika to visit the Appellant’s aunt. They stayed there for about a week. The Appellant would leave for work in the morning and return at 1.00 pm then they would spend the afternoon walking around town. They would then have sex every evening. The following Tuesday, the chief of the area where the Appellant’s aunt was staying in Thika went to his aunt’s house and started enquiring where PW2 was from, her name and who her parents were. On learning this, they left Thika the following day and went back to the Appellant’s home in Gitura together. 9. Meanwhile, on 17th May, 2016, PW2’s mother PW3, ANN went and reported her missing at [particulars withheld] Police post. A few days later, the Appellant who was a stranger to her, called her and told her that PW2 was at his house. She asked the Appellant whether he knew that PW2 was a school going child. He told her that he was aware since PW2 had informed him so but he had decided to marry her. He also told her that they were together in Kitale and then disconnected the call and blocked PW3. 10. PW3 went and reported at Maragua Police station. She was advised to take the number that the Appellant had used to call her to the Criminal Investigation Department (DCI). Several days later, the Appellant called her again with a different number and informed her that he was with PW2 at Gathigiriri in Murang’a. PW3 went back to the police station and gave them the new number but was not offered any assistance. On 26th May, 2016, her daughter who resided in Nyeri called and informed her that PW2 had been spotted at Itara in Gikomora village. PW3 went and informed the police at [particulars withheld] Administration Police Post and asked them to help her trace her daughter. 11. The police traced PW2 and the Appellant at Itara on the same day at about 9.00 pm. They arrested them and escorted them to Itara Police Post where they were detained for the night. The following day, PW2 and the Appellant were escorted to Maragua Police Station. PW3 was called to the police station where she recorded her statement. Thereafter, the police gave her a P3 Form and advised her to take PW2 to Maragua Hospital. 12. PW1, Charles Kamau Kamotho, a Clinical Officer from Maragua Sub-County Hospital examined PW2 at the facility on 27 th May, 2016. Her outer genitalia was normal. There was no tear but her hymen was broken. It was an old breakage. HIV, pregnancy and syphilis tests were negative. Her urine contained some pus cells. A high vaginal swab did not reveal any sperms. PW2 was placed on antibiotics and given emergency contraceptives. She was also given medicine to prevent HIV. The conclusion made was that the broken hymen indicated that she had engaged in sexual intercourse. PW1 filled PW2‘s post rape care form and P3 form and produced both in evidence. 13. Upon being placed on his defence, the Appellant elected to give a sworn statement. He stated that he was 24 years old and a student at [particulars withheld] Boarding Secondary School. He testified that he was in Form I at the time when he was arrested. He denied having been arrested at home. He stated that he was arrested at about 9.45 pm by a male and female administration police officer on patrol duty while returning home from a hotel near the Administration Police Camp. He thought that they were thugs and he tried to flee. The female officer who identified herself as Peris pulled out a pistol from her pocket and warned him not to flee or she would shoot him. The male officer then pulled out a club and struck him on the head with it. They struggled as the man tried to get him to kneel down and follow his instructions. 14. The man demanded to know where he was coming from, where he was headed to and his full names. He explained to them that he was coming from a nearby hotel where he normally took tea whenever he was at the village. The officer then pulled out handcuffs to cuff him but he told them that he would not allow them to do so unless they showed him their identification cards. The female officer pulled out an identification card showing that her name was Velima Wanjiru Ndungu. He was surprised that the female officer turned out to be PW2. The officers did not tell him the reason for his arrest. They escorted him to the police station where they continued to assault him. Analysis and determination 15. The Appeal was canvassed by way of both written and oral submissions. The Appellant’s written submissions were filled on 31 st August, 2020 and he appeared in person during the oral highlighting of the same. The Respondent on the other hand was represented by the learned State Counsel, Ms. Gichuru who only tendered oral submissions. Upon carefully re-evaluating the evidence on record and considering the parties’ respective submissions, I find that the only issues for determination are whether the prosecution proved its case beyond a reasonable doubt and whether the sentence was proper. 16. In a case of defilement, the prosecution is obligated to prove three elements, namely penetration, age of the victim and the identification of the perpetrator. 17. As regards the Appellant’s identification, he submitted that PW2 was dishonest since her narration of the events was illogical. For that reason, he urged the court to reject her entire evidence. Further, he contended that there was no evidence to prove that he ever called PW3 to inform her that he was with PW2. He faulted the prosecution for failing to prove that the two telephone numbers 0701153068 and 0729099643 were registered in his name. He also complained that that the trial magistrate erroneously shifted the burden of proof from the

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prosecution to him when he noted that the Appellant did not strike him as a truthful witness from his demeanour. Finally, he questioned why he was not taken to hospital for examination alongside PW2 since PW1 stated that it may be helpful to do so in certain cases. 18. In response, learned state counsel Ms. Gicheru submitted that the evidence tendered by the prosecution pointed to the Appellant as the one who committed the offence. 19. PW2 testified that the Appellant had been her boyfriend for about a month prior to the incident. She spent about eleven (11) days in the company of the Appellant. This was corroborated by PW3 who testified that the Appellant called her and identified himself to her as Peter. He told her that he was with PW2 and wanted to marry her. When PW3 was called to the police station after PW2 and the Appellant had been arrested, she found him there. The Appellant was not known to PW3 before the incident and therefore she had no reason to frame him. Further, the Appellant’s defence that PW2 turned out to be the female officer who arrested him was far-fetched, untruthful and unbelievable. In the premises, I have no doubt that the Appellant was positively identified. 20. As regards the age of PW2, the Appellant argued that the prosecution did not sufficiently establish whether PW2 was indeed a child. He questioned where PW1 got PW2’s date of birth since the witness did not state whether PW2 had a birth certificate when he saw her. 21. PW1 testified that she was sixteen years old and was born on 12 th June, 2000. Her mother PW3 testified that she was born in the month of June, 2000 and identified her birth certificate in court. Unfortunately, the said birth certificate was not produced in evidence since the investigating officer did not testify. Notably, the P3 form produced in evidence indicated that PW2 was fifteen (15) years old as at 27 th May, 2016 when she was examined. Further, the post rape care form produced in evidence shows that her date of birth was 12 th July, 2000. Despite the slight variation between PW2 and PW3’s evidence against the post rape care form regarding the month of birth, it is clear from the totality of the evidence that PW2 was born on 12 th June, 2000. PW2 was therefore fifteen (15) years old as at the time she had sexual intercourse with the Appellant. 22. On the issue of whether there was penetration, the Appellant in his submissions questioned why a high vaginal swab did not reveal the presence of sperms whereas PW2 stated that they had sex every evening without any protection. In his view therefore, penetration was not established. 23. PW2 testified that she repeatedly had sexual intercourse with the Appellant during the period that they were together. This fact was corroborated by the medical evidence tendered by PW1 which showed that her hymen was found to be broken and the breakage was old. PW1 concluded that the broken hymen was proof that PW2 had engaged in sexual intercourse. In the premises, I am satisfied that penetration was established. 24. Further, the Appellant questioned why the following witnesses were not called to testify: the arresting officer, PW3’s other daughter Winnie who informed her that PW2 had been seen with the Appellant; and PW2’s classmates who informed her sister that she had been seen in Itaara. 25. It is trite that the prosecution is not bound to call a superfluity of witnesses in order to prove a fact. (See Section 143 of Evidence Act, Cap 80 Laws of Kenya). It is also well settled that the prosecution reserves the discretion to determine which witnesses to call. In Julius Kalewa Mutunga v Republic [2007] eKLR, the Court of Appeal stated thus:- “As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion, unless, for example, it is shown that the prosecution was influenced by some oblique motive.” 26. In the instant case, my perusal of the evidence on record reveals that there is overwhelming evidence of defilement. The evidence produced by PW1, PW2 and PW3 sufficiently established all the ingredients of the offence of defilement to the satisfaction of the court. The witnesses alluded to by the Appellant were not crucial and in any case, their evidence would not have disproved the strong prosecution evidence that established the Appellant’s culpability. 27. In the upshot, I find that the prosecution proved beyond any reasonable doubt that the Appellant defiled PW2. His conviction was therefore safe. 28. This now brings us to the last issue, that is, what is the appropriate sentence in the circumstances. The Appellant was sentenced to serve fifteen (15) years imprisonment which is the penalty prescribed for the offence under Section 8 (4) of the Sexual Offences Act No. 3 of 2006. In the past, the sentences prescribed under the said section were considered mandatory. However, the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR declared mandatory sentences unconstitutional. 29. Further, in Evans Wanjala Wanyonyi v Republic [2019] eKLR, the Court of Appeal recently held that:- “24. On the enhanced 20 year term of imprisonment meted upon the appellant by the learned judge, we are of the view that, the constitutionality of the mandatory minimum sentence meted out to the appellant raises a question of law. This Court in Christopher Ochieng – -Vs- R [2018] eKLR Kisumu Criminal Appeal No. 202 of 2011 and in Jared Koita Injiri – -Vs- R, Kisumu Criminal Appeal No. 93 of 2014 considered legality of minimum mandatory sentences under the Sexual Offences Act. This Court noted that the Supreme Court in Francis Karioko Muruatetu & another – v- Republic SC Petition No. 16 of 2015 held the mandatory death sentence prescribed for the offence of murder by Section 204 of the Penal Code was unconstitutional; that the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; 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. Guided by the foretasted

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Supreme Court decision, this Court in Christopher Ochieng – v- R (supra) stated: In this case, the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by Section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis. ….. Needless to say, pursuant to the Supreme Court’s decision in Francis Karioko Muruatetu & another – v- Republic (supra), we would set aside the sentence for life imprisonment imposed and substitute it therefore with a sentence of 30 years’ imprisonment from the date of sentence by the trial court. 30. This means that the sentence prescribed under Section 8 (4) of the Sexual Offences Act is a discretionary maximum sentence. The Court therefore has a discretion to impose a lesser sentence in appropriate cases. 31. In the present case, the circumstances were that PW2 and the Appellant were in a relationship. Furthermore, although the Appellant was an adult, he too was relatively young and school-going. The rider is that the latter is not an excuse to commit the offence and so he must account for his irresponsibility. I have also considered that the Appellant was a first offender. Finally, I have taken note of his mitigation before the trial court where he pleaded for leniency. It is my considered view that the sentence imposed by the trial court was excessive and harsh. I therefore set aside the fifteen (15) years imprisonment and substitute it with five (5) years imprisonment. Conclusion 32. The Appeal partially succeeds. The Appellant’s conviction is upheld. The custodial sentence of fifteen years imprisonment is set aside and substituted with five (5) years imprisonment. The period spent in remand custody prior to sentencing in the trial court of one year 7 days shall be taken into consideration to constitute part of the sentence. It is so ordered. DATED AT MURANG’A THIS 3RD DAY OF DECEMBER 2020. G.W.NGENYE-MACHARIA JUDGE In the presence of: 1. Appellant in person. 2. Mr. Waweru for the Respondent.

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