Madaraka Hariri Dzaya v Republic

her that she had sex with the appellant. She claimed to have conducted further investigations and preferred the present charges against the accused. (PW5) was the clinical officer at Mariakani Sub-County Hospital. He examined the victim on the 14 th December 2017 and found her hymen broken. It was also noted that she had an infection which was treated. (PW5) concluded that the victim was indeed defiled, through the evidence on treatment notes and the P3 Form produced and marked as Pexhibit 2 and 3, respectively. (PW6) a police officer from Kaloleni Police Station produced (PW1’s) Birth Certificate marked as Pexhibit 1 on behalf of (PW4) who was on maternity leave. He stated that (PW1) was born on the 25th May 2000. The Court found the appellant with a case to answer and proceeded to place him on his defence. He elected to give sworn testimony. The appellant denied the charges and even knowing the victim. He stated that he saw her for the first time in Court giving evidence. He claimed that the victim lied to the Court that they had sex together notwithstanding she was never known to him before the indictment. Submission The appellant alleged that the Learned trial Magistrate overlooked the contradictions and variances in the prosecution case. It is also argued that the medical evidence was inconsistent. He alluded to the fact that despite the doctor having made a finding that the victim’s hymen was missing, he did not provide information as regards when the said missing hymen broke. Further, that the doctor did not specify whether the injuries were fresh or healed or old tears since the victim took about twelve days to visit the hospital. He feels that a conviction was risky in the circumstances because it’s difficult to determine the perpetrator of the alleged offence. On the last ground of appeal, at sentence the appellant argued that Section 8 (1) (4) of the Act fetters the discretion of the Court to pass a minimum sentence under Section 216 and 329 of the Criminal Procedure Code. The appellant added that the said Section denies judicial officers a chance to consider the mitigating circumstances of individual cases which denies the convicts a benefit of lesser sentence. He therefore prayed that his mitigation be considered and other personal circumstances to vary the sentence. Issues for determination 1. Whether the prosecution proved its case beyond reasonable doubt. 2. Whether there are material contradictions and invariances in the prosecution case. 3. Whether Section 8 (1) (4) of the Sexual Offences Act fetters the discretion of judicial officers to impose appropriate sentences. Analysis and Determination On the issue as to whether the prosecution proved its case beyond reasonable doubt, the Court answers in the affirmative. It has been held in several decisions that the offence of defilement is proved when the following ingredients are established: (1). Complainant’s age (2). Proof of penetration (3). Identification of the penetration or offender As to proof of age, the prosecution produced the victim’s birth certificate marked as Pexhibit (1) which supports the fact that the victim was born on the 25th May 2000. This goes to show that the victim was 17 years at the time the offence was alleged to have been committed. The same suffices to position the instant matter within the bounds of the offence of defilement as defined in terms of Section 8 (1) (4) of the Act. The Law criminalizes sexual related acts with victims under the age of 18 years old. This element is therefore not in dispute. As regard the element of penetration, (PW5) produced evidence to the effect that the complainant had no hymen upon examination following the investigation of the instant offence. He produced treatment notes showing that the victim was indeed his patient on 14 th December 2017 and a P3 marked Pexhibit 2 & 3 respectively. The question raised by the appellant on this limb pertains to the age of the injuries on the hymen. To answer this, the victim has given unchallenged evidence to the effect that the appellant was her boyfriend, a fact that has been confirmed by (PW3), her grandmother. She also told the Court that she had systematically engaged in sexual acts with the appellant prior to the date in question herein, and the appellant was not able to confute the same. I have not been able to find any inconsistencies alleged by the appellant, as far as the question of the medical evidence is concerned. I agree with the evidence by the victim and corresponding findings by the trial Magistrate on proof of penetration. It seems to me from the chronology of events as stated on oath by the victim a sexual desire for sexual pleasure was created between her and the appellant. This resulted for an opportunity to carry out the sexual activity that would fulfil such a desire for contact with the appellant. For genuine sexual contact Section 2 of the Sexual Offences Act defines the criminal conduct to constitute both partial or complete insertion of the male genitals into the female genital here is largely victims categorized to be under maturity age. In general, the existing age of consent in Kenya is 18 years. That is to say any acts of sexual penetration to another female is unlawful if the victim is under that age bracket. It is the position of the Law under Section 124 of the Evidence Act that a sexual charge can be proven beyond reasonable doubt solely by the credible and cogent testimony of the victim without corroboration. The rationale of this legal

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proposition is the fact of such crimes typically committed in solitude. Rarely can one find direct eye witness to the offence. On the other hand evidence has shown that not all sexual acts that result in physical injury to the genitalia of the victim. It is therefore reasonable to conclude that the occurrence of a broken hymen may not be highly relevant on the specificity of penetration. This is regardless whether the hymen broke before, during or after penetration event associated with the offender. I therefore lean on to the side of the prosecution and I find that the question of penetration was proved beyond reasonable doubt in the circumstances proven at the trial Court. Having established that the victim was a minor at the time of the commission of the offence and that the she was indeed defiled, the question to ponder is whether the appellant is the author of the unfortunate on-goings. The victim points out the appellant as the perpetrator of the offence. She told the Court that on the material date, the appellant took her to his house where she spent a whole week. She also averred to the fact that the appellant promised that he would find her a job which never materialized. The evidence of (PW3) also suggested that the affair between the appellant and the victim was well known to the family members such that when the victim went missing, they knew she was with him. The probability of mistaken identity is further reduced by the fact that (PW1), (PW2) and (PW3) confirmed that the victim was their neighbour and there is no way he could not have known the victim. Evidence given by the victim identified the appellate as the person whom he committed the act of defilement. The reasons for this is explained on recognition as laid down in the case of Anjononi v R {1980} (KLR) 59 and I quote: “Recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” It is unfortunate that the appellant elected to maintain a lie and an afterthought that he had never met the victim until the day she testified in Court. This makes his defence of very little or no probative value. The Court therefore finds that the appellant was properly identified as the perpetrator of the alleged offence. It is also my view that the contradictions and inconsistencies referred to by the appellant herein are neither here nor there. As elaborated in Erick Onyango Odeng v R {2014} eKLR the Court of Appeal in Uganda held: “With regard to contradictions in the prosecution’s case, the Law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The Court will ignore minor contradictions unless the Court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.” In the instant case, there is absence of evidence contradicting the prosecution case capable of raising a reasonable doubt about the guilt of the appellant. It is my considered view that the appellant’s appeal on conviction fails. As regards the appeal on sentence, the appellant has argued that Section 8 (1) (4) of the Sexual Offences Act. This question was addressed by the case of Christopher Ochieng v R {2018} eklr where the Court of Appeal at Kisumu took guidance from the Landmark Supreme Court decision in Francis Karioko Muruatetu & another v Republic SC Pet No. 16 of 2015 applying the Supreme Court decision that the mandatory sentence prescribed for the offence of murder by Section 204 of the Penal Code was unconstitutional. The apex Court further propounded that: “Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such Law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives that the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case. Where a Court listens to mitigating circumstances but has, nevertheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to the accused persons under the Article 25 of the Constitution; an absolute right.” The Court of Appeal in applying and extending the principles in Muruatetu (supra) in the case of Christopher Ochieng (supra) stated as follows: “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.” Bearing the foregoing in mind, the appellant herein was granted the opportunity to mitigate in the trial Court. He indicated he was the soul breadwinner for his family and that he was a first offender. In passing the sentence and after having considered the appellant’s sentence, the Learned trial Magistrate reserved that he had no option but to sentence the appellant as prescribed under the Act. This was a case in which the victim admits that the appellant was her boyfriend. Though the victim was below 18 years, it’s a fact that age certainly is not within the tender year bracket or in the category of 13 – 16 year old. It is trite as stated in Kennedy Konde Munga v R {2011} Eklr:

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“The objective of mandatory minimum sentences under Section 8 of the Sexual Offences Act is to exert punishment on the accused, incapacitate, and deter others from committing such an offence in future.” “Once the accused person is found guilty of the offence, there is no discretion to consider the circumstances that led to the commission of the offence, notwithstanding the potential injustice that may arise from that sentencing verdict.” In the instant case, the medical report opined the nature of injury suffered as harm with no aggravating factors. The victim under the exercise of seeking favours of a job placement seized the opportunity to give in to the appellant sexual act. The fact of matter from the various perspectives that was not the first incident of sexual intercourse with the appellant. From her testimony they had taken upon themselves to elevate their girl/boyfriend relationship to engage in the sex act. That means in the mind of the appellant may be this was not a child though age was not ascertainable at the time of the defilement. The only unfortunate thing in the proceedings of that Court, appellant took the witness stand to deny knowledge of the victim to a large extent to create a reasonable doubt in the assessment of the evidence by the Learned trial Magistrate that he was not the perpetrator. It cannot be denied that the appellant in conducting his defence did so without proper legal counsel or to that extent one chosen by the state as provided under Article 50 (2) (G) and (H) of the Constitution. The right to a fair trial tenets is protected under the same Article and its applicability is a fundamental duty of the trial Court to ensure achievement of justice. It is in this context the Court is able to foresight whether the appellant was aware of existence of defences in cases of this nature. The appellant needed the assistance of counsel to cope with the problems of the Law, to make skilled inquiry to the facts and ascertain whether there are any defences to his case. That as it may be commonly to the appropriate sentence key parameters are clearly laid down in the Supreme Court decision of Muruatetu and the sentencing policy guidelines. Further, this is a case perhaps the requirements of Section 333 (2) of the Criminal Procedure Code for the appellant to have benefited from the 9 months remand custody pending trial and conclusion of his case on 13.9.2018. The code expressly provides that the trial Court while sentencing an offender takes into account the period spent in custody in addressing the appropriate term of imprisonment. In the case of Rwabugande Moses v Uganda SCCA No. 25 of 2014 the Court held: “It is our view that the taking into account of the period spent on remand by a Court is necessarily arithmetical. This is because the period is known with certainty and precision, consideration of the remand period should therefore necessary mean reducing or subtracting that period from the final sentence. That period spent in lawful custody prior to trial must be specifically credited to an accused.” The basic criteria for the application of Section 333 (2) of the Criminal Procedure Code is to impose sentence consonant with the broad language under Article 50 (2) (p) of the Constitution which expressly provides that an accused person has a right to the benefit of the least severe of the prescribed punishments for the offence. In defiance of a strict legal logic on mandatory sentences and the discretionary power of the trial Court, the Supreme Court in Muruatetu gave as sure guide which is permissible to be factored in the sentencing process of an affidavit. The general approach to a determination on sentence has been espoused to include interalia: (1). Age of the offender. (2). Being a first offender. (3). Whether the offender pleaded guilty. (4). Character and record of the offender. (5). Commission of the offence in response to gender based violence. (6). Remorsefulness of the offender. (7). The possibility of Reform and social re-adaptation of the offender. Any other factor that the Court considers relevant. It is also now accepted that the significance of the sentencing process should appreciate the objectives which include interalia: “(1). Punishment of offenders. (2). Reduction of crime. (3). Reform and rehabilitation of offenders. (4). Protection of the public. (5). Making of reparation by offenders to persons affected by their offences.”(See City Law School , London Criminal Litigation and Sentencing, Oxford University Press (New York ) {2009} P 292).

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The question is at what point does the sentence become punitive and manifestly excessive. I accept that the sentence imposed by the Learned trial Magistrate was that of a legislative fixed model without administrative judicial discretion. The Court then proceeded to apply the provision on minimum sentence to mete out punishment against the appellant. To that extent one cannot fault the discretion by the Learned trial Magistrate. However, in my view a firm foundation exists in the Constitution, the Criminal Procedure Code and through a series of judicial opinions to aid the sentencing Court in taking account the special character of the case and not to fetter his or her discretion. The distinction which has to be made in these cases is that between the primary prescribed sentence, the trial Magistrate has power to circumscribe to the principles in various judicial precedents to justify lesser sentence. Following the dictum in Muruatetu and subsequent decisions by the Court of Appeal, deductions from those decisions point towards stretching the concept on mandatory and or minimum sentences to eliminate prejudice or injustice to the offender. I will first deal with the consideration under Section 333 (2) of the Criminal Procedure Code which deals with the period spent in custody to be credited to the convict’s term of imprisonment. Applying the guidelines in Muruatetu case and taking into account the aggravating and mitigation offered by the appellant some degree of leniency should have been extended to the final period. Speaking on aggravating factors the circumstances surrounding the crime relating the appellant age and lack of substantial Judgment in committing the crime. The circumstances to this case from the victim’s view, they had a sustained love affair with a believe that they had a right to engage in sexual intercourse. During the sentencing hearing no evidence was led by the state that the appellant would commit criminal acts of defilement as a continuous threat to society to demand long incarceration. The relative weight to be given to both aggravating and mitigation factors in this particular case tend to justify exercise of discretion of a lesser sentence to that of the prescribed period of 15 years’ imprisonment. Following the formulae in Ochieng & Injiri case minimum mandatory sentence must be imposed only when other lesser alternative terms of imprisonment is found to be inadequate for the offence. I have considered the evidence in this appeal and it’s my opinion that the appellant is a man without any previous convictions. Likewise, the victims own admission set out to substantially demonstrate that both of them had been in a relationship until the day of arrest on 3.12.2017. Some of the following pertinent questions called for an answer before imposing the 15-year sentence of the presentence. (a). Is there something uncommon about the defilement which renders the sentence of imprisonment for 15 years manifestly excessive and calls for an alternative sentence. (b). Are the circumstances of the offence such that the trial Magistrate had no alternative but to impose the 15 year custody sentence. A balance has to be struck between the aggravating and mitigating factors. Also of significance is the principle in Muruatetu case that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. To this end, the scores on this measure outlined by the Supreme Court goes to individualize justice with punishment to the offender. Bearing in mind the issues drawn between the principles in Muruatetu and sentencing policy guidelines it cannot be said that appellant’s case on sentence was such that 15 years imprisonment was inevitable. For the above reasons the appeal against the conviction of the appellant is dismissed and affirmed. As for sentence its varied to a term imprisonment of 7 years with effect from the date of arrest. DATED, SIGNED AND DELIVERED AT MALINDI THIS 3RD DAY OF DECEMBER, 2020 ......................... R. NYAKUNDI JUDGE

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