Patrick Mukundi Mureithi v Republic

4. Facts The brief facts of the case are that the complainant TGN (PW3) was a student in form one at M. Secondary in form one and was by then aged seventeen years. On 29th April 2018 she was in church the whole day and were home at about 5.30 pm while in the kitchen preparing supper she heard the appellant calling her and she went outside. The appellant asked her why she had let the goats to destroy his crops. The appellant told her to follow him and see the crops which the goats had destroyed. The complainant followed her and she went to the shamba. While there the appellant told her he wanted to sent her a success card. The appellant gave her Ksh.200/-. She took the money. As she turned to go home, the appellant got hold of her and pushed her to the ground. The appellant threatened to strangle her if she screamed and forced her to have sexual intercourse with him. The appellant lifted her skirt and pushed her pant aside. He had already unzipped his trousers and he inserted his penis in her vigina. The appellant held her mouth so that she could not scream. The appellant did use a condom. The appellant left after forcing the complainant to have sexual intercourse with her. The complainant then went home and did not tell her mother anything. 5. Later in the month of September she wrote a letter to her mother informing her that she was pregnant. The mother (PW2) enquired from her as to who was the father of the child and she disclosed to her that it was the appellant who defiled her in April 2018. 6. The matter was reported to the police and she was referred to Chuka District Hospital. She gave birth on 24th January 2019. At the time the complainant reported and tests were carried out at Chuka District Hospital, she was found to be 30 weeks pregnant. A P3 form was filed and was produced as exhibit – 1 together with PCR Form survivors card and ultra sound result. 7. In the course of the trial the court ordered that a D.N.A test be conducted on the appellant, the complainant and her child. A report was produced in court by Joseph Gitonga, (PW5) a government analyst attached to Government Chemist Department Nairobi. He found that there is 99.99+% that the appellant was the biological father of the complainant’s child M.M 8. The appellant gave unsworn defence and told the court that himself and the complainant were lovers. She did not tell him she was pregnant. He prayed that he be allowed to take case of the child. The trial magistrate found that the charge against the appellant was proved beyond any reasonable doubts and she convicted the appellant. 9. Analysis and determination I have considered the grounds of appeal, the submissions and the proceedings before the trial court. This is the first appellate court and it is now well established by a line of authorities that it has a duty to evaluate the evidence which was tendered before the trial court, analyse it and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to a fresh evaluation by the appellate court which will make its own independent finding. The court is supposed to leave room for the fact that it had no opportunity to see the witnesses when they testified and assess their demenor then leave room for that. See Okeno -v- Republic (1972) E.A 32 On the duty of the first appellate court, Sitati J in JONAH ISINDU LIMITI V REPUBLIC [2019] EKLR reiterated; “5. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu -vs- Republic [2010] eKLR where the Court of Appeal stated:- “The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”” 10. The appellant was charged with defilement. In my analysis and evaluation of the evidence. I need to determine whether the ingredients of the offence were proved beyond any reasonable doubts. Section 8(1) (4) of the Sexual Offences Act. 1. “A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” The prosecution has the burden to prove the age of the victim to confirm that she was a minor at the time the offence was committed, secondly that there was penetration and the identity of the perpetrator. The Court of Appeal (Asikhe Makhandia J, Ouko J, Murgor J) in JOHN MUTUA MUNYOKI V REPUBLIC [2017] EKLR highlighted the elements of the offence of defilement below; “Under the Sexual Offences Act the main elements of the offence of defilement are as follows: (i) The victim must be a minor, and

page 2 of 5

(ii) There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice. Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt.” In our current matter, the evidence tendered by the prosecution was to the effect that the complainant was defiled on 29/4/2018 but she did not mention the same until September 2018 when she informed her mother that she was pregnant and told her mother that the appellant had forced himself on her, months previously. During the course of the trial, a DNA test was done which confirmed that the baby boy delivered by the complainant was the appellant’s child. The appellant in his defence never denied that he had been with the appellant sexually, he only chose to say that he and the complainant were lovers and he prayed to be allowed to take care of the child. In my view, the evidence was quite straight forward. Firstly, the age of the complainant was never disputed as her birth certificate was submitted and confirmed her birth date as 24/7/2001 therefore she was under 18 years of age as of April 2018 when the incident in issue occurred. Meanwhile, the confirmed paternity of the child put a nail in the coffin of the issue of penetration. All in all, the prosecution proved elements of defilement to the required standards. The appellant argues that the defence provided in Section 8(5) should be available to him, that the medical documents were inadmissible and that the court should consider the fact that he wishes to raise his son. 11. On the issue of admissibility of the medical documents, the evidence on record of PW1 showed that Dr Kangichu, the author of the P3 form was on leave. The witness also established that he has worked with Dr Kangichu as well as Mr Nyamu of radiology department and Monica Kawira who authored the PRC Form and stated that they are all medical personnel at Chuka District Hospital and PW1 was conversant with their handwritings and signatures. I note that no opposition was raised by the appellant and the appellant also had no questions for the doctor in cross-exam. Section 77 of the Evidence Act provides; Reports by Government analysts and geologists 77 (1) In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence. (2) The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it. (3) When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof. The above insinuates that the court may seek further information from the maker of a document if it sees fit. I had discussed this issue. In GLADYS WANJIKU KANYOTU V REPUBLIC [2020] to EKLR determine the issue of admissibility of documents under section 77 of the Evidence Act with the following reference; “The Section, 77(1) is broad as it states, “may be used in evidence”, this means that it may be produced by the investigating officer in a case, a person who was given the report by the practitioner where the practitioner worked or the person who maintains the records at the hospital. The court is given discretion to summon the maker. This gives the accused an opportunity to make an application for the maker to be called for examination. This ensures the protection of the right of the accused person to challenge evidence as provided under Article 50(2) K of the Constitution. The Court of Appeal in the case of Ogeto -V- Republic (2004) 2 KLR 14 at 17 where at the trial the postmortem form was produced by a police corporal under the section court states: “The appellant was represented by counsel at the trial who did not object to the act and the court did not see it fit to summon Dr. Ondungo Steven for cross-examination. In our view the postmortem report was properly admitted in evidence in accordance with the law.” Similarly in the case of Soki- V- Republic (2004) 2 KLR 21 the Court of Appeal stated that- “ Section 77(1) allows any document purporting to be a report under the hand of a government analyst medical practitioner or any ballistic expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis to be used in evidence. The same could be produced by a police officer as was done in this case provided the accused does not object.” The Court of Appeal has settled the law on the production of reports under Section 77(1) of the Evidence Act. I find that the appellant did not suffer any prejudice. The document was produced without any objection. The document

page 3 of 5

was admissible in evidence. The ground is without merits.” I am of the view that the evidence in issue was properly admitted and that the appellant was not prejudiced by the production of those documents by the clinical officer. They confirmed that the complainant was pregnant a fact which is not in dispute as she gave birth to a child whose paternity was confirmed to be that of the appellant. 12. The appellant submitted that the provisions of section 8(5) of the SOA should be available to him. Section 8(5) and (6) provides; 8. Defilement It is a defence to a charge under this section if— 5 (a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and (b) the accused reasonably believed that the child was over the age of eighteen years. 6. The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant. Maina J in BARTON ONGAGI KENYATTA V REPUBLIC [2020] EKLR further analysed the above provision below as follows:- “The effect of this proviso is that it is not enough for the accused person to allege that he was deceived and that he reasonably believed the child was over the age of eighteen. The defence is to be considered based on the circumstances and any steps the accused person took to ascertain the information given to him by the child. In this case there was evidence that the appellant knew the family of the complainant.” Mrima J in IRENE ATIENO OCHIENG V REPUBLIC [2017] EKLR while dealing with the issue of section 8(5) of the SOA on appeal, stated; “20. From the above provisions, it can be seen that whenever an accused person opts to rely on the said defence then the evidential burden of proof shifts to that accused person to satisfy the conditions attached to that defence. It therefore remains the duty of an accused person to demonstrate that: (a) That it was the child who deceived the accused person into believing that he/she was over the age of eighteen years at the time of the alleged commission of the offence; (b) That the accused person reasonably believed that the child was over the age of eighteen years; and (c) That when all the circumstances are brought on board and duly interrogated, they point to the conclusion that the belief on the part of the accused person was reasonable. 21. The accused person will first have to prove deception by the child in respect of the child's age. That deception can be by way of words or actions on the part of the child… 22. As I come to the end of this analysis I must point out that the Appellant did not raise the defence she raised on appeal during the hearing before the trial court. The law is very clear. Unless the Appellant sought leave and was allowed to adduce additional evidence on appeal, the line of argument she adopted on appeal is purely for rejection. I however heard the Appellant who was then unrepresented as to ascertain if at all there was any basis for such a defence. An accused person who wishes to take advantage of the defence in Section 8(5) and (6) of the Sexual Offences Act must lay such a basis during the trial. When such a serious defence is raised later, more so on appeal, that denies the prosecution the opportunity to interrogate the same by way of cross-examining the accused person and the other witnesses and that visits an injustice to the victim. 23. Further an Appellant who raises such a defence for the first time on appeal, or an accused person who raises it for the first time when placed on defence, runs the risk of the defence being treated as an afterthought and the defence may not be of much assistance to such a party. 24. Consequently, the Appellant would thereafter not be reasonably expected to hide under the allegation that she did not know that the complainant was a minor. That being so, the defence is not available to the Appellant. I find that the Appellant was rightly found guilty of defilement and convicted.” In the above matter, where the complainant had been 17 years old, Mrima J maintained a 15 year jail term citing it as a legal jail term. I am persuaded by the decisions I have cited above that the onus lay on the Appellant to prove the defence under section 8(5) during trial if he had intended so. At this stage, the defence cannot stand. It is an afterthought and must be rejected..

page 4 of 5

13. On the appeal on sentence, the appellant seems to have abandoned it as no submissions were advanced. The SOA at section 8(4) provides; (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. Chemitei J in KEVIN WEKESA WAMALWA V REPUBLIC [2020] EKLR considered the issue of sentencing below; “28. On the question of sentencing, it is evident that the period given by the act Section 8(3) thereof of 20 years is mandatory and as it were the courts hands are tied. The courts have of late however considered the constitutionality of the mandatory sentence in light of the Supreme Court’s decision in the FRANCIS K MURUATETU &ANOTHER 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 since it denies the courts the jurisdiction to exercise discretion whether to impose death sentence or not depending on the case. That mandatory sentence the Supreme Court found failed to conform to the tenets of fair trial that accrue to the accused person under Article 25 of the Constitution. 29. The Court of Appeal set out the factors to be considered in sentencing under the act when it observed the following in DISMAS WAFULA KILWAKE V. REPUBLIC (2018) eKLR. “In principle, we are persuaded that there is no rational reason why the reasoning of the Supreme Court [in Francis Karioko Muruatetu & Another v. Republic, SC Pet. No. 16 of 2015], which holds that the mandatory death sentence is unconstitutional for depriving the courts discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply to the provisions of the Sexual Offences Act, which do exactly the same thing. Being so persuaded, we 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.” 14. Sentencing is the discretion of the trial magistrate and the court will not normally interfere with the exercise of that discretion. The principles upon which the court will interfere with the exercise of discretion by the trial Judge were laid out in the case of Ogola S/OOwour v- Republic (1934) EACA 270 where the court stated that; “ The principles upon which an appellate court will act in exercising its discretion to review sentences are firmly established. The court does not alter the sentence on mere ground that if the members of the court had been trying the appellant they must have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless, as was said in James -v- Republic (1950) 18 EACA 147 it is evidence that the Judge has acted upon some wrong principles or overlooked some material factor. To this we add a third criterion, namely , that the sentence is manifestly excessive in view of the circumstances of the case.” The criterion which the court must consider is that each case has to be determined on its own facts and the circumstances thereof. The recent jurisprudence in sentencing is that maximum and minimum sentences should not bar the exercise of discretion by the courts. Although the courts are not barred from passing the sentences which are provided under the law, the exercise of discretion will depend on the circumstances of the case. In this case the trial magistrate noted that in view of the decision of the Supreme Court of Kenya in Francis Karioko Muruatetu & Another -v- Republic (2017 eKLR the courts hands are not tied by the mandatory nature of the prescribed sentence. She went ahead and imposed a sentence of ten based on the circumstance of the case, appellant was a first offender. The sentence passed was lawful. The discretion was exercised judiciously. I cannot turn the other way and ignore the out-cry in the country on the pregnancies of young girls of school going age whose dreams are shattered sex predators. The courts must demonstrate the seriousness with which it treats these offences by imposing stiff sentences. In this regard it is my view that the sentence imposed was lawful and no principle of sentencing was violated. The sentence was below the bare minimum provided under Section 8 (4) of the Sexual Offences Act. I find no reason to interfere with the sentence. 15. Conclusion: Based on the reasons given above I find that the appeal is without merits and is dismissed. DATED, SIGNED AND DELIVERED AT CHUKA THIS 28TH DAY OF JANUARY, 2021 L.W. GITARI JUDGE

page 5 of 5