Lameck Mogoya Momanyi v Republic & 4 others

penetration as a broken hymen without other corroborative evidence is not evidence that the victim had been sexually assaulted; that he was not positively identified as the victim’s assailant and that the prosecution’s failure to call vital witnesses mentioned by PW2 in the course of her evidence should have been a basis for the drawing of an inference that had such witnesses been called, their evidence would have been adverse to the prosecution’s case. 10. Given the foregoing, it is my finding that the only issue arising for my determination in this appeal is whether the offence of defilement was established against the appellant to the required standard of proof which is beyond any reasonable doubt. 11. As regards proof of age, according to the charge sheet, the child victim was 7 years old at the time the offence was allegedly committed. In her voire dire examination, the victim who testified as PW3 stated that she was eight years old and in class three at [particulars withheld]. This was on 9th November 2017. Dr Shako (PW1) who examined her and completed the P3 form produced as Pexhibit 1 and the discharge summary from Nairobi Women’s Hospital where PW3 was taken for treatment both indicate her estimated age as 7 years. 12. The learned trial magistrate who saw the victim as she testified in court accepted seven years as the minor’s apparent age. Given the foregoing, it is my finding that though the minor’s birth certificate was not produced in evidence, there was sufficient evidence before the trial court to prove the age of the victim as between 7-8 years. It is also worth noting that the victim’s stated age was not disputed by the appellant. 13. On penetration, PW1 testified that on examining the victim (PW3) on 3 rd June 2015, she found that she had three tears in her hymen. According to PW1, the injuries were suggestive of sexual intercourse. The Post Rape Care Report (Pexhibit 2) filled at the Nairobi Women’s Hospital where PW3 was taken and admitted for treatment for two days immediately after her ordeal, shows that upon examination, her hymen was found to be broken and there was reddening of the labia minora and majora. On the above evidence, I am satisfied that the ingredient of penetration was proved to the required standard. 14. Regarding the identity of the applicant as the defiler, PW2 and PW3 testified that at the material time, they were living in the same plot with the appellant. The appellant was living with his brother in a house which was next to the house they occupied. 15. PW3 recalled that on the material date, when her mother left her in their house with her younger sister, a person she identified as the appellant talked to her and took her and her sister to his house. He put her on a bed and removed the dress she was wearing. He then removed his trousers and remained only with a T-shirt. He inserted his “dudu” in her vagina and warned her not to scream or else he would strangle her. This is the point at which her mother (PW2) appeared and removed him from her. 16. On her part, PW2 testified that she left her two daughters, the victim and B in her house and was on her way to the posho mill when on reaching the gate, she heard her child cry. She went back and found the two girls in the appellant’s house and the appellant was on top of PW3. She held the appellant and he pushed her away as a result of which she fell down. She screamed and the appellant ran away while pulling up his trousers. Some good Samaritans who were passing by heard her screams and went to her rescue. They assisted her to take the victim to Nairobi Women’s Hospital for treatment. She also reported the matter to Ongata Rongai Police Station. 17. PW2 was adamant in her evidence that she was able to see and identify the appellant as the person she pulled away from PW3 that Sunday evening because she had previously seen him in the plot for five days; that since the appellant disappeared from the plot after the incident, it is his brother who assisted the police to arrest him. This piece of evidence was not challenged or disputed by the appellant. 18. Given the above evidence and considering that the offence was not committed at night, I am satisfied that the appellant was positively identified as the person who defiled PW3. I thus find no reason to fault the trial court’s finding on identification of the appellant as the culprit. 19. Regarding the appellant’s complaint that the prosecution failed to call crucial witnesses to support its case, the appellant urged me to draw an inference that had such witnesses been called, their evidence would have been adverse to the prosecution’s case. It is trite that in general, the prosecution has discretion to decide who to call as a witness in support of its case and this is the rationale behind Section 143 of the Evidence Act which provides that no number of witnesses is required to prove a fact. However, where the prosecution calls evidence which is barely sufficient and fails to call vital witnesses without giving a reasonable explanation, the court would be entitled to make an inference that had such witnesses been called, their evidence would have been adverse to the prosecution case. See: Paul Kanja Giari V Republic, [2016] eKLR. 20. In this case, the witnesses referred to by the appellant were in fact not crucial witnesses since they were witnesses after the fact as their only role was to assist PW2 take PW3 to hospital. In any event, a good explanation was given by the prosecution through PW2 why they could not be called as witnesses. PW2 testified that the said people were just good Samaritans who heard her screams and went to assist her but she did not know them. 21. For the above reasons, I have come to the same conclusion as the learned trial magistrate. I find that the learned trial magistrate carefully analysed all the evidence presented before her including the appellant’s defence and correctly found that the offence of defilement had been proved against him beyond any reasonable doubt. I am thus satisfied that the appellant was properly convicted. His appeal against conviction therefore fails. 22. On the appeal against sentence, I find that other than stating in his memorandum of appeal that his appeal was against both conviction and sentence, none of the three grounds he advanced in support of his appeal challenged the sentence imposed by the trial court. Be that as it

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may, as the first appellate court, I am enjoined to examine the sentence meted out on the appellant to satisfy myself that it was lawful. 23. The court record shows that in sentencing the appellant, the learned trial magistrate considered his plea in mitigation, the nature of the offence and the circumstances in which it was committed. She also considered the mandatory sentence prescribed in Section 8 (2) of the Sexual Offences Act which is life imprisonment but following the Court of Appeal decision in Christopher Ochieng V Republic, [2010] eKLR, the learned trial magistrate sentenced the appellant to 30 years imprisonment. 24. In the Christopher Ochieng case [supra], the Court of Appeal followed the Supreme Court’s decision in Francis Karioko Muruatetu & 5 Others V Republic, [2017] eKLR, in which the Supreme Court declared that minimum mandatory sentences are unconstitutional to the extent that they fettered the discretion of the trial court in sentencing. 25. The positon has now changed with the pronouncement of the Supreme Court in the second Francis Karioko Muruatetu & Another V Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR, in which the Supreme Court clarified that the 1 st Muruatetu decision applied only to the mandatory sentence prescribed for the offence of murder and not all mandatory sentences including those prescribed under the Sexual Offences Act. I however find that since the Supreme Court’s guidelines in the second Muruatetu decision were issued about 11/2 years after the appellant was sentenced, they cannot apply to this case because they cannot be applied retrospectively. 26. I am satisfied that at the time of sentencing the appellant, the learned trial magistrate exercised her discretion after taking all relevant factors including the law then applicable into account. In the premises, I do not find any good reason to interfere with the sentence of 30 years imprisonment imposed by the trial court. In any event, the respondent did not file a cross appeal against the appellant’s sentence. In the circumstances, the sentence passed by the trial court is hereby confirmed. 27. In the end, it is my finding that this appeal lacks merit and it is hereby dismissed in its entirety. It is so ordered. DATED, SIGNEDAND DELIVERED AT NAIROBI THIS 21ST DAY OF DECEMBER 2021. C. W. GITHUA JUDGE In the presence of: The appellant present in person Ms Akunja for the respondent Ms Karwitha: Court Assistant

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