Smm v Republic

3. (d) The learned trial magistrate erred in law and in fact in not considering that the evidence of PW6 was admitted without invocation of Section 31 of the Sexual Offences Act thus occasioning a miscarriage of justice; (e) The learned trial magistrate erred in law and in fact in failing to appreciate that the prosecution failed to prove the matter to the required standard of proof especially in light of lack of proof in S.O No. 20 of 2018 at Mukurwe-ini yet the matters are based on the same allegations; (f) The trial magistrate erred in law and in fact in rejecting the appellant’s defence without plausible and cogent reasons contrary to Section 169 of the Criminal Procedure Code. The appeal was disposed of by way of written submissions. Appellant`s Submissions 4. The Appellant submitted that it was the duty of the prosecution to prove the case against him beyond reasonable doubt. That the case was based purely on suspicion. He relied on the cases of Sawe vs Republic [2003] eKLR where it was held that suspicion however strong cannot provide a basis of inferring guilt as guilt must be proved by evidence. He further relied on Woolmington vs DPP (1935), Michael Mugo Musyoka vs Republic [2015] eKLR and J.O.O vs Republic [2015] eKLR and submitted that the prosecution did not prove its case beyond reasonable doubt. 5. The appellant further relied on the cases of Fappyton Mutuku Ngui vs Republic Criminal Appeal No. 296 of 2010 and Charles Wamukoya vs Republic Criminal Appeal No. 72 of 2013 which cases point out the critical elements to be proved in a defilement case which are the age of the victim, penile penetration and identity of the perpetrator. He submits that the prosecution did not prove any penile penetration as defined in Section 2 of the Sexual Offences Act. He submitted that PW5 and PW6 only complained of ‘tabia mbaya’ which meaning was not explicit. He submitted that the court ought not to determine the case on speculations and assumptions but must make its decision based on cogent evidence. In that respect he relied on J.O.O vs Republic [2015] eKLR. 6. The appellant urged the court to disregard the evidence of the medical examiner as it is just an opinion and not cogent evidence to prove penile penetration. He submitted that though the medical examiner testified that the hymen of the victim was broken and old, he was not able to tell the court how old the broken hymen was. The appellant in that respect cited the case of Ben Maina Mwangi vs Republic [2006] eKLR and submitted that the medical evidence did not connect the date of the alleged defilement of the complainant with the age of the injuries sustained. Therefore that there was no nexus with the appellant. In addition, the appellant submitted that the absence of a broken hymen is not proof of defilement as the same can be broken by other factors other than sexual defilement. To support his contention he relies on the case of P.K.W vs Republic Criminal Appeal No. 186 of 2010. 7. The appellant submits that the behaviour of the victim was not consistent with a victim of sexual assault or defilement. To support his contention he relied on the case of Patrick Owino Okumu vs Republic [2016] eKLR. He claims that the three victims did not tell anyone that they were being abused and questioned why only PW1 with whom he had a grudge with was the one told of the sexual abuse. Therefore that PW5 and PW6 must have been coached on what they told the court. 8. The appellant submitted that his relationship with the three victims was cordial until their minds were poisoned by PW1. He stated that he did not defile the three victims as he has been exonerated in S.O. Case No. 20 of 2018 Mukurwe-ini vide HCCRA No. 9 of 2020. He stated that there was no positive identification that he defiled the three victims. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3236/eng@2022-05-06 2

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9. The appellant further submitted that the charges are incurably defective as he was charged under Section 8(1) of the Sexual Offences Act as read with Section 8(2). He claimed that he is the biological father of the victim and thus ought to have been charged under Section 20(1) of the Sexual Offences Act. He relied on the case of Yongo vs Republic (1983) KLR to support his contention. 10. The appellant further stated that the three victims were allegedly assaulted on the same day and time and under the same circumstances and thus he ought to have been charged with 3 counts of the same ofience. He contends that the charge is of a prior period not supported by evidence as the charge sheet reads that the ofience was committed on unknown dates before November 2018. That PW1 testified that she came to Mukurweini on November 25, 2018 and on November 26, 2018 the children and her husband went to Ol Kalou. That she stated that the incident happened on around 19th/20th November 2018. 11. The appellant submitted that PW1 admitted to have won his T-shirt. That this was prove that there was a sexual relationship between him and PW1 and that the allegations were due to grudge of a jilted lover. 12. The appellant submitted that the trial court did not follow procedure pursuant to Section 31 of the Sexual Offences Act when appointing the intermediary who testified on behalf of the victim. He contends that the evidence was thus obtained in a manner that violated his rights under Article 50 of the Constitution and as such the admission of that evidence rendered the trial unfair thus occasioning a miscarriage of justice. 13. The appellant submitted that he adduced cogent and plausible defence outlining the circumstances under which he found himself as charged. That his defence was not disproved by the prosecution. Based on the foregoing reasons, the appellant prayed that the appeal be allowed. Respondent’s Submissions 14. It is the respondent’s case that it proved the case against the appellant beyond reasonable doubt. That it was proved that the victim, AWM, was 4½ years old at the time that she was defiled by the appellant. That though the investigating officer, PW7 did not obtain any documentation to prove her age, he subjected her to age assessment at Othaya Sub-County Hospital. The age assessment report was produced as Pexh.4 and indicated the age of the victim as 4 ½ years. As such, the respondent submitted that the age assessment report confirmed that the victim was a minor and that her age fell within the range of 0-11 years as provided for under Section 8(2) of the Sexual Offences Act. 15. On the element of identity of the perpetrator, the respondent submitted that identification was by recognition. That the appellant was well known to the victim as he was her father. That the victim was able to identify the appellant as her father in court by pointing at him. That PW1 and PW5 confirmed that the appellant was the victim’s father and that he used to stay with her where he had been employed to take care of an elderly lady. 16. On the ingredient of the act of penetration, the respondent submitted that PW6 told the court how the appellant would touch her private parts while he was washing her and would do ‘tabia mbaya’ to her using his ‘shushu’ while referring to his penis. PW6 further testified that the appellant would apply oil on her genitalia before defiling her. That the evidence of PW6 was corroborated by PW5, a minor and victim of a similar ofience in the hands of the appellant. 17. The respondent submitted that there was no proof that there was a romantic relationship between the appellant and PW1. That PW1 denied in cross-examination the existence of such a relationship with the appellant. That the appellant never called any witnesses to confirm the issue of a grudge thus not substantiating his claim. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3236/eng@2022-05-06 3

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18. The respondent further submitted that medical evidence was adduced through a Post Rape Care Form and P3 Form which were produced as Pexh. 3 and 1 respectively. That the victim was examined by a Clinical Officer and it was seen that the hymen was broken and old which confirmed penetration. As such, the injuries noted on the medical documents were consistent with the testimony of the witnesses. 19. The respondent submitted that the appellant was charged with the ofience of defilement as provided for under Section 8(1) as read with 8(2) of the Sexual Offences Act which was fully supported by the evidence adduced. Further that all the ingredients for the ofience were proved beyond reasonable doubt. Therefore that the contention by the appellant that he ought to have been charged with the ofience of incest pursuant to Section 20(1) of the Sexual Offences Act does not hold water. It was submitted that failure to charge the appellant with the ofience of incest did not occasion any prejudice to the appellant. 20. The respondent states that Section 31 of the Sexual Offences Act was followed as PW6 was a child of 4½ years and thus a vulnerable witness whose evidence was taken through an intermediary. That the record shows that when the victim was presented in court she had difficulties in expressing herself and was thus declared a vulnerable witness. Though the appellant disputes the appointment of an intermediary, he has not shown how the provisions of Section 31(2) to Section 31(10) of the Sexual Offences Act were not complied with. Further, the respondent submits that the record shows that Ann Wangari, a matron at Mahiga Children’s Home was duly appointed as an intermediary and the appellant never objected to the appointment. As such, the respondent submits that the procedure was duly followed in appointing an intermediary and the same did not cause any prejudice to the appellant as he was given a chance to cross-examine PW6. 21. The respondent submits that the court considered the appellant’s defence in particular that the case arose from a grudge between the appellant and PW1 due to a romantic relationship turned sour. That the court noted that PW1 was cross-examined on the allegation and remained firm that they never had any sexual contact. Further, the court noted that the appellant’s allegations did not dislodge PW1’s credibility. 22. The respondent submits that Section 8(2) of the Sexual Offences Act provides for a mandatory sentence of life imprisonment if convicted for the ofience of defilement. Therefore, that the sentence meted against the appellant of 40 years was lenient and illegal. The respondent urges the court to uphold the conviction and enhance the sentence from 40 years to the legal sentence of life imprisonment. 23. The respondent submits that the evidence on record was cogent, consistent and enough to sustain a conviction for the ofience. That the appellant never denied knowing all the witnesses who testified. That it was the appellant’s own admission during defence that he was employed to take care of an elderly lady and that he was staying with PW6 and PW5 at the time. He also confirmed that he would wash the minors as part of taking care of them. He also never denied that PW6 was his daughter and thus he had all the time and opportunity to commit the ofience. 24. The respondent further submits that all the prosecution witnesses were consistent and truthful and they did not contradict each other even during cross-examination. Further that when the appellant was placed on his defence, his testimony did not displace the evidence of the prosecution witnesses. 25. The respondent contends that the trial court acted well within the provisions of Section 32(10) by convicting the appellant on the testimony of PW6 given through an intermediary. That PW6’s evidence was corroborated by the evidence of PW5 who was present when the appellant defiled PW6. That both minors were consistent in their narrative and their evidence was not shaken during cross examination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3236/eng@2022-05-06 4

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Therefore that the prosecution proved its case beyond reasonable doubt and that the appellant was rightly convicted. That the appeal lacks merit and should be dismissed. Issues for determination 26. 27. The appellant has cited 6 grounds of appeal which can be compressed into five main issues:a) Whether the ingredients of defilement were proved beyond reasonable doubt; b) Whether the charges were incurably defective; c) Whether the provisions of Section 31 of the Sexual Offences Act were fully complied with; d) Whether the appellant’s defence was considered; and e) Whether the sentence was excessive and harsh. 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 that:“ 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 that 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.” 28. Similarly in the case of Okeno vs Republic [1972] EA 32 the Court of Appeal set out the duties of the appellate court as follows:“ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958]EA 424.” This was also set out in the case of Kiilu & Another vs Republic [2005] KLR 174. 29. In line with the foregoing, this court in determining this appeal is to satisfy itself that the ingredients of the ofience of defilement were proved as so required by law beyond reasonable doubt. Whether the ingredients of the ofience of defilement were proved beyond reasonable doubt 30. The cardinal rule in criminal procedure on prove is that the burden is always on the prosecution to prove the elements of an ofience which an accused is charged with. The standard of proof is always that of beyond reasonable doubt as was held in the case of Woolington vs DPP 1935 AC 462 and Miller vs Minister of Pensions 2 ALL 372-373. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3236/eng@2022-05-06 5

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31. The elements constituting the ofience of defilement are: proof of penetration, the age of the minor and the identity of the perpetrator. This was outlined in the case of Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013 where it was stated that:“ The critical ingredients forming the ofience of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 32. In the instant case, the issue of the age of the complainant has not been challenged on appeal. The bone of contention is that the prosecution did not prove the act of penetration and the identification of the assailant. Proof of Penetration 33. 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 organ of another person. 34. Mercy Njeri Karungu, a registered clinical officer working at Mukurweini Sub-County Hospital testified as PW7 and produced the Post Rape Care Form (PRC Form) in evidence. She examined the minor and found her hymen broken and old. She further testified that the minor’s labia minora and majora were inflamed and reddish. Furthermore, the witness testified that there were pus cells present which are infections caused due to sexual encounter in view of the age of the minor. The P3 Form was produced by PW8, Evan Gachuhi Mwangi who testified that the outer part of the minor’s genitalia was swollen which is not normal for a young girl. He further testified that the hymen was not freshly broken and that the lab tests showed pus cells and leucocytes in the urine. 35. Notably, the key evidence relied on by courts in a defilement matter in order to prove penetration is the complainant’s testimony, which is usually corroborated by medical report. The victim PW6 who testified through an intermediary, stated that her father, the appellant used to wash her and used to do “tabia mbaya” to her and he used to insert his thing for urinating into her groin area (which she pointed out in court). She further testified that she used to sleep in the same bed with the appellant who used to do “tabia mbaya” to her. She told the court that he would remove his trousers and remove her trousers and panty as well. She further stated that the appellant used to apply oil on her groin area before doing ‘tabia mbaya’ to her. PW6’s testimony was corroborated by PW5 who testified that the appellant used to wash her and PW6 and do ‘tabia mbaya” to her too. She stated that he would insert the thing he used to “shushu” to her groin area (which she pointed out in court). She also told the court that she used to sleep on the same bed with PW6, John Thuku and the appellant. She told the court that the appellant defiled them when they were sleeping at night. 36. I have analysed the evidence of PW6 and find that her evidence was corroborated by the evidence of PW5 and the medical evidence of PW7 and PW8 to the extent that the medical evidence confirmed that there was penetration of the genital organs of PW6. I thus hold the opinion that the prosecution proved the element of penetration. The trial court arrived at the correct finding in holding that the act of penetration was proved against the appellant. Identification of the perpetrator 37. It is PW6’s case that she was defiled by the appellant when he used to wash her and at night when she used to sleep in the same bed with him. PW6 further testified that the appellant also used to defile PW5. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3236/eng@2022-05-06 6

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PW5 corroborated PW6’s story by testifying that the appellant used to defile her too when he used to wash her and at night when they used to sleep in the same bed together with PW6. 38. The trial court relied on Section 124 of the Evidence Act and noted that PW6’s story did not need any corroboration as the court was satisfied that the victim was telling the truth. The court was satisfied by demeanour of PW5 and PW6 that they were telling the truth. The trial court also looked at the evidence of PW3 and PW9 and held that the fact that the appellant had run away when he got wind of the police looking for him, supports the evidence that the appellant had a guilty mind that he had committed the ofience lodged against him which further corroborates the prosecution case. It is also worth noting that the appellant did not deny that he was the minor’s father, neither did he deny knowing PW5. I have looked at the evidence on record and I support the trial court’s finding that identification was by way of recognition and that the demeanour of the appellant further corroborated the prosecution’s case beyond reasonable doubt. Whether the charges were incurably defective 39. The appellant submits that the charges preferred against him are incurably defective pursuant to Sections 134, 135 and 214 of the Criminal Procedure Code. He submits that he ought to have been charged under Section 20(1) of the Sexual Offences Act rather than Section 8(1) as read with 8(2) of the Sexual Offences Act as PW6 was his biological daughter. 40. The substantive law on a defective charge sheet is provided in Section 134 of the Criminal Procedure Code which provides:Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific ofience or ofiences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the ofience charged. 41. Assessment of fatality or otherwise of a charge sheet was addressed in Yosefu vs Uganda [1969] E.A 236 and Sigilani vs Republic [2004] 2KLR 480 where the courts in both cases were of the view that a charge is fatally defective if it does not allege an essential ingredient of the ofience. 42. In Yongo vs Republic (1983) KLR 319 the Court of Appeal while referring to Archbold, Criminal Pleading Evidence and Practice (40th ed.) page 52 held that a charge is defective under Section 214(1) of the Criminal Procedure Code where:- 43. a) it does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges ofiences in the charge not disclosed in such evidence or fails to charge an ofience which the evidence in the committal proceedings discloses; or b) it does not, for such reasons accord with the evidence given at the trial; or c) it gives a mis-description of the alleged ofience in its particulars. In the instant case, the appellant was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act which provides that an accused shall upon conviction be sentenced to imprisonment for life. Section 20(1) of the Sexual Offences Act provides that an accused if found guilty of the ofience of incest shall be liable to imprisonment for life where the complainant is below the age of 18 years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3236/eng@2022-05-06 7

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44. A look at the charge sheet in this case shows that it disclosed an ofience known in law which the appellant understood and participated in the trial. Further, the evidence adduced was in accord with Section 8(1) of the Sexual Offences Act and therefore the charge was not defective. Whether the provisions of Section 31 of the Sexual Offences Act were fully complied with - 45. Section 31 of the Sexual Offences Act provides:(1) 46. A court, in criminal proceedings involving the alleged commission of a sexual ofience, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness isa) The alleged victim in the proceedings pending before the court; b) A child; or c) A person with mental disabilities. The court record shows that the minor was 4 ½ years old and she had difficulties in expressing herself when she was presented before court. The court declared her a vulnerable witness and appointed Ann Wangari, a matron at Mahiga Children’s Home an intermediary. The record shows that the appellant had no objection to the appointment of the intermediary. He was given an opportunity to crossexamine the witness and did so at length. In that regard, I do find that the provisions of Section 31 of the Act were fully complied with and no prejudice was occasioned to the appellant. Whether the appellant’s defence was considered 47. The appellant elected to give a sworn statement wherein he stated that PW1 had framed him up with the charges after he ended a romantic relationship with her. PW1 vehemently denied being in a relationship with the appellant. The trial court in its judgment considered the appellant’s defence and was not convinced that any relationship ensued between the appellant and PW1. I do not find any fault in that finding. There does not seem to have been any truth in the allegation. The trial court did not err in dismissing the allegation. Whether the sentence ought to be enhanced** 48. The appellant was sentenced to serve 40 years imprisonment. Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides that:A person who commits an ofience of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 49. The question is whether the sentence of life imprisonment is a mandatory one or whether the court has discretion to impose a lesser sentence. 50. The words used in section 8(2) of the Sexual Offences Act are “shall upon conviction be sentenced to imprisonment for life”. The clear meaning of those words is that the sentence is mandatory -see Leonard Kipkemoi Ngetich v Republic [2021] eKLR and Brian Wafula v Republic [2021] eKLR where the mandatory sentence was imposed for ofiences under Section 8(1) and (2) of the Sexual Offences Act. The sentence imposed by the trial court was therefore illegal. The question is whether the court can correct the error by enhancing the sentence to life imprisonment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3236/eng@2022-05-06 8

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51. The principle enunciated by the Court of Appeal is that before a sentence is enhanced, the practice is to warn the appellant before hand of the possibility of the sentence being enhanced during appeal. This was succinctly put by the court in Sammy Omboke & another v Republic [2019] eKLR (Kisumu) that: 21. A ground urged in this appeal relates to enhancement of sentence without warning, notice or a cross-appeal. This Court in Samwel Mbugua Kihwanga – v - Republic, Cr. App. No. 239 of 2011, explained that although the practice of warning the appellant before enhancing the sentence was not a requirement of law, it was a matter of practice that had gained notoriety and served to put the appellant on notice of the consequences that would befall him depending on the outcome of the appeal. The court continued that: “ In the instant appeal, there was no cross-appeal by the prosecution for enhancement of sentence before the High Court nor was there a warning to the appellants by court that the sentence meted upon then (sic) could be enhanced; and there was no notice of enhancement. Guided by the judicial pronouncements of this Court above, we find that the learned judge erred in enhancing the sentence meted out on the appellants. In the absence of a crossappeal and notice and or warning the judge had no jurisdiction to enhance the sentence.” 52. In Josea Kibet Koech versus Republic [2010] eKLR the same Court in reversing the High Court where the court had enhanced the sentence suomuto stated that; “ The learned Judge may be entitled to condemn the manner the ofience was committed but in view of the foregoing we agree with Mr. Omutelema`s submissions that as there was no notice to enhance the sentence then what the learned Judge did was without jurisdiction”. 53. In the instant case, the prosecution did not file a cross-appeal neither was the appellant warned that his sentence may be enhanced. It is therefore too late in the day to enhance the sentence. The upshot is that the appeal lacks merit and is dismissed accordingly. DELIVERED, DATED AND SIGNED AT NYERI THIS 6TH DAY OF MAY 2022. J. N. NJAGI JUDGE In the presence of: Mr Mururu for Respondent Appellant: Present in person Court Assistant: Kinyua 30 days Right of Appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3236/eng@2022-05-06 9

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