Mohammed Ambaya Hussein v Republic

b. That the trial court failed in law and fact by convicting the appellant without recognizing that, investigation to the instant case was not only shoddy but also shambolic in any event. c. That the trial magistrate erred in both law and fact when he convicted the appellant relying on the prosecution case which was not proved beyond any reasonable doubt as required by the law. d. That the learned trial magistrate failed by not appreciating that the appellant was not subjected to a fair trial stipulated under article 49(1), (f)(i)(ii) and g of the Constitution of Kenya 2010. e. That the appellant’s life is at risk due to the underlying body conditions, ageing in respect of the current environment. f. That the foundation of the case was the pre-existence of a grudge between the complainant’s mother and the appellant herein. Appellant’s Submissions 4. The Appellant submitted that the prosecution failed to establish a prima facie case against the appellant but still the court found otherwise. He called upon this court to find that the prosecution largely failed to discharge it burden of proving beyond reasonable doubt as it failed to establish the ingredients of the respective provisions of the sexual offence Act. 5. On the issue of a defective charge, the appellant submitted that the charge sheet was defective. That the date of arrest in the charge sheet is indicated to be 25.5.2018. He concluded that the information on record was inferred. He stated that the allegations were dated 28.6.2017 and therefore the information herein should not be relied on. That the information given in the charge sheet should match the evidence given by the prosecution witnesses, failure to which a charge sheet is regarded as defective. 6. The appellant submitted on the prosecution’s failure to establish a solid case against him. He argued that the trial magistrate convicted him on an already formed opinion and not on the evidence adduced. The appellant pointed out the differences in terms of the evidence adduced by PW1 and PW2 being the complainant and her mother. That on the one hand, her mother told the court that she was in class 5 as at 1.7.2018 whereas the complainant told the court that she was in class 6. In supporting his position that the prosecution ought to establish a solid case against him, he cited the decision in Charles Kibara Muraya v Republic Cr. App. No. 33 of 2001. 7. On an unfair trial and poor medical inferences, the appellant made submissions to the effect that he was not accorded a fair trial right from the beginning in accordance with the provisions of Art. 49(1). He submitted that he was not brought to court within 24 hours of arrest as is the law as he was availed in court for plea three days later. To this end he stated that his fundamental rights were violated during the process of his arrest. 8. It was the appellant’s submission that according to the P3 form produced in court, the first of date is indicated as 8.5.2018 and the same is signed on 9.5.2018, a year later after the incident is allegedly to have occurred. That the information relied on by the doctor was unreliable. That the observations in the said P3 would not have been possible after one year of the incident. He urged the court to find that the medical evidence could not be relied on for those reasons. 9. The appellant submitted that his condition was worrying. That he is at his late ages, with underlying health body conditions, now at 70’s. He urged the court to consider his health status. He further submitted that the matter arose out of a conflict between himself and the complainant’s mother over a debt of Kshs. 7,000/=. That it was unfair for the trial court to dismiss his defence. He therefore prayed that the appeal be allowed and he be acquitted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10923/eng@2024-09-20 2

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Analysis and Determination 10. I have considered the appeal and submissions by the appellant. I have also read the record of the trial court and the judgment. As a first appellate court, this court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. 11. The Supreme Court of India explained the duty of a first appellate court in K. Anbazhagan v State of Karnataka and Others Criminal Appeal No. 637 of 2015 as follows: “ The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely...The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.” 12. 13. The issues that arise for determination in this appeal are; i. Whether the charge sheet in question was defective; ii. Whether the prosecution proved its case to the desired threshold; iii. Whether the sentence meted upon the appellant was lawful. On the first issue, the Court of Appeal in Peter Ngure Mwangi v Republic (2014) eKLR addressed the issue of a defective charge sheet when it held that there are two factors to be considered. One, whether or not the charge sheet is indeed defective and two, whether or not even with such defect justice could still be met. The substantive law on a defective charge sheet is Section 134 of the Criminal Procedure Code. The provision states as follows: “ Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 14. The Court of Appeal in Benard Ombuna v Republic addressed the issue of a defective charge sheet in the following terms:“ In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10923/eng@2024-09-20 3

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15. Section 382 gives guidance on whether even with such defect justice could still be met or whether the defect is curable. Section 382 of the Criminal Procedure Code provides: “ Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. It follows therefore that the court in determining whether a defect caused injustice has to have regard whether the objection should have been raised at an earlier stage in the proceedings.” 16. The appellant in this case took issue with the charge sheet for reasons that the information given therein should correspond with the evidence given by the Prosecution witnesses, failure to which a charge sheet becomes defective. The appellant essentially challenges the difference in dates contained in the charge sheet and the record as per the testimonies of the witnesses. Particularly, the fact that the alleged offence is reported to have occurred a year earlier. Considering this argument from the lens of the above cited authorities and provisions, I form the opinion that the charge sheet is not effective so much so as to occasion an injustice. PW3 Dr. Taban from MTRH gave her evidence and clearly stated that the victim had a history of being defiled by a neighbor on 28.6.2017. 17. The appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act which provides: “ 8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement 8(3) “A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 18. The ingredients that ought to be established in an offence of defilement are: the age of the complainant, proof of penetration and the positive identification of the assailant. See John Mutua Munyoki vs Republic [2017] Eklr 19. Has the prosecution established the ingredients beyond reasonable doubt? 20. The first element in a charge of defilement is the age of the victim, which is significant since it is used as an aggravating factor in order to determine an appropriate sentence. The younger the victim is, the severe the sentence. In establishing the minor’s age, the investigation officer produced a copy of the complainant’s birth certificate which indicated that she was born on 18.6.2004 which puts the complainant at 13 years old at the time of the offence and therefore the trial court rightly found that she was 13 years at the time the offence was committed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10923/eng@2024-09-20 4

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21. The second element is that of penetration. Section 2(1) 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.” 22. In establishing this element, PW3 Dr. Taban from Moi Teaching and Referral Hospital gave a narration of the history of the victim who was the subject of examination. She told the court that the victim was examined ay Moi Teaching and Referral Hospital. The girl had changed her clothes. Her history was that she was defiled by a neighbor Mohammed on 28.6.2017 at 11:00am in the house. Mohammed called her on 9.4.2018 and tried to defile her again when she ran and went to tell her mother. The witness testified that the minor was examined on 8.5.2018, in her private parts and she had no hymen, she had hymenal tears which had healed. She told the court that there was a lot of whitish virginal discharge. Further that she was treated at Maram Medical clinic, she painful urination, and paid in the stomach and back. She concluded that the child had been defiled. 23. The trial court considered the appellant’s defences. One that the complainant’s mother never went with her to her home and the secondly that the complainant’s mother owed him money, Kshs. 7,000/= which she is avoiding to pay hence this case. The trial court stated that when observing the complainant and her mother, they do not seem like people who would frame the accused person of such a heinous act over a debt of Kshs. 7,000/= and further to that, the appellant did not produce anything to prove that he gave out the money. On this, I give the allowance that the trial court had the advantage of observing the demeanor of the witnesses. 24. This court is called upon to review the medical availed before it to establish that indeed penetration did occur. The report indicated that the victim had multiple healed hymenal tears and a white discharge. The findings were consistent with defilement. It is my considered view and from the evaluation of the evidence on record, it appears that the minor has been undergoing such a tormenting experience of defilement in the hands of the appellant herein. She recalled the events of 28th June, 2017 when the appellant took her to his bedroom and had sex with her. She threatened her and gave her Kshs. 200/ =. She would later tell her mother who took her to hospital for immediate medical attention. She was taken to Marama clinic and was treated. The treatment notes as adduced in evidence revealed that she had lower abdominal pain and a Urinary Tract Infection. 25. Having considered and analyzed the evidence adduced, I come to the conclusion that there is ample evidence that penetration did occur. The medical evidence produced supports penetration of the minor. 26. The question of identity was not in contention. The appellant is well known to the complainant and her mother. The appellant admitted that they were friends with the complainant’s mother as they met in 2017. It therefore cannot be a question of mistaken identity. 27. I find that the Appellant was positively identified as the assailant herein; there was no mistaken identity or error. Accordingly, I find that the prosecution proved their case beyond reasonable doubt and that the trial court did not error in convicting the appellant for defilement. The appeal on conviction therefore lacks merit and is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10923/eng@2024-09-20 5

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On sentence 28. The appellant prayed that the sentence meted be set aside. Section 8 (3) of the Sexual Offences Act to convict provides as follows: 8(3) “A person who commits am offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 29. The trial court in sentencing the appellant considered the mitigation advanced and sentenced the appellant to 20 years’ imprisonment. I am conscious of the fact that I should not interfere with the decision of the trial court unless he/she acted on wrong principles. Just because I could have arrived at a different decision does not mean that I should review the sentence. 30. However, Justice G.V. Odunga in Philip Mueke Maingi and 5 others interpreted the provisions of the Sexual Offences Act as not to take the discretion of the court in sentencing. That the learned judge went ahead to state as follows: “ Those who were convicted of sexual offences and whose sentences were passed on the basis that the trial courts had no discretion but to impose the said mandatory minimum sentences are at liberty to Petitioner the High Court for orders of re-sentencing in appropriate cases.” 31. Similarly, in Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Act. It observed as follows: “ [W]e 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.” 32. Therefore, in sentencing, mitigation should at all times count to something sentencing. The appellant however in mitigating still denied the offence and raised his defence. Given that mandatory sentences are now outlawed, I have considered the circumstances of the case and I shall slightly interfere with the 20 years’ imprisonment and substitute it with 15 years’ imprisonment, which sentence shall run from the date of conviction i.e. 1.11.2019. DATED AND SIGNED AT ELDORET THIS 20TH DAY OF SEPTEMBER, 2024 .............................. R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10923/eng@2024-09-20 6

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