Wanyonyi v Republic (Criminal Appeal 312 of 2018) [2019] KECA 679 (KLR) (6 June 2019) (Judgment)
Evans Wanjala Wanyonyi v Republic [2019] eKLR
Neutral citation:
[2019] KECA 679 (KLR)
Republic of Kenya
Criminal Appeal 312 of 2018
MS Asike-Makhandia, PO Kiage & JO Odek, JJA
June 6, 2019
Between
Evans Wanjala Wanyonyi
Appellant
and
Republic
Respondent
(Appeal against the judgment of the High Court of Kenya at Bungoma (S.M. Githinji, J.) delivered on 24th July 2017 in HC Cr. Appeal No. 174 of 2015)
Judgment
1.The appellant was charged with defilement contrary to Section 8 (1) and (4) of the Sexual Offences Act No. 3 of 2006. The particulars are that on 23rd June 2013 at [ particulars withheld] village in Bungoma West District within Bungoma County, he intentionally caused his penis to penetrate the vagina of MNM a child aged 14 years.
2.The appellant was tried and convicted by the magistrate court. He was sentenced to 15 years’ imprisonment. His appeal to the High Court against conviction was dismissed. The sentence of 15 years’ imprisonment was set aside and enhanced to imprisonment for 20 years. In enhancing the sentence, the judge stated the 15 years was below the minimum sentence provided in Section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006. The Section provides:(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 not less than twenty years.
3.Aggrieved by the judgment of the High Court, the appellant has lodged the instant second appeal to this Court.
4.During hearing, the appellant appeared in person while the State was represented by Ms Gloria Mokua, learned prosecution counsel. The appellant and the State filed written submissions in the appeal.The grounds supporting the appeal are that the charge sheet was defective; the medical evidence tendered before the trial court did not prove penetration; the learned judge did not re-evaluate in entirety the evidence on record and the appellant’s defence was not considered.
6.The prosecution grounded its case inter alia on the testimony of MNM PW 1 who testified as follows:
7.Tom Baraza PW5 testified as the clinical officer attached to Kabuchai Health Centre. He stated he examined the complainant PW1 on 5th December 2013. The complainant stated she had been defiled on 23rd June 2013 by a person known to her. Upon medical examination, he established that the complainant was five months pregnant; her genitalia was normal and laboratory examination revealed she had no venereal disease.
8.In his defence, the appellant gave unsworn statement. He denied impregnating the complainant; he asserted it is the complainant’s parents who insisted he impregnated her. He stated he was arrested and charged with defilement which he had not committed.
Appellant’s Submissions
9.In his written submissions, the appellant assert that the charge sheet as framed was defective as it refers to a wrong penalty clause; the defect was not curable under Section 382 of the Criminal Procedure Code. The charge referred to Section 8 (1) of the Sexual Offences Act instead of Section 8 (2) of the Act. The appellant submitted the particulars of the charge as given did not support the ingredients of the main charge in Section 8 (1) of the Act. It was further submitted that the medical evidence presented before the trial court did not prove penetration; that there was no indication in the medical report that the victim was penetrated; that failure to include evidence of penetration in the medical report weakened the prosecution case and that the medical report did not indicate any injury to the genitalia of the complainant; the age of the injuries or any weapon used on the complaint is not stated. It was submitted that there was no indication as to why the testimony of PW1 should be believed.
Respondent’s Submissions
10.The respondent submitted that the prosecution had proved its case beyond reasonable doubt; that during trial, it was proved that the complainant’s age was 14 years; this was established by her birth certificate which showed she was born on 3rd September 1999.
11.On the defective charge sheet, the trial magistrate correctly held that the proper section which the appellant ought to have been charged with is Section 8 (2) as read with Section 8 (3) of the Sexual Offences Act because age is crucial in sexual offences as it will determine the sentence to be meted upon a convicted person. Counsel submitted that the fact that the appellant was charged with a wrong penalty clause was not fatal to the prosecution case and the error is curable under Section 382 of the Criminal Procedure Code; that no prejudice or miscarriage of justice was occasioned to the appellant due to the wrong penalty clause cited in the charge sheet.
12.Responding to the ground that no DNA was conducted on the complainant who was pregnant, the State submitted that failure to conduct a DNA test was not fatal to the prosecution case as what needed to be proved was penetration and not paternity. It was urged that the prosecution had proved penetration and sexual intercourse which led to the pregnancy.
13.The respondent further submitted that there was nothing to show that the learned Judge did not properly evaluate the evidence on record. On the contestation that the appellant’s defence was not considered, the respondent submitted that the appellant gave an unsworn statement which was a bare denial and as such the defence tendered did not weaken the prosecution case.
14.In concluding its submissions, the respondent submitted that the learned judge correctly appreciated the law and observed that the age of the complainant was 14 years and the mandatory and minimum sentence was a term of 20 years imprisonment. In this regard, the respondent submitted that the judge did not err in enhancing the sentence meted upon the appellant from 15 years to 20 years’ imprisonment.
Analysis And Determination
15.We have considered the appellant’s grounds of appeal, submission by both parties and the authorities cited. This is a second appeal against conviction and sentence. By dint of Section 361 of the Criminal Procedure Code, a second appeal is confined to matters of law only. This Court restated as much in Karingo -vs- R (1982) KLR 213 at p. 219;
16.In the impugned judgment in this matter, the judge in upholding conviction of the appellant expressed himself as follows:
17.In this appeal, the two courts below arrived at concurrent findings of fact that the appellant committed the offence of defilement as charged. In Adan Muraguri Mungara v Republic, Cr. No. 347 of 2007 (Nyeri), this Court set out the circumstances under which it will disturb concurrent findings of fact by the trial court and the first appellate court, in the following terms:
18.On our part, we have examined the record to ascertain if any error of law or miscarriage of justice was occasioned by the learned Judge affirming and upholding the conviction of the appellant. The record reveals that the appellant was a person known to the complainant; his identification as perpetrator of the offence was by way of recognition.
19.The complainant PW 1 testified she had sexual intercourse with the appellant as a result of which she became pregnant. On his part, the appellant did not challenge the evidence on having sexual intercourse with the complainant; the age of the complainant as 14 years is not disputed; his defence is that he is not the one who impregnated the complainant.
20.An essential ingredient in the offence of defilement is penetration not impregnation. In F O D - v -Republic [2014] eKLR, it was stated in order to secure a conviction for the offence of defilement under the Sexual Offences Act, the prosecution must establish that the person has committed an act which causes penetration with a child. “Penetration” under section 2 of the Act means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
21.The appellant asserts he is not the person who impregnated the complainant. Whether the victim of a sexual offence is impregnated or not is irrelevant to the ingredient of the offence of defilement. The appellant contends that no DNA was conducted to prove that he was responsible for impregnating the complainant. In Aml v Republic [2012] eKLR (Mombasa), this Court upheld the view that:
22.This was further affirmed in the case of Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa) where the court stated:
23.Guided by the foregoing judicial decisions, we are satisfied that the ground that no DNA was conducted on the complainant has no merit in this appeal. We are further satisfied that the appellant was identified by way of recognition as the person who committed the offence as alleged. We find no error of law on the part of the learned judge in upholding the conviction of the appellant. Accordingly, we affirm and uphold the conviction of the appellant for the offence of defilement.
24.On the enhanced 20 year term of imprisonment meted upon the appellant by the learned judge, we are of the view that, the constitutionality of the mandatory minimum sentence meted out to the appellant raises a question of law. This Court in Christopher Ochieng – v- R [2018] eKLR Kisumu Criminal Appeal No. 202 of 2011 and in Jared Koita Injiri – v- R, Kisumu Criminal Appeal No. 93 of 2014 considered legality of minimum mandatory sentences under the Sexual Offences Act. This Court noted that the Supreme Court in Francis Karioko Muruatetu & another – v- Republic SC Petition No. 16 of 2015 held the mandatory death sentence prescribed for the offence of murder by Section 204 of the Penal Code was unconstitutional; that the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; that a mandatory sentence fails to conform to the tenets of fair trial that accrue to the accused person under Article 25 of the Constitution. Guided by the aforestated Supreme Court decision, this Court in Christopher Ochieng – v- R (supra) stated:
25.In this appeal, guided by the merits of the Supreme Court decision in Francis Karioko Muruatetu & another – v- Republic (supra) and persuaded by the decisions of this Court in Christopher Ochieng – v- R (supra) and Jared Koita Injiri – v- R, Kisumu Criminal Appeal NO. 93 of 2014 in relation to sentencing, we are convinced and satisfied that the enhanced mandatory 20 year term of imprisonment meted upon the appellant by the learned judge cannot stand. We are inclined to intervene. We hereby set aside the 20 year term of imprisonment meted upon the appellant. We substitute the 20 year term of imprisonment with one of imprisonment for a term of ten (10) years with effect from the date of sentence by the trial court on 18th September 2015.
DATED AND DELIVERED AT ELDORET THIS 6TH DAY OF JUNE, 2019.ASIKE MAKHANDIA....................................JUDGE OF APPEALP. O. KIAGE...................................JUDGE OF APPEALOTIENO-ODEK....................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.