Nyale v Republic (Criminal Appeal 82 of 2015) [2018] KEHC 4441 (KLR) (5 September 2018) (Judgment)
Yawa Nyale v Republic [2018] eKLR
Neutral citation:
[2018] KEHC 4441 (KLR)
Republic of Kenya
Criminal Appeal 82 of 2015
GV Odunga, J
September 5, 2018
Between
Yawa Nyale
Appellant
and
Republic
Respondent
(From original conviction and sentence in Mombasa Chief Magistrate’s Court Criminal Case No. 1096 of 2014, R. Odenyo SPM)
Judgment
Introduction
1.The appellant herein, Yawa Nyale, was charged in the Mombasa Chief Magistrate’s Court Criminal Case No. 1096 of 2014 with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. No. 3 of 2006. The particulars of this charge were that on diverse dates between 23rd May, 2014 and 4th June, 2014 at [particulars withheld] area Changamwe within Mombasa County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of MWN, a girl aged 15 years. He also faced an alternative charge of indecent act with a child contrary to section 11(1) of the Sexual Offences Act. No. 3 of 2006 in that on diverse dates between 23rd May, 2014 and 4th June, 2014 at [particulars withheld] area Changamwe within Mombasa County, the appellant unlawfully caused his penis to rub the vagina of MMN, a girl aged 15 years.
2.After hearing, the Learned Trial Magistrate found the appellant guilty of the offence of defilement, convicted him accordingly and sentenced him to 20 years imprisonment.
3.Being dissatisfied with the conviction and sentence the appellant appeals based on the following grounds that:1.That the Learned Trial Magistrate erred in law and in fact in basing his conviction and sentence in reliance on a defective charge sheet.2.That the Learned Trial Magistrate erred in law and in fact in convicting and sentencing him to serve 20 years imprisonment without proper finding that the appellant was a minor when the offence was committed contrary to section 8(7) of the Sexual Offences Act and section 181 and 191 of the Children Act.3.That the Learned Trial Magistrate erred in law and in fact in convicting the appellant by failing to find that no doctor was called to testify in court when given that a police officer cannot answer any medical questions if raised.4.That the Learned Trial Magistrate erred in law and in fact in basing his conviction and sentence in reliance on a P3 Form produced in court by PW3 without proper finding that the complainant’s evidence and the P3 for was at variance.5.That the Learned Trial Magistrate erred in law and in fact in connecting his arrest with the matter in question without proper finding that the same had no connection when given that none of his arrester came to testify in court and tell the reasons for his arrest.
4.At the hearing of the case the prosecution called three witnesses.
5.PW1 was the complainant. According to her, she was aged 16 years and was born on 14th April, 1999 based on her birth certificate and was in class 7. It was her evidence that she met the appellant in November, 2013 but before that he had been seeing the appellant who used to visit her mother and they used to talk. According to the complainant, the appellant’s brother gave her the appellant’s telephone number and she called the appellant who went to pick her the following night by a motor cycle. The appellant then told her to board the motor cycle which she did at 8.00pm though the appellant did not disclose to her where they were going.
6.According to the complainant, the appellant took her to their home at Duruma where they arrived at 11.00pm and she stayed for two weeks. Although that day they did not have sex, the following day, the appellant removed both his clothes and her clothes and they engaged in sex and thereafter for the said two weeks. When the complainant told the appellant that she wanted to go back home, the appellant informed her that he would arrange for someone to take her home. Instead of doing so, the appellant took her to a witchdoctor who gave her some things resembling charcoal which she ate and became confused. Three days later, her brother went with police officers to the appellant’s home but upon seeing them, the appellant told the complainant to run away and took her into a forest and left her there. The complainant however escaped from the forest, got a refuge from the appellant’s friend who took her to his house. However the appellant traced her and took her back to where they were staying but his mother told them to surrender to the police which they did and she was then taken to Coast General Hospital for treatment and she recorded her statement with the police though she denied the correctness of what she told the police on the ground that she was confused.
7.In cross-examination, she admitted that she did not resist when the appellant told her to engage in sex. She also denied that she told the appellant to go and get her from home or that she wanted the appellant to marry her. She denied the appellant’s suggestion that they slept in Mombasa on 21st November, 2013. She disclosed that they were remanded in custody for three days.
8.PW2, UC, was the complainant’s father. According to him, the complainant was 15 years at the time of his testimony and was in class 7 On 23rd May, 2014 at around the complainant was at home with him till 7.00pm when the complainant left to go and sleep in another house where she used to sleep with her younger brother. However in the morning at around 6.00am the said brother woke him up inquiring where the complainant was as she had left the house at night. She was then advised by her brother to report the matter at Jomvu Police Station.
9.Later, she got information from the appellant’s brother that the complainant was staying with the appellant at Kukanyeni house belonging to the appellant. PW2 then reported this to the said police station but when they went there they neither found the complainant nor the appellant but were informed by the appellant’s mother that they had gone to the appellant’s sister’s house. They however did not find them there either as they were informed that the two had hurriedly left the place and they returned to the police station.
10.On 4th June, 2014, PW2 was called by the police who informed her that the two had been arrested together with a relative of the appellant. At the police station, the appellant alleged that he had already married the complainant and the matter was referred to Kinango Police Station and then to Changamwe where the incident had occurred. The complainant was thereafter referred to Coast General Hospital where she was given a P3 form which was duly filled in.
11.In cross-examination, PW2 stated that the complainant went with her clothes to the appellant’s home.
12.PW3 was PC Charles Wamusi who received a report from PW2 that her daughter, the complainant was lost. He accordingly booked a report of a missing child. On 4th June, 2014, the complainant and the appellant were arrested at Kinango by police officers and take to Changamwe Police Station. He recorded witness statements a referred them to Coast General Hospital after issuing the complainant with a P3 form which was filled in on 18th June, 2014 which was produced as exhibit 3 while PCR was produced as exhibit 2. The complainant’s birth certificate was produced as exhibit 1 while her treatment notes were produced as exhibit 4.
13.In cross-examination, PW3 stated that the appellant had married the complainant and was charged with the offence of defilement.
14.At the close of the prosecution case, the appellant chose to keep quite.
15.In his judgement the Learned Trial Magistrate found that the appellant decided to elope with the complainant after which they got married and engaged in sexual intercourse. From the birth certificate, the court found that the complainant was 15 years old and was as such a child.
16.I have considered the material placed before the Court. This being a first appeal, this Court is, as a matter of law, enjoined to analyse and re-evaluate afresh all the evidence adduced before the lower court and to draw own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno v Republic [1972] EA 32 and Kiilu & Another v Republic [2005]1 KLR 174.
17.It has been held that in a first appeal the appellant is entitled to expect this Court to subject the evidence on record as a whole to an exhaustive re-examination and to this Court’s decision on the evidence having given allowance to the fact that this court did not see the demeanour of witnesses. Further even where the appeal turns on a question of fact, the Court has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the trial Court with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it. See Pandya v R [1957] EA. 336 and Coghlan v Cumberland (3) [1898] 1 Ch. 704.
18.However, it must be stated that there is no set format to a re-evaluation of evidence by the first appellate court should conform. I adopt what was stated by the Supreme Court of Uganda in the case of Uganda Breweries Ltd v Uganda Railways Corporation [2002] 2 EA 634, thus:
19.In Odongo and Another v Bonge Supreme Court Uganda Civil Appeal 10 of 1987 (UR), Odoki, JSC (as he then was) said:
20.The appellant has taken issue with the failure to call the doctor who prepared the P3 form. In Emmanuel Mwadime v Republic [2016] eKLR, the Court (Kamau, J) expressed herself as hereunder:However, a P3 Form, being an expert report can only be tendered in evidence by a skilled expert as provided in Section 48 of the Evidence Act. The same provides as follows:-Evidently, PW 5 was not skilled in medical matters. It was irrespective that the Appellant did not object to him producing the P3 Form because he did not lead evidence to demonstrate that he knew the signature of Patterson Mwapulu, attest that the said Patterson Mwapulu was the one who signed the said P3 Form or that he was well versed in medical matters. The situation would have been different had the said P3 Form been produced by a medical person and the Appellant failed to object to the production of the same. In the case of Julius Karisa Charo v Republic (Supra), Ouko J also expressed similar reservations about police officers tendering in evidence P 3 Forms because they should only restrain themselves to tendering documents that would fall in their docket. He stated as follows:-There is no doubt in the mind of this court that PW 1 sustained injuries as was evident from the photographs that were adduced in evidence. However, the P3 Form was critical to corroborate the injuries that he sustained because it is normal for it to be inconsistent with oral evidence that is tendered by witnesses. Failure to call Patterson Mwapulu thus dealt a fatal blow to the Prosecution’s case as this court not therefore consider as the possible charge of the Appellant having caused grievous harm to PW 1 herein. In the circumstances foregoing, Amended Grounds of Appeal Nos 2, 5, 6, 7, 8 and 9 had merit and the same are hereby allowed.”
21.Ouko, J (as he then was) in David Jefwa Kalu v R Cr. Appl No. 133/03 held that:
22.In very clear warning was issued by the Court of Appeal in Sibo Makovo v R Criminal Appeal NKR No. 39/1996 in the following words
23.In this case the P3 form was similarly produced by a police officer without any reason being afforded for not calling the maker or even another medical officer to do so. If the only evidence of penetration was that P3 form the Court would not have hesitated in upsetting the conviction on that ground alone.
24.It was the appellant’s case that the charge sheet was defective for stating the place where the crime was committed which was different from the evidence. Section 134 of the Criminal Procedure Code requires in mandatory terms that every charge should be precise and abundantly clear to the appellant. It provides that:
25.Interpreting this provision in the case of Isaac Omambia v R, [1995] eKLR the Court held that:
26.However in Cherere s/o Gakuli v R [1955] EACA 622, it was held that.
27.This was the view taken in Amos v DPP [1988] RTR 198 DC where it was held that:[Uncertainty in the mind of the accused person is the] "vice at which the rule against duplicity is aimed and to counter a true risk that there may be confusion in the presenting and meeting of charges which are mixed up and uncertain".
28.In Paul Katana Njuguna v Republic [2016] eKLR, the Court held that:
29.In this case it is my view that the discrepancy in the place where the offence occurred as stated in the charge sheet and the evidence adduced did not occasion any prejudice to the appellant.
30.It was the appellant’s case that the arresting officers were not called to testify. While that is true, it is not in contention that the appellant was arrested. In fact according to the evidence of the complainant, the appellant and the complainant presented themselves to the police station. In Kiriungi v Rep (2009) KLR 638, the court said:-
31.In my view nothing turns on the failure to call the arresting officer and that ground fails.
32.The appellant contends that he was a minor at the time the offence was committed. This was in his mitigation which was on 29th April, 2015. However the offence was allegedly committed, according to the complainant, within two weeks of their elopement which was in November, 2013. If the appellant was 19 years at the time of the sentence in 2014 then it would be true that he was less than 18 years at the time of the commission of the offence. Section 8(7) of the Sexual Offences Act states that:Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’ s Act.
33.In my view, the Learned Trial Magistrate ought to have investigated the appellant’s contention that he was 19 years before passing the sentence. The sentiments of the Court of Appeal with respect to heavy minimum sentences in the case of Hamisi Bakari & Another v Republic [1987] eKLR are worth taking note of. In that case the Court held that:
34.It is similarly my view that where a heavy minimum sentence is involved such as in this case where the sentence prescribed is 20 years, the Court ought to be satisfied that such a sentence is being imposed on a person who the law provides such a sentence ought to be imposed on and where it is brought to the attention of the trial Court before the passing of the sentence that there is a lesser sentence to be imposed on the class of persons the accused purports to belong the Court ought to investigate such an issue before imposing the sentence.
35.Before I pen off, I wish to comment on the minimum mandatory sentences in general and those prescribe under the Sexual Offences Act in particular. It is now clear that certain provisions of the Sexual Offences Act, are a cause of concern in this country. The effect of the harsh minimum sentences imposed under the said Act on young people in this country is a serious cause of concern. Our jails are overflowing with young people convicted courtesy of the provisions of the said Act. While I appreciate that sexual offences do demean the victims of such crimes and ought not to be taken lightly, the general society in which we operate ought to be taken into account in order to achieve the objectives of punishment. Penal provisions ought to take into account the objectives intended to be achieved and should not just be an end in themselves otherwise they may end up being unjust especially where the penalties imposed do not deter the commission of crimes where both the victim and the offender do not appreciate the wrongdoing in question.
36.In my view those sentences ought to be looked at in light of Article 27 of the Constitution as read with clause 7 of the Transitional and Consequential Provisions which provide as follows:All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with conformity with this Constitution.
37.I have my doubts as regards the constitutionality of the minimum sentences since in my view such sentences do not permit the Court to consider the peculiar circumstances of the case in in order to arrive at an appropriate sentence informed by hose circumstances. Whereas the Court is given the leeway to impose any sentence over and above the minimum sentence, the section like any other sections prescribing for minimum sentences does not permit the Court the discretion to consider whether a lesser punishment would be more appropriate in the circumstances. In those circumstances, it is my view that such provisions do not meet the constitutional dictates. This is my understanding of the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic, Petition No. 15 of 2015, where it expressed itself as hereunder:
38.Similarly in S v Mchunu and Another (AR24/11) [2012] ZAKZPHC 6 Kwa Zulu Natal High Court held that:
39.The Courts have always frowned on mandatory sentences that place a limitation judicial discretion. In S v Toms 1990 (2) SA 802 (A) at 806(h)-807(b), the South African Court of Appeal (Corbett, CJ) held that:
40.In S v Mofokeng 1999(1) SACR 502 (W) at 506 (d), Stegmann, J opined that:
41.Also in S v Jansen 1999 (2) SACR 368 (C) at 373 (g)-(h), Davis J held that:
42.In my view the opinion of the Supreme Court with respect to mandatory sentences apply with equal force to minimum sentences. My view is in fact supported by the Kenya Judiciary Sentencing Policy Guidelines where it is appreciated that:Whereas mandatory and minimum sentences reduce sentencing disparities, they however fetter the discretion of courts, sometimes resulting in grave injustice particularly for juvenile offenders.
43.The approach to be adopted in determining an appropriate sentence where a minimum sentence is prescribed was set out in S v Malgas 2001 (2) SA 1222SCA 1235 paragraph 25 as follows:
44.Therefore the provisions of a legislation that was in force before the Constitution of Kenya, 2010 such as the Sexual Offences Act. No. 3 of 2006 must be construed with the said adaptations, qualifications and exceptions when it comes to the mandatory minimum sentences and particularly where the said sentences to not take into account the dignity of the individuals as mandated under Article 27 of the Constitution as appreciated in the Muruatetu Case.
45.In this case there is a possibility that the appellant may have been subjected to a sentence which ought not to have been imposed had the trial court taken the trouble to investigate the matter. The appellant was sentenced on 29th April, 2015 and has served more than 3 years.
46.In this case I find that the appellant’s conviction, based on the evidence presented was proper as the complainant was proved to be a minor; that indeed there was penetration as the complainant and the appellant had sex believing that they were married; and the identity of the appellant was not in doubt. However, there is a possibility of a miscarriage of justice having occurred with respect to the sentence. In the premises I hereby set aside the sentence imposed on the appellant and in light of the period served, I direct that he be set free forthwith unless otherwise lawfully held.
JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MOMBASA THIS 5TH DAY OF SEPTEMBER, 2018.G V ODUNGAJUDGEIn the presence of:Mr Obura for the appellantMs Ogweno for the RespondentCA Gladys DW