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Njagi v Republic (Criminal Appeal E002 of 2022) [2022] KEHC 13878 (KLR) (13 October 2022) (Judgment)

This judgment has been anonymised to protect personal information in compliance with the law.
Njagi v Republic (Criminal Appeal E002 of 2022) [2022] KEHC 13878 (KLR) (13 October 2022) (Judgment)
Citation
Njagi v Republic [2022] KEHC 13878 (KLR)
Media Neutral Citation
[2022] KEHC 13878 (KLR)
Court
High Court
Court station
High Court at Embu
Outcome
Dismissed
Case number
Criminal Appeal E002 of 2022
Attorneys
................................................,
Judges
LM Njuguna
Judgment date
13 October 2022
Language
English
Type
Judgment
Collections
Date published
26 October 2022
Case action
Judgment
Court division
Criminal
Filing county
Embu
Order
(a) the appeal was devoid of any merit and It was dismissed (b)the conviction and the sentence imposed by the trial court
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1.The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006; the particulars being that on August 24, 2020 at [particulars withheld] village in Embu North Sub–County intentionally caused his penis to penetrate the anus of IN, a child aged 8 years. He also faced the alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
2.The prosecution called five (5) witnesses in support of the charge and at the close of the prosecution’s case, the appellant was put on his defence wherein he testified as DW1 and called two witnesses.
3.The complainant testified and told the court how on the material day, the appellant asked her with her brother to go to him and thereafter, told the brother to go to bed while he proceeded to defile her. That he removed his penis then inserted the same in her anus. She stated that the appellant promised to take her to the salon if she kept the promise not to tell anyone.
4.She stated that when her mother arrived, she informed her of all that had transpired as she was in pain. That her mother reported the incident at Karau Police Post and thereafter, she was taken to Embu Level Five Hospital.
5.PW2, Esther Irimba testified that the appellant was her husband prior to the incident. That on the material date, she had left the complainant with her sibling brother under the care of the appellant while she went to pick tea. She stated that when she returned home, the complainant informed her that the appellant had defiled her and she proceeded to report the matter at Karau Police Post. That after reporting, she was referred to Embu Level 5 Hospital whereupon the complainant was examined.
6.In her judgment delivered on November 17, 2021 the learned magistrate convicted the appellant, and on December 18, 2021, the trial court sentenced him to serve 25 years imprisonment.
7.Being dissatisfied with the conviction and the sentence, the appellant has approached this court vide a petition of appeal which he filed on January 27, 2022 wherein he has listed the following grounds of appeal;
1.The learned trial magistrate erred in both matters of law and facts by convicting the appellant without considering that the prosecution evidence was inadequate and contradictory to sustain a conviction.
2.The learned trial magistrate erred in both matters of law and facts by failing to consider the evidence of the appellant in its entirety thus arriving at erroneous findings.
3.The learned trial magistrate erred in both matters of law and facts by disregarding the appellant’s defence without cogent reasons.
4.That the learned trial magistrate erred in law and facts by sustaining a conviction from the evidence of a single witness.
8.When the appeal came up for hearing, the court directed that the appeal be canvassed by way of written submissions.
9.The appellant submitted that the prosecution’s evidence was contradictory and uncorroborated in view of the evidence adduced by PW1 and by PW2.He relied on the case of Ramkrishian Padya 1967 EACA 336 where it was held that where the evidence is contradictory and inconsistent, the court should not rely on it. It was his submission that the trial magistrate disregarded his defence without giving cogent reasons and further, given that the complainant was not his biological child, PW2 chose to frame him for the reason that he failed to secure for her the funds that she wanted. Further reliance was placed on the case of Maina v Republic HC RA No 955 of 1969. The appellant argued that the learned magistrate failed to advance her reasons for believing a single witness without taking into consideration the threshold of proof. The appellant thus urged this court to allow the appeal herein.
10.The respondent submitted that the prosecution proved its case beyond any reasonable doubt and that the trial magistrate on the strength of the evidence, meted out what she considered to be an appropriate sentence considering the nature of the offence that was perpetrated. Reliance was placed on the cases of Njoroge v Republic [1987] KLR 19 and Oketch Olale v Republic [1965] EA.
11.I have considered and analyzed the evidence which was tendered at the trial court by both the appellant and the prosecution, the grounds of appeal and the written submissions by the both parties. I find that the issue for determination is whether the appeal has merit.
12.This being the first appellate court, it is guided by the principles enunciated in the case of Okeno v Republic where the Court of Appeal set out the duty of the first appellate court in the following terms: -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 R [1957] EA 3365) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and drawn its own conclusions (Shantilal Ruwala v R [1957] EA 570).
13.It is not the function of a first appellate court to merely scrutinize the evidence to see if there was evidence to support the lower court’s finding and conclusion. It must make its own finding and draw its own conclusions and only then, can it decide whether the magistrate’s findings is supported and in doing so, it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses.
14.The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006 and an alternative count of committing an indecent act with a child. The ingredients of the offence of defilement are; -
1.Age of the complainant
2.Proof of penetration
3.Positive identification of the assailant
15.On the age of the complainant, the evidence available to the court is that she was 8 years when the offence was committed. A birth certificate was produced as an exhibit (1) by PW5.[See Malindi Court of Appeal in Criminal Appeal No 504 of 2010 - Kaingu Elias Kasomo v Republic].
16.On proof of penetration, PW1 gave a comprehensive account of what transpired on the material day. She stated that the appellant asked her with her sibling brother to go to him and thereafter, told the brother to go to bed while he proceeded to defile her.
17.The same was corroborated by PW3 who testified that the complainant’s genitalia had laceration on the lower part of the vagina at 6 o’clock, anal area; bloody discharge; swollen genitalia tender on touch; and that the age of the injury was two days. He therefore described the degree of the injury as harm.
18.The evidence by the complainant was consistent and cogent in that she was categorical that it is the appellant who defiled her; the incident took place in the house. The appellant is her father though not her biological father. She later informed her mother on what had transpired. I therefore find that, sufficient evidence was adduced to proof penetration.
19.On identification, the court notes that the appellant is the foster father to the complainant. He is a person she knew well and she had no doubt in her mind that it is the appellant who defiled her. I find that the complainant knew her assailant very well. [See Anjononi & Others v Republic [1989] KLR].
20.The appellant’s other ground of appeal is that the prosecution’s evidence is contradictory and inadequate. The court has carefully gone through the evidence on record but finds no material contradictions. Even assuming that there are contradictions, the manner of treating contradictions in a case was stated by the Court of Appeal in the case of Jackson Mwanzia v Republic [2017] eKLR where the court cited with approval the Ugandan case of Twahangane Alfred v Uganda (Criminal “Appeal No. 139 of 2000 [UGCA] 6 thus;“With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. This court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
21.Similarly, the Court of Appeal in the case of Richard Munene v Republic [2018] eKLR stated;“It is a well settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of prosecution witness that will be fatal to the case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial that an accused person will be entitled to benefit from it.”
22.The court finds that the contradictions in this case were not material to the case and they do not affect the substance of the prosecution’s case.
23.On the ground that the trial magistrate relied on a single witness to reach a conviction in this case, corroboration was not necessary. As per the provisions of the Sexual Offences Act and the proviso to section 124 of the Evidence Act, the trial court can convict on the basis of the complainant’s evidence, if satisfied that the complainant is a truthful witness. [See Sahali Omar v Republic [2017] eKLR]. That notwithstanding, it is my view that PW3’s evidence corroborated that of PW1’s evidence as to the aspect to the injuries on the complainant’s genitalia. As such the ground fails.
24.On the ground that the appellant’s defence was disregarded without cogent reasons, the trial magistrate in her judgment considered the defence by the appellant in its totality and in the end, it was satisfied that the prosecution proved its case beyond any reasonable doubt. The court noted that the appellant was placed at the scene of crime and that his defence of extortion in relation to the evidence adduced by prosecution witnesses, the P3 and PRC Forms watered down the defence by the appellant. In that regard, it is clear that the trial court indeed considered the evidence of the appellant only that it was of little or no probative value to him in disproving the allegations against him.
25.Although the appellant has appealed against both conviction and sentence, he never submitted on the sentence. Nevertheless, I will proceed to examine the same. In the case of Bernard Kimani Gacheru v Republic [2002] eKLR the Court of Appeal stated;“It is now settled law following several authorities by this court and by the High Court that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case on appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
26.The sentence imposed must also meet the objectives of sentencing as per the Sentencing Policy Guidelines (2016) which are retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation.
27.The appellant herein was charged under section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006. The sentence provided for under that sub-section is life sentence. The appellant herein was sentenced to serve 25 years imprisonment, which in my view, was lenient.
28.In view of the foregoing, I find that the appeal is devoid of any merit and I hereby dismiss the same and uphold the conviction and the sentence imposed by the trial court.
29.It is so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF OCTOBER 2022.L NJUGUNAJUDGE................................................for the Appellant**…………………………………….for the Respondent
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