Barasa v Republic (Criminal Appeal E033 of 2021) [2022] KEHC 14080 (KLR) (13 October 2022) (Judgment)
Neutral citation:
[2022] KEHC 14080 (KLR)
Republic of Kenya
Criminal Appeal E033 of 2021
DK Kemei, J
October 13, 2022
Between
Protus Barasa
Appellant
and
Republic
Republic
Judgment
1.The appellant herein Protus Barasa, was charged before the Senior Principal Magistrate’s Court at Kimilili in Sexual Offences Case No 81 of 2018 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 were that the appellant, on November 17, 2018 while at [Particulars Withheld] in Kimilili sub-county within Bungoma county, intentionally and unlawfully caused his penis to penetrate the anus of HW, a child aged nine (9) years.
2.The appellant also faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars were that the appellant, on November 17, 2018 while at [Particulars Withheld] in Kimilili sub-county within Bungoma county, intentionally and unlawfully caused his penis to come into contact with the anus of HW, a child aged nine (9) years.
3.In her judgement, the learned trial magistrate found that the appellant committed the offence with which he was charged in the main charge. The learned trial magistrate found that the evidence was overwhelming against the appellant and therefore proceeded to convict him on the main charge and sentenced him to serve life imprisonment.
4.Being dissatisfied with the conviction and sentence, the appellant has lodged the instant appeal based on the following grounds:i.That the learned magistrate erred in law and fact when she disregarded the appellant’s testimony and as such arrived at a wrong decision.ii.That the learned magistrate erred in law and fact when she relied on contradictory evidence of the prosecution witnesses thus arriving at a wrong judgement.iii.That the learned magistrate erred in law and fact when she delivered a harsh sentence to the effect that the appellant serves life imprisonment.
5.The lower court record reveals that the prosecution called four (4) witnesses in support of its case.
6.After a comprehensive voire dire examination, the trial court formed the view that the complainant understood the importance of telling the truth and the dire consequences to be meted out for speaking lies. It further observed that the complainant’s level of comprehension was well advanced to understand the implications of oath-taking and was therefore capable of giving sworn evidence.
7.According to the complainant (HW) who testified as Pw1, he was 9 years old and that on the November 17, 2018 while in the company of the appellant with whom they attend the same church and at the time herding cattle at the farm near the home of the appellant, the appellant requested him to follow him as he wanted to show him how ropes were made. He refused but as soon as he got to the close proximity of the appellant, the appellant held him, removed his pants exposing his penis. The appellant placed him on his laps and made him sit on him with his back facing the appellant’s chest. The appellant then exposed his penis and inserted it into his anus as he sat on his laps. The appellant was seated on a tree that had been cut and blood spilled on the cane he was using to herd cattle and on the hands of the appellant. He told the court that the boys he was playing with earlier had left and after the incident, the appellant pretended that he was herding cattle while he rushed back home with the cattle he was herding. He told the court that he was still feeling pain and while on the road he met a certain lady to whom he narrated the ordeal and who quickly alerted people who tried to lynch the appellant. The appellant rushed to hide in his neighbour’s house and the chief, and police found him and arrested him. he reported the incident and was quickly rushed to the hospital where his wounds were cleaned. He told the court that he lied to the appellant that he had been circumcised and that he feared the appellant as he had previously defiled a physically challenged girl. He identified the appellant in court as the perpetrator. On cross-examination, he told the court that he knew the appellant and that they were both herding cattle and that he was with four other children from the same area. He herded his cattle with the boys until 1.00 pm and they left. The appellant approached him when the other children left and that the appellant did not cover his mouth and that he did not scream. He added that on the material date he had worn a short and a shirt.
8.Pw2, ANW, testified that she is the grandmother to the complainant (Pw1). She recalled that on November 17, 2018, Pw1 went to herd cattle and between 1.00 pm and 2.00 pm she heard screams that prompted her to find out what was happening. She found out that the appellant had defiled her grandson. She immediately rushed with Pw1 to Kimilili Police station to make a report and the police escorted them to Kimilili Hospital. She told the court that during the medical examination of the complainant, she noticed sperms on his anus and that they attend the same church as the appellant. On cross-examination, she stated that the complainant walked with a lot of pain.
9.Pw3, No 117032 PC Fidelis Nzioka, testified that he is the investigating officer in the case. He recalled on November 18, 2018 he received a report of sodomy and proceeded to take the complainant to Kimilili sub-county Hospital for examination and treatment. Later, he recorded the statement of the complainant. He later conducted his investigations and charged the appellant He stated produced the complainant’s birth certificate as an exhibit. On cross-examination, he testified that he did not visit the scene of the crime and that it was the chief and members of the public who arrested the appellant. On re-examination, he told the court that the lady who received the complaint from Pw1 along the road was not forthcoming with recording her statement.
10.According to Pw4, Catherine Akiru, a clinical officer working at Bahai dispensary but while stationed at Kimilili sub-county hospital, the complainant came to the hospital alleging that he had been sodomised by a person known to him. On examination, she noted a swollen tender anal region with bloody discharge which was visible and that his anal region was bruised. The VDRL, HIV and urinalysis tests done were negative. She concluded that the complainant had been sodomised. She produced the treatment notes as Pexhibit 1c and the P3 form as Pexhibit 1b. on cross-examination, she told the court that the probable type of weapon causing the injury was a sexual organ as the complainant noted that a genital organ was inserted into his anus.
11.At the close of the prosecution’s case, the appellant was found to have a case to answer and was thus placed on his defence whereupon he tendered a sworn testimony and called one witness. According to DW1, Protus Barasa, on November 17, 2018 he was working in his compound with his wife and his cattle were grazing within his compound. He left with the cattle at about 2.30 pm to the stream for them to take some water. He later proceeded to the land rented to him to graze his cattle and he noted four children playing there. He told them to stop but they enquired from him as to whether he had come there with any land and whether the same land was his. They left with their cattle to the next land and as he proceeded to graze his cattle, he saw two people approaching him from the side the children had gone to graze and arrested him. It was after his arrest that he was informed that he had defiled a boy, a fellow church member. On cross-examination, he told the court that he knew both Pw1 and Pw2, and that he had a disagreement with Pw2.
12.DW2, Godfrey Wajahi, testified that on November 17, 2018 while ploughing a farm belonging to one Julius, he saw the appellant and his wife weeding nappier grass before the appellant proceeded with his cattle towards the stream. He saw four children herding cattle on a lower parcel of land where the appellant asked them as to why they were grazing on his parcel of land. The appellant asked the children to leave his land and they insulted him and proceeded to a neighbouring parcel of land. He later saw two young men walking to the field and there was a verbal exchange between the men. They pushed him down and slapped him as three women and a child came. On cross-examination, he told the court that the appellant was beaten on his way to the stream and not at the farm. The children were playing some metres away from where he was working and didn’t see them properly.
13.The learned trial magistrate upon consideration of the whole evidence, found that the prosecution had proved its case against the appellant beyond reasonable doubt and convicted him on the main count and then sentenced him to life imprisonment.
14.The appeal was canvassed by way of written submissions. Both parties have filed and exchanged their submissions.
15.I have carefully considered the rival submissions and the cases relied upon by the parties. The only issue which arises for determination is whether the prosecution proved its case beyond reasonable doubt.
16.It is important to begin by pointing out that there is no such section as section 8(1)(2) in the Sexual Offences Act as was claimed in the charge sheet. The question the court must answer is whether these errors in the charge sheet and the judgment entitle The appellant to an acquittal. Differently put, are these errors merely technical and capable of being cured or did they occasion a miscarriage of justice?
17.The answer to this question must begin with section 382 of the Criminal Procedure Code. In the material part, it provides that:
18.The proviso to section 382 provides that in determining whether the error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question of whether the objection could and should have been raised at an earlier stage in the proceedings.
19.The starting point for this analysis is our case law. Two cases are pertinent: the case of Yosefa v Uganda [1969] EA 236 a decision of the Court of Appeal and Sigilani v Republic [2004] 2 KLR 480 a High Court decision by Justice Kimaru (as he then was). Both hold that a charge sheet is fatally defective if it does not allege an essential ingredient of the offence as follows:
20.Hence, the test as to whether a charge sheet is fatally defective is a substantive one: was the appellant charged with an offence known to law and was it disclosed in a sufficiently accurate fashion to give the accused adequate notice of the charges facing him? In this case, the appellant was charged under section 8(1)(2) of the Sexual Offences Act. No such section exists in the Act. Did this prejudice the appellant? To answer that question, one needs to ask if it can be reasonably said that the accused person understood the charges facing him including the specific ingredients of the offence charged so that he can properly direct his defences.
21.One approach to determining whether an otherwise defective charge should be immunized under section 382 of the Criminal Procedure Code is to use a cumulative sliding scale. The aim is to establish if the trial process could have been said to be fair to the accused person. If the charge sheet has a technical defect but all the other procedures are meticulously followed and the other substantive rights of the accused person are evidently respected in the trial process, it will be easier for a court to fairly immunize the technical defect in the charge sheet especially if it is clear that the accused person understood what was facing him and his participation in the trial process vindicates that position. On the other hand, if a defect in the charge is followed by a series of other procedural or substantive mishaps or miscues in the trial process which all affect the rights of the accused person, in my view, the court should be reluctant to utilize section 382 to cure the charge sheet even if each of the defects in the trial process could, standing on its own, be cured or treated as harmless error. An accumulation of singular streams of procedural defects which would otherwise be harmless errors spew into a river of substantive defect which would entitle an accused person to an acquittal upon appeal.
22.Applying this approach to the facts of the present case, i note the charge is predicated upon a non-existing section of the Sexual Offences Act. The question, then, is whether this contributed to a miscarriage of justice. I think it did not. In any event, this court will get an opportunity to look at the record afresh and determine if, absent the error, a court of law properly seized of the law and facts could have concluded that the appellant was guilty as the learned magistrate did.
23.This being a first appellate court and as is expected, is obliged to analyse and evaluate afresh all the evidence adduced before the trial court and draw its conclusions while bearing in mind that it neither saw nor heard any of the witnesses. (See Okeno v Republic [1972] EA 32) where the Court of Appeal set out the duties of a first appellate court as follows:
24.Similarly, in Kiilu & another v Republic [2005]1 KLR 174, the Court of Appeal stated thus:
25.Section 8 of the Sexual Offences Act provides as follows:8. (1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(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.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)It is a defence to a charge under this section if –it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)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.(8)The provisions of subsection (5) shall not apply if the accused person is related to the such child within the prohibited degrees of blood or affinity.
26.This being a case of defilement, what was to be proved are the ingredients of the offence of defilement and in the case of George Opondo Olunga v Republic [2016] eKLR, it was stated that the ingredients of an offence of defilement are; identification or recognition of the offender, penetration and the age of the victim.
27.It is now trite that for the appellant to be convicted of the offence of defilement, certain ingredients must be proved. The first is; whether there was the penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the appellant. (See the case of Charles Wamukoya Karani v Republic, criminal appeal No 72 of 2013), where it was stated that:
28.The key evidence relied on by the courts in rape cases and defilement to prove penetration is the complainant’s testimony which is usually corroborated by the medical report presented by the medical officer. In this case, since the complainant was a minor, the evidence of the victim’s parent or guardian and the clinical officer are key to corroborating such testimonies. I have critically analyzed the evidence of the clinical officer (Pw4) who testified herein. The evidence of the clinical officer seemed to have corroborated the evidence of Pw1. She produced the P3 form and treatment notes. According to the clinical officer who examined the complainant and filled the P3 form, the anal region of the complainant was swollen and tender with bloody discharge which was visible. She also stated that the anal region was bruised and that the laboratory test that is the VDRL, HIV test and urinalysis were all negative. That no abnormality was detected. She concluded that there was defilement (sodomy as she referred to the act).The medical evidence herein gives an indication of sexual assault on the complainant. Having considered the evidence adduced herein, I find that the Respondent did prove that there was penetration of the complainant’s genital organs.
29.As regards the aspect of the age of the complainant, the complainant was nine years old at the time of the ordeal and was a child within the meaning of the Children Act 2001 as he was below the age of 18 years. This ingredient was proved by the respondent beyond a reasonable doubt. The birth certificate exhibit (P3) produced by Pw3 indicated that the age of the complainant was nine years old.
30.As regards the issue of the identity of the appellant as the perpetrator of the crime, the appellant in his testimony admitted that he knew both Pw1 and Pw2 as they were church members. The complainant was able to identify the appellant in court and was able to narrate what happened on the material date. The complainant had no difficulty identifying the appellant as the incident took place in broad daylight and that the appellant spent some time engaging him on some conversation before pouncing on him. The appellant was placed at the scene of crime as he was almost lynched by members of public who were baying for his blood but he managed to escape albeit for a short while before being brought to book. The evidence of Pw4 confirmed that indeed there was penetration of the complainant’s genitalia namely anus. Pw2 stated that she had not disagreed with the appellant before and so the likelihood of a frame-up does not arise. In the case of Bassita v Uganda SC criminal appeal No 35 of 1995 where the Supreme Court held:
31.I am satisfied by the evidence of the prosecution that it was the appellant who had defiled the complainant and not a frame-up scenario as alleged by the appellant. It must be noted that even in the absence of corroborating evidence, the evidence of a victim of a sexual offence is sufficient under section 124 of the Evidence Act as long as the trial court warned itself of the danger of convicting on such evidence as follows:
32.Therefore, the evidence of the complainant and Pw4, could properly be a basis upon which a conviction could be founded. In Phillip Nzaka Watu v Republic [2016] eKLR, criminal appeal 29 of 2015, the court observed that: -
33.The above findings lead me to the conclusion that the conviction arrived at by the trial court was sound and I see no reason to interfere with it. The appellant’s defence was properly rejected by the trial court as the same did not cast any doubt upon the prosecution’s evidence. It was highly unlikely that the complainant’s grandmother could use her vulnerable grandson as a victim of defilement so as to settle scores with the appellant over cattle grazing rights. Iam satisfied that the appellant was positively identified as the perpetrator of the crime.
34.Regarding sentence, it is noted that the appellant was sentenced to serve life imprisonment. Under section 8(2) of the Sexual Offences Act, a person found guilty of defiling a child aged eleven years or less shall upon conviction be sentenced to serve life imprisonment. The complainant herein was found to be aged nine years old hence the sentence imposed fell within the prescribed age bracket.
35.In Wanjema v Republic [1971] EA 493, the predecessor of this court stated that: -
36.In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Sexual Offences Act. It is observed as follows: -
37.Prior to the Supreme Court’s decision in the case of Francis Karioko Muruatetu & another v Republic [2017] eKLR, the courts construed mandatory sentences literally, just like the trial court herein.
38.However, as the Supreme Court held, the mandatory nature of prescribed sentences for the offence of murder, was unconstitutional because it took away the court’s discretion to be able to determine such sentence as may be informed by the particular circumstances of the case before it.
39.I am alive to the fact that the Supreme Court did issue directions after its judgment in the “Muruatetu Case”, clarifying that that decision was only about murder cases.
40.However, I hold the considered view that if the mandatory nature of the death penalty was declared unconstitutional, similar reasoning can extend to mandatory sentences such as those in section 8 of the Sexual Offences Act.
41.In the Court of Appeal of Nyeri Appeal No 84 of 2015 Joshua Gichuki Mwangi v Republic, the appellate Court placing reliance on the respective decisions of Odunga J (as he was then) in Philip Mueke Maingi & 5 others v Director of Public Prosecutions & the Attorney General and that of Mativo J (as he was then) in High Court Constitutional & Judicial Review Division Petition No 97 of 2021 was aware of the fact that certain accused persons are clearly deserving of no less than the minimum sentences set forth in the Sexual Offences Act owing to the heinousness of the offences committed and they will continue to be appropriately punished as was pronounced in Athanus Lijodi v Republic [2021] eKLR;
42.The appellate court further held that: -
43.The Seychelles Court of Appeal in Poonoo v Attorney-General SCA 38 of 2010) [2011] SCCA 30 (09 December 2011); Media neutral citation [2011] SCCA 30 addressing mandatory sentences referred to the textbook, Sentencing Law and Practice35 in which the author aptly stated: -
44.The court in the above-cited case proceeded to state that: -
45.It again quoted from Thomas O'Malley thus: -
46.From the foregoing analysis, I am unable to see any distinction between the mandatory nature of the sentence for the offence of murder and the mandatory minimum sentence for the offence of defilement. In my view, what renders the sentence unconstitutional is the fact that the prescribed sentence completely precludes the court from exercising any discretion, regardless of whether or not the circumstances so require it. Being guided by the above Court of Appeal authorities, iam inclined to interfere with the sentence imposed upon the appellant. It is noted that the appellant is a first offender and ought not to be given the harshest sentence. A majority of cases involving sexual offences upon review and or consideration by the Court of Appeal have resulted to sentences of life imprisonment being reviewed downwards to periods ranging between 25 and 30 years’ imprisonment. See the cases of Jared Koita Injiri v R [2019] Eklr, Evans Wanjala Wanyonyi v R [2019] Eklr and Christopher Ochieng v R [2018] Eklr. It is noted that the appellant’s mitigation was duly considered by the trial court. It is also noted that the conduct of the appellant was reprehensible as he was expected to protect children and vulnerable persons in the society who looked up to him. I find that his actions had the effect of scarring the complainant whose life will never be the same again. Iam in agreement with the sentiments of the learned trial magistrate that the appellant requires custodial rehabilitation before being released back to the society. I find that a sentence of thirty (30) years’ imprisonment is appropriate in the circumstances. It is noted that the appellant was released on bond pending trial and hence the sentence shall commence from the date of conviction by the trial court namely March 2, 2021
47.In the result, it is my finding that the appellant’s appeal on conviction lacks merit and is dismissed. The appeal on sentence partly succeeds to the extent that the trial court’s sentence of life imprisonment is hereby set aside and substituted with a sentence of thirty (30) years’ imprisonment which shall commence from the date of conviction namely March 2, 2021.It is so ordered.
DATED AND DELIVERED AT BUNGOMA THIS 13TH DAY OF OCTOBER, 2022.D. KemeiJudge In the presence of:Protus Barasa AppellantMukangu for RespondentKizito Court Assistant