Kirema v Republic (Criminal Appeal E014 of 2020) [2022] KEHC 14793 (KLR) (12 October 2022) (Judgment)
Neutral citation:
[2022] KEHC 14793 (KLR)
Republic of Kenya
Criminal Appeal E014 of 2020
LW Gitari, J
October 12, 2022
Between
David Mwenda Kirema
Appellant
and
Republic
Respondent
(The appeal is against the decision of the Senior Resident Magistrate delivered on July 29, 2020 in Marimanti Criminal Case No. 41 of 2019)
Judgment
1.The Appellant instituted these proceedings vide a Petition of Appeal that was filed on December 1, 2020. The appeal is against the decision of the Senior Resident Magistrate delivered on July 29, 2020 in Marimanti Criminal Case No. 41 of 2019.
2.The appeal is premised on the grounds that the learned trial magistrate erred in matters law and fact by:a.Convicting the Appellant on uncorroborated prosecution evidence.b.Failing to consider that the adduced evidence was insufficient to hold conviction.c.Failing to consider that the Appellant was constitutionally entitled for legal assistance hence failed to conform a fair trial. (sic)d.Imposing a harsh sentence without taking into account that the Appellant being a first offender was constitutionally guaranteed for the benefit of the least severe punishment.
3.The case against the Appellant was one of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, 2006 (hereinafter referred to as the “Act”). He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Act.
4.On the main charge, it was alleged that on September 10, 2019 at [Particulars Withheld] village of Gakurungu location within Tharaka Nithi County, the Appellant intentionally caused his penis to penetrate the vagina of JGM, a child aged 6 years old.
5.On the alternative charge, it was alleged that on September 10, 2019 at [Particulars Withheld] village of Gakurungu location within Tharaka Nithi County, the Appellant intentionally touched the vagina of JGM, a child aged 6 years old.
6.The Appellant denied the charge and the matter proceeded to full trial. In the end, the trial court found the appellant guilty, convicted him and sentenced him to serve life imprisonment. It is this decision that the Appellant is now challenging in this appeal.
7.The appeal was canvassed by way of written submissions. In his written submissions that were filed on March 2, 2022, the Appellant submitted that the evidence adduced by the prosecution did not prove the charge to the requisite standard. The Appellant further faulted the trial court for not cautioning him on the magnitude of the charges he was facing.
8.In addition, it was the Appellant’s submission that the treatment note produced as evidence in the lower court proved the offence of indecent act and not defilement. Finally, the Appellant submitted that the sentence meted upon him was harsh and excessive considering that he was a young man and a first offender. The Appellant thus urged this court to allow this appeal and set aside the sentence meted out against him.
9.In response, the Respondent filed its written submissions on April 21, 2022. The Respondent submitted that by dint of Section 124 of the Evidence Act, the trial magistrate did not err in convicting the Appellant on the strength of the victim’s uncorroborated evidence. The Respondent further submitted that the elements of the offence herein were proved beyond reasonable doubt as required by law. On the issue of the Appellant not being granted legal assistance, the Respondent relied on the case of Thomas Alugha Ndegwa v. Republic [2016] eKLR and submitted that the right is not absolute.
Issues for determination
10.From the grounds of appeal raised herein as well as the respective submissions of the parties, it is my view that the main issues for determination are:a.Whether the prosecution proved its case against the Appellant to the required standard.b.Whether the Appellant was accorded a fair trial.c.Whether the sentence meted against the Appellant was harsh or excessive in the circumstances.
Analysis
11.The duty of this court as the first appellate court is to subject the evidence to a fresh and exhaustive examination, draw its own findings and arrive at its own conclusion while bearing in mind the fact that the trial court had the advantage of hearing and seeing the witnesses. [See: Okeno v. Republic (1972) E.A, 32.]
12.Based on the above authority, I shall now proceed to analyze the issues raised in this appeal under the following heads.
a. Proof of the Prosecution’s case against the Appellant to the required standard
13.Grounds of Appeal No. 1 and 2 are covered under this head.
14.It is common ground that the burden of proof in criminal cases lies with the prosecution. This position has been upheld in numerous cases. In David Muturi Kamau v Republic [2015] eKLR, the Court of Appeal, expressed itself as follows in this regard:
15.The Appellant herein was charged in the main count under the provisions of Section 8(1) of the Act which provides that a person who commits an act which causes penetration with a child commits an offence known as defilement. The ingredients of the offence of defilement were highlighted in the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 which stated as follows:
16.Proof of a victim’s age is a key ingredient to prove in an offence of defilement given that the penalty is heavy dependent on the complainant’s age. In this case, a birth certificate serial no. xxxx (P.Exhibit 1) was produced in evidence to prove PW1’s age at the time of commission of the alleged offence. The authenticity of the said birth certificate was not challenged by the Appellant. The victim was born on August 4, 2013. This means that she was 6 years old at the time the subject offence was committed on 10/9/2019. The prosecution thus proved the age of the victim to the requisite standard.
17.The other elements that needed to be proved were penetration and identification of the Appellant as the perpetrator. On proof of these two elements, the Appellant has faulted the trial court for convicting the Appellant based on evidence that was allegedly not corroborated. To this end, the Respondent conceded that the prosecution did rely solely on the evidence of the victim herein, which evidence was not corroborated. They urged the court to consider the law under Section 124 of the Evidence Act.
18.As a general rule of evidence embodied in Section 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section makes an exception in sexual offences and provides as follows:In this regard the State relied on the following court of appeal decisions.In the case of J.W.A.v. Republic [2014] eKLR, the Court of Appeal observed:-A similar position was taken in Mohamed –v- Republic [2006] 2 KLR 138 where the court stated:-
19.In addition, Section 143 of the Evidence Act provides that:
20.When considering the evidence of a single witness, it is trite that such testimony needs to be tested with greatest care. In this regard, I echo the holding in the case of Abdala bin Wendo and another -vs- R (1953) 20 EACA166 where the Court held as follows:
21.Section 2 of the Act defines “penetration” as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
22.In this case, the victim testified as PW1 and told the court that on the material day in the afternoon hours, the Appellant did bad manners to her. The victim told court that she knew the Appellant well and used to call him ‘uncle’ although he is her cousin as he is the son to her uncle from her father’s side. She explained that she had gone to pick berries in her grandmother’s farm. Her mother then sent her to get her lesso. The Appellant was there and heard the victim being sent. The Appellant followed her to K’s house. When she got to Kaveso’s house, the Appellant held her and made sexual advances on her which she declined. The Appellant then lifted the victim’s dress, removed his thing for urinating and put it between the victim’s legs as he laid on top of her. The victim cried. One Ciriaka responded to the cries, saw the Appellant on top of the victim, and she went to call the victim’s father. The Appellant had already left the scene by the time the father of the victim arrived there. According to PW1, her father saw the watery discharge that the Appellant had left on her. PW1 further told the court that it was not the first time that the Appellant had held her and had sex with her.
23.PW2, was the victim’s mother. She told the court that on the material day, she had gone to her maiden home and spent the night there. She received the news that her daughter was defiled on the next morning. She then took her daughter to the assistant chief’s office before reporting the matter to the police. It was her testimony that the Appellant had defiled the victim previously and that as a family, they resolved to settle the matter out-of-court.
24.According to PW3, the investigating officer, PW2 went with the victim to Tunyai Police Post and reported that the Appellant had defiled the victim. She interviewed PW1 who told her that the Appellant had accosted her while she was picking wild fruits, wrestled her to the ground and had forceful sexual intercourse with her. She escorted the victim to Tunyai Hospital where she was examined and treated. PW3 told the court that the Appellant was later arrested by the father of the victim with the help of members of the public.
25.PW4 is a clinical officer. She produced in evidence the victim’s P3 form in relation to the subject incident (P.Exhibit 3) that was filled by her colleague who had been re-deployed. PW4 stated that she was familiar with her colleague’s handwriting and signature. It was her testimony that upon examination of the victim, her hymen was broken though not freshly, and her vulva was reddish and swollen. No bruised were seen but some mild discharge was visible from the victim’s vagina. According to her, the swollen vulva was evidence of penetration.
26.From both the evidence of PW1 and PW4 as well as the P3 form produced in court, it is my view that there was penetration and the same was proved to the requisite standard of any reasonable doubt. On identification, it is my view that the evidence of PW1 sufficiently pointed to the Appellant as the perpetrator as he was known to her and according to the learned trial magistrate, the victim was confident and consistent with her answers on cross-examination. Accordingly, I opine that the prosecution did prove its case against the Appellant to the required standard of beyond any reasonable doubt. As such, this ground of appeal therefore fails.
b. Whether the Appellant was accorded a fair trial
27.Ground of Appeal No. 3 is covered under this head.
28.The right to free legal counsel at the expense of the State is guaranteed by the Constitution of Kenya (2010) through two key provisions. The first provision in this regard is Article 48 of the Constitution which recognises the right of access to justice for all. It provides that:
29.The second provision is Article 50 of the Constitution which gives the right to a fair hearing. Article 50(2)(h) provides that:
30.The record shows that the Appellant in this case was not represented by counsel and the offence of defilement that he was charged with attracted a penalty of life imprisonment. The Appellant is therefore faulting the trial court for not explaining to him the magnitude of the charges he was facing.
31.In the case of Thomas Alugha Ndegwa (supra), cited by the Respondent herein, the Court of Appeal held as follows:
32.Guided by the above authority and the cited constitutional and statutory provision, it is my view that this ground of appeal equally fails as the charge and particulars of the offence that the Appellant was facing was read to him in a language that he understood and the Appellant never applied for legal assistance before the trial court made its final determination.
c. Whether the sentence meted against the Appellant was harsh or excessive in the circumstances
33.Ground of Appeal No. 4 is covered under this head.
34.Section 8 of the Act provides for the offence of defilement of children of different ages. The younger the child, the more severe the sentence. Section 8(2) of the Act provides as follows:
35.In this case, the victim was aged 6 years old at the material time. The Appellant submitted that he was entitled to a lesser definite sentence as he was a first offender. He relied on the case of Francis Karioko Muruatetu & Another -vs- Republic, Petition No. 15 & 16 of 2016 in further submitting that mandatory sentences were rendered unconstitutional by the apex court.
36.In this regard, the Supreme Court did clarify the position in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR by stating that:
37.A reading of the above Supreme Court’s judgement shows that the mandatory minimum sentences provided under Section 8 of the Sexual Offences Act remain the statutory and legal sentences for persons found guilty of the offence of defilement.
38.Accordingly, it follows that the sentence meted against the Appellant was therefore a legal sentence and not excessive in the circumstances as the same is the mandatory sentence provided by law. Furthermore, this court cannot overlook the fact that the Appellant has committed a heinous crime that the appellant has occasioned trauma and suffering to a young girl. As such, it is my view, the appeal also fails under this head.
Conclusion_
39.The upshot of the above analysis, is that the appeal is devoid of merit and is dismissed in its entirety.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 12TH DAY OF OCTOBER, 2022.L.W. GITARIJUDGE