Maruti alias Baba Fatuma v Republic (Criminal Appeal E019 of 2022) [2023] KEHC 25080 (KLR) (8 November 2023) (Judgment)
Neutral citation:
[2023] KEHC 25080 (KLR)
Republic of Kenya
Criminal Appeal E019 of 2022
AC Mrima, J
November 8, 2023
Between
Issah Maruti Alias Baba Fatuma
Appellant
and
Republic
Respondent
(Appeal arising out of the conviction and sentence of Hon. L. G. G. Okwengu, (Senior Resident Magistrate) in Kapenguria Senior Principal Magistrate’s Court Sexual Offences Case No. 24 of 2019 delivered on 23rd November, 2022)
Judgment
Background:
1.Issah Maruti alias Baba Fatuma the Appellant herein, was on 5th November, 2019 initially charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that on 24th October, 2019 within West Pokot County, the Appellant intentionally and unlawfully caused his penis to penetrate into the vagina of MN W a child aged three and a half years old.
2.The Appellant faced an alternative charge of Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in the same place, the Appellant intentionally and unlawfully touching the vagina of MNW a child aged three and a half years old.
3.The Appellant pleaded not guilty to the offences. He was tried and subsequently convicted on the main charge of defilement. He was sentenced to serve 15 years imprisonment. The trial was by Hon. S.K. Mutai, then Principal Magistrate.
4.The Appellant appealed the decision in High Court of Kenya at Kapenguria in Criminal Appeal No. 8 of 2020. The appeal was heard and allowed. A re-trail was, however, ordered since the victim who had given unsworn evidence after a voir dire examination was not offered for cross-examination.
5.The Appellant was then re-tried before Hon. L.G.G. Okwengu, Senior Resident Magistrate, where he was found guilty of defilement, convicted and sentenced to life imprisonment.
The Appeal:
6.Aggrieved by the conviction and sentence, the Appellant lodged the instant appeal. He raised four main grounds impugning the conviction and sentence. He claimed that his rights were violated for having been held by the police for 3 days in contravention of Articles 20, 25, 27, 47, 49 and 50 of the Constitution. He also claimed the offence was not proved, that crucial witnesses were not called and that the life sentence was manifestly severe.
7.In the premises, the Appellant prayed that the appeal be allowed by quashing the conviction, the sentence be set aside and that he be forthwith set free.
8.Parties disposed of the appeal by way of written submissions. According to the Appellant’s undated submissions filed on 24th February, 2023, the Appellant expounded on the above grounds.
9.The Respondent on its part relied on its written submissions dated 4th September, 2023 and filed on 25th September, 2023. It opposed the appeal in arguing that the offence was properly founded. He urged for the dismissal of the appeal while submitting that the life sentence was constitutional.
Analysis:
10.This being a first appeal, it’s the duty of this Court to re-consider and to re-evaluate the evidence adduced before the trial Court with a view to arriving at its own independent conclusions and findings (See Okono v Republic [1972] EA 74). In doing so, this Court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial Court and, therefore, it ought to give due regard in that respect as so held in Ajode v Republic [2004] KLR 81.
11.Having carefully perused the record, this Court is now called upon to determine whether the offence of defilement was committed, and if so, whether by the Appellant.
12.However, before discharging the said duty, it is crucial to review the evidence adduced at the trial. On this, the Court wishes to point out that the trial Court summarized the evidence quite well, and the same will be part of this decision by way of reference.
13.The prosecution called a total of five witnesses to establish that the Appellant committed the offence that he was convicted of. The Court heard that AWM who testified as PW2 who was the mother of the victim, MNW (testified as PW1) was a business woman engaged in selling second hand clothes. That on 28th October, 2019 she returned at her home in Alale town from a business trip in Lorut area.
14.PW2 had left PW1 behind. She then decided to wash her. In the process, PW2 noted that PW1 had pain on her thighs. PW2 enquired what was the matter and PW1 narrated the ordeal she had with the Appellant.
15.PW1 stated that she had gone to play with her neighbour and friend one Fatuma, who was the Appellant’s daughter, at their house. That, the Appellant who was at home bought them some mandazi for them and took PW1 to bed. The Appellant removed PW1’s trouser and pant and lay her on a bed after he had also removed his trousers. He then removed his penis and slept on her stomach and she felt pain in her private parts.
16.The pain on PW1’s thighs that was inflicted by the Appellant persisted until when PW2 returned.
17.PW2 carefully examined PW1 on the thighs and her vagina. She found that both were reddish.
18.Sensing foul-play, PW2 reported the matter to the Chief (not a witness). As PW2 discussed the matter with the Chief, they saw the Appellant passing by and the Chief called him. The Appellant came to where they were and on being asked why he committed such an act on an innocent little child, he offered to buy alcohol so that the matter be settled. PW2 reported the matter to the police at Alale Police Station.
19.PW5 one PC Edward Chepsergon from Alale Police Station received the complaint from PW2 at the station on 2nd November, 2019. He booked it and together with PC Justus went to look for the Appellant who was well known to them since he sold mandazi’s at a hotel in Alale town.
20.The police found that the Appellant had moved from where he ordinarily resided, but luckily, they got information on where he was. They ambushed him only to find that he had packed his items and was about to leave. They arrested him. They also some of the Appellants items broken and learnt that members of the public had pounced on him on learning that he was involved in the overt act.
21.The Appellant was led to the station. PW5 accompanied PW1 to the Alale Health Centre where she was examined on 3rd November 2019 by PW4 one Rebecca Napeyok. There was tenderness on PW1’s thighs and the vagina. She an inflamed vulva with no visible tears and there was a discharge which was allover the vagina. PW4 gave her medication and filled in the P3 Form. She produced both the P3 Form and the treatment notes as exhibits.
22.According to PW4, the discharge was quite unusual to a child of such age. She clarified that a discharge from a sexual activity could flow out of a woman’s vagina even for 15 days. PW4 concluded that there had been a forceful penile penetration into PW1’s vagina.
23.On completion of the investigations, PW5 preferred the charges against the Appellant.
24.After close of the prosecution’s case, the trial Court found that the Appellant had a case to answer and was placed on his defence.
25.He gave an unsworn defence and called no witnesses. He denied committing the offence. He recalled how he was arrested and claimed that he was framed on account of a failed sexual relationship he had with PW2. He further claimed that even PW5 had an affair with PW2 and that PW5 had married PW2 and were living in Nyeri.
26.The Appellant urged the Court to find him not guilty as charged and be released.
27.It is on the above evidence that the Appellant was found guilty of defiling PW1, convicted and sentenced.
28.For the prosecution to establish the charge of defilement, it must establish the following crucial ingredients: -a.Age of the Complainant;b.Penetration and;c.Identification of the perpetrator.
29.A look at the ingredients of the offence of defilement now follows.
Age of the Complainant:
30.The prosecution relied on an Age Assessment Report in proof of PW1’s age. According to the Report, PW1 was about three and a half years old at the time of the ordeal. The Report was not challenged in any way and the trial Court did not find any reason to impugn that medical evidence.
31.This Court, therefore and likewise, finds that PW1 was a child within Section 2 of the Children Act.
Penetration:
32.The evidence of penetration was by three witnesses; PW1, PW2 and PW4. PW1 was the victim. She described the ordeal with the assailant who waylaid her into a bed, undressed her and placed his penis on her vagina. PW2, who was the mother to PW1, examined PW1 two days later when she was bathing her. She noted that PW1 had pain around her thighs. On closer watch, PW2 found PW1’s thighs and the vagina reddish.
33.It was PW4 who medically examined PW1. PW4 observed that the thighs and vagina were reddish and that the vulva was inflamed. There was also a discharge which was all over the vagina and such a discharge was quite unusual to a child of such an age.
34.The combined evidence of PW1, PW2 and PW4 leaves no doubt that indeed a penis was inserted into PW1’s vagina. That was proof of penetration.
Identity of the perpetrator:
35.The evidence on the identity of the assailant was led by PW1. It was, therefore, a single witness evidence. PW1 contended that she recognized the assailant who was her neighbour and that the incident happened during the day when she had gone to the Appellant’s house to play with the Appellant’s daughter one Fatuma.
36.As the evidence was largely on recognition, Courts have discussed how Court’s ought to treat such evidence. The evidence of recognition was held by the Court of Appeal in Anjononi & Others v Republic [1989] eKLR to be ‘more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the person’s knowledge of the assailant in some form or other’.
37.Courts have, also and severally, held that a conviction can be based on the evidence of a single witness. As early as 1967, the Court of Appeal of Eastern Africa held in Chila v R [1967] EA 722 at 723, as follows: -
38.The import of Section 124 of the Evidence Act, Cap. 80 of the Laws of Kenya on sexual offences has also been judicially considered. The Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR held that: -
39.The legal principle discussed above has been applied in many other decisions including; S C N v Republic [2018] eKLR, G O A v Republic [2018] eKLR, Martin Okello Alogo v Republic [2018] eKLR among many others.
40.The analysis of Section 124 of the Evidence Act establishes a thread running through the decisions. The legal principle is that as long as the trial Court is satisfied that the single witness is telling the truth, a conviction based on such evidence will be allowed to stand.
41.Further, in R v Turnbull & others (1973) 3 ALL ER 549, which English decision has been generally accepted and greatly used in our judicial system, the Court addressed the considerations to be made when the only evidence turns on identification by a single witness. The Court rendered thus: -
42.Returning to the case at hand, PW1 and the Appellant were immediate neighbours. PW1 stated that they lived next to the Appellant’s room and used to play with Fatuma. She neatly narrated what the Appellant allegedly did to her.
43.The trial Court analyzed the aspect of identification by way recognition. It was satisfied that the single witness, PW1, was telling the truth and believed her testimony. It then found that the Appellant was positively recognized as the assailant.
44.From the evidence, PW1 was quite consistent and well oriented of the events as they took place. She described how the incident occurred and who the intruder was. PW1 knew the Appellant well.
45.While reviewing the evidence, this Court must remain alive to the fact that it neither saw nor heard the witnesses as they testified before the trial Court and, therefore, it ought to give due regard in that respect. (See Ajode v Republic [2004] KLR 81. Therefore, unless on very convincing and congent grounds, the trial Court’s analysis and belief ought to be upheld.
46.On a careful review of the evidence, this Court finds that the totality of the evidence placed the Appellant as the perpetrator. He was positively identified as such visually. The prosecution’s evidence was, therefore, cogent and believable.
47.The upshot is that the prosecution discharged its burden to the required standard of proof and that the trial Court, rightly so, found the Appellant guilty and convicted him.
48.Coming to the end of the discussion on this issue, this Court notes that the Appellant raised two more issues worth consideration. The first one was the alleged infringement of his fair trial rights by having been arraigned before Court three days post arrest.
49.The Appellant did not raise the issue before the trial Court. In such a case, there is no way this Court can ascertain whether the alleged infringement, if any, affected the trial. The Appellant has the option of pursuing the matter through a constitutional petition, if need be.
50.The second issue was the contention that crucial witnesses were not called without any reasonable explanation.
51.The prosecution has a discretion to call any witnesses. (Section 143 of the Evidence Act). It is only in instances where crucial witnesses are not called and no plausible explanation is given when a Court may raise a red flag. (See Bukenya & others v Uganda (1972) E.A. 594, Kingi v Republic (1972) E.A. 280 and Nguku v Republic (1985) KLR 412).
52.The witnesses called in this case were sufficient to prove the offence.
53.Having considered all the issues raised by the Appellant challenging the conviction, this Court finds that the Appellant’s encounter that the offence of defilement was not proved fails.
54.Consequently, this Court finds that the appeal against the conviction lacks merit and is hereby dismissed.
Sentence:
55.The Appellant was sentenced to life imprisonment. The trial Court considered the mitigations.
56.The Appellant submitted that life imprisonment was unconstitutional and that the sentence ought to be set-aside and he be sentenced to the period already served.
57.The State opposed the submission and contended that the life imprisonment was upheld by the Court of Appeal as constitutional in Criminal Appeal No. 104 of 2021 in Nairobi Onesmus Musyoki Muema v Republic. The decision was rendered on 4th August, 2023.
58.Earlier, on 7th July, 2023, the Court of Appeal, differently constituted, in Manyeso v Republic [2023] KECA 827 (KLR) found the life imprisonment unconstitutional.
59.This Court has carefully considered the two decisions from the Court of Appeal. Whereas the matter calls for urgent resolution by the Supreme Court, this Court ought to carefully weigh the rival decisions. After consideration of the said decisions, this Court finds favour in the finding that life sentences are unconstitutional to the extent that they are indeterminate.
60.Unlike the decision in Manyeso v Republic, the latter one did not consider the issue in light of the various provisions of the Constitution, prevailing judicial pronouncements from the Supreme Court including Francis Karioko Muruatetu & Another v Republic (Petition 15 & 16 of 2015; [2017] KESC 2 (KLR)) and comparative jurisprudence world-over.
61. Manyeso v Republic had a robust exposition of the relevant constitutional provisions coupled with appropriate legal reasoning which is in tandem with the transformative 2010 Constitution.
62.It is, hence, the finding of this Court that life sentences are unconstitutional to the extent that they are indeterminate. This Court, therefore, upholds the Court of Appeal decision in Manyeso v Republic case (supra).
63.Having found as such, the life sentence imposed on the Appellant is hereby set-aside.
64.In considering an appropriate sentence this Court is guided by the statement in Manyeso v Republic case (supra) when the Court was considering the sentence. The Court stated as follows: -27.…… We are also alive to the fact that he [the Appellant] was convicted for defiling a child of 4 years and of the likely ramifications of his actions on the child’s future. We are therefore of the view that while the Appellant should be given the opportunity for rehabilitation, he also merits a deterrent sentence. We, therefore in the circumstances, uphold the Appellant’s conviction of defilement, but partially allow his appeal on sentence. We accordingly set aside the sentence of life imprisonment imposed on the appellant and substitute therefore a sentence of 40 years in prison to run from the date of his conviction.
65.Given the age of the victim in this case, which was 3½ years old, and in consideration of the mitigations, this Court finds that a stiffer penalty is called upon as a deterrent measure.
Disposition:
66.Drawing from the above discussion, it is apparent that the appeal fails on the conviction, but succeeds on sentence.
67.In the end, the following orders do hereby issue: -a.The appeal against the conviction fails and is hereby dismissed.b.The appeal against the life imprisonment succeeds. The life imprisonment imposed upon the Appellant is hereby set-aside.c.The Appellant is now sentenced to serve 40 years in prison. The sentence shall start running from 5th November, 2019 when the Appellant was first charged.d.The file is marked as closed.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT KAPENGURIA THIS 8TH DAY OF NOVEMBER, 2023.A. C. MRIMAJUDGEJudgment delivered virtually and in the presence of: -Issah Maruti alias Baba Fatuma, the Appellant in person.Mr. Makori, Learned Senior Assistant Director of Public Prosecutions instructed by the Office of the Director of Public Prosecutions for the Respondent.Juma/Hellen – Court Assistants.