Langat v Republic (Criminal Appeal E029 of 2023) [2024] KEHC 16054 (KLR) (19 December 2024) (Judgment)
Neutral citation:
[2024] KEHC 16054 (KLR)
Republic of Kenya
Criminal Appeal E029 of 2023
RL Korir, J
December 19, 2024
Between
Benard Langat
Appellant
and
Republic
Respondent
(From the Conviction and Sentence in Sexual Offence Case Number E051 of 2021 by Hon. Omwange J. in the Magistrate’s Court in Sotik)
Judgment
1.The Appellant was 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 charge were that on 30th October 2021 in Konoin Sub-County within Bomet County, he intentionally and unlawfully caused his penis to penetrate the vagina of AC, a child aged 11 years.
2.The Appellant pleaded not guilty to the charge before the trial court and a full hearing was conducted. The prosecution called six (6) witnesses in support of its case. The trial court found that the Prosecution had proved a prima facie case against the Appellant and put him on his defence. The Appellant gave unsworn testimony and did not call any witness.
3.In a Judgement dated 27th April 2023, the trial court found the Appellant guilty of the offence of defilement, convicted him and sentenced him to serve life imprisonment.
4.Being aggrieved with the Judgment of the trial court, the Appellant, Langat through an undated home-made Petition of Appeal appealed against his conviction and sentence on the following grounds reproduced verbatim: -i.That I pleaded not guilty at the trial and I still maintain the same.ii.That the learned trial Magistrate erred in law and fact by failing to realize that the main ingredients of the present offence was not proved to the required lawful standards.iii.That the learned trial Magistrate erred in law and fact by basing his conviction on the Prosecution’s witnesses whose evidence was marred with contradictions, inconsistencies, discrepancies and glaring gaps.iv.That, the learned trial Magistrate erred in both law and fact by rejecting my plausible defence without any explanation.
5.The Appellant filed further grounds of Appeal and they are reproduced verbatim as:-i.That the trial Magistrate erred in law by awarding a life sentence which was against the spirit of the Constitution of Kenya and did not meet the objectives of sentencing.ii.That the learned trial Magistrate erred in law and fact by dismissing his alibi defence which was cogent and truthful.iii.That the Appellant was not accorded a fair trial contrary to Article 50(2) of the Constitution of Kenya.
6.This being the first appellate court, I have a duty to re-evaluate the evidence on record afresh. The Supreme Court of India explained the duty of a first appellate court in K. Anbazhagan vs State of Karnataka and Others Criminal Appeal No. 637 of 2015 as follows:-
7.I proceed to consider the case before the trial court in the succeeding paragraphs.
The Prosecution’s Case.
8.It was the Prosecution’s case that the Appellant defiled AC (PW4) on 30th October 2021. PW4 testified that the Appellant did bad manners to her by penetrating her female organ using his male organ. PW4 further testified that her grandmother (PW2) found them in the house.
9.AM (PW2) who was the victim’s grandmother testified that on the material day at around 4 p.m., she came back home and found the kitchen open. That the Appellant and the victim came out of the kitchen and ran in opposite directions.
10.Daniel Kiprotich Too (PW5) who was the clinical officer testified that he examined the victim six days after the alleged commission of the offence. He testified that due to the passage of time, he could not find anything positive and could not confirm whether the victim had been defiled or not. He however stated that he found pus cells and white blood cells in the victim’s urine which indicated that the victim had an infection. PW5 further stated that the victim had a long standing broken hymen.
The Appellant’s Case
11.The Appellant, Benard Langat (DW1) denied committing the offence. He stated that on the material day (30th October 2021), he was arrested as he walked on Hillary Ngetich’s land and he was taken to the police station.
The Appellant’s submissions.
12.In his undated submissions filed on 6th March 2024, the Appellant submitted that the Prosecution case against him was not proved. That the Prosecution failed to prove penetration and the clinical officer testified that he could not confirm whether the victim was defiled or not. The Appellant further contended that an old broken hymen was not proof of penetration. He relied on P.K.W vs Republic (2012) eKLR.
13.It was the Appellant’s submission that the Prosecution failed to prove the victim’s age. That the victim did not state her age and the clinical officer (PW5) did not conduct an age assessment on the victim. It was the Appellant’s further submission that he was not identified as the perpetrator. That dock identification was misleading and he was not arrested with the victim.
14.On sentence, the Appellant submitted that the life sentence was harsh as it was indeterminate. That his right to a less severe punishment was guaranteed by Article 50(2) (p) of the Constitution of Kenya.
The Prosecution’s/Respondent’s submissions
15.Through their submissions dated 4th December 2023, the Respondent submitted that they proved the age of the victim who was 11 years of age through the production of the victim’s Birth Certificate. That their evidence on the victim’s age was uncontested.
16.It was the Respondent’s submission that the Appellant was positively identified by the victim. That the Appellant and the victim (PW4) were not strangers to each other as the Appellant was a farmhand at her (PW4) uncle’s house. It was the Respondent’s further submission that the Appellant was recognized and placed at the scene by the victim’s grandmother (PW2).
17.The Respondent submitted that they proved penetration. That the victim’s oral account was clear that vaginal penetration was established and the clinical officer noted that the victim had an old broken hymen. They further submitted that the clinical officer did not find anything significant after the examination due to the passage of time which he explained.
18.The Respondent submitted that the Appellant merely denied committing the offence and they asked this court to reject his defence.
19.I have gone through and considered the trial court’s proceedings, the undated Petition of Appeal filed on 13th June 2023, the undated Appellant’s written submissions filed on 6th March 2024 and the Respondent’s submissions dated 4th December 2023. The following issues arise for my determination:-i.Whether there were procedural issues affecting a fair trial.ii.Whether the Prosecution proved its case beyond reasonable doubt.iii.Whether the Appellant’s defence placed doubt on the Prosecution case.iv.Whether the sentence preferred against the Appellant was just and fair.
i. Whether there were procedural issues affecting a fair trial.
20.In his further grounds of the Appeal, the Appellant lamented that his right to a fair hearing under Article 50(2) of the Constitution of Kenya had been violated. Article 50(2) of the Constitution of Kenya provided:-
21.The Appellant was not specific on which of the rights above was infringed upon by the trial court. I have however keenly gone through the trial court record and noted that the Appellant took plea on 5th November 2021 which plea was unequivocal. I have also noted that the Appellant participated in the trial where he cross examined MN (PW1) and when he was placed on his defence, he adequately presented his defence. There was no evidence to indicate that the Appellant’s right to a fair trial had been violated and I dismiss this ground of Appeal.
ii. Whether the Prosecution proved its case beyond reasonable doubt.
22.It is trite law that for the offence of defilement to be established, the age of the victim, penetration and positive identification or recognition of the offender ought to be proved.
23.Regarding the age of the victim, MN (PW1) who was the victim’s mother testified that at the time of the alleged commission of the offence, the victim (PW4) was aged 11 years. She produced a Birth Certificate as P.Exh 1. PW1’s testimony on the victim’s age was uncontroverted after cross examination.
24.In Mwalengo Chichoro Mwajembe vs. Republic, Msa. App. No. 24 of 2015 (UR), the Court of Appeal held: -
25.I have looked at the Birth Certificate (P.Exh 1) and it showed that the victim (PW4) was born on 30th May 2010. It is my finding that at the time of the commission of the offence, the victim (PW4) was aged 11 years old.
26.With regard to the issue of identification, the victim (PW4) testified that on the material day, she was at her grandmother’s place. That the Appellant came, called her to the kitchen and did bad manners to her. PW4 further stated that her grandmother found them in the house. The Appellant positively identified the Appellant in court.
27.AM(PW2) who was the victim’s grandmother stated that on the material day at around 4 p.m., she found the Appellant and the victim and when they saw her, they ran in opposite directions. PW2 further stated that the Appellant was a worker in her son’s house. PW2 positively identified the Appellant in court.
28.Mercy Langat (PW3) stated that the Appellant was an employee in her home and she got the information of the defilement from her in-law’s wife (PW1). PW3 positively identified the Appellant in court.
29.From the evidence above, it was clear to me that the Appellant and the victim (PW3) were well known to each other. There was clear evidence that the Appellant was an employee of the complainant’s uncle and lived in his employer’s house which was in the same farm with the victim’s home. This evidence was more of recognition than normal identification. Further, PW2 who found both the Accused and the complainant in her kitchen knew both of them well. They both scattered when PW2 found them. The act of running away denoted guilty conduct. I find the identification evidence as shown in this particular case was strong and free from any doubt.
30.Flowing from the above, it is my finding that the Appellant was positively identified by the victim (PW4) as the perpetrator of the offence.
31.With regard to penetration, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. The Prosecution has to prove penetration or act of sexual intercourse to sustain a charge of defilement.
32.Penetration can be proved through the evidence of the victim corroborated by medical evidence. It should however be noted that if the medical evidence was insufficient, courts can convict solely on the evidence of a victim provided they believe the testimony of the victim and record such reasons.
33.In the instant case, I proceed to carefully evaluate the medical evidence and the victim’s testimony.
34.Regarding medical evidence, Daniel Kiprotich Too (PW5) a clinical officer from Mogogosiek Health Centre testified that he examined the victim (PW4) six days after the alleged commission of the offence and found that she had an old broken hymen. He further testified that the victim had pus cells and white blood cells in her urine which was an indication of an infection.
35.It was PW5’s testimony that due to the passage of time, he did not find anything positive after examining the victim and that he could not confirm whether the victim had been defiled or not. He produced the treatment notes, P3 Form and PRC Form as, P.Exh 2, P.Exh 3 and P.Exh 4 respectively.
36.I have looked at the aforementioned exhibits and they all indicate that PW4 was examined on 3rd November 2021 which was approximately 4 days from the material day (30th October 2021). The exhibits indicated that the victim had a long standing broken hymen and did not have lacerations on her genitalia and therefore there was no evidence of recent penetration.
37.Having considered the above evidence, it is my finding that due to the passage of time between the alleged commission of the offence and the date of examination, the medical evidence in this case was wanting and it did not assist the court in determining if there was penetration or not. This court wonders why the victim was not taken for medical examination as soon as the immediate family members learnt of the defilement as the evidence clearly shows that the victim’s grandmother and mother got to know by the following day.
38.However, as earlier stated, the court can use the sole testimony of the victim as a basis for conviction. Section 124 of the Evidence Act provided:-
39.I have carefully gone through the victim’s testimony where she stated that the Appellant did bad manners to her by inserting his male genital organ into her female genital organ. The victim further stated that they were found in the house by her grandmother. This testimony was corroborated by her grandmother (PW2) who stated that she found the Appellant and the victim in the house and they (Appellant and victim) ran away.
40.It is my finding from evaluating the victim’s evidence that her evidence was cogent, believable and enough to establish penetration. She was able to describe to the trial court how the Appellant defiled her. I have also noted the fact that the Appellant ran away when they were caught by the victim’s grandmother which indicated a guilty conscience.
41.I have considered the Appellant’s submission that the complainant’s broken hymen did not suggest penetration. That might very well be true. I have however considered the circumstances of the case and found no reason to disbelieve the testimony of the victim that she was penetrated by the Accused.
42.I have re-evaluated the evidence and found all the ingredients of the offence proved. It is my finding that Prosecution proved its case against the Appellant beyond reasonable doubt.
iii. Whether the Appellant’s defence placed doubt on the Prosecution’s case.
43.The Appellant denied committing the offence. He stated that on the material day (30th October 2021) he was arrested as he walked on Hillary Ngetich’s land and was thereafter charged with the offence of defilement. I have considered the Appellant’s defence and it is my finding that his defence was weak and a mere denial.
44.It was a ground of the Appeal that the trial court did not consider his alibi defence. Having looked at and considered the Appellant’s defence in its entirety, it is my finding that his defence did not raise the issue of an alibi. As already noted above, it was a mere denial.
45.Flowing from the above, it is my finding that the Appellant’s defence did not create any doubt on the Prosecution’s case which I have already found proven.
iv. Whether the sentence preferred against the Appellant was severe.
46.The Appellant was charged under section 8(3) of the Sexual Offences Act which provides the penalty as follows:-
47.The evidence however clearly showed that the victim of the offence was 11 years old and therefore the applicable penal section was section 8(2) of the Sexual Offences Act which provides the penalty as follows:-
48.The Appellant was sentenced to serve life imprisonment. While meting out the sentence, the trial court noted that the Appellant was an employee of the victim’s extended family and he took advantage of the victim when he knew nobody was at home.
49.The Appellant submitted that the life sentence was harsh and inhumane as it was indeterminate in nature. He further submitted that he had a right of a lesser sentence as guaranteed under Article 50 (2) (p) of the Constitution of Kenya.
50.For this court to interfere with the trial court sentence, it must be shown that the trial court acted on the wrong principle or ignored material factors when meting out the sentence. In Nelson Ambani Mbakaya vs Republic (2016) eKLR, the Court of Appeal stated that:-
51.As earlier noted, the Appellant was sentenced to life imprisonment. The Court of Appeal in the case of Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment) declared a life sentence unconstitutional.
52.However, recently, the Supreme Court ruled that the Court of Appeal had no jurisdiction to declare a section of the law unconstitutional if the constitutionality of the statute or section of law was not brought up first before the High Court. The Supreme Court further clarified that for a statute or a section of the law to be declared unconstitutional, must be litigated first in the High Court and then have the Legislature amend the Act.
53.In Republic vs Joshua Gichuki Mwangi and 4 others, Petition Number E018 of 2023, the Supreme Court of Kenya held:-
54.The import of the above decision was that a life sentence was a legal and valid sentence.
55.After considering the circumstances of the case, I agree with the trial court that the Appellant who was well known to the victim had sexual intercourse with the victim, whose naivety he clearly took advantage of. He deserved the sanction of the law. The life sentence was harsh and excessive but as already shown above, it was a lawful sentence.
56.In the end, I uphold the conviction and affirm the sentence. The Appeal is dismissed. The Appellant has 14 days’ right of appeal to the Court of Appeal.Orders accordingly.
JUDGEMENT DELIVERED, DATED AND SIGNED THIS 19TH DAY OF DECEMBER, 2024.........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Mr. Njeru for the State, Appellant present acting in person and Siele (Court Assistant).