(Being an appeal from the original conviction and sentence of Sexual Offence case No. E031 OF 2016 of the Principal Magistrate’s court Kandara dated 19th July 2019 M.W. Kinyanjui - SRM)
- The appellant was charged with the offence of Incest contrary to Section 20(1) of the Sexual offences Act No.3 of 2006. The particulars are that on the 3rd day of August 2016 at Gakira Village within Muranga County intentionally and unlawfully caused his penis to penetrate the anus of MMK a child aged 8 years who to his knowledge was his grand son
- He was also charged with an alternative count of committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offence Act No. 3 of 2006. The particulars are that on the 3rd day of August 2016 at Gakira village within Muranga unlawfully committed an indecent Act with the said child MMK by a child aged 8 years penis to penetrate the anus of by touching the buttocks of the said MMK a child aged 8 years who to his knowledge was his grand son.
3.In support of the above charges, the prosecution called a total of five (5) witnesses. At the close of the prosecution case, court found that a prima facie case had been established and thus placed the appellant on his defence.
The appellant gave sworn evidence calling two (2) witnesses. In the end, the court found that the case has been proved beyond reasonable doubt and sentenced to 10 YEARS imprisonment.
4.The appellant aggrieved by the conviction and sentence, has lodged this appeal. The grounds of appeal were that the charge sheet was defective, the evidence marred by contradictions , the charge of defilement not proved and his defence of a grudge not considered. He also filed further grounds challenging the manner in which the voire dire was conducted and that section 216 and 329 of the CPC were not complied with.
5.The respondent submits that the case was proved beyond reasonable doubt and thus the conviction was safe and the sentence appropriate.
Analysis of evidence
This being a first appeal the duty of the court was well stated in Okeno versus Republic (1972) E,A 32 thus;
“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 versus Republic 1957) E.A 336 and the appellate court’s own decision on the evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957). It is not the functions of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s vs Sunday post (1958) E.A 424.”
6.In compliance with the above duty, we will look at all the ingredients of the offence before embarking on the appellant’s grounds and submissions.
7.The offence of incest is rooted on four main ingredients ; relationship between the victim and the accused, the age of the victim for purposes of sentencing, penetration and the proper identification of the perpetrator.
- Age of the Victim
8.PW2 is the grand mother of the minor. She testified that PW1 the victim was born on 8/07/2008. A voire dire examination was also conducted and the trial court noted he was a child of tender ages. The treatment notes also capture the ag e of the victim as 8 years. This was further proved by exhibit 1 the immunization card. The aspect was not really challenged so I find he was 8 years old.
- Proof of penetration of indecent Act
9.PW1 stated that the appellant herein asked him to take off his clothes and proceeded to penetrate his anus an event which he describes as painful and that it is as a result of the pain that he informed his teachers.
10.In his evidence, PW6 the doctor who attended to the minor confirmed the same and indicated there was evidence of penetration as the anus of the minor had tenderness in the anal canal. He produced treatment notes PEXT 2 as well as the P3 form exhibit 3 to confirm the same.
11.He also confirmed that victim was also examined and conducted a HIV test which was negative.
The above evidence proves that there was penetration on the minor. There was evidence of prior sexual assaults but we shall look into that alongside the other grounds.
Identification of the perpetrator and relationship
12.In his evidence, PW1 referred to the appellant as his grandfather and confirmed he was present in court, being a person well known to the victim. PW2 testified referring to the appellant as her brother and grandfather to the victim. She did confirm he was present in court during examination in chief. She also confirmed that the minor lived with the appellant. This was not really in dispute.
13..APPELLANT’S GROUNDS OF APPEAL AS PER PETITION OF APPEAL
The appellant submitted that the prosecution did not prove its case beyond reasonable doubt. That the evidence which was that tendered was not clear and cogent and left some doubt that it was the appellant who committed the offence. That there were contradictions and the trial court did not apply the proper legal procedure. We now look at each ground.
14.Whether the provisions of Section 19 of the Oaths and statutory Declarations Act were followed:
The appellant argues that the provisions of Section 19 and especially on the issue of Voire Dire were not followed.
In the case of Japheth Mwambire Mbitha v Republic (2019) eKLR the court of Appeal was faced with a similar issue as to whether Voire Dire was properly conducted. They started by the defining the offence as here under;
15. The definition of voire dire was given as Voire dire examination is a hearing to determine the admissibility of evidence or the competency or qualification of a witness or juror (see Duhaime Lloyd) “Voi Dire definition” Duhaime’s Legal Dictionary.defining
The court went further to cite the case of Johnson Muiruri v Republic (1983) KLR 445 that explained the purpose of voir dire as follows:
- Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a viore dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicated him.
- It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellant court is able to decide whether this important matter was rightly decided.
- When dealing with the taking of an oath by a child of tender years, the inquiry as to the child’s ability to understand the solemnity of the oath and the nature of it must be recorded, so that the cause the court is clearly understood.
- A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth.
- The Judge is under a duty to record the terms in which he has persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to conviction.
16.The court of appeal further stated at paragraph 14,
having satisfied herself that the two minors understood the importance of telling the truth, the court went on to record their evidence. No objection was ever raised by the appellant regarding the voir dire examination or the subsequent admission of the minor’s testimony. Again, it bear repeating that the purpose of voir dire is to ensure that the minor understands the solemnity of oath and if not, at the very least, the importance of telling the truth.”
17.The appellant argues that the evidence of PW1 was not taken properly tendered and especially considering the court did not conduction a proper voire dire.
18.The record is clear that the court conducted a voire dire. However the same was brief and the court noted that the minor was not able to expressly proceed with swearing due to his age and thus proceeded to give unsworn evidence. The appellant never raised any issue then either to the voire dire or the admission of their testimony.
19.In the case of MW v Republic (2019) eKLR the court was faced with a similar issue on voire dire and stated as follows.
The purpose of the voire-dire examination is to ascertain whether the witness understands the meaning nature and purpose of the oath as well as whether the minor is endowed with sufficient intelligence to give evidence before the court.
12.The judge further said that ‘ In the instant case, the record shows that voire dire examination was conducted and the court found that the minors were capable of giving credible evidence. I have gone through the evidence tendered by PW1 and PW2, and observed that the two were very consistent in their testimonies and they spelt out what transpired in the material date clearly. If for a moment the appellant thinks indeed the voire dire was not properly made, there is still ample evidence which points to him as the perpetrator of the sexual abuse. Again, the prosecution provided sufficient details of how the offence was committed. It is trite that on offence like defilement can be established by evidence tendered directly proving it or by evidential facts from which a reasonable tribunal properly constituted can draw the inference of guilty against the accused..
In the instant case the court finds that the procedure was properly followed.
14.Whether the defence raised by the accused was sufficient to warrant an acquittal
The appellant submits that his defence was strong enough to discredit the prosecution’s case as he raises the issue of a grudge between himself and PW2 over some land disputes and that the respondent failed to call essential witnesses. The respondent called a total of six (6) witnesses and thus called all their witnesses and the appellant has not indicated in their submissions which witnesses they felt were crucial who were not called. Furthermore it is the respondent’s duty to call their witnesses and not that of the appellant.
On the issue of land dispute with PW2, this was put to her and she confirmed that they had some land dispute over land which was allocated to her by their father had resolved the issue before he died and that they were okay. The trial court analysed this defence and she believed PW2. The court notes that the evidence of PW1’s evidence was candid. He mentioned prior assails which were not followed up. In this case he did not even bother reporting at home since it appeared that no action was being taken. This incidence emerged in school and so the issue of the grudge with PW2, does not hold water. In any event , PW1 was a child of tender ages and under section 124 of the evidence act, his evidence alone may have been sufficient if the trail court noted as such and gave reasons for believing the child. Here we had the medical notes and the other corroborative evidence and the court is satisfied that the defence was properly considered.
14.The appellant called two (2) witnessed DW2 and DW3 who indicated that on the material day the appellant worked at the quarry until 1800 hours however the minor indicated that the incident took place in the evening which could have been past the time the appellant left the quarry. The appellant also indicated that he was working with his brother who he failed to call as a witness while DW2 mentioned he was working with the appellant but failed to mention the brother of the appellant which raised doubts as to whether the same is true as the statements were inconsistent. The court therefore finds that this defence was not believable and the trial court was right in dismissing the same.
15.Whether the sentence was manifestly harsh
The courts of Kenya are guided by statute and policy in respect to sentencing. The sentencing policy guidelines is an instructive policy document that helps judicial officers mete out appropriate sentences. At page 48 of the policy to be considered while sentencing.
It also gives a list of aggravation and mitigating circumstances. While the list is not exhaustive, one of the aggravating circumstances listed is targeting of vulnerable groups such as children, elderly persons and persons with disability.
16.The same policy guidelines also urge courts to request for pre-sentence reports from probation officers before passing sentence.
In the present appeal, PW1 the victim was stated to be 8 years. During sentencing the appellant was noted to be the first offender and pleaded for leniency. The court then asked for a probation officer’s report before passing sentence.
17In the above scenario, there existed both mitigating and aggravating circumstances. What then is the position? The policy guidelines at page 50 states as follows:
Presence of both aggravating and mitigating circumstances: where both exist, the court should weigh the aggravating and mitigating circumstances and where mitigating circumstances outweigh the aggravating ones, then the court should proceed as if there is a single mitigating circumstances. Where aggravating circumstances outweigh the mitigating circumstances, then the court should proceed as if there is a single aggravating circumstance.”
18. In view of the above and in relation to the present appeal, that the aggravating circumstance as outlined above outweighed the mitigation . 19.The court considered all the aggravating and mitigating factors before it passed the sentence.
I find that the sentence meted out was proportionate and appropriate to the offence and the court considered all existing circumstances was proper its upheld
The Appellant is even lucky to have got away with the 10years imprisonment as the sentence for incest with a minor is a life sentence and there ought to be no deviation as recently stated by the apex court in R VS JAMES GICHUKI MWANGI.
20. I find that both the conviction and appeal were proper and The entire appeal is dismissed.
Dated signed and delivered virtually this ……30th …………..day ……July……………….2024
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF
APPELLANT in person
Mr Waweru /MS Maina , for the respondent
BEBORA COURTS ASSISTANT