EMMANUEL MASHA FRANCIS VS The Republic EMMANUEL MASHA FRANCIS VS The Republic

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL APPEAL NO. E064 OF 2023

EMMANUEL MASHA FRANCIS …..….………….…….………………….…...…APPELLANT

VERSUS

REPUBLIC …………….…………..……………….…………………………...…RESPONDENT

(An Appeal arising out of the judgment of Hon. R. Amwayi, SRM delivered on 15.12.22 in Kaloleni Sexual Offences Case No. E013 of 2022)

JUDGMENT

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 (SOA). The particulars of the offence are that on diverse dates between 1.1.22 and 28.4.22 at Magari Maburu village, Kaloleni location, Kaloleni sub county within Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of W. K. (the Complainant), a girl aged 15 years. Following trial, the Appellant was convicted and sentenced to 15 years imprisonment.
Being aggrieved, the Appellant has filed the Appeal herein, challenging both the conviction and sentence. The summarized amended grounds of appeal grounds of appeal are that the Appellant faults the trial Magistrate erred in law and fact for failing to consider that:
1. the prosecution failed to prove its case beyond reasonable doubt;
2. that there was contradiction in the evidence and that the medical evidence was inconclusive and unreliable.
3. The mandatory minimum sentence contradicts and violates Section 329 of the Criminal Procedure Code.
4. Sections 64 and 66 of the Evidence Act were not complied with.
The Appellant urged the Court to allow the Appeal, quash the conviction and set aside the sentence.
As a first appellate Court, I am required to subject the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32 and Kariuki Karanja v Republic [1986] KLR 190).
The prosecution called 4 witnesses. In her testimony, the Complainant stated that she was born on 7.7.07. She and the Appellant are neighbours and cousins as they share a paternal grandfather. One day in January 2022, she went to the Appellant’s house to pick a phone to enable them communicate. On another evening, she went to his house at 10pm and they had sex. She left at 2am. This was her first time to have sex. Again on 27.4.22, she went to the Appellant’s house at 10pm, had sex with him and left at 2am. On night when she got home, she found he mother outside the house, who asked her where she was coming from. When she stated she had been at the Appellant’s house, she called his parents and both the Complainant were taken to the police station and thereafter to Mariakani hospital for examination.
PW2, Edward Kenga Thoya, a grandfather to both the Complainant and the Appellant testified that on 27.4.22 at about 10pm, he was from the bathroom at home when he heard the Complainant’s footsteps. She had a phone which she said she was using as a light and said she was going to the toilet. Later at about 2am, his wife heard children crying and on inspection, she found them alone with the Complainant missing. At about 2.44am, the Complainant returned on on seeing him she attempted to flee but he caught her. On questioning her, she stated that she was from the Appellant’s house. He then called the Appellant’s parents. The Appellant denied that the Complainant had been at his house. The Chief was called and the matter reported to the police.
PW3 No. 119006 PC Winnie Mureyi from Kaloleni Police Station stated that she interrogated the Complainant who informed her that she visited the Appellant on 27.4.22 and they had sexual intercourse. On her way back home at 2am, she met her grandfather outside who had been looking for her. When the Complainant her grandfather that she was from the Appellant’s house, he called his parents who admitted that the Complainant had been at their home. PW3 took the Appellant and Complainant to Mariakani hospital for examination and she established that the Complainant was 15 years old. She then charged the Appellant.
In his defence, the Appellant stated the Complainant had shared with him that she and her sister had planned to report her father to the police as he had told them that they would have to get married as he had no money. The Appellant offered to pay their school fees. He then stated that on the material day, the Complainant had gone to his house at 10pm to collect her school shoes, which he gave her and she left. Later at 2am, his grandfather called him and he was arrested. He denied defiling the Complainant.
Both the Appellant and Respondent filed their submissions which I have duly considered.
It is the Appellant’s contention that the prosecution did not prove its case to the required standard of beyond reasonable doubt. The Respondent on the other hand maintained that its case was proved beyond reasonable doubt and urged that the Appeal be dismissed.
The offence of defilement with which the Appellant was charged is stipulated in Section 8 of the SOA which provides as follows:
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
...
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.
For an accused person to be convicted of the offence of defilement, 3 ingredients must be established. The said ingredients were set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 as follows:

The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.

The Complainant is a minor. At the time of the incident, she was 3 months shy of 15 years as her birth certificate indicates she was born on 7.7.07.
As regards penetration, PW4, Barrington Charo, a clinical officer produced the treatment notes, P3 and Post Rape Care Forms as well as a lab request form, which had been prepared by his colleague Chigulu. He stated that the P3 form confirmed that the Complainant had loose vaginal sphincter muscles and broken hymen, indicative of penetration.
Although the Appellant raised the grounds that Sections 64 and 66 were not complied with, he made no submissions on the same. Section 64 provides that contents of documents may be proved either by primary or by secondary evidence, while Section 66 requires that documents must be proved by primary evidence although there are exceptions.
The documents produced in the trial court namely the Complainant’s birth certificate, P3 and Post Rape Care forms, treatment notes and lab request form are all primary documents. It is thus not clear what the Appellant’s complaint is. In any event, this issue was not raised in the court below.
The Appellant sought to discredit PW4, who produced the medical evidence on behalf of his colleague. He relied on Section 163 (1)(c) of the Evidence Act. Section 163 provides for the ways in which the credit of a witness may be impeached as follows:

(1) The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him—

(a) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;

(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(c) by proof of former statements, whether written or oral, inconsistent with any part of his evidence which is liable to be contradicted;

(d) when a man is prosecuted for rape or an attempt to commit rape, it may be shown that the prosecutrix was of generally immoral character.

For an adverse party like the Appellant herein to impeach the credit of a witness, in this case PW4, he must tender evidence from his own knowledge, that he believes him to be unworthy of credit. With specific reference to Section 163(1)(c), the Appellant availed no evidence to substantiate his allegation that PW4’s former statements, whether written or oral were inconsistent with any part of his evidence which is liable to be contradicted. I do therefore find that the Appellant proffered nothing by way of evidence to impugn the medical evidence produced by PW4.
In her judgment, the trial Magistrate stated that the testimony of the Complainant that there was penetration was sufficiently corroborated by the testimony of the clinical officer and the medical evidence. She therefore held that the prosecution sufficiently established and proved that there was penetration.
I concur with the trial Magistrate that the ingredient of penetration was proved beyond reasonable doubt by the testimony of the Complainant and the medical evidence.
The Appellant faults the trial Magistrate for relying on circumstantial evidence. He relied on the case of The Respondent however submitted while the Appellant was not seen with the Complainant, there is evidence from PW2 that he saw the Complainant coming home at 2 am who said she was from the Appellant’s house. This, it was submitted, coupled with the medical evidence, there was conclusive proof that sexual intercourse as defined under Section 2 of the SOA had occurred. The Respondent asserted that the trial Magistrate was right in convicting the Appellant.
It is well settled that circumstantial evidence is as good as any evidence when properly evaluated. In the case of PON v Republic [2019] eKLR, the Court of appeal had this to say about conviction on the basis of circumstantial evidence:

To base a conviction entirely or substantially upon circumstantial evidence, it is necessary that guilt of the suspect should not only be rational inference but also it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the suspect not guilty. This principle has been applied for years in this jurisdiction and the two leading judicial authorities that have stood the test of time are Rex V Kipkerring Arap Koske & 2 Others [1949] EACA 135 and Simoni Musoke V R [1958] EA 71. In Rex V Kipkerring (supra) the court explained that;

“In order to justify a conviction on circumstantial evidence the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.”

Simoni Musoke V R (supra) introduced an additional factor to the foregoing, to the effect that before drawing the inference of the accused’s guilt from circumstantial evidence the court must be sure that there are no co-existing circumstances or factors which would weaken or destroy that inference. Over the years these strictures have been developed further by way of explanation. For example, in the case of Omar Mzungu Chimera V. R Criminal Appeal No. 56 of 1998, the Court stated that;

It is settled law that when a case rests on entirely circumstantial evidence, such evidence must satisfy three tests:

(i) the circumstances from which an inference of guilty is to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else”

These dicta find their origin from an old decision of the House of Lords in Teper V. R. [1952] AC 480.

The circumstances herein are that the Complainant stated that she was seduced by the Appellant and accepted. He gave her a phone. She further stated that she went to his house on more than one occasion at night and they had sexual intercourse. On the fateful day, she had gone to the Appellant’s house at 10pm. As she returned home at 2 am, she found her grandparents waiting for her outside the house. On being interrogated, she stated that she was at the Appellant’s house. Her grandfather PW2 testified that he has seen the Complainant outside the house at 10pm and she had told him she was going to the toilet. He added that late in the night, his wife heard children crying and discovered that the Complainant was not at home and had left the children alone. They waited for the Complainant who arrived at 2 am and on interrogating her, she stated that she had been at the Appellant’s house. In his defence, the Appellant did not deny that the Complainant had been at his house.

The account of what transpired in the testimony of the witnesses was consistent. The trial court found that the Complainant maintained that she was defiled by the Appellant even during cross examination. Looking at the record, it can be seen that none of the witnesses contradicted the other. The testimony of the Complainant was consistent and what she stated in the trial court is what she told PW2 and PW3. Her testimony was not shaken even during cross examination.
After considering this evidence, it is clear that the Complainant was in the Appellant’s house until 2 am when she returned home. The question that lingers in the mind of the Court is, what was the Appellant, an adult male, doing with the Complainant, a female child in his house until 2 am? The inescapable inference that can be reasonably drawn is that the Complainant told the truth, that she and the Appellant engaged in sexual intercourse when she visited him in his house. The circumstantial evidence herein is inconsistent with the innocence of the Appellant. The Court is thus satisfied that the facts are such as to be inconsistent with any other rational conclusion than that the Appellant was the assailant. Further, it is not in contention that the Appellant and the Complainant are both neighbours and cousins. The Appellant was thus positively identified.
In an apparent admission of this fact, the Appellant submitted that because the Complainant went to his house, she cannot be held to be a victim of defilement. He relied on the case of Martin Charo v Republic (Criminal Appeal 32 of 2015) [2016] KEHC 5619 (KLR) (25 April 2016) (Judgment) where the appellant was charged with defilement of a child of 13 years. Chitembwe, J stated:

It is important to distinguish between law and morals. It is the law that a child below the age of 18 years cannot consent to sex. Section 8 (5) qualifies the provisions of Section 8 (1) to 8 (4) which penalizes defilement. It can easily be concluded that it is immoral for one to have sex with a child under the age of 18 years. However, where the same child under 18 years who is protected by the law opts to go into men\'s houses for sex and then goes home, why should the court conclude that such a person was defiled. In my view that cannot be defilement. The complainant normally does not complain but is made to be the complainant because she is under 18 years. My view is that such a behaviour is that of an adult and not of a child. Children are not meant to enjoy sexual intercourse. Whenever they do, then that becomes the behaviour of an adult. Although the public will frown upon an adult who engages in sex with such a child, we should not forget that circumstances have changed. Young children engage in sex at very young age. This is not out of defilement. Conviction of a defiler should be based on actual circumstances and proof that the complainant was indeed defiled. This is more so when one considers the lengthy sentences imposed by the law for such an offence. It is unfair to send someone to 20 years imprisonment yet the complainant was enjoying the relationship.

With respect, the decision being by a court of concurrent jurisdiction is not binding on this Court. I instead associate with Ngugi, J. (as she then was) who in the case of Nehemiah Kiplangat Ngeno v Republic [2018] eKLR stated:

The fact that a child goes to a man’s house and has consensual sex with him does not take away criminal liability from the adult. The law is that a child below the age of 18 has no capacity to consent to sex. Secondly, an adult is deemed to know that it is unlawful to engage in sexual conduct with a child. An adult who engages in sex with such a child commits the offence termed defilement.

At the time of the incident, the Appellant was an adult while the Complainant was a child, a fact he readily admitted. The Appellant cannot therefore be absolved from criminal liability just because the Complainant went to his house and had consensual sex with him. As a child, the Complainant had no capacity to consent to sex. As an adult, he ought to have known better than to engage in sexual conduct with a child.
The law is that when an offence is committed, including that of defilement, it must be punished and a person who commits a crime is upon conviction subjected to the penal provisions of the law.
The mandatory minimum sentence for the offence with which the Appellant was charged is 20 years’ imprisonment. The trial court sentenced the Appellant not to the 15 years imprisonment
The Appellant faulted the mandatory minimum sentence under Section 8(3) of the SOA for contradicting Section 329 of the Criminal Procedure Code. He has asked the Court to set aside the sentence imposed upon him.
The challenge to the mandatory nature of the minimum sentences under the SOA has been the subject of endless judicial consideration in our superior courts. In the recent case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment), the Supreme Court put this convoluted matter to rest.
The respondent in that case had been charged with and convicted of the offence of defiling a 15 year old child, contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The trial court imposed the mandatory minimum sentence of 20 years imprisonment, which was upheld by the High Court on appeal. The Court of Appeal however declared the sentence unconstitutional, set it aside and substituted therefor, a sentence of 15 years. The matter then went to the Supreme Court.
In its judgment overturning the decision of the Court of Appeal, the Supreme Court stated:

66. We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.

67. This is why, even in the Muruatetu case, this Court was keen to still defer to the Legislature as the proper body mandated to legislate.

The mandatory minimum sentences in the SOA were fixed by Parliament in exercise of its legislative mandate to set the parameters of sentencing for each crime. The sentences set are lawful and it is for the courts to impose the same upon conviction. In saying so, I am guided by the following words of the Supreme Court in the cited decision:

68. Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.

The decision of the Supreme Court is binding on this Court. Accordingly, the prayers sought by the Appellant on sentence cannot issue.
In the end, after reevaluating the evidence, my finding is that the Appellant was properly convicted and sentenced. Accordingly, both the conviction and sentence are upheld and the Appeal being devoid of merit is hereby dismissed.

DATED SIGNED and DELIVERED in MALINDI this 18^th day of October 2024

_____________________

M. THANDE

JUDGE