REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. E019 OF 2023
FRED OMBATI NYAGAKA………………………….……………………………. APPELLANT
VERSUS
REPUBLIC ………………………………………………………………………… RESPONDENT
(From the original conviction and sentence in S.O. Case No. E059 of 2022 of the Chief Magistrate’s Court at Ogembo by Hon. C. Sindani–Principal Magistrate)
JUDGMENT
1. Fred Ombati Nyagaka, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No.3 of 2006.
2. The particulars of the offence were that on the 11th day of July 2022 at Riobara village in Sameta Sub-county of Kisii County, intentionally and unlawfully caused his penis to penetrate the vagina of P.N., a child aged six years.
3. The appellant was sentenced to life imprisonment. He has appealed against both conviction and sentence.
4. The appellant was in person. He raised grounds of appeal as follows:
a) That the trial magistrate erred in law and fact by holding that the prosecution case was proved against the appellant, whereas penal penetration was not adequately demonstrated.
b) That the learned trial magistrate erred in fact and law by convicting the appellant without the complainant's evidence, thus breaching the appellant's rights.
c) That the learned trial magistrate erred in fact and law by forcing the appellant herein to go through the trial process without giving the statements and other documents the prosecution was to rely on, thus violating the rights of the appellant to a fair trial as enshrined in Article 50 of the Constitution of Kenya.
d) That the learned magistrate erred in fact and law when he failed to evaluate the evidence on record properly, relied on insufficient and incredible evidence, and came to the wrong decision that the appellant had defiled the complainant.
e) The learned trial magistrate erred in law and fact when he failed to note that no investigations were carried out.
f) The learned trial magistrate erred in law and fact by failing to explain why the appellant's defence was acceptable.
g) The trial magistrate erred in law and imposed a manifestly excessive sentence.
h) The learned trial magistrate erred in both law and fact to find that the prosecution's evidence was riddled with glaring contradictions that were not safe to conclude.
5. The state opposed the appeal, arguing that the prosecution had met the required standards and that the sentence was appropriate. Norah Rono represented the state.
6. As a first appellate court, I have thoroughly reviewed all evidence presented in the lower court. Despite not having seen or heard any witnesses, I have concluded. I will use the precedent set by the well-known Okeno vs Republic [1972] EA 32 case as guidance.
7. One of the reasons the appellant based his appeal on was the failure to be supplied with the documents the prosecution was to rely on. He contended that this violated Article 50 of the Constitution of Kenya. The said Article is on fair hearing. As far as the complaint is concerned, it provides:
(2) Every accused person has the right to a fair trial, which includes the right—
(j) to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence;
8. On the 21st day of July 2022, when the plea was taken, the prosecutor informed the court that copies of statements and the P3 Form had been supplied to the accused person. Again, before the hearing on the 29th day of July 2022, before the commencement of the hearing, the prosecutor informed the court that the statements and the other relevant documents to the case had been supplied.
9. The appellant did not object to this communication to the court. It can only be concluded that he was supplied with copies of statements and documents.
10. An offence of defilement, therefore, is established against an accused person when the prosecution has proved the following ingredients:
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator and
c) The complainant was below eighteen years old.
These ingredients were restated in Fappyton Mutuku Ngui vs. Republic [2012] eKLR as follows:
Going by this definition of defilement, I agree with Mr. Mwenda on the issues which the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.
These are the ingredients that the prosecution must prove against an accused person.
11. The complainant (PW1) testified that she was six. Her copy of the Certificate of Birth indicates that she was born on the 12th day of October 2016. As of the 11th of July 2022, she was five years and three months. Her age, for the compliance with section 8 (2) of the Sexual Offences Act, was proved. The section provides:
A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
12. In her evidence, the complainant (PW2) testified that the appellant was known to her before the incident. He gave her Kshs.30 and asked her to go and buy some cake. She complied, and upon returning, he asked her to do it. He then took her to bed, tied her legs, he put his lips to her mouth and vagina. He then inserted his penis into her genitalia. She felt pain.
13. The evidence David Nyameno (PW2), a clinical officer, was that when the complainant went to the hospital for examination on the 22nd day of July 2022, he noted that she had sought treatment on the 11th day of July 2022. The treatment notes indicated that when she was first seen, she had tears in her vagina, which was bleeding. A high vaginal swab revealed the presence of puss cells and spermatozoa. He concluded that there was defilement.
14. D.N.O. (PW1) testified that on the 11th day of July 2022, she returned home at about noon and found the complainant bleeding from her genitalia. She took her to the hospital, where she was admitted for eight days.
15. The evidence of the complainant, that of PW1 and the medical evidence by PW3 proved that there was penetration into the genitalia of the complainant.
16. The appellant, in his defence, contended that he went to the funeral of his cousin and, upon his return, went to take alcohol. The following morning, he was asked what the complainant had gone to do in his house. He denied any involvement in the offence. When an accused has pleaded an alibi, the onus is on the prosecution to prove that the alibi is invalid. In the case of Kiarie vs. Republic [1984] KLR, the Court of Appeal held:
An alibi raises a specific defence, and an accused person who puts forward an alibi as an answer to a charge does not, in law, thereby assume any burden of proving that answer, and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.
17. This burden does not leave the prosecution even when raised during the defence. In the case of Victor Mwendwa Mulinge vs. Republic [2014] eKLR, the Court of Appeal rendered itself as follows on the issue of alibi:
It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see KARANJA V R, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, in the case so that it can be tested by those responsible for the investigation and thereby prevent any suggestion that the defence was an afterthought.
I will, therefore, endeavour to find out if the prosecution discharged this burden.
18. Contrary to the appellant's contention that he was attending a funeral, his contention was displaced by the complainant’s evidence. Though this is evidence of a minor, the trial court found it accurate, as provided by the proviso to section 124 of the Evidence Act. The proviso states:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
19. Though the learned trial magistrate did not make a finding on the alibi, I find it was an afterthought.
20. The appellant contended that the sentence was excessive. An appellate court would interfere with the trial court's sentence only where there exists, to a sufficient extent, circumstances entitling it to vary the trial court's order. These circumstances were well illustrated in the case of Nillson vs. Republic [1970] E.A. 599, as follows:
The principles upon which an appellate court will exercise its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.
21. Section 8 (2) of the Sexual Offences Act provides that upon conviction, the offender shall be sentenced to imprisonment for life.
22. The appellant was sentenced to serve the prescribed sentence. This sentence is legal, and there is nothing unconstitutional about it. I need something on record that persuades me to vary this sentence.
23. Therefore, the upshot of the foregoing is that the appeal lacks merit. I accordingly dismiss it.
Delivered and signed at Kisii this 12th day of March 2024
KIARIE WAWERU KIARIE
JUDGE