(Appeal against the conviction and sentence of 20 years in Criminal Case No. E138 of 2021 for the Offence of Defilement by SRM’S Court at Shanzu before Honourable D. Odhiambo SRM dated and delivered on 27th February, 2023)
1. The appellant was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act on 27/2/2023 in criminal case S.O. 138 of 2021 and was sentenced to 20 years imprisonment. He filed the Appeal challenging the conviction and sentence on 14/3/2022.
2. He raised the following grounds:
i. Whether or not the court below erred in matters of law and fact by failing to find that the trial was unconstitutional and violated.
ii. Whether or not the court below erred in matters of evidential law by failing to find that the evidence and exhibits were illegally obtained and admitted.
iii. Whether or not the trial court erred in matters of criminal practice and procedural law by failing to find that there was a mistrial.
iv. Whether or not the trial court disregarded the Appellant’s defence which exonerated the Accused Person from the commission of the offence.
v. Whether or not the said court disregarded the new developments in matters sentencing which amounted to a disproportionate punishment in the prevailing circumstances.
Duty of the court
3. This being a first Appeal I am duty bound to analyze the evidence afresh. I must however bear in mind that I did not have the opportunity to see the witnesses and the demeanor , which the trial court had. These are the guiding principles as found in the cases of Okeno versus R (1972) EA 32, Njoroge Versus R (1987) eKLR 19, Kiilu and another versus R 2005 1 KLR 174.
3. We will analyse the evidence alongside the grounds raised in the Appeal. The first one was;
Whether the Apprehension was out of Suspicion, Mode of Arrest was not Procedural, over detention in police custody was unconstitutional amid denied Legal Aid and Illegal obtaining and Admission of Evidence
4. The Appellant submitted that the instruments of investigations failed to follow the law by charging the Appellant in his absentia and hence seek for a warrant of arrest alongside credible investigations if they had prior knowledge that, indeed, he had involved himself in the alleged incident. This would have averted the doubts which surrounds the genesis of the charges against him with regards to the arrest of an individual who resided in the same vicinity with the said complainant. He referred to Nyeri H. Court case of GMW vs R. [2019] eKLR at para. 21 where it was wisely stated that:
“It is noteworthy that accused was arrested two years after the alleged offence…it is not explained and taking into consideration the seriousness of the offence, why when the investigations were carried our completely, and the Investigation Officer was of the view that an offence had been committed, the accused was not charged in absentia and a warrant of arrest issued. These are people who live in the same homestead yet there is no evidence that Accused Person actually disappeared from home as alleged. No evidence was tendered to show how many times his home visited and he was not found, or what efforts if any were ever made to arrest him immediately it was alleged that he had committed the offence”.
5. From the above, this Court of Law was requested to adopt those findings and conclusions as the same scenario has been anchored in the present matter whereas the Appellant resided in the same vicinity with the alleged Complainant.
6. The court notes that that the offence took place on 18/09/2021. The date of arrest was less than two weeks thereafter. This is not an in ordinately long period. Investigations needed to be completed. The minor needed to be examined and statements recorded. Further the Appellant also did not raise this issue with investigating officer or the trial court.
7. I find that the ground lacks merit.
Whether as an equal party to litigation he was undermined due to the Element of Denied Legal Aid, the Miranda Rights or Prompt Information on arrest, under police custody and before trial
8. The Appellant averred that the Article 50(2)(h) of the Constitution provisions is specific on Legal Aid. There are many other provisions of the Constitution that are relevant to the concept of legal aid which includes the value of social justice under Article 10: provisions on equality before the law under Article 27; provisions on protection of marginalized and vulnerable persons and the requirement under Article 159 that justice shall be done to all irrespective of status. The overarching notion to be derived from these provisions is because it is difficult to achieve justice where one party has to compete with the elaborate machinery and resources available to the opposite party.
9. He pointed out that The State has already established the National Legal Aid and Awareness Program (NALEAP) in 2007 with the stated goal of creating a practical, affordable and effective legal awareness and Legal Aid Service Delivery Scheme that increases access to justice for all. In doing so, it actually established a Legal and Institutional Framework for the provision of Legal Aid under Act No. 6 of 2016, as suggesting having been enacted in 2016 with a commencement date of 20th May 2016. Its stated purposes are: To give effect to Articles 19(2) (General Provision on the Bill of Rights); 48 (Right of access to justice); 50(2) (g) and (h) (Right of fair hearing) of the Constitution; to facilitate access to justice and social justice; to establish the National Legal Aid Service; to provide for Legal Aid and for the funding of Legal Aid and for connected purposes.
10. The Appellant cited the case of Legal Aid South Africa vs Van Der Merwe and Others, (A409/2010)(2010) ZAWCHC 525, where it was stated thus “Courts should be slow to attribute a superior wisdom to themselves in respect of matters entrusted to other branches of government”.
Further:
“That is not to suggest that a court is powerless in the face of an unreasonably intransigent legal aid board. After all it is the court that is burdened with the constitutional obligation of ensuring that the proceedings are conducted in accordance with notions of fairness and justice”.
11. It is not disputed that the accused persons were not provided
with witness statements prior to the trial or during the trial yet all the four prosecution witnesses testified and the trial magistrate
never addressed himself to this issue. Counsel for DPP Mr. Njue submitted that no prejudice was occasioned to the accused
persons because the record shows that they ably cross-examined all the prosecution witnesses.
12. The Constitution of Kenya 2010 is highly valued for its
articulation. Some such astute drafting includes but not limited to Article 50 which provides for the fundamental right to a fair hearing. Article 50 (2) (j) provides for the right of the accused person to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence while sub-article (c) provides for the right of the accused to have adequate time and facilities to prepare his defence.
13. The right to a fair trial is a norm of international human rights law
designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms, the most prominent of which are the right to life and liberty of the person. It is guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR). [13]The fundamental importance of this right is illustrated not only by the extensive body of interpretation it has generated worldwide but, by the fact that under article 25 (c) of our constitution, it is among the fundamental rights and freedoms that may not be limited.
14. I am guided by the Court of Appeal finding in Karisa
Chengo (supra) and Thomas Alugha Ndegwa V. Republic [2016] eKLR where the court held as follows:
“A determination of whether the appellant herein is entitled to legal aid, in view of the fact that Legal Aid Act commencement
date was 10th May, 2016, is a novel issue. We will look at authorities from Kenya as well as other jurisdictions for jurisprudential guidance.
In the case of DAVID MACHARIA NJOROGE V R, (2011) eKLR analyzed the applicability of Article 50 of the Constitution and held:
“State funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense. Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory”.
15. We are of the considered view that in addition to situations where
“substantial injustice would otherwise result." persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided.”
16. In David Macharia Njoroge V R, (supra), this Court considered the
right to free legal counsel at state expense for the first time in Kenya and expounded on the principle of “substantial injustice”. This Court in the case of KARISA CHENGO & 2 OTHERS V R, CR NOs. 44, 45 & 76 OF 2014, stated:
“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State"s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result" and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.”
17. In the present case, the charges do not fall the categories above cited. I also note that he did not even request for legal aid. Further he was able to cross examine the witnesses. Under the circumstances, I find that the appellant’s right were not breached as alleged nor in any way violated. That ground too fails.
18. In the final Ground, The appellant also argued that he was convicted on unproven evidence and that his defence was not considered.
The respondent submitted that defilement, attempted defilement and rape cases can be proved by way of oral evidence without DNA evidence. It was further submitted that the trial magistrate carefully considered the appellant’s defence and formed an opinion that his defence could not exonerate him from the charge. I have carefully considered the evidence on the record, the prosecution case.
Age of the Complainant
19. The Appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. It provides: -
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction be sentenced to imprisonment for a term of not less than 20 years”.
The offence is alleged to have occurred on diverse dates between 16/03/2021 and 18/09/2021 when PW-1 was aged 13 years and the birth certificate was produced as Exhibit 3 in proof of the same.
20. The age of the victim can be established by medical
evidence, birth certificate, the victim, parents or guardian through their testimony before trial court. I place reliance on the case of Mwalango Chichoro vs R, Mombasa Criminal Appeal no. 24 of 2015 the Court of Appeal held that:-
‘the question of proof of age has finally been settled by recent decision of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the high court that age can also be proved by observation and common sense’.
Accordingly , I find that the prosecution sufficiently discharged the burden to prove the age of the victim.
Penetration
21. This is defined under Section 2 of the Sexual Offences Act to
mean,
“the partial or complete insertion of the genital organs of a person into the genital organs of another person”.
. PW-1 in her testimony before the trial court at page 10 stated that; ‘…he would insert his penis into my vagina and my anus…’. Further the medical documents that is P3 form and the PRC form showed that the complainant had healing abrasions on the vagina though the hymen was intact.
The court finds that the act of penetration in this case partial penetration was sufficiently proved by testimony of the victim and corroborated by the medical documents. The complainant testimony proved that she was defiled by the appellant her evidence was consistent and credible and was not challenged by the appellant in his cross examination.
22. That PW 1 undertook a voire dire examination which was done by
the trial court and she was in the eye of the court, a competent witness, the trial magistrate had the chance to see the complainant and observe her demeanor. He found that the complainant was truthful and properly relied on her evidence to convict the appellant.
Further, the case of George Kioji vs Republic Criminal Appeal No. 270/2012 the Court of Appeal held that-
“where available, medical evidence arising from examination of an accused linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and the records the reasons for such belief”.
Accordingly, PW 1 having taken a voire dire examination and the trial court being satisfied that she is truthful evidence and in addition to hearing all the witnesses and the evidence tendered by the defence, the determination in favour of the prosecution and the conviction was safe since the court took due consideration of both sides of the case.
Identity of the perpetrator
23. PW 1 was able to identify the appellant by name as ‘Babu’ and also
knew him as a neighbor and further the appellant was well-known to the victim’s family which was further confirmed by the testimony of PW-4 on page 7 of the record of Appeal. The issue of identification was also not challenged in cross examination. Accordingly, the court finds that the appellant was properly identified that he is the one who defiled the complainant and his evidence was a mere denial and the trial court rightfully convicted him.
On sentence and defence
24. The Appellant gave sworn testimony and did not call any witness.
His defence was duly considered by the trial court that his defence didn’t dislodge the prosecution case.
Section 329 of the Criminal Procedure Code provides:
‘the court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed’.
Section 8(3) of the Sexual Offences Act provides for a mandatory minimum sentence of 20 years for defilement of a child between 12-15 years and the Appellant was sentenced to 20 years imprisonment period. The sentence imposed is in the line with the provisions of law and was based on proper and legal principles.
25. Accordingly, in totality the prosecution was able to
prove that the ingredients of the offence were properly established and the conviction was safe. All the grounds raised in the Appeal fail
Subsequently, the appeal be dismissed. Both the conviction and sentence upheld
It is so ordered.
Dated, signed and delivered in Open Court/online
through MS TEAMS,
this ………6th………day of …March………………………2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -A
Appellant
Ms Cherop for the state
Bebora court Assistant
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HON. LADY JUSTICE W. K. MICHENI
JUDGE