Safari Dena Kazungu VS The Republic Safari Dena Kazungu VS The Republic

SAFARI DENA KAZUNGU ....…………..……………….………………….…...…APPELLANT

VERSUS

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

(An Appeal arising out of the judgment of Hon. R. M. Amwayi, SRM delivered on 1.12.22 in Kaloleni Sexual Offences Case No. E011 of 2022)

JUDGMENT

The Appeal herein arises from the judgment of Hon. R. M. Amwayi, SRM delivered on 1.12.22 in Kaloleni Sexual Offences Case No. E011 of 2022 in which the Appellant was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act (SOA) and was sentenced to 20 years imprisonment. The particulars of the offence are that on 1.10.21 at Kirongo village, Chanagande location, Kaloleni subcounty in Kilifi County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of H.K.K. (the Complainant), a girl aged 13 years.
The Appellant has filed the Appeal herein on 14.12.22, challenging the decision of the trial Magistrate. The summarized amended grounds of appeal filed on 11.8.23, are that the trial Magistrate in law and fact by:
failing to consider that penetration was not well established by medical evidence beyond reasonable doubt.
failing to consider that the Appellant was denied his right to legal representation at the state expense in contravention of Article 50(2)(g) of the Constitution.
failing to consider non compliance with Sections 64 and 66 of the Evidence Act with regard to prosecution exhibits.
failing to consider that the mandatory nature of Section 8(3) of the SOA fetters judicial discretion to consider his mitigation before sentencing.
The Appellant urged the Court to allow the Appeal, quash the conviction and set aside the sentence.
As a first appellate Court, I have also subjected 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.
The facts of the case according to the prosecution are that between September and October 2021, the Appellant began to seduce the Complainant. She however rejected his advances saying she was still a pupil in school. On 1.10.21 however, when her mother was away at a funeral, she gave in and the Appellant took her to his house at around 8pm. They went to bed where the Appellant penetrated her vagina with his penis. They had intercourse 5 times that night. This being her first experience she bled and felt pain. The Appellant escorted the Complainant home at 3am. When her grandmother noticed that the Complainant was pregnant, she told her headteacher who gave the Complainant a letter to take to the chief. On the chief’s instructions, they went to Kaloleni Police Station from where they were escorted to Mariakani Subcounty Hospital where her pregnancy was confirmed. The P3 and PRC forms were completed and produced in court as well as the treatment notes, lab request and scan report. The Complainant gave birth on 14.6.22.
Both the Appellant and Respondent filed their submissions. The Respondent’s submissions were filed on 10.5.23 and are based on the initial grounds of appeal. No submissions were filed in respect of the amended grounds of appeal.
On the ground that penetration was not established, the Appellant submitted while the P3 form indicated that the Complainant’s hymen was broken, it is a fact that hymen can be broken by means other than sexual intercourse. Further that the evidence of the clinical officer did not ascertain when penetration occurred. As such, it can be safely concluded that that he was not responsible for penetration. He faulted the trial Magistrate for finding that there was penetration just because the Complainant’s hymen was broken.
In her judgment, the trial Magistrate stated that the P3 form and other medical evidence confirmed that there was penetration. This corroborated the Complainant’s testimony that on the material night, she and the Appellant had sex 5 times and she became pregnant. Further that there was no evidence to the contrary as to how the Complainant got pregnant other than by way of penetrative sexual intercourse. The trial Magistrate was thus satisfied that the ingredient of penetration was proved beyond doubt.
I have looked at the record. Other than the Complainant’s testimony, PW3 Chigulu Mwangolo, a senior clinical officer at the Matiakani Subcounty Hospital testified that his colleague Barrington, examined the Complainant and found that she had no hymen. A scan showed that she was 21 weeks pregnant, which is approximately 5 months. The expected date of delivery was 17.6.22. PW3 produced P3 and PRC forms, scan report, treatment notes and laboratory tests results. Although the medical evidence indicated there were no tears or bruises on her genitalia, that evidence corroborated the Complainant’s testimony that she was defiled, as a result of which she got pregnant. In the premises, I find that penetration was conclusively proved.
On the ground that he was denied legal representation at the State’s expense, the Appellant submitted that the trial court did not give him any reason for denying him this right and thereby contravened the provisions of Article 50(2)(g) and (h) of the Constitution.
Article 50(2) of the Constitution guarantees to every accused person the right to a fair trial. Clause 2 goes on to stipulate that the right to a fair trial includes inter alia the right to -

(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;

(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.

In order to ensure that an accused person is accorded a fair trial, a court is required to inter alia promptly inform such person of his right to representation by an advocate and the right to have an advocate is assigned to him by the State at its expense. This latter right is however only available where substantial injustice would otherwise occur.
The record shows that on the day the Appellant took plea, the trial court informed him of his right to legal representation by an advocate of his choice, thereby complying with Article 50(2)(g) of the Constitution.
Article 50(2)(h) requires that an accused be informed of the right to be assigned counsel at the State’s expense. However, this right is not absolute. The trial court must, in its discretion, be satisfied that substantial injustice would result to an accused person if he is not accorded legal aid.
In Republic v Chengo & 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR) (26 May 2017) (Judgment) the Supreme Court considered the import of Article 50(2)(h) and had this to say:

[94] In the above context, it is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense specifically. Inevitably, there will be instances in which legal representation at the expense of the State will not be accorded in criminal proceedings. Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include:

the seriousness of the offence;
the severity of the sentence;
the ability of the accused person to pay for his own legal representation;
whether the accused is a minor;
the literacy of the accused;
the complexity of the charge against the accused;
In the present case, the Court notes that offence with which the Appellant was charged is serious and the sentence severe. The Appellant is however not a minor. Further, there is nothing on record to show that he was unable to pay for his own legal representation or that he is illiterate. Additionally, and significantly, the Appellant has not demonstrated that substantial injustice was occasioned to him due to the fact that no counsel was assigned to him at State’s expense and that he was not informed of the right. In light of the foregoing, this ground must fail.
I now turn to ground 3 in which the Appellant submitted that Sections 64 and 66 of the Evidence were not complied with in so far as the medical exhibits are concerned. He contends that the said exhibits could not be relied upon to prove age of the Complainant and penetration. His argument is that the exhibits were not certified by a commissioner for oaths, with rubber stamps of the lower court criminal registry. As such, they could not be admitted as evidence. He argued that in the case of Wambui v Republic (Criminal Appeal 102 of 2016) [2019] KECA 906 (KLR) (22 March 2019) (Judgment), the Court of Appeal was faced with similar circumstances and allowed the appeal.
The Court has already found that the Complainant’s pregnancy was as a result of penetrative sexual intercourse. Accordingly, the ingredient of penetration is not in question.
As regards the age of the Complainant, what was produced is her clinic card which indicates her date of birth as 8.4.08 making her 13 years old on 1.10.21 when the incident in question happened. In the Wambui v Republic case (supra), relied on by the Appellant, the appellant therein had been charged with defiling a child aged 17 years and 5 months. The age of the complainant therein was contentious because the appellant stated that he did reasonably believe the complainant to have been over 18 years old. He contended that the copy of birth certificate produced misled the trial court. The Court of Appeal stated:

There was no age assessment as such that was done on the complainant, while the P3 Form that was produced indicated 17 years as the approximate age of the person examined, namely the complainant. The other evidence of age is that of the complainant herself which, other than being hearsay in character, is no more illuminating.

In the present case, the Complainant was a minor of 13 years. Her age unlike in the cited case was not disputed. The Court appreciates that the age of the victim is an essential ingredient of the offence of defilement because the prescribed sentence is pegged on the age of victim. To this end, the age must be proved conclusively. A birth certificate, clinic card and any other reliable and undisputed document, can ascertain the age of a victim of defilement. Notably, the Appellant did not, at the trial, dispute the age of the Complainant and there is no other evidence on record to suggest that she was not 13 years old at the time of the alleged offence. Accordingly, I find that this ground is without merit.
The last ground is that the trial Magistrate erred by failing to consider that the mandatory nature of Section 8(3) of the SOA fetters the jurisdiction of the trial court to consider mitigating circumstances prior to sentence.
The question of the constitutionality of the mandatory minimum sentences under the SOA has been the subject of 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. Being aggrieved, the respondent appealed to the Court of Appeal. In its judgment, the Court of Appeal declared the sentence unconstitutional, set it aside and substituted therefor, a sentence of 15 years. The State being dissatisfied with the decision of the Court of Appeal moved to the Supreme Court. After hearing the parties, the Supreme Court allowed the appeal.
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.

While affirming that sentencing is an exercise of judicial discretion, the Supreme Court emphatically stated that it is Parliament and not the Judiciary, that sets the parameters of sentencing for each crime, in statute. Further that where Parliament enacts legislation, the courts should adjudicate disputes based on the provisions of the law.
The Supreme Court had earlier in its judgment stated as follows:

51. In light of the structural and supervisory interdicts issued, the Court issued the Muruatetu Directions, wherein it, inter alia, pronounced itself on the application of its decision in the Muruatetu Case to other statutes prescribing mandatory or minimum sentences as follows:

“10. It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it. In that paragraph, we stated categorically that:

“[48] Section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under article 25 of the Constitution; an absolute right”.

Reading this paragraph and the Judgment as a whole, at no point is reference made to any provision of any other statute. The reference throughout the Judgment is only made to section 204 of the Penal Code and it is the mandatory nature of death sentence under that section that was said to deprive the “courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases.

11. The ratio decidendi in the decision was summarized as follows:

"69. Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”.

We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.”

The decision of the Supreme Court is binding on this Court. 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. As such, courts are required to impose sentences in accordance with the provisions of the law as set by Parliament. Accordingly, this ground fails.
In the end, after reevaluating the evidence, my finding is that the Appellant was properly convicted and sentenced. The Appeal is dismissed and both the conviction and sentence are upheld.

DATED SIGNED and DELIVERED in MALINDI this 20^th day of December 2024