SAMWEL MUDAVADI LUMUMBA VS The Republic SAMWEL MUDAVADI LUMUMBA VS The Republic

INTRODUCTION

The appellant was charged on the other offence of defilement contrary to Section 8 (1) (2) of the Sexual Offences Act No. 3 of 2006
The particulars of the offence were that on 20^th day of December 2018 at Nyawira Sub-location in Kisumu East Sub-county within Kisumu County intentionally caused his penis to penetrate to the vagina of Cygreed Atieno Ochieng a child of 11 years.
The appellant was tried , convicted and sentenced to serve 20 years imprisonment.
The appellant has now appealed to this court seeking to have the judgment of the Lower court reviewed and the conviction to be quashed and the sentence of 20 years imprisonment set aside.
In his memorandum of appeal he has raised 6 grounds which can be summarized as follows:-
That the learned Honorable magistrate erred in law by imposing the 20 years imprisonment.
That the sentence is harsh and disproportionate.
That the court did not consider the circumstances of the offender in imposing the sentence
That the appellant was not accorded a fair trial.
That the court did not consider the mitigating factors in sentencing
From reading of the grounds set out by the appellant it appears to this court that there is more focus on the sentence than the correction.
However, the submissions by the appellant address two main issues :
Contradictions in the prosecutions case.
The mandatories of the sentence imposed under Section 8 (3) of the Sexual Offences Act
The respondent is opposed the appeal and the written submissions dated 23^rd May 2024 drawn by Mercy Mutheu Muema prosecution summarize the prosecutions case against the appellant in this appeal.

APPELLANTS CASE.

The appellant has taken issue with the fact that the incident is said to have occurred on 19^th December 2018 as per the evidence of PW1 yet according to the charge sheet it is shown to have happened on 20^th December 2018.
The appellant submitted that discrepancy in the dates is a material discrepancy which should had the court to a finding that he was wrongly convicted and the conviction should be quashed.
The appellant further submitted that according to PW3 the victim PW1 alleged to have been defiled on 21/12/2018.
According to the appellant the issue that arises is when was the victim allegedly defiled and does the evidence tendered by the prosecution meet the required stand of proof beyond a reasonable doubt.
The appellant has also urged the court to find that the evidence of the victim did not tally with that of the father who testified as PW2 regarding the Kshs. 20,000 that he allegedly took from the victim.
In addition, the appellant urges the court to find that the witness PW1 was not believable. He has however not given an reason for that submission.
Further, the appellant has raised an issue as to whether when the victim went to the police station she disclosed to the officer what had happened and who had defiled her so that the police could immediately arrest the culprit.
Lastly the appellant submitted that if indeed the victim had given his name out as the person who defiled her why did the police not arrest him immediately.
It is those matters that the appellant says this court should consider allow his appeal and set him free.
In the alternative the appellant pleads with this court to find that the sentence imposed upon him is harsh and excessive.
In support of that argument, he has cited the case of S Vs. Jansent (1999) (2) SARCR 368 (C ) at 373 (g) (h). Where Davis J held:-

“Mandatory minimum sentences disregard individual characteristics and each case is treated in a factual vacuum leaving , no room of the prospect of rehabilitation and of the incarceration method to be adopted such a system can result in gross disregard of the right to dignity of the accused.”
RESPONDENT’S CASE

The respondent has underscored the duty of the 1^st appellate court. In the term expressed in Boru & Another Vs. Republic Criminal Appeal No. 19 of 2021 [2005] 1 KLR where the court of Appeal stated:

“ A duty is imposed on a court leaving a first appeal to reconsider the evidence , evaluate itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld as well as to deal with any question a law raised on appeal.”

In response to the appeal the respondent submitted that the appellant was accorded a fair hearing by the lower court.
He had the advance notice of the charges he faced and the prosecution supplied him with the witness states to enable him prepare his defence.
The respondent therefore urges the court to find that based on the record the participation of the appellant throughout the prosecution was clear testimony that he had ample time to prepare his case and confront his accusers.
Indeed I have perused the record and noted that the appellant cross-examined witnesses at length therefore he had the necessary tools availed a defence.
Accordingly, the respondent urges this court to dismiss the allegation of the denial of the Right to a fair trial.
Further, the respondent has submitted that the key ingredients of the offence were proved thus the appeal on conviction has no merit.
The Charge Sheet captured the age of the victim as having been 11 years at the time of the incident. The victim PW1 indicated during voire dire examination that she was in class 4 as at the time she was called to give evidence. PW4 No. 58108 PC PAUL Thyaiin produced a Birth Certificate for the victim as PEXH2.
The Birth Certificate indicated that the victim was born on 4^th June 2006. It would therefore follow that as at the time of the commission of the offence she was barely 12 years at the time of the offence.
On penetration the prosecution referred the court to PW1’s testimony at pages 6-7. The victim testified:-

“ This accused is the one who raped me. He locked the door. He put me down. He slept on me. He removed his clothes. He removed his clothes and got in he removed even his underwear. He put his penis into my private parts. He then finished and released me to go back to our house. I felt pain. There was blood.”

The evidence of penetration according to the respondent was corroborated by PW3 DR. Cindy Oyaya a medical doctor. The doctor produced the P3 form as PEXH1 and it showed that the hymen was absent.
It was thus submitted for the respondent that there was incontrovertible evidence of penetration and as such the correction was safe.
On identification the prosecution relied on the victims evidence that revealed that she was able to identify the appellant positively. It was further urged that this was a case of recognition as opposed to the identification of a stranger.
The victim and the appellant were known to each other prior to the incident.
In conclusion, the prosecution relied on the following authorities which I have duly considered:-
Edwin Nyambogo Onsongo Vs. Republic [2016] eKLR
Maingi & 5 Others Vs. DPP [2022] KEHC 13118 (KLR)
On the issue of sentence the respondent submitted that minimum sentences in Sexual offences are not inherently unconstitutional provided that they are not treated as mandatory minimums.

ANALYSIS AND DETERMINATION.

I consider it necessary to address the issue of the dates appearing on the Charge Sheet via avis the evidence adduced in court.
The appellant has maintained in his submissions that there is a contradiction in dates thus the evidence does not support the charge.
Upon independent examination of the Charge Sheet I have noted that on the 1^st count of defilement the date of offence appears as 20^th December 2018.
However, the alternative count of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, the date of offence is indicated as 19^th December 2018.
Clearly and to by use of the naked eye one can see that the date of 19^th December 2018 was changed to read 20^th December 2018.
The mischief maker did not however remember to extend his act of deception to the alternative count in order to achieve the intended goal that being to mislead the court.
It does not come as a surprise to this court that the appellant throughout the proceedings in the Lower court never raised the issue of the date of the offence as he cross-examined the witness.
The question that this court would ask is this, who stood to benefit from the alteration of the dates? Why was the issue never raised throughout the trial?
It is my view that the issue of alteration of the dates on count had more to do with conviction that is now being challenged.
But even assuming for a moment that the appellant had nothing to do with the alteration and that the mistake was that of the prosecution , what then is the remedy in law?
The answer to this question is to be found in Section 382 of the Criminal Procedure Code which states:-

“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

The issue that this court would concern itself with is whether that “error” on dates assuming it was an error would have occasioned a miscarriage of justice to the appellant.
In my view considering the totality of the evidence the indication of the date on count 1 as being 20^th December 2018 would be a curable defect as provided for Under Section 382 of the Criminal Procedure Code.
It is evident from the record that PW1 gave the date of the incident as 19^th December 2018 and upon cross examination by the appellant the issue of the date never arose.
The appellant therefore knew that he was before court to answer to allegations of defilement and or commission of an indecent act with a child that happened on 19/12/2018.
PW2 also testified that his daughter went missing 2 days before 21^st December 2018 when he came home from work. Naturally that would therefore mean that she had gone missing on 19^th December 2018.
The evidence of PW2 to that extent materially corroborates PW1 on the date of the incident.
Notably PW2 states hat he was informed that she had gone to the Kinyozi (barber shop). The victim PW1 testified that the defilement was committed inside the Kinyozi.
PW3 the medical doctor testified that she was informed that the victim PW1 went to the Kinyozi on the 21^st December 2018. This witnesses is the one who filled the P3 form and it clear on the face of the P3 PEXH1 the offence was reported to the police on 20/12/2018.
I take note that the dates recorded on Part II of the P3 which was filled by the doctor similarly bear alterations to read 21/12/2018.
It cannot be a coincidence that the Charge Sheet has alterations on the date of offence in count 1 and P3 form as well. That would be too good and innocent coincidence to have happened.
The witness PW3 also testified that the victim went to hospital on 24/12/ 2018. The date is incidentally the same date that the police have indicated on Part I of the P3 form.
However, the P3 form was not filled until 27/12/2018 the date appearing at the foot of the P3.
I have highlighted the issue of the dates just to demonstrate that there was deliberate and concerted effort to obstruct justice.
The court however, has determined that given the fact that the particulars of the alternative court are correct as to the date of the offence, the alterations do not in anyway affect the out come of the case by dint of the provisions of Section 382 of the Criminal Procedure Code.
The Section was included to cure mischief that is likely to occur before, during and after judgment has been rendered.
The law is that an accused should be charged with a specific charge known in law. In this case the charge was clear to the accused and he knew what charge he was defending. See Sigilani Vs. Republic (2004) 2KL 480.
It would thus follow that since the appellant knew the offence he was charged with the defect in the particulars on dates taken together with the entire evidence on record this court finds that the defect is curable under Section 382 of the Criminal Procedure Code. See Akolon Vs Republic ( Criminal Appeal E010 of 2024) [2024] KEHC 7987 (KLR) (21^ST June 2024).
The argument by the appellant that he should be set free on that account therefore fail since there was no injustice occasioned to him.
Turning on to the issue of whether the charge was sufficiently proved the finding of this court is in affirmative.
The victim PW1 testified how the appellant who was known to her lured her into his Kinyozi , undressed her and defiled her.
She gave a vivid description of the events and as such left no doubt in this court’s mind that she was indeed defiled on the 19^th December 2018 by the appellant.
The medical evidence supported the aspect of penetration whereas the Birth Certificate was sufficient prove of age.
It is this court’s view that all the ingredients of the offence were proved beyond a reasonable doubt thus the appeal on conviction fails.
As regards sentence the sentence imposed was proportionate and legal. The court finds no reason to interfere with the same.
The Supreme Court in the recent case of Republic Vs. Joshua Gichuka Mwangi Petition No. E018 of 2023 at paragraph 66 held:-

“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.”

In the end the appeal on sentence by the appellant has no merit and the same is dismissed.
The court in declining to consider the reduction of sentence has taken into account the age of the victim and the conduct of the appellant. He remains a danger to young innocent girl who may come his way should be let go.
It is not true that the sentence of 20 years cannot permit rehabilitation. It is upon the appellant to decide how he will spent his days in prison so as to acquire useful skills that can be of help to him once he leaves prison at the end of his term.
The appeal is dismissed its entirety.
It is so ordered.