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JudgmentTHOMAS MONG'ARE NYANDIKE VS The Republic17 min read

THOMAS MONG'ARE NYANDIKE VS The Republic

High Court at Nyamira High Court · · Wilfrida A. Okwany

(From the Original Conviction and Sentence in the Chief Magistrate’s Court at Nyamira in Sexual Offences Case No. 55 of 2017 delivered by Hon. A. Towett, Senior Resident Magistrate on 13th August 2019)

  1. The Appellant herein was convicted for the offence of incest contrary to Section 20 (1) of the Sexual Offences Act No. 2 of 2006. He was, upon conviction, sentenced to life imprisonment.
  2. The particulars of the charge were that on diverse dates in the month of October 2017 at Bomanyanya Sub-Location, West Mugirango Location, Nyamira South Sub-County within Nyamira County being a male person, caused his genital organ, penis, to penetrate the genital organ, vagina, of R.M (particulars withheld) aged 8 years, a female person who was to his knowledge his daughter.
  3. Aggrieved by the trial court’s decision on conviction and sentence, the Appellant filed the instant appeal and listed the following amended grounds of appeal in the Petition of Appeal: -
  4. THAT the learned trial magistrate erred in law and fact by convicting the Appellant yet she failed to note that the ingredients of the offence were not proved.
  5. THAT the learned trial magistrate erred in law and fact by conducting an unfair trial contrary to Section 27, 22, 25 and 50 of the Constitution of Kenya.
  6. THAT the learned trial magistrate misdirected herself by sentencing the Appellant to a life sentence that is unconstitutional.
  7. A summary of the Prosecution’s case was as follows: -
  8. PW1, the victim and the Appellant’s daughter, testified that the Appellant defiled her on diverse dates during the month of October 2017. The victim’s mother (PW2) observed that the victim was apprehensive and terrified at the prospect of being left alone at home with the Appellant when PW2 had to go on an errand. PW1 informed her mother (PW2) of the sexual assault in the hands of the Appellant. PW2 escorted the victim to the hospital for examination and treatment. PW2 thereafter reported the matter to the police and the village vigilante group members, namely; Elizabeth Kwamboka Pius and Thomas Nyamwoyo (PW3 and PW4 respectively).
  9. PW5 No. 93173, P.C. Margaret Nzai investigated the case and preferred the charges of incest and sexual assault against the Appellant. She produced the victim’s Birth Certificate as (P.Exh1).
  10. PW6, Dr. Leah Itote examined the victim and noted that her hymen was broken. She stated that the laboratory tests did not reveal the timelines of offence. She produced the victim’s Treatment Card and Laboratory Results and P3 Form as  (P.Exh 2) and (P.Exh3) respectively.
  11. When placed on his defence, the Appellant (DW1) testified that he was arrested while on his way home from work but was not informed of the reasons for his arrest. He attributed his woes to the differences that he had with the village elder (PW4) over a land dispute. He also accused PW4 of flirting with his wife. The Appellant claimed that his wife (PW2) had attempted to force him to give land to PW4.
  12. The Appeal was canvassed by way of written submissions which I have considered.

Submissions

  1. The Appellant submitted that the Prosecution’s case did not meet the standard of proof expected in criminal trials. He cited the case of Michael Odhiambo vs. Republic (2005) eKLR and P.K.M. vs. R where it was held that a raptured hymen was not conclusive proof of defilement.
  2. The Appellant further submitted that the life sentence imposed by the trial court was not a mandatory sentence under Section 20 (1) of the Sexual Offences Act which only provides for sentence that is not less than 10 years imprisonment which could be enhanced to life imprisonment. He argued that the trial court erred by imposing the life sentence as if it was the only applicable (mandatory) sentence. Reference was made to the decisions in M.K. vs. Republic (2015) eKLR where the court reduced a life sentence to 20 years imprisonment and G.M. vs Republic (2017) eKLR where the court reduced a life sentence to 15 years’ imprisonment where the victim of incest was 9 years old. The Appellant also cited the decision in Julius Kistsao Manyeso vs. Republic, Criminal Appeal No. 12 of 2021 where it was held that life sentences were unconstitutional. He urged this court to consider the period that he spent in remand custody while awaiting trial during sentencing in accordance with the requirement of Section 333 (2) of the Criminal Procedure Code.
  3. The Respondent, on the other hand, submitted that all the ingredients of the offence of incest were proved to the required standards.

Analysis and Determination

  1. I have carefully considered the record of appeal and the parties’ rival submissions. I find that the main issues for determination are as follows: -
  2. Whether the Prosecution proved its case to the required standard.
  3. If the offences were established, whether the sentence was correct, legal and appropriate. 
  4. Proof to the Required Standard.
  5. Section 20 of the Sexual Offences Act (“the Act”) provides as follows:-

20. Incest by male persons

(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:

Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

(2) If any male person attempts to commit the offence specified in subsection (1), he is guilty of an offence of attempted incest and is liable upon conviction to a term of imprisonment of not less than ten years.

(3) Upon conviction in any court of any male person for an offence under this section, or of an attempt to commit such an offence, it shall be within the power of the court to issue orders referred to as "section 135 orders" under the Children's Act (Cap. 141) and in addition divest the offender of all authority over such female, remove the offender from such guardianship and in such case to appoint any person or persons to be the guardian or guardians of any such female during her minority or less period.

  1. Section 22 of the Act expounds on the test of relationship between an accused person and a victim as follows: -

22. Test of relationship

(1) In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half-father and an uncle of the first degree and a mother includes a half-mother and an aunt of the first degree whether through lawful wedlock or not.

(2) In this Act—

(a) "uncle" means the brother of a person's parent and "aunt" has a corresponding meaning;

(b) "nephew" means the child of a person's brother or sister and "niece" has a corresponding meaning;

(c) "half-brother" means a brother who shares only one parent with another;

(d) "half-sister" means a sister who shares only one parent with another; and

(e) "adoptive brother" means a brother who is related to another through adoption and "adoptive sister" has a corresponding meaning.

(3) An accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.

(4) In cases where the accused person is a person living with the complainant in the same house or is a parent or guardian of the complainant, the court may give an order removing the accused person from the house until the matter is determined and the court may also give an order classifying such a child as a child in need of care and protection and may give further orders under the Children's Act (Cap. 141).

  1. Section 11 of the Act defines the offence of an indecent act as follows:

11. Indecent act with child or adult

  1. Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.
  2. It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years.
  3. The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant.
  4. Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children's Act (Cap. 141).
  5. The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.
  6. Section 5 of the Act defines Sexual assault as: -

(1) Any person who unlawfully—

  1. penetrates the genital organs of another person with—
  2. any part of the body of another or that person; or
  3. an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;
  4. manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person's body;

is guilty of an offence termed sexual assault.

(2) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.

  1. The Prosecution must establish the following ingredients, beyond reasonable doubt, in order to succeed in proving the charge of incest,:-
  2. Proof of consanguinity i.e. that the offender is a relative of the victim.
  3. Proof of penetration or indecent Act.
  4. Positive Identification of the perpetrator.

Consanguinity

  1. It was not in dispute that the victim herein was the Appellant’s daughter. PW2 confirmed that the Appellant was her husband. Indeed, the victim’s Birth Certificate (P.Exh1) indicates that the Appellant is the victim’s father. I am satisfied that the Prosecution proved consanguinity between the victim and the Appellant beyond reasonable doubt.

Penetration

  1. Section 2 of the Act defines penetration as follows: -

"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

  1. The victim who testified as follows on penetration: -

“…I found my dad at home. My aunt was also at home. Her name is Irene. Whilst at home, my dad called me into the house. He placed me on his bed. He removed my clothes. He then placed his fingers inside my private parts. He then removed his penis and placed it in my private parts and inserted it in my private parts. After the incident, I left the room and went to inform my mother (TN) on what my dad had done to me…” 

  1. The victim’s evidence clearly points to the act of penetration as she stated that her father inserted his fingers and his penis into her vagina. The Prosecution also presented the evidence of the Medical Officer (PW6) who examined the victim and made the following findings: -

“….The clothing was normal, no tears nor blood. On physical examination, there were no injuries on head, thorax, stomach or lower limbs. On genitalia examination, the hymen was broken. There was blood in the vagina. On lab test (urinalysis), some yeast cells were found. On the high vaginal swab, there were no significant findings. HIV and VDRL were negative. The conclusion was that indeed the child was defiled but the timelines were impossible to tell because it was not seen in the lab test…”

  1. My finding is that the medical evidence supported the victim’s testimony on penetration. This court is also alive to the provisions of Section 124 of the Evidence Act which provides that: -

124. Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him.

Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, 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.”

  1. In the instant case, the trial court noted that it had observed the victim and was satisfied that she was telling the truth. The trial court rendered itself as follows: -

“PW1 stated that her father summoned her to the house, placed her on his bed, undressed her before inserting his genital organ (penis) in her private parts.

Dr. Leah Itote (PW6) corroborated the testimony of PW1 when she told the court that upon examination she found out that PW’s hymen was broken indicative of sexual penetration.

In as much as PW1 gave unsworn testimony, I keenly observed her demeanour in court and I am satisfied that she was telling the truth. Under Section 124 of the Evidence Act a court can convict without corroboration in certain cases specified in the proviso to that section……..

PW1 vividly described how she was undressed by her father and thereafter inserted his penis inside her private parts. The yeast cells found on the vaginal swab and the broken hymen together with the evidence of the witness is conclusive proof that indeed there was penetration.”

  1. My finding is that the victim’s account of the circumstances under which she was defiled was vivid, compelling and was not impeached by the Appellant’s testimony.
  2. I have considered the Appellant’s claim that the charges against him were orchestrated by a vigilante member (PW4) who had a grudge with him over a land dispute and the claim that PW4 had an affair with his wife. I find that the said allegations are far-fetched and amounted to a mere denial that did not displace the compelling evidence tendered against him by none other than his own daughter, the victim herein. I note that the trial court also considered his defence and made the following finding: -

“The Investigating Officer is also on record informing the court that according to her investigation, the accused did not have any bad blood with his wife. I am therefore of the considered view that accused defence are just mere denials.”

Identification

  1. As I have already stated in this judgment, the Appellant herein was the victim’s father and was therefore well-known to her. The victim’s account of the sexual assault indicated that the same happened during the day. I find that the Prosecution proved the identification of the appellant as the perpetrator of the offence beyond reasonable doubt. I am satisfied that the Appellant was positively identified, by the victim, as the perpetrator of the offence of incest.
  2. On the element of age, incest is not an ordinary sexual offence. The prosecution was only required to prove that the complainant was aged below 18 years old as provided for under Section 20 (1) of the Act which provides;

20(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:

Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which cases penetration or the indecent act was obtained with the consent of a female persons.

  1. In the instant case, I am satisfied that the prosecution proved that the complainant was 8 years old, at the time of the offence, as shown in the Birth Certificate (PExh.1). I find that the victim’s minority age was proved beyond doubt.
  2. Having regard to the findings that I have made in respect to the proof of the offence of incest, I find that the trial court arrived at the correct finding when it convicted the Appellant upon finding that the Prosecution had proved all the ingredients of the offence to the required standards. I therefore uphold the conviction by the trial court.

Sentence

  1. Section 20(1) of the Sexual Offences Act, which I have already highlighted hereinabove creates the offence and ingredients of incest. It also prescribes punishment generally, in the event that it is established that the complainant is a minor.
  2. In the present case, the Appellant challenges the sentence imposed on him on the basis that it is excessive in the circumstances, considering his mitigations and secondly, that it is unconstitutional as he was given the mandatory minimum sentence provided under Section 20(1) of the Sexual Offences Act.
  3. In S. vs. Nchunu & Another (AR 24/11) [2012] ZAKZPHC6, the Kwa Zulu Natal High Court stated:

“It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be.  The purpose behind a sentence was set out in S Vs Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35:

“Plainly, any sentence imposed must have deterrent and retributive force.  But off course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the overriding ones.”

  1. The learned Judges continued:

“…….It is trite that it is in the interest of justice that crime should be punished.  However, punishment that is excessive serves neither the interests of justice nor those of society.”

  1. For the argument that the life sentence imposed on him by the trial court was unconstitutional, the Appellant cited the decision in Julius Kistsao Manyeso vs. Republic, (Supra) where the court of Appeal held:-

“26.We are equally guided by this holding by the Supreme Court of Kenya, and in the instant appeal, we are of the view that having found the sentence of life imprisonment to be unconstitutional, we have the discretion to interfere with the said sentence. We note in this respect that the appellant did raise the concern of his sentence of life imprisonment while he was 18 years of age in his first appeal, and the High Court held as follows in this regards;” The nature of the offence and the makeup of the offender are of such a nature that the public require protection for a considerable time, unless there is a change of circumstances of the appellant. Clearly there are no set of circumstances that are different to warrant interference with the legal sentence imposed by the trial court. In my view, it cannot also be said to be excessive, unlawful or punitive to the extent that this court jurisdiction can be invoked to vary it.”

27.The appellant also did not say anything in mitigation after conviction by the trial court, which he attributes to his young age at the time. We are also alive to the fact that he was convicted for defiling a child of 4 years and of the likely ramifications of his actions on the child’s future. We are therefore of the view that while the appellant should be given the opportunity for rehabilitation, he also merits a deterrent sentence. We, therefore in the circumstances, uphold the appellant’s conviction of defilement, but partially allow his appeal on sentence. We accordingly set aside the sentence of life imprisonment imposed on the appellant and substitute therefor a sentence of 40 years in prison to run from the date of his conviction.”

  1. In the instant case, it is crystal clear that the appellant committed incest against his own daughter, the Complainant herein who was 8 years old at the time the offence was committed. This court cannot begin to imagine the trauma that the little girl went through following the sexual assault perpetrated by her father who should have been her protector in the first place.
  2. In her sentencing remarks, the trial magistrate considered the Probation Officer’s Pre-Sentence report and the fact that the appellant was a first offender before passing the sentence of life imprisonment.
  3. In Yasmin vs. Mohammed [1973] EA 370, Madan J stated:

“The High Court is especially endowed with the jurisdiction to safeguard the interests of infants as the court is the parent of all infants.  The Welfare of the infants is paramount and is dear to the heart of the court. There would be no better tribunal to perform the task more wisely as well as affectionately.  All infants in Kenya of whatever community, tribe and sect fall within the purview of the Guardianship of infants Act and the court is charged with the sacred duty of ensuring that their interests remain paramount and are duly preserved.”

  1. The appellant is reported to have used violence and threats to kill the victim if she disclosed that he had defiled her. The question that this court has to grapple with is the propriety of the sentence that was passed by the trial court. In R Vs Scott (2005) NS WCCA 152, Howie J. Grove and Barn JJ stated: -

“There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed…… one of the purposes of punishment is to ensure that an offender is adequately punished…. a further purpose of punishment is to denounce the conduct of the offender.”

  1. The objectives of sentencing in Kenya are now in the public domain as stated in the Judiciary Guidelines on Sentencing.  The objectives have been reiterated in several decisions. These objectives include: deterrence, rehabilitation, accountability for one’s actions, society protection, retribution and denouncing the conduct of the offender on the harm done to the victim. I have considered all the above stated factors and guidelines, and noted that the the Appellant herein is the biological father to the complainant/minor, and further, that the Appellant had no past criminal record and could hence be treated as a first offender. I further note that the offence in question falls under the category of gender-based violence offences where the offender used his power, as a father, to control the feeble innocent child.
  2. The above factors notwithstanding and while this court is of the view that the Appellant should be given the opportunity for rehabilitation, he also deserves a deterrent sentence. Consequently. I uphold the Appellant’s conviction of defilement, but allow his appeal on sentence. I accordingly set aside the sentence of life imprisonment imposed on the Appellant and substitute it with a sentence of 30 years imprisonment which sentence shall run from the date of the Appellant’s arrest in line with the provisions of Section 333(2) of the Criminal Procedure Code.
  3. It is so ordered.


    THOMAS MONG'ARE NYANDIKE VS The Republic THOMAS MONG'ARE NYANDIKE VS The Republic