TOM MLANGO VS The Republic TOM MLANGO VS The Republic

(From Original Conviction and Sentence of Hon. Martha W. Mutuku in the Chief Magistrate’s Court at Mombasa, in Criminal Case No. E072 of 2021 dated 7^th August, 2023)

Introduction

The Appellant was charged before the Chief Magistrate Court in Shanzu with the offences of:-

CHARGE: Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. Particulars of the same being that on diverse dates between the month of January 2020and 19^th of June 2020, at Shelly Beach area in Likoni Sub County, you unlawfully and intentionally caused your penis to penetrate the vagina of M.W, a child aged 10 years.

ALTERNATIVE COUNT: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act no. 3 of 2006. On diverse dates between the month of January and 19th day of June 2020, at Shelly Beach area in Likoni Sub county within Mombasa County, you intentionally touched the vagina of M.W, a girl aged 10 years.

The Appellant was charged, he denied the charges and the trial court put down the case for hearing. The prosecution called 4 witnesses and at the close of the prosecution’s case, the trial court found the Appellants with a case to answer; put them to their defence, convicted and sentenced ten (10) years imprisonment.
Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:
THAT the learned trial magistrate erred in law and fact by convicting me in absence of any cogent and tangible evidence.
THAT the learned trial magistrate erred in law and fact by forming a conviction in reliance of single witness’ testimony that was not substantiated by an independent witness.
THAT the learned trial magistrate erred in law and fact by relying on contradictive, inconsistent and unsubstantiated witness' account of the allegation levelled against me
THAT the learned trial magistrate erred in law and fact by failing to put into consideration the period I spent in remand while on trial.
THAT the learned trial magistrate erred in law and fact by finding my conviction and sentence by failing to take into consideration my unshaken defence.
For the reasons advanced in his Petition of Appeal, the Appellant prayed for his Appeal to be allowed, the conviction quashed and sentence set aside and the Appellant be set at liberty.

The Prosecution’s case

The prosecution called four (4) witnesses in support of its case. PW 1, M.W, a minor aged four years told the court that the accused person is a very close neighbor in that their homesteads share a common fence. On the material day, she went home from school at around midday. while at their home, the accused told her to go and change from her school uniform. She obliged and proceeded to change into a skirt, shirt and a pair of leggings. It was her evidence that she knew the accused very well. She described him as a friend to the mother and also a member of Meju's family. Meju was a girl who well known to the witness, a neighbor and their playmate. Meju also stayed in the same house with the accused.
The accused called her to his house. The other members of the family, including her mother who was in the homestead were seated in the veranda. The accused called her to his bedroom. They sat on the bed and she was undressed and that the accused also removed his pair of trousers. The accused the put his penis in her vagina and penis. Her evidence was that the accused also sucked her breasts. She went on to tell the court that after the accused did this to her, there was a white fluid which came out. The explanation given to her by the accused was that this was assign that his sperms loved her. Immediately after the incident, he gave her Ksh.10 which she used to buy sweets.
At the time the accused was defiling her, the volume of the radio was high. It was the accused who advised her to go and clean up herself in the toilet, which she did. She wiped off the white fluid and joined the other children who were playing outside. When she got outside, it was her evidence that Meju's mother had also joined her mother at their homestead and were sitting on a bench. The following day, when Meju was undoing her hair, she told her that she hated her grandfather, though she did not disclose the reason why she hated him. The following day, she was in pain and disclosed to her mother what the accused had done to her. The mother then took her to the hospital and also reported to the police. Her evidence was that the accused sexually assaulted her once, and that a week later, a grandson to the accused also assaulted her sexually. The reason she did not report the incident to the mother immediately was because the accused had threatened her. The accused and her mother were still very good friend until the offence before court took place.
In cross examination, she clarified the relationship between the accused and Meju and Sammy. The two are grand children to the accused. She was also very categorical that she had not been told to frame up the accused. She maintained that the accused had kept the radio volume high and as such their conversation could not be heard by others.
PW 2 EVALNE KASITI the mother to the victim in this case produced an acknowledgement of Birth Notification card. The card indicated the victim was born on the 28^th May 2010. As such at the time of the alleged offence, the minor was 10 years old. That on the 12^th June 2020, she was seated outside their house with the daughter of the accused, one Veronica Malango. It was Veronica who told her that PW 1 had been telling her friends that the accused had defiled her. It was this information that prompted her to interrogate the daughter. Her daughter told her that it was true that the accused had sexually assaulted her and that he had threatened her not to tell anyone. She went on and reported the case to the police and they were referred to hospital. It was not until the following day after reporting that and upon examination, the doctor told her that the minor had been defiled vaginally and anally. Later she identified the accused to the police who arrested him.
In cross-examination, the witness maintained that the victim was very sure that it was the accused who had defiled her. That he accused had never reported any incident between her daughter and the grandson named Sammy.
PW 3 STEPHEN KALAI a clinician based at the Likoni Sub-county hospital. On the 15^th June 2020, the victim was taken to the facility for examination. She was in company of her mother and a police officer from the Shelly Beach police station. She alleged that she had been defiled by a person well known to her. She told the clinician that a male neighbor used to defile her and give her money. He also advised her to bath. Besides the accused, there was another male who had defiled her inside a toilet.
Upon examination, she noted the vagina walls had fresh lacerations. The hymen was torn with an old scar. On the anus, there were also presence of fresh lacerations at 6 o'clock with loose muscles. There was stool oozing from the anus. Samples were from the minor were taken to the lab. The urinalysis test showed presence of epithelial cells which was indicative of a bacterial infection. In his opinion, the broken hymen, the vaginal wall abrasions and the lacerations and the laboratory results were all indicative of defilement. His conclusion was that there was forced penetration, recent and old to the vagina. The lose muscles and tears were indicative of anal penetration. He produced all the medical notes and the P3 form as exhibit before court.
PW 4 NO. 232169 PC (W) Mwanarusi Ibrahim was the I.O in this case. On the 13^th June 2020, the minor and the mother went to the station and reported that the minor had been defiled by a neighbor known as alias Babu. She interrogated the minor and the minor told her that she had been sexually assaulted by the accused. The accused removed her clothes and inserted his penis in her vagina and also sucked her breasts. He also advised her to bath. Later the mother learned of the offence through the accused daughter and the same was reported to police. Through her investigations, she arrested the accused and that grandson and arraigned them in different courts.

The Defence case

The appellant gave his sworn defence and told the court that he did not know anything about the charges. That on this day, he was from the studio and while going home, he saw two children the Appellant’s grandson and the victim/ complainant coming from an unfinished house. He demanded to know where they were coming from. He took both of them to to their parents who got annoyed. He suspected that that was the reason he was arrested and charged, as well his grandson. It was when he got to court that he learned of the charges. In cross examination, it was the evidence of the Appellant that the victim minor was known him. That this happened when most children at home during this period of time. He also alleged that he had grudges with the parents of the victim.

Analysis and Determination

It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
Having reviewed the trial Record, the grounds of appeal and the parties’ submissions, the two main issues for determination are as follows: -
Whether or not the Prosecution proved its case beyond reasonable doubt;
Whether the Honourable Trial Court considered the Defence by the Appellant; and
Whether there was consideration of the time the Appellant spent in remand during the trial while sentencing.

Issue a. Whether or not the Prosecution proved its case beyond reasonable doubt

This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32. In this case the court stated-;

“The duty of the 1^st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-

The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

The court of appeal further stated that – “ an appellant on a 1^st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.

In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.

In the case of Gabriel Kamau Njoroge – Versus - Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”

I will proceed and consider the grounds of appeal-;.
Whether the charge of defilement was proved beyond any reasonable doubts
The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides: -

“8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

8(2) 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.”

Based on these definitions, the critical ingredients which the prosecution must establish are the age of the victim, penetration, and the identification of the perpetrator. (Charles Wamukoya Karani – Versus - Republic, Criminal Appeal No. 72 of 2013).

The age of the victim

The Court of Appeal in the case of Edwin Nyambogo Onsongo – Versus - Republic (2016) eKLR stated as follows on the proof of age;

“... 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 documents, evidence such as birth certificate, baptism, card or by oral evidence of the parents or the guardian or medical evidence among other credible form of proof. We think that what ought to be stressed is that whatever the nature of the evidence preferred in proof of the victims age it has to be credible and reliable.”

See also the case cited by the respondent – Joseph Kieti Sect Vs Republic, (Supra) where it was stated that “it is trite law that the age of the victim can be determined by medical evidence and other cogent evidence.”

In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that “in defilement cases medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determined the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.”

The importance of proving age in a Sexual Offence case cannot be gainsaid. In the case of Kaingu Kasomo – Versus - Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal stated as follows:

“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”

A child is defined as a person under the age of eighteen years. Is the victim herein a child? In regard to the age of the complainant herein, the same is not in dispute; the complainant at the time of commission of the alleged offence was 10 years old according to the copy of the birth notification (Pex 1) that was marked by the mother of the victim and produced by the investigating officer.

Penetration

Section 2(1) of the Sexual Offences Act defines penetration as:

“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

Penetration is proved through the evidence of the victim corroborated by medical evidence. The Appellant challenged the tangibility of the evidence used by the Honourable Trial Court to convict him. According to the victim PW 1, the accused person put his penis in her vagina and penis. Her evidence was that the accused also sucked her breasts. She went on to tell the court that after the accused did this to her, there was a white fluid which came out. Her evidence was that the accused sexually assaulted her once, and that a week later, a grandson to the accused also assaulted her sexually.
This evidence was corroborated by that of PW 3 the clinician who examined the victim and confirmed that her vagina walls had fresh lacerations. The hymen was torn with an old scar. On the anus, there were also presence of fresh lacerations at 6 o'clock with loose muscles. There was stool oozing from the anus. Samples were from the minor were taken to the lab. The urinalysis test showed presence of epithelial cells which was indicative of a bacterial infection. In his opinion, the broken hymen, the vaginal wall abrasions and the lacerations and the laboratory results were all indicative of defilement. His conclusion was that there was forced penetration, recent and old to the vagina. The lose muscles and tears were indicative of anal penetration. He produced all the medical notes and the P3 form as exhibit before court.
The above medical as witness testimonies prove the fact that there was penetration of the child. I find that with the complainant’s testimony and the fact that medical evidence corroborated the testimony of the complainant, there was prove beyond any reasonable doubts that the complainant was penetrated on the material day. But by whom? This is the mega question?

Identification/Recognition

As in any criminal offence, the positive identification of a person is what connects them to that offence. It is therefore extremely important that any evidence on identification must be thoroughly and carefully scrutinized to avoid any miscarriage of justice. In the case of Kariuki Njiru & 7 others – Versus - Republic, Criminal Appeal no. 6 of 2001 (Unreported) the court held as follows:

“Law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”

Further to the above, it is well settled law that recognition may be more reliable than identification of a stranger. However caution must always be taken where a witness is purporting to recognize someone that they know since even in such cases mistakes may sometimes be made. (see R – Versus - Turnbull & Others [1976] 3 ALL ER 549).
On the identity of the perpetrator; it was the evidence of PW 1 that the Appellant was well known to her. PW 2 the mother of the victim told the court that the PW 1 was very sure that it was the accused who had defiled her. That he accused had never reported any incident between her daughter and the grandson named Sammy. There is no doubt in my mind that the Appellant was well known to the victim. I therefore dispense with the ingredients of identification as well because the victim was able to not only identify him but to recognize him as the person who committed the act.
It is my firm conclusion therefore that the offence of defilement was adequately proven by the Prosecution to the required threshold. I uphold the conviction.

Issue b. Whether the Honourable Trial Court considered the Defence by the Appellant;

In his defence, the Appellant in the trial court told the court that he did not know anything about the charges. He was from the studio; when he got home, he saw children from an unfinished house. He asked them what they were doing; they panicked. He took the children to fear parents and that is the reason he got arrested alongside his grandson Sammy. When he got to court that is when he learnt that he was a suspect. According to him there was bad blood between him and the victim’s parents, they quarreled and the mother to the victim threatened him.
At page 41 of the record, the trial magistrate considered the defence and stated that the defence that the Appellant was framed was dismissed. The trial court did consider the defence of the appellant and gave reasons to rejecting it. I have considered the defence tendered. The defence advanced by the appellant has been dislodged and the fact that at the time of the offence it is clear they were living peacefully. No grudges were established by the trial Court nor this court. The trial magistrate acted properly in rejecting the defence.

Issue c. Whether there was consideration of the time the Appellant spent in remand during the trial while sentencing

Under Sexual Offences Act, sentence for defilement is prescribed based on the age of the victim of the sexual assault. Although the Act does not expressly state, the manner the penalty is prescribed show that, the younger the victim, the more severe the sentence. Therefore, it appears to me that, age of the victim of sexual offence is an aggravating factor which the court should always consider amongst others in sentencing.
In the case, the Complainant was of 10 years at the time of the offence. Thus, the appropriate penalty clause is Section 8(2) of the Act which 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.”

I am however, accordingly instructed to use the judicial tool of construction of existing statutes provided in section 7 of the Transitional Provisions in the Sixth Schedule of the Constitution, and provide for appropriate adaptation, alteration and modification; I take life sentence to be the maximum sentence under the section. Sentencing is exercise of discretion by the trial court which should never be interfered with unless the trial court acted upon wrong principles or overlooked some material factors or took into account irrelevant factors or short of this, the sentence is illegal or is so inordinately excessive or patently lenient as to be an error of principle (See Shadrack Kipkoech Kogo – Versus - R., and Wilson Waitegei – Versus - Republic [2021] eKLR).
Was there anything vitiating exercise of discretion by the trial court in imposing a sentence of 10 years’ imprisonment. It should also be noted that the appellant took an unfair advantage to secure and satisfy his sexual desires on a child of only 10 years. The Court considers the offence to be quite egregious, and it was committed against a minor. It bears repeating that the penalties enacted in the SOA reflect a deliberate intention by the legislature; (1) to protect the rights of the child; and (2) to signify the seriousness of the offence of defilement.
Seriousness of the offence is a relevant factor in sentencing and in sexual offences. Generally, it is worth of note that, the assault leaves the innocent victim with eternal and time-explosive dent on the integrity of the person as a human being. For a girl, the assault destroys the beauty of a woman which is encapsulated in the pride, self-esteem, confidence, integrity and honour of the person. To say the least, their self-worth and innocence is irreparably damaged by the beastly act. They are left with deep and chronic trauma which will affect them psychologically, emotionally and physically for the rest of their lives. These things must be said to dramatize what it real means to rape or defile a person. I have stated before, and I will state it again without fear of contradiction, that whomever admires and defiles the prohibited; a child; will tremble in the right place; the prison. No wonder the legislative intent which is a reflection of the societal detestation of defilement exclude sexual offences from settlement through alternative dispute resolutions, traditional methods of dispute resolutions, plea bargaining, probation, community service order et al.
The aggravating factors weigh heavy; against the mitigating factors of the appellant. In an appeal on sentence, the court may sustain or reduce or enhance or alter the nature of sentence. The prosecution has sought for enhancement of sentence to life imprisonment. The request is reasonable and aimed at achieving justice for the victim, and punishing the offender for the offence. The circumstances herein warrant enhancement of sentence.
The circumstances of this case could even justify enhancement to life sentence. I should enhance the sentence to a more severe sentence but I wont and neither will interfere with the sentencing of the Honourable Trial Magistrate.

Conclusion and Disposition

I therefore find no merit on the appeal herein both on conviction and sentence which I hereby dismiss. Right of appeal explained

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …19th….…………DAY OF ……December………………….……., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

Applellant present