Hadija Uwajeneza v Republic [2014] KECA 471 (KLR)

IN THE  COURT OF APPEAL

AT NAIROBI

(CORAM: WAKI,  MARAGA & WARSAME,  JJ.A)

CRIMINAL APPEAL NUMBER  252  OF 2012

BETWEEN

HADIJA

UWAJENEZA……………………………………..APPELLANT

AND

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

(being an appeal from the ruling and  sentence of theHighcourt of Kanya  at Nairobi (Khaminwa, J.) dated

17thMay 2010

in

H. C. Cr. A 417 of 2008)

JUDGMENT OF THE  COURT

Hadidja Uwajeneza,hereinafter referred to as the appellant, was convicted  of  the offence  of  trafficking  for  sexual exploitation  contrary  to section  18  (1) (a) of the Sexual  Offences  Act, 2006.  The particulars of that offence  were  that  the appellant  “in the year 2004,  in  Nairobi within

NairobiArea,  intentionally and  knowingly facilitated  the travel of N F  from Rwanda, across  the border of Kenya  for sexual exploitation”.

The evidence led by the prosecution was that F N(PW1), aged 15 years, came into the country under the care of the appellant on 17th  October 2004.  PW1’s evidence was that when  the appellant brought

her to Kenya,  she did so under the pretext of taking her to school.  However, the appellant never  took her to school. Instead she made  her do domestic work and look after the appellant’s children. At some point, the appellant travelled to Tanzania   and  returned  with a man  who  she  claimed  was  her brother. That alleged brother pestered PW1 for sex, but she refused. At some point, the appellant  again  travelled abroad for sometime,  leaving  her alone with the man.

When  the appellant  returned to Kenya,  they all moved to a house  on Kirinyaga road. While they were  there, a business man  came  and  visited them. The man  demanded  a kiss  from PW1 but she declined and  went into the bedroom. The appellant then  followed  her there and  told her that  the man  was offering her 1,000  US dollars, as well as a business in  Malawi, if she would  sleep with him.  PW1 still refused, and the appellant told her that she was stupid.

In  2007,  the appellant  enrolled PW1 at [particulars withheld]  Primary  School. PW1  continued  to live  with  the appellant  until 2nd    June   2007  when  the appellant  beat  up  both her and  U E(PW2) and  threw  them out of the house.  PW2 was the complainant in  a second  count against the appellant. On this count, she was accused  of trafficking PW2 for sexual exploitation. PW1 and PW2 sought refuge in  P M K’s(PW3) house.  PW3 took the children  back  to the appellant,  who  refused to take them in because they were allegedly  disobedient and disrespectful. PW1 and PW2  later  went  and   made  a  report  to  the  police  that  they  were  being

sexually     exploited      by     the     appellant      and     that     led    to    the     appellant’s prosecution.

In  her defence,  the appellant  gave a sworn statement in  which she denied  that  she  had   sexually  exploited  the  two  girls.  She  admitted  to facilitating their  travel into Kenya,  but said  that she had  done it to ensure that  they could  get  an  education. She  testified that  the two children  had begun  to misbehave  and  that they stole  from her and  then  went to hide  in PW3’s house.

B N(DW2) a teacher at [particulars withheld] Primary School gave evidence  for  the  appellant.  He  produced  in   court  a  copy  of  the  school admission registers which showed  that PW2 was enrolled in  that school on the 5th  September 2006,  while  PW1 was enrolled in  school on 19th  February

2007.

After reception of this evidence, the trial court found  that PW2 had not given  any  evidence  to show  that  the appellant  had  sexually exploited her, and  so acquitted the appellant with respect to the second  count. Regarding the first  count however, the trial  court found   that  the evidence  PW1 was forthright and  candid, and  that while  PW1 was not able  to state the dates when the sexual advances from the men took place, there were instances between  2004  and  2006  when  there were  sustained sexual advances.  For these  reasons, the trial  magistrate found   the appellant guilty  of  the first count, and  convicted  her accordingly. After receiving mitigation,  the trial

court sentenced  the appellant  to a fine  of Kshs  2,000,000. 00; in  default  of the fine, the appellant was to serve 15 years in jail.

The appellant  preferred a first appeal  to the High  Court of Kenya.  In that appeal,  the appellant faulted the evidence led by the prosecution for not discharging its duty to give evidence  to prove  its case beyond  the required standard,  that  the evidence  led  did  not  accord with  the charge and  the sentence meted out on her was manifestly excessive, considering all the circumstances.

In  its determination,  the High  Court found   that  there was  evidence that the appellant exposed PW1 to men for sexual exploitation. The first appellate  court therefore  found   that  the prosecution had  proved its  case beyond  a reasonable doubt,  and  dismissed the appeal,  thus affirming the conviction and sentence meted out on the appellant.

The  appellant  is  still aggrieved,  and  has  now  preferred this  second appeal in which she has continued to challenge  her conviction and sentence. During the hearing of the present appeal,  the appellant submitted to us that there were no investigations conducted, as she was simply arrested and charged in court a day later. The appellant further faults the lack of medical evidence that would  confirm whether PW1 was sexually assaulted.

Mr Monda,  Senior Principal Prosecution Counsel, appearing on behalf of  the  state,  opposed   the  appeal  in   respect  of  the  conviction.  Learned Counsel submitted that the concurrent finding of fact was that the appellant

had facilitated the travel of PW1 into Kenya for the purpose of sexual exploitation.  Based  on  this concurrent  finding by  the  two  lower  courts, Counsel  would   have  us  affirm  the  conviction.  The  State  did,   however, concede  that  the  sentence  meted  out by  the  trial  court  was  illegal.   He submitted that as stated in section 28 (2) of the Penal Code, the default sentence should have been imprisonment for one year.

We have  anxiously considered  the entire  record, the submissions  of the appellant  and  those  of counsel for the state, both in  the first appellate court and those made before us.

We are cognisant of the fact that this is a second  appeal,  and  sitting as a second  appellate  court, we are enjoined by  the law  to consider only issues  of law,  unless  we find  that the conclusions of the courts below  were

perverse. See the holding of this Court in the oft­cited authority of M'Riungu

v Republic [1983] KLR 455, in which it was held that:

“Where  a  right of  appeal  is confined  to questions of law an  appellate court has  loyalty to  accept  the  findings  of   fact  of   the  lower court(s)  and  resist the temptation to treat  the findings of fact as holdings of law or mixed finding  of   fact  and   law  and   it  should not interfere with the decision  of  the trial or  first appellate  court unless  it  is apparent that  on the evidence, no reasonable tribunal could have reached that  conclusion,  which  would be  the same  as  holding that  the decision  is  bad  in law.”

This   was   reiterated  in J.A.O   v  Republic [2011]   eKLR   (Criminal

AppealNo. 176 of 2010)where this Court stated that:

“… [A] second appeal ought  to be on matters of law as  the Court will be slow  to interfere with concurrent findings of fact unless they were based  on  no  evidence  at all or  on  a  perverted appreciation of the facts.”

The main  evidence  linking the appellant to the offence with PW1 as a victim was her claim  that the appellant left her with a man  for a period of one month, and  that on  another occasion,  the appellant tried to persuade her to have sex with a man  who offered to pay her some money  and to start a business for her if she would  have sexual intercourse with him.

From our perusal of the record, it appears to us that this is the only evidence that links the appellant to committing the alleged untoward acts to PW1. Is this evidence enough  to sustain the offence of trafficking for sexual exploitation  contrary to section  18  (1) (a) of the Sexual  Offences  Act?  That section provides for that offence in the following terms:

18. (1)Any  person   who   intentionally  or knowingly arranges or facilitates  travel within or   across   the  borders   of   Kenya   by  another person and  either ­

(a) intends todo anything to or in respect of the person  during or  after the journey  in any  part of the world, which if done will involve the commission of an offence under this Act

…

is guiltyof an  offence of trafficking for sexual exploitation.”

A plain reading of this section shows that the essential elements of the offence  which must be  proved by  the prosecution as  against an  accused person are that  there has  to be the facilitation  or movement  of  a person across the border, with the main  intention  of committing any  crime under the Sexual Offences Act. Therefore, there must be evidence that the accused person was an  active  participant in  the action of facilitating  the movement across the border, as well as in  facilitating  the commission of  the sexual offence.

This is an issue that was dealt with by this Court sitting in Nakuru in the  decision  of   Kenneth  Kiplangat   Rono   v  Republic  [2010]   eKLR (Criminal Appeal 66  of 2009)wherein it stated of section 18 (1) that:

“The section under which the appellant was charged focuses on the person  who arranges or facilities travel of another person  within Kenya or  outside  Kenya. It  also focuses on the victim and  then any other person who might take advantage of the arrangement and  who does something to the victim which would amount to the commission of an offence.”

The Court then defined  the term ‘trafficking in persons for sexual exploitation’ by drawing on both the dictionary meaning of the term, as well as  the  United  NationsProtocol   to  Prevent,  Suppress   and   Punish

Trafficking inPersonsand stated that:

“There  are  thus three constituent elements:  the act (recruitment, transportation, transfer, harbouring or receipt of persons); the means (threat   or   use  of   force,  coercion,   abduction, fraud,  deception,   abuse   of   power  or vulnerability, or giving  payments of benefits  to a   person   in  control  of   the  victim)   and   the purpose   (exploitation   –   including   the prostitution  of  others,   sexual  exploitation, forced  labour,   slavery  or   similar   practices). That definition informs the recent domestic legislation  in   Kenya    (The    Sexual   Offences Act) focusing on sexual exploitation.” (emphasis in original)

These elements  are essential  in  order to sustain the charge. We find that was  not the case in  the present appeal.  While it  is  true,  and  it was conceded by the appellant, that she is the one who facilitated the entry into Kenya  of  PW1,  we  do  not find   that  the element  of  purpose, that  is,  the element  of sexual exploitation  to have been proved. As we have stated, the evidence of PW1 was that the appellant left her with a man  who,  on several occasions  solicited sexual intercourse with  her;  but it is  her account that she refused, and that she avoided  these advances  by hiding in the bedroom. In  addition, it was PW1’s evidence  that on one occasion,  the appellant  told her the man  who  would  pay  her 1,000  US dollars if  she would  concede  to his advances,  again,  PW1 rejected this offer. It is therefore not clear at what point any sexual offence took place.

In   addition,  we   fail  to  see  the  nexus   of   the  appellant  to  the commission of the alleged crime. In contrast, the evidence  of PW2 and  PW3

was  to  the  effect  that  both PW1  and  PW2  were  attending  school.  This evidence was similar to that of the appellant as well as DW2. The evidence of sexual exploitation was very remote, and we find  that it does not support the charge, and  that it is perverse to let it stand. The facts as narrated even by PW1 do not support the charge. Instead, they leave doubt in our minds as to whether the true intention of the appellant was to bring the children into the country for sexual exploitation, if they were exploited at all. This doubt must accrue to the benefit of the appellant, and  for this reason, we find that this appeal is meritorious.

Before we conclude, we wish  to make a comment on Mr Monda’s submission  regarding  the  propriety   of   the  sentence   imposed    on   the appellant,  which was  to the effect  that  the sentence  imposed  on  her was illegal.  Learned counsel obviously misapprehended the import  of section 28 (2) of the Penal Code which states, in part, as follows:

In  theabsence   of  express  provisions  in  any written law relating thereto, the term ofimprisonment…   ordered  by   a   court   …   in respect of the non­payment  of a  fine or  of any sum  adjudged to be paid under the provisions of any  written law shall be such term as in the opinion of  the court will  satisfy the justice of the case,  but shall not  exceed in any  such case the maximum fixed by the following scale—

AmountMaximum period

Exceeding Kshs 50,000…………………………………...12 months

(emphasis ours)

In  the case  of  the offence  of  trafficking  for sexual exploitation,  the penalty is expressly provided for at section 18 (2) of the Sexual Offences Act in the following terms:

“A   person   guilty  of   an   offence  under   this section  is liable  upon  conviction,  to imprisonment for a term of not less than fifteen years or  to a  fine of not less  than two million shillings or to both.”

It is therefore not correct, as Mr Monda  submitted, that the sentence was  not  proper.  For  the  offence  which  the  appellant  was  charged,  the penalty is expressly provided for under section 18 (2). The only way in which the provisions of section  28  (2) of the Penal  Code would  have applied is if

there was  no  express  provision relating  to the default  sentence  “in any written law relating thereto”. That is clearly not the case here.

The upshot of our findings is that this appeal has merit. We therefore quash  the conviction and  set  aside  the sentence  of the trial  court affirmed by the first appellate court, with the result that the appellant shall be set at liberty, unless  otherwise lawfully held.

Dated and Delivered at Nairobi this 11thday of July,  2014

P. WAKI

JUDGE OF APPEAL

D.K.  MARAGA

JUDGE OF APPEAL

M. WARSAME

JUDGE OF APPEAL

I certify that this  is a true copy  of the  original

DEPUTY REGISTRAR