Joseph Gitonga & J K v Republic [2018] KEHC 4102 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

HCCRA NO. 6 OF 2017 AS CONSOLIDATED WITH

HCCRA NO. 7 OF 2017

JOSEPH  GITONGA...............1ST APPELLANT

J  K...........................................2ND APPELLANT

VERSUS

REPUBLIC.................................RESPONDENT

(Being appeal from original conviction and sentence in the Principal Magistrate's Court at Marimanti in Criminal Case No.753 of 2016 delivered by HON S.M NYAGA -  (Resident Magistrate (R.M) on 14th September, 2017).

J  U  D  G  M  E  N  T

1. JOSEPH GITONGA and J K are the 1st and 2nd  appellant respectively herein and both well charged with the offence of gang  rape contrary to Section 10 of Sexual Offences Act No. 3 of 2006 vide  Marimanti Principal Magistrate's Court Criminal Case No. 753 of 2016.

The particulars were that on 10th November 2016 both the Appellants in  association raped PK.  They also faced alternative count of committing indecent acts on the same complainant.  In the 2nd count the 1st  Appellant charged with assaulting the same complainant contrary to Section 251of the Penal Code occasioning her actual bodily harm.

2. The record of proceedings show that both the appellants denied the offence  in Count I with the 1st Appellant also denying the 2nd count. After trial,  they were both convicted  in count I that is for the offence of gang rape and  sentenced to serve  40 years each in jail. They were both aggrieved by both  conviction and sentence and preferred this appeal raising a number of  grounds which I will consider shortly.

3. A briefly summary of facts deduced from the evidence tendered at the trial  court indicate that the complainant/ or the victim of the offence was tricked  by the Appellants and taken into a deserted remote place using a boda boda  ridden by the 2nd appellant, and gang raped by the two.  She told the trial  court that she was rescued by Julius Mutwiri (PW2) and John Mboya  Muthini (PW3) and taken to Chiakariga Police Post where P.C Fredrick  Ndama (PW4) took action by escorting both the appellants and the  complainant to Materi Mission Hospital after which he later charged the  Appellants herein with the offence of gang rape.  The investigating officer  tendered in evidence the motor cycle used to facilitate the offence as P. Exh.  3 blood stained bra P. Exhibit 2(a) and blood stained biker as P. Exhibit 2 (b)  and a pink pant as P. Exhibit 2 (c).

The clinical officer Emilio Mwenda Gaicho (PW5) relying on treatment  notes from Materi Catholic Hospital (P. Exhibit 4) concluded that the  complainant had been raped and tendered the P3 he authored as P. Exhibit 1.

4. When placed on their defence, the 1  Appellant testified that the  complainant  was his "wife" and was taking her for "treatment" when they were  accosted in  a bush by PW2 and other people  who appeared drunk and  assaulted before being escorted to Chiakariga Police Post.  He denied  committing the offence. On his part the 2nd Appellant defended himself  against the accusations  saying that he had been hired by the 1st appellant to  ferry him and the complainant to Chiakariga market and he obliged after  agreeing on  the cost for transport and that it was while they were coming  back to Mitunguu that they were confronted on a brumby stretch and  stopped and beaten before being taken to the police.  He denied  committing   the offence and accused the police for not listening to his side  of the story.

5. The trial court upon evaluating the evidence found that the prosecution had  proved their case in respect to the 1st count against both the appellants. The  1st Appellant was acquitted in respect to the 2nd account.  Both the  appellant were convicted and sentenced to serve 40 years each in jail. The  trial  court before sentencing the 2nd appellant went to lengths to establish  his age because of conflicting reports regarding his age.

6. Both the appellants raised 9 grounds of appeal in their respective  petitions as follows:-

(i) That the learned trial magistrate erred in law and fact by failing to note that the 2nd appellant was a minor (under age) in respect to the 1st appellant that the magistrate did not note that the complainant was the wife.

(ii) That the prosecution witnesses gave inconsistent contradictory and conflicting testimonies.

(iii) The prosecution case against them was not proved beyond reasonable doubt.

(iv) That the learned trial magistrate erred in law by sentencing  the appellant to 40 years imprisonment contrary to the law.

(v) That the learned magistrate erred in law by failing to order  D.N.A test of all the parties to ascertain the truth.

(vi) That their defence was rejected without reasons given.

7. The Appellants opted to proceed through written submissions.  In his brief  submissions the first appellant has mainly concentrated on the sentence  terming it harsh and that the trial magistrate did not consider the mitigating  circumstances like the fact that he was a first offender.  He also complained  that he did not get the benefit of legal representation.

8. The 2nd Appellant on his part submitted that at the material time of the  offence he was a minor and that he was not accorded the protection of law as  a child in conflict with the law.  He further submitted that the trial magistrate  ordered for his age assessment before sentencing but that the assessment  done showing that he was between the ages of 16-17 years was rejected and  that a 2nd assessment showing that he was between ages of 17 and 18 years  was used to conclude that he was 18 years of age.  The 2nd appellant has  contended that the learned trial court should not have  relied on doubtful  reports to pass the sentence he meted out against him.

9. The Respondent through the office of Director of Public Prosecution  opposed this appeal.  On the contention by the 1st appellant that the  complainant was his wife, the state has contended that the burden of proof  lay on the 1st appellant to show that the complainant was his wife.  It is  contended that the 1st Appellant should have called witnesses to prove that  the complainant was his wife in which case consent to sex would have been  assumed.

10. On the question of the age of the 2nd appellant the Respondent has submitted  that the trial court can't be faulted because it swiftly ordered for age  assessment when the issue cropped up and that the prosecution expressed  doubts about the first report that indicated that the 2nd appellant was between  16-17 years old and that it was on that basis that a 2nd medical opinion was  sought which indicated that the appellant was between 17- 18 years old.  The  State contended that it was common sense that the 2nd appellant was an adult  as he was reported to be having a wife and children.

11. I have considered this appeal which in my view only raises two issues;

(i) Whether the sentences meted against the appellants were too harsh.

(ii) Whether the 2nd appellant was a minor at the material time.

The reason why I have come up with only the two issues is that  there  is no  doubt based on the evidence tendered that the prosecution's case was proved  to the required standard. There is no doubt in my mind that the  evaluation  of the evidence and the conclusion reached that the complainant was gang  raped was a correct conclusion.  Perhaps that may have informed the  appellant's written submissions because contrary to the nine grounds raised,  the written submissions just concentrated on the two issues I have  framed above. This court finds therefore that the conviction of both the  appellant was proper and correct given the overwhelming evidence tendered  by the prosecution.  The  issue that their defence was not considered is  therefore unfounded because the same was considered  but when weighed in  the scales of justice their defence was found wanting and incredible as  opposed to the prosecution's case found to be strong and sufficient to sustain  conviction against the 1st appellant and a reference against the 2nd Appellant  as the  word "conviction" may not be used given the provisions of Section  189 of Children's Act when I will delve into later in this judgment.  I am  not pursuaded by the 1st appellant's contention that the complainant was his  wife because if she was he could not be doing what he did in the bush.

12. Having found that conviction was proper  the only remaining issue in this  appeal is the sentence. The appellants have gone separate  way in faulting  the sentence meted out against them with 1st Appellant faulting the sentence  for being harsh and excessive while the 2nd Appellant has challenged his  sentence on the ground that being a minor he should have been accorded the  protection of the law given to minors in conflict with the law.

13. To begin with the 1st appellant challenge, is that Section 10 of the Sexual  Offences Act under which the appellant's were convicted provides for a  sentence of not less than 15 years.  The law provides that this sentence may  be enhanced to life imprisonment.  It is therefore a matter of discretion for a  trial magistrate  to mete out  an appropriate sentence so long as it is not less  than 15 years and being a discretionary exercise,  this court as an appellate  court  can only be invited to intervene if a wrong principle was applied or if  the trial court failed to take a relevant issue into account or took an irrelevant  issue into account thereby arriving at  an inappropriate  sentence.

14. The trial court took into account the following factors when determining the  sentence meted out.

a. The probation report which he described as "negative"

b. The fact that the victim was pregnant and hence the danger of the unborn child was exposed.

c. That the 1st appellant were not remorseful or regret committing the offence.

d. The fact that the appellant took advantage of complainant's  poor back ground and used as a "sex tool".

The above factors appeared to have played a role in the exercise of the trial  court's discretion to sentence the appellants to 40 years imprisonment.

15. I have looked at the probation report in respect to the 1st appellant and note  that apart from the allegation of having separated from his wife, the  probation officer recommended a custodial sentence in view of the nature of  the offence committed by the 1st Appellant.  I do not see any other reason  why the learned trial magistrate viewed the report as negative when he was  not considering the possibility of handing him a non custodial sentence  because of limitation provided by the statute (Sexual Offences Act) that  provide minimum jail sentence

16. Secondly the trial court considered the fact that the complainant was  pregnant but really there was no medical evidence to show that the victim  was indeed pregnant if so and the age of  the pregnancy.  There was also no  evidence to show that the appellant knew if at all that the complainant was  pregnant.  There is no doubt that the trial court took this factor seriously as  captured by the judgment,

"This is a very serious and only that our law does not provide for such offence. It is grave to endanger future generation. Not different from attempted murder."

Of course the law under (Section 10 Sexual Offences Act) provides for the  offence of gang rape and its penalty with prison term of not less than 15  years but judging from the tone of the sentencing, the trial court appeared  to have felt that the punishment provided was not commensurate  or harsh  enough which I find a misdirection on the part of the learned trial magistrate.

17. Thirdly, the trial magistrate found that the appellants were "not remorseful"  and had not tried "to approach the victim and her family to ask for  forgiveness."  However a look at what the 1st appellant told the trial court in  mitigation appears that he was remorseful.  He asked for leniency  from the  trial court in order to educate his children whom he said were young.  For  the trial court to fault the appellant for having not approached the victim for  forgiveness when they were in custody was expecting more than what  appellant could practicably do.  Furthermore there was no victim's  report  indicating that the appellants had not sought for forgiveness to inform  the  trial court's finding.  The finding therefore was extraneous from the  proceedings and should never have been a factor in determining the  appropriate sentence to be meted out.

I also find the finding by the trial magistrate that the appellant took  advantage of the "poor background of the victim to use her as a sex tool"  to be an extraneous factor because the source of the information is not  indicated.  The trial court found the fact to be "terrible to imagine"  indicating that it really weighed heavily in his exercise of discretion to  determine that the proper sentence was 40 years jail term.  That was  erroneous notwithstanding the seriousness of the offence for which the  appellant was convicted..

18. The Appellants were first offenders and that is a mitigating which appears to  have been omitted by the learned trial magistrate and had he considered it  perhaps the sentence passed might not have been that harsh.

19. Now turning my attention to the 2nd Appellant, the record of proceedings  suggests that the Respondent is justified in its contention that the trial court  acted swiftly to establish the age of the 2nd Appellant by ordering that age   assessment be conducted.  It is true going by the proceedings that after  conviction, the 2nd Appellant in his mitigation  pleaded for leniency stating  that he was a minor and the trial court for good measure ordered for age  assessment to be conducted before passing the sentence.  The 2nd Appellant  vide an order of the court was escorted to Gatunga Model Health Centre  where the doctor assessed the age and as per the report dated 12th July, 2017  on record, the doctor opined that;

" age is assessed to be between 16 to 17 years.  Most probably 16 years."

20. The prosecution doubted the opinion of the doctor and applied for summons to Dr .John Wamaki, the Medical Officer who carried out the age assessment  exercise.  That however never materialized due to unavailability of the  said doctor  forcing the prosecution to apply for 2nd medical opinion which  was granted.The 2nd appellant was escorted to Embu Teaching and Referral  Hospital where a dental officer named Beatrice  Wanza Ndolo opined that  the 2nd appellant was,

"between 17 and 18 years of age."

21. The trial court found some difficulty "to ascertain the actual age of the 2nd  accused (2nd Appellant) so as to ensure a legal and appropriate  sentence"because"not even experts have been able to help this court." I  have however looked at the two reports and found that while the initial  report shows that the age was assessed by a doctor, the 2nd report age was  done by a dental officer and not a full doctor. The trial court fell into  error  because despite finding the report to be to use his own words  "tricky", he  nevertheless found 2nd report to be "more reliable compared to the first  report."The basis for this though not very clear seems to have been  unconfirmed report that the 2nd appellant was a father which really should  not have been an issue because who says a 16 year old person is unable to  father a child.

22. It was also erroneous for the trial court to make a finding that the 2nd Appellant is "way above 18 years old" contrary to medical assessment conducted by experts.  The 2nd medical opinion put the age between 17- 18  years old and the 1st report signed by a doctor put the age between 16-17  years old. The probation officer stated that the 2nd Appellant's parents  stated that the Appellant was aged 17 years old at the time social inquiry was  conducted (12th January 2017). In the face of the evidence laid  before the  trial magistrate, the 2nd Appellant, in all probabilities could not have been  18 years old at the material time of the offence.  The appellant at the hearing  of this appeal showed this court original birth certificate and the copy is  annexed to his submissions and even though I disallowed the production of  the same based on the objection by the Respondent, the certificate of birth  shows that he was born on 9th January, 2001 which is in tandem with the  opinion of Doctor John Wamwaki who opined that "possible year of birth  was 2000-2001".Of course the trial magistrate did not have the benefit of  the birth certificate at the time of passing the sentence because the 2nd  appellant did not produce it at the time, but the evidence placed before him  was not sufficient to conclude that the 2nd appellant was way above 18  years of age.  I do not agree with the Respondent's counsel contention that age can be ascertained through physical observation and common sense.   This is because for one looks can at times be deceptive and it is unsafe to  base a conviction or sentence solely upon appearance.  Secondly as I have  observed, the medical opinion of Doctor Wamwaki indicated  that the 2nd  Appellant was a minor.  It is true that he was unavailable to defend his  opinion but so too was the 2nd  medical officer whose qualification as I  observed appears on the face of the report to be a medical officer but not a  doctor because even reading from the report she signed the report on behalf  of Chief Executive Officer Embu Teaching and Referral Hospital.  Such  a report certainly could not and should not have been used to override  Dr.  Wamwaki's opinion.  Furthermore the dental officer (Beatrice Wanza Ndolo)  clearly indicated that the 2nd appellant in her opinion was  between 17& 18  years old on 11th  September 2017.  So looking  at the  date of the offence  (10th November, 2016) even going by her opinion, it was highly unlikely that  the 2nd Appellant was over 18 years of age at the  material time.  The  finding by the learned trial magistrate was clearly not supported by the  evidence other than the opinion of the probation officer Mr. Kurogat whose  opinion was  based on the reported fact that the 2nd appellant  had fathered  a child and was married.  I have seen the report of another probation officer  called Mr. Thaimuta E.G signed on 20th July, 2017 indicating that the 2nd  Appellant was reportedly aged 17 years old which  against seems to counter  the opinion of Mr. Kurogat the other probation  officer.  So this clearly  shows that it was totally unsafe for the learned trial magistrate to rely on Mr.  Kurogat's report because  he was not an expert  and his report regarding  age is  contradicted by Mr. Thaimuta. The trial magistrate in my view erred  in concluding that the 2nd appellant was an adult when he was a minor.

23. The trial court should have upon establishing that the 2nd Appellant was a  minor dealt with him in accordance with the provisions of Section 191 (1) of  the Children's Act.  It was erroneous to jail the 2nd appellant to 40 years  imprisonment because the same was contrary to the provisions of Section  190 (1) of the Children's Act which outlaws imprisonment of children or  persons under 18 years of age as defined under Section 2 of the Children's  Act.

24. In view of the foregoing this court finds this appeal partly has merit only to  the extent of sentence.  As I have observed above, I do find that the evidence  tendered by the prosecution was sufficient to sustain a conviction against the  1st Appellant and pursuant to the provisions of Section 189 a reference  against the 2nd appellant as the law precludes the use of "conviction"and  "sentence" when it is in respect  of a minor.  The conviction against the 2nd  Appellant is therefore set aside and in its place I find him guilty of the  offence charged and a reference under Section 189 of the Children Act is  entered against him for the offence of gang rape contrary to Section 10 of  Sexual Offences Act.

On sentence this court for the aforesaid reasons finds merit on the appeal and  in respect to the 1st Appellant I set aside the 40 year jail term and in its  place pursuant to Section 10 of Sexual Offences Act enter jail term of 15 years.  In respect to the 2nd Appellant again for the reasons advanced, I set  aside the 40 year jail term and in its place pursuant to the provisions of  Section 191(1), and further in view of the one year spent in jail,  I hereby  place him on probation for a period of 3 years and direct the children's  officer nearest to his place of abode to strictly ensure that he complies  to the  directives given to him by the children's officer including and not limited to  making perioding  appearance to the Children's Officer.  He shall henceforth  be treated as child  offender until he attains the age of 18 years.

Dated, signed and delivered at Chuka this 26th September, 2018.

R.K. LIMO

JUDGE

26/9/2018

Judgment dated, signed and delivered in the open court in the presence of the appellants in person and Mr. Machirah for State/Respondent.

R.K. LIMO

JUDGE

26/9/2018