Raila v Republic [2022] KEHC 15187 (KLR)

Raila v Republic (Criminal Appeal E013 of 2022) [2022] KEHC 15187 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15187 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Appeal E013 of 2022

RE Aburili, J

November 9, 2022

Between

John Wanga Raila

Appellant

and

Republic

Respondent

(An appeal against the judgement by the Hon. S.W. Mathenge, SRM on the 28. 2.2022 & subsequent sentence passed on the 5. 4.2022 in the Principal Magistrate’s Court in Bondo in Sexual Offence Case No. E002 of 2020)

Judgment

Introduction 1. The appellant herein John Wanga Raila was charged with the offence of defilement contrary to section 8(1) (3) of the sexual Offences Act No.3 of 2006. The particulars of the charge were that that on the 11th September, 2020 at about 1900 hours at [particulars withheld] village in Nyamonye sub-location Bondo sub-county within Siaya County, the appellant intentionally caused his penis to penetrate the vagina of S.A. a child aged 12 years. The appellant also faced the alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act.

2. The appellant pleaded not guilty to the charge and the matter proceeded to trial where the prosecution called 5 witnesses. Placed on his defence, the appellant gave sworn testimony.

3. In his judgement, the trial magistrate found that the prosecution had proved its case beyond reasonable doubt against the appellant and proceeded to convict the appellant and subsequently sentenced him to serve 20 years’ imprisonment.

4. Aggrieved by the conviction and sentence, the appellant initially filed his petition of appeal in which he raised the following grounds of appeal:i.That the trial court failed to observe that the sentence imposed is/was manifestly harsh and disproportionate.ii.That the court be pleased to consider that the ingredients forming the offence was not proved beyond reasonable doubt.iii.That the court be pleased to consider that the investigation tendered was shoddy.iv.That the court be pleased to consider any aspect or condition that shall not occasion prejudice.v.That the appellant hereby beseeches the superior court to indulge into the same and or be pleased to reduce the sentence proportionately as enshrined in the article 50 (2) p of the constitution.vi.That I wish to be present at the hearing of this appeal and or be supplied with trial record to enable me erect more grounds.

5. The appellant subsequently filed supplementary grounds of appeal dated 2nd August 2022 setting out the following grounds of appeal:i.That the trial Court erred in both law and fact in applying the protective measure to the victim, prevented the victim from being effectively tested in cross examination by the accused. Pursuant to section 302 of the criminal procedure code. Pw2 double stood as herself and as intermediary thus they needed a different intermediary.ii.That the Court convicted the appellant relying on the evidence of an intermediary that was corroborated by other material evidence and being the evidence of a single eye witness at night. Pursuant to section 31 (10) SOA No. 3 of 2006. iii.That the evidence of identification was inconclusive. There are no source of light upon which the victim’s identification by recognition was made Dock Identification is worthless.iv.That the medical evidence was flawed it did not proof recent genitalia penile penetration beyond a reasonable doubt.v.The court erred in law and in fact in not weighing the conflicting evidence (contradictions, discrepancies and inconsistencies) that were inconsequential to conviction thus lowering the standard of proof beyond reasonable doubt by the prosecution.vi.That the sentence is manifestly excessive in view of the circumstances of the case. Owing to the decision of Hon. Justice Odunga (J) in the High Court of Kenya at Machakos Appellate side petition No. E017 of 2021.

6. The appeal was canvassed by way of written submissions.

The Appellant’s Submissions 7. The appellant submitted that that the victim in the instant case did not directly testify in the court but instead her mother was called to testify on her behalf and that the mother testified in the same court on two different occasions as PW2 (B) victim’s mother and as PW4 S (victim). It was his submission that he was not informed or made aware by the court that the victim’s mother (PW4) was now testifying as the victim so as to cross-examine her as the victim and not as the victim’s mother and thus, the victim’s evidence was not accurately cross-examined by the appellant hence not tested.

8. The appellant submitted that the trial court erred in law and in fact in convicting the him relying on the evidence of an uncorroborated intermediary. It was his submission that PW1 failed to corroborate since she had no proof of recent penetration and more so penile (genital) penetration.

9. It was submitted by the appellant that the trial court erred in law and in fact in convicting him relying on the inconclusive evidence of identification as the prosecution did not give the source of light for their identification by recognition that was made as to the nature, intensity and brightness of light to be carefully tested.

10. Further, the appellant submitted that the trial court made an error in law in declaring the victim as a vulnerable witness and ordering for an intermediary then used the same witnesses regarded as vulnerable witness alongside her intermediary to prove dock identification in Court. He submitted that one cannot be partly vulnerable and partly not vulnerable or partly competent and partly not competent. It was his submission that dock identification is worthless unless supported by a properly lawfully conducted identification parade. He relied on the case of Gabriel K Njoroge v Rep. (1982-1988) KAR for this proposition.

11. The appellant submitted that recent genital or penile penetration was not proved beyond reasonable doubt pursuant to section 2 of the Sexual Offences Act No.3 of 2006 as the evidence on record was that no spermatozoa were seen during medical examination and that the hymen was broken long time ago, not freshly broken. Reliance was placed on the cases of Terekaili & Another v R 1952 EACA and the case of Joshua Muia Nzalu & Another v R 2019 eKLR

12. The appellant submitted that the trial Court erred in the law in not weighing the conflicting evidence (contradictions, discrepancies and inconsistencies) that were consequential and to conviction specifically the testimonies of PW1, PW2 and PW4.

13. The appellant submitted that the sentence was manifestly excessive in view of the circumstances of the case and in light of the advisory opinion rendered by Odunga J (as he was then) in Machakos Appellate Petition No. E017 of 2021. It was his submission that the mandatory nature of the sentence under section 8(1) (3) of the sexual offence Act was unconstitutional.

14. In mitigation, the appellant submitted that he was a first offender and prayed for forgiveness and complete leniency as he was only 19 years old and was to join university to pursue degree studies.

The Respondent’s Submissions 15. Opposing the appellant’s appeal, the Respondent filed submissions addressing several issues and urging this court to uphold the conviction and sentence imposed on the appellant.

16. On Whether the prosecution proved its case beyond reasonable doubt, it was submitted that the ingredients of the offence of defilement as set out in the case of George Opondo Olunga v Republic [2016] eKLR, are; identification or recognition of the offender, penetration, and the age of the victim were all proved beyond reasonable doubt.

17. On the age of the victim, it was submitted by the prosecution that the evidence of PW2 who produced the victim’s baptismal card showed that the victim was born on 8th August, 2008 hence she was aged 8 years at the time of the offence, which evidence of age was never challenged by the appellant in cross examination.

18. On the element of penetration, the prosecution submitted, citing section 2 of the Sexual Offences Act which defines penetration and submitted that this element was proved by the evidence of PW1 the Clinical officer who examined the victim and produced the P3 form which showed that on examination of her genitalia, he observed that victim’s hymen was broken, but it was not fresh. That he also noted that the victim/complaint had tender labia minora and lacerations noted bilaterally. Further, that the victim informed PW2 her mother that she had been given the ten-shilling coin by the appellant after he had defiled her in the bushes. It was further submitted that from the victim’s evidence as assisted by her intermediary PW4 , she stated that the Appellant got a hold of her and took her to the bush, ‘he removed his thing and put it in my thing…He removed his thing for going for short call and put it in the thing I use to urinate with.’

19. Further submission was that the observable injuries on the genital organs of PW4 as observed by PW1, an independent witness, corroborate and prove the ingredient of penetration beyond reasonable doubt, which evidence was not challenged in cross examination or in defence.

20. On Identification or recognition of the offender, it was submitted relying on the case of Peter Musau Mwanza v Republic [2008] eKLR, where the Court of Appeal stated that:“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognise a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident.”

21. It was submitted that the victim informed her mother PW4 that it was ‘Raila’, the Appellant who gave her the 10-shilling coin after taking her to the bush and defiling her. Further, that PW2 testified that she knew ‘Raila’, the Appellant, who was a barber, and that she had known him for a few months before the incident. It was submitted in contention that both PW2 and PW4 recognized the Appellant as ‘Raila’ in the dock.

22. It was further submitted by the prosecution counsel that the Appellant did not in his cross examination, challenge the fact that PW2 and PW4 knew him before the incident. Further, that he also admitted in his defense that he was in fact working at a barber shop at the time, and that he knew the victim (PW4) and her mother (PW2). It was therefore submitted that the ingredient of recognition was also proved to the required standard.

23. On whether the trial court lawfully applied protective measures to the victim, it was submitted relying on the provisions of section Section 31(1)(a) and (c) of the Sexual Offences Act, 2006, which provides for the need to protect vulnerable victims of sexual offences by declaring them vulnerable witnesses, and applying protective measures, including directing that the witness shall give evidence through an intermediary- Section 31(4)(c) of the Sexual Offences Act, 2006, and Article 50 (7) of the Constitution of Kenya, 2010. Reliance was placed on the case of Kennedy Chimwani Mulokoto v Republic, Eldoret High Court Criminal Appeal No. 51 of 2011, where Ochieng, J. found that the trial magistrate properly appointed as an intermediary, the mother of a 3-year-old girl, a victim of defilement who was unable to testify, due to her tender years. The learned Judge stated that : -“When the mother of the little girl gave her evidence, she was deemed to be giving evidence on behalf of that little girl…. Therefore, for all intents and purposes, when the mother of the little girl gave evidence, she did so as a legally recognized intermediary, for and on behalf of the little girl. Such evidence was admissible.”

24. It was therefore submitted that the trial magistrate lawfully applied herself in appointing and admitting the evidence of the intermediary. Further, that in any event, the Appellant did not oppose the application to appoint an intermediary, and that he had the opportunity to test the evidence of the victim through the intermediary.

25. On Whether the defense places doubt on the Prosecution’s case, it was submitted that the defense was an afterthought, as the issue of a grudge between PW2 and the Appellant was not raised during cross-examination of PW2.

26. On whether the sentence imposed is/was manifestly harsh and disproportionate, it was submitted that Section 8(3) of the Sexual Offences Act, 2006, provides for a mandatory minimum sentence of not less than twenty years for defilement on a child of between the age of twelve and fifteen years.

27. To this end, the Respondent appreciated and submitted itself to the position of the superior courts in the locus classicus case of Francis Karioko Muruatetu & another – v- Republic, whose principles were applied by the Court of appeal in Evans Wanjala Wanyonyi -v- Republic [2019] eKLR, as well as other decisions in Christopher Ochieng – v- R and Jared Koita Injiri – v- R, Kisumu Criminal Appeal NO. 93 of 2014 and left it to court to apply itself to the issue of interfering with the sentence of the trial court, which applied the mandatory sentence in sentencing the Appellant.

28. Counsel urged this court to uphold the conviction of the appellant and dismiss the appeal against conviction.

Analysis of the evidence before the trial court 29. I have considered the appeal herein and the submissions by both the appellant and the prosecution counsel for the respondent. I find the main issue for determination to be whether the appellant’s conviction was safe and sound and whether the sentence imposed was harsh and excessive in the circumstances.

30. The role of this appellate Court of first instance is well settled. It was held in the case of Okemo v R (1977) EALR 32 and further in the Court of Appeal case ofMark Oiruri Mose v R(2013) eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

Evidence 31. George Ombwa, a clinical officer testified as PW1 and produced the complainant’s P3 form which he had filled and signed as PEx1. It was his testimony that he examined the complainant S.A. aged 12 years old and found that she had been defiled by a person known to her on the 12. 9.2020 at 7pm in a bush near their home in [particulars withheld] village. PW1 testified that the complainant had already changed clothes. He stated that upon examination of the complainant, he found the complainant’s hymen was broken though not freshly broken and that she had a tender labia minora and lacerations noted bilaterally. He testified that there was no vaginal discharge.

32. PW1 concluded that the nature of offence against the complainant was defilement. He further testified that the complainant had mild retardation and needed a special school as she suffered from poor long-term memory, altered concentration and low mental ability as per PEx2, the PRC form that he filled on the 14. 9.2020.

33. The complainant was taken through a voire doire and found understanding of the nature of an oath but subsequently after mental examination was declared a vulnerable witness and one BAO, her mother, was appointed as her intermediary.

34. PW2, BAO, the complainant’s mother testified that the complainant was 12 years old having been born on 8/8/2008 as per her baptismal card. It was her testimony that on 11/9/2020 at about 6:00pm she arrived home and did not find S.A. She searched for her daughter and found her sited in the kitchen at 10pm and asked her where she had been but the girl did not respond because she had difficulty speaking. PW2 testified that S.A. was holding 10-shilling coin and on being questioned as to where she had got it from, S.A. informed her that Raila had taken her to the bush, defiled her, told her not to tell anybody and given her the coin. The next day, PW2 escorted the girl to hospital but that she was seen on 13th. She then reported to the police and went back to the hospital where the doctor interrogated and examined the girl then returned to the police station where a police officer interrogated the girl.

35. PW2 testified that she examined the girl’s private parts and found it was dirty with white discharge and swollen. She stated that S.A. informed her that Raila the barber, had defiled her. PW2 she knew Raila the barber and identified him as the accused in the dock.

36. In cross examination, PW2 stated that S.A. did not take a bath until she was examined on the 13. 9.2020 as they did not find a doctor to examine her when they first took her to hospital.

37. PW3, No. 256140 P.C Brigit Nyangesa, the investigating officer testified that on 13/9/2020 at 1400hrs, she was instructed by her in charge to investigate the case of defilement and that she escorted the complainant to Got Agulu Hospital where she was examined and a P3 form filled. It was her testimony that in the course of her investigations, she realized that the complainant had a mental issue and took her to hospital for mental assessment. She further testified that on 14/9/2020, the accused was arrested. It was her testimony that going by the P3 form and statements, she preferred charges against the accused person and that she interrogated the complainant and found that the complainant was able to communicate with her though a little slow. She produced a baptismal card for the complainant as PEx 4showing that she was born on 8/8/2008. PW3 identified the appellant herein in court.

38. In cross examination, PW3 admitted that it was the complainant’s mother who stated that the girl had dirt on her pant though she never saw the pant. She further stated that she visited the scene and that it was bushy.

39. The complainant testified through her intermediary as PW4. It was her testimony that she did not know how old she was. She said that she remembered Raila got a hold of her hand and took her to a bush. She said that he put his thing inside her thing on the day she was with her mother at [particulars withheld] Market. PW4 testified that Raila was the accused person in court.

40. PW4 restated that Raila removed his thing for going for short call and put it the thing she uses to urinate. It was her testimony that she knew Raila as she used to see him in the center. She said that Raila then gave her 10 shillings and told her not to tell anybody. It was her testimony that she went home where she found her shosho who removed all her clothes and she told her what had happened.

41. PW4 testified that after that, she was taken to the hospital by her mother because she was sick and having headache. She testified that she told her mother what happened to her and that it was Raila who had done it to her after which they went to the police station. PW4 testified that she could not recall when Raila did the act to her.

42. In cross examination, PW4 stated that on that day, she was with her mother not her grandmother. She further stated that the accused took her when it was evening and left her when it was night. PW4 was adamant that the accused defiled her from 7pm to 10pm. She said that at 6:30pm she had been sent by her mother.

43. PW5 Dr. Lucy Ombok testified on behalf of Dr. Nyaura who she said had since died and she produced the complainant’s mental assessment report, PEx5, stating that upon mental assessment, the complainant had mild moderate mental retardation.

44. Placed on his defence, the appellant elected to give a sworn statement. It was his testimony that on the day he was alleged to have defiled the girl, he was working at a barber shop and that he was not going to school due to Corona. He testified that at 11am, three men arrived and told him to shave them and that after he had shaved one, the other two went outside and returned with a rope and tied him telling him that he had defiled a girl the previous day. That he was taken to the police station where he saw the mother to the complainant arrive and speak to the police. He said that at the time it as alleged that he defiled the girl, he was in the house with his roommate watching the 7pm news. He said that he had not known the child allegedly defiled by him. He said that they slept at 10:20pm on 12/10/2020.

45. In cross examination, the appellant stated that at the time of the offence, he was watching news at his boss’, Benard Otieno’s, shop. He said that he started working there in April after CORONA started. He said that he had worked for the mother to the complainant in her barber shop for about 1 month. He said that he knew the complainant very well. He said that there was a grudge between him and the complainant’s mother since he left her employment with some customers in 2020. He reiterated that he slept at 10. 20pm om 12. 10. 2020.

46. In re-examination, the appellant stated that he did not know the actual dates because his statements were destroyed.

Determination 47. I have considered the appellant’s grounds of appeal, the evidence adduced before the trial court as well as the submissions filed and the applicable law in this appeal. The main issues for determination are:a.Whether the prosecution case was proven beyond reasonable doubt andb.Whether the appellant’s sentence was excessive and harsh.

48. In addition to the aforementioned issues, I will also consider the grounds raised in the appellant’s petition and supplementary petition as well as the submissions.

Whether the prosecution proved its case beyond reasonable doubt 49. The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The ingredients of the offence of defilement were set out in the case of George Opondo Olunga v Republic [2016] eKLR, where it was stated that the ingredients of an offence of defilement are; identification or recognition of the offender, penetration and the age of the victim. The prosecution was under a duty to establish or prove all the above elements of defilement beyond reasonable doubt. That duty or burden of proof does not shift to the accused person who is under no duty to adduce or challenge evidence adduced by the prosecution witnesses.

50. On the identity of the appellant, the complainant testified that she knew the appellant prior to the offence as she used to see him at the centre. In her testimony the complainant kept referring to Raila as her defiler. PW2 testified that the complainant told her that Raila the barber defiled her.

51. In his defence, the appellant in his examination in chief initially testified that he did not know the child he was alleged to have defiled. However, in cross-examination, the appellant admits to knowing the victim very well. In his supplementary grounds of appeal, the appellant impugns his conviction on account of dock identification which he terms worthless.

52. In my view, the complainant was firm and resolute in naming and shaming her defiler. She repeatedly stated in her testimony that Raila was the one who defiled her. According to her mother, PW2, the complainant further and stated that it was Raila the barber who defiled her. The appellant in his defence stated that he used to work as a barber for the complainant’s mother before leaving and going to work for someone else. Contrary to the appellant’s submissions, the dock identification in this case was in addition to prior recognition by the complainant. To this end, I find that the appellant was not only identified but recognized as a person well known to the complainant beyond reasonable doubt.

53. Regarding the complainant’s age, PW2, the complainant’s mother testified that the complainant was born in 2008 specifically 8/8/2008. A baptismal card was presented as an exhibit showing that the complainant was born on 8/8/2008. A quick calculation shows that she was 12 years at the time of the offence, as contemplated under sub section 3 of section 8 of the Sexual Offences Act. I therefore find that the prosecution proved the element of age of a minor beyond reasonable doubt.

54. On proof of penetration, “Penetration” is defined under Section 2 of the Act to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. The complainant testified that she was taken to the bushes by the appellant Raila and he took his thing which he uses to go to a short call and he put it in her thing which she uses to urinate after which he gave her ten shillings and told her not to tell anyone. Her mother testified that she found with the complainant a ten shilling coin which she stated was given to her by Raila.

55. On his part the appellant denied committing the offence, he pleaded in his grounds of appeal as well as his submissions that penetration was never proved as the evidence on record was that no spermatozoa were seen during medical examination and that the hymen was broken long time ago, not freshly broken. He also alleged that he was watching television at his boss’ house when the alleged offence took place.

56. PW1, the clinical officer who examined the complainant concluded that the complainant was defiled. The complainant herself on numerous instances testified that the appellant defiled her. The complainant despite her mild mental illness was very specific and stated that “Raila removed his thing for going for short call and put it the thing she uses to urinate then gave her 10 shillings and told her not to tell anybody.”

57. Section 124 of the Evidence Act provides that:“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 proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence 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 offence, 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.”

58. The evidence of the complainant on the fact of her being defiled was corroborated by that of PW1, the clinical officer as indicated in the PEx2 (the P3 report form). This evidence adduced by the prosecution when juxtaposed with the defence set by the appellant, that his arrest was as a result of a grudge between himself and the complainant’s mother whom he previously worked for, falls short. The appellant’s defense in my view is an afterthought.

59. The appellant submitted that there was a myriad of inconsistencies, contradictions and discrepancies in the testimonies of PW1, the clinical officer, PW2, the complainant’s mother and PW4, the complainant. I have considered the said testimonies and in my view they corroborate each other. I find no material contradiction in that evidence to void the appellant’s conviction.

60. The Court of Appeal addressed itself on the issues of contradictions in the case of Richard Munene v Republic [2018] eKLR stated as follows:“It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”

61. Accordingly, it is my opinion that there was no material contradiction in the prosecution case during the trial so as to prejudice the appellant.

62. On the contrary, I find that there were material contradictions and discrepancies in the appellant’s defence. In one instance in his examination in chief, the appellant states that he does not know the child he was alleged to have defiled. However, in cross-examination, the appellant admits to knowing the victim very well.

63. In the circumstances, I find that the prosecution proved penetration beyond reasonable doubt.

64. The appellant pleaded in his grounds of appeal that the investigations were shoddy and not enough to sustain a conviction. I have perused the evidence adduced by the prosecution and as previously herein held find that the same was sufficient to uphold the appellant’s conviction on the charges brought against him.

65. Finally, the appellant submitted that the victim in the instant case did not directly testify in the court but instead her mother was called to testify on her behalf and that the mother testified in the same court on two different occasions as PW2 (B) victim’s mother and as PW4 S (victim), and that he was not informed or made aware by the court that the victim’s mother (PW4) was now testifying as the victim so as to cross-examine her as the victim and not as the victim’s mother. I observe the following: The use of an intermediary in evidence in trials involving sexual offences was introduced through the enactment of the Sexual Offences Act, 2006 and extended to other trials through Article 50 (7) of the Constitution of Kenya, 2010 which stipulates that:“(7) In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.”

66. According to section 2 of the Sexual Offences Act, an intermediary is defined to mean inter alia, a person who gives evidence on behalf of a vulnerable witness.

67. However, Section 31 (1) of the Act provides inter alia that: -“A court shall not convict an accused person charged with an offence under this Act solely on the uncorroborated evidence of an intermediary.”

68. The role and place of an intermediary was explained by the Court in M M v RepublicNRB Criminal Appeal No. 41 of 2013 (2014) eKLR as follows:“Is an intermediary the mouth piece of the vulnerable witness or is he or she the witness? According to section 2 of the Sexual Offences Act, an intermediary is defined to mean among other things, a person who gives evidence on behalf of a vulnerable witness.Section 31(1) provides inter alia that:-A court shall not convict an accused person charged with an offence under this Act solely on the uncorroborated evidence of an intermediary.We have seen that in Article 50(7) of the constitution an intermediary is a medium through which the accused person or complainant communicates with the court. In our understanding, the evidence to be presented is not that of the intermediary himself or herself but that of the witness relayed to court through the intermediary. The intermediary’s role is to communicate to the witness the questions put to the witness and to communicate to the court the answers from the victim to the person asking the questions, and to explain such questions or answers, so far as necessary for them to be understood by the witness or person asking questions in a manner understandable to the victim, while at the same time according the victim protection from unfamiliar environment and hostile cross-examination; to monitor the witness’ emotional and psychological state and concentration, and to alert the trial court of any difficulties.The key word in sub section 7 is emphasized as shown below to demonstrate the place of the intermediary’s evidence.If a court directs that a vulnerable witness be allowed to give evidence through an intermediary, such intermediary may;a.Convey the general purport of any question to the relevant witness.b.Inform the court at any time that the witness is fatigued or stressed andc.Request the court for a recess.The word “through” is used also in subsection 4(b) in describing the protection of the witness by providing an intermediary through whom his evidence is relayed. It is the witness who gives the evidence which is explained, communicated to the court and the reverse through an intermediary in the manner and style developed between the two.

69. In the instant case, I note that the complainant was properly declared a vulnerable witness, that the evidence by her intermediary was from her and that the appellant was granted adequate opportunity to cross-examine the complainant which according to the record he did. In addition, her evidence through the intermediary was well corroborated by the evidence of PW1 the Clinical Officer who upon examining her found that she was defiled. The allegation that there was no spermatozoa hence no defilement has no basis as it is not in all cases of defilement that there is ejaculation of spermatozoa.

70. Taking all the above into consideration, I am satisfied that the prosecution proved its case beyond reasonable doubt against the appellant on the charge of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. I find that the conviction of the appellant was sound and safe. I uphold the conviction and dismiss his appeal against conviction.

71. On whether the appellant’s sentence was excessive, the appellant pleaded in his grounds of appeal and submitted that his 20-year sentence was excessive in view of Article 50 (2) (p) of the Constitution. Article 50 (2) (p) of the Constitution, 2010, which provides that:“Every accused person has the right to fair trial, which includes the right.(p) to the benefit of the least severe of the prescribed punishment for an offence, if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentence:”

72. In Alister Antony Pariera v State of Maharashtra, as quoted in the case of Margrate Lima Tuje v Republic [2016] eKLR the court held that:“Sentencing is an important test in matters of crime. One of the prime objectives of the criminal law is the imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused in proof of crime. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.”

73. I note that section 8 (3) of the Sexual Offences Act provides that upon conviction the offender is liable to be imprisoned for a term of not less than twenty years. Previously, the principle laid down by the Supreme Court Francis Karioko Muruatetu & Another v Republic [2017] eKLR, was that, provisions of law which exclude or fetter discretion of a court of law in sentencing were inconsistent with the Constitution.

74. The Court of Appeal on its part stated that pursuant to the Supreme Court’s decision in the Muruatetu (2017) case, if the reasoning is applied, the sentence stipulated by section 8(2), (3) and (4) of the Sexual Offences Act which is a mandatory minimum should also be considered unconstitutional on the same basis.

75. The reasoning for the holding by the Supreme Court and the Court of Appeal was that the mandatory minimum or maximum sentences deprived the Court of its legitimate jurisdiction to exercise discretion in sentencing. It was further observed that mandatory sentence fails to conform to the tenets of fair trial which are an in-alienable right guaranteed under Articles 50 and 25 of the Constitution. See Christopher Ochieng v RepublicKSM CA Criminal Appeal No. 202 of 2011 [2018] eKLR, and Jared Koita Injiri v Republic, KSM CA Criminal Appeal No. 93 of 2014 [2019] eKLR

76. However, the Supreme Court in the case of Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR clarified the position and stated interalia that the decision in Muruatetu 2017 could not be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution but that the said decision only applied in respect to sentences of murder under Sections 203 and 204 of the Penal Code.

77. In his decision in WOR v Republic (Criminal Appeal E017 of 2020) [2022] KEHC 412 (KLR) (26 April 2022) (Judgment) Ochieng J. (as he then was) stated interalia that:“if the mandatory nature of the death penalty was declared unconstitutional, a similar reasoning can extend to mandatory sentences such as those in Section 8 of the Sexual Offences Act and that he was unable to see any distinction between the mandatory nature of the sentence for the offence of Murder, and the mandatory minimum sentence for the offence of defilement and that in his view that renders the sentence unconstitutional as the fact that the prescribed sentence completely precluded the Court from exercising any discretion, regardless of whether or not the circumstances so require.

78. This was also the holding of Odunga J (as he then was) in Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment) quoted by the appellant.

79. In my view the decision above was a persuasive decision and not binding this court. Taking into consideration the decision of the Supreme Court in Muruatetu 2021 (supra), it is clear that the mandatory sentence provided in section 8 (3) of the Sexual Offences Act is lawful. However, I am persuaded that the appellant can be given an opportunity to mitigate for resentencing in this case since he was given mandatory sentence.

80. Having considered the mitigation by the appellant and his age and remorse, I hereby set aside the mandatory minimum sentence of twenty years imprisonment imposed on the appellant and resentence John Wanga Raila to serve fifteen years imprisonment taking into account the period that he was in custody prior to his release on bond pending trial.

81. I so order. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9TH DAY OF NOVEMBER, 2022. R.E. ABURILIJUDGE