JUDGEMENT
(An appeal from judgment, conviction and sentence passed at the Chief Magistrate’s Court at Thika in Criminal (S.O) Case Number E022 OF 2022 by Honourable O.M. Wanyaga, Senior Resident magistrate, and judgement delivered on 28th day of November, 2023)
1. This is an Appeal against the judgment, conviction, and sentence delivered by Honourable O.M. Wanyaga, Senior Resident Magistrate , in Thika Chief Magistrate’s Court Criminal (S.O.) Case No. E022 of 2022 , on the 28th day of November, 2023.
Background Facts
2. The Appellant was convicted by Honourable O.M. Wanyaga, Senior Resident Magistrate, for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act (2006). The Particulars of the charge are that on the 7th day of March, 2022 at Kisii Estate in Thika West sub-county within Kiambu County, intentionally and unlawfully caused his penis to penetrate the vagina of M.N.O a child aged 7 years (SEVEN YEARS).
3. The Appellant also faced an alternative Charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (2006). The particulars of the charge are that on the 7th day of March, 2022 at Kisii Estate in Thika West Sub-County within Kiambu County intentionally touched the vagina of M.N.O a child aged 7 years with his penis.
4. The Appellant pleaded not guilty to the Charges before the Trial Court, and a full hearing was conducted. The prosecution called five (5) witnesses in support of its case.
5. At the close of the prosecution case, the Trial Court ruled that a prima facie case had been established against the Accused and he was put on his defence. He did not call any witnesses.
6. At the conclusion of the trial, he was convicted of the main charge and sentenced to serve life imprisonment in prison.
7. Being dissatisfied with the Judgment, the Accused appealed to this Court on the following grounds adduced in the Petition of Appeal dated 13th day of December 2023:
(1) The Honourable Trial Magistrate erred in fact by failing to establish that the matter of defilement before court was out of grudge between the appellant and the victim’s aunt.
(2) The Honourable Trial Magistrate erred in fact in failing to note and consider that the investigation tendered was shoddy/improper and not adding up.
(3) That the Trial Magistrate further erred in both law and facts to have relied on non-factual evidence without any tangible or concrete supporting proof from the police or the witnesses who testified against him.
(4) That the Learned Trial Magistrate further erred in both law and facts by failing to recognize that there was language barrier since the appellant is not well conversant with English and Kiswahili
(5) That the Learned Magistrate erred in law and fact by failing to appreciate the sentence of life meted upon the Appellant without promoting the spirit of fairness and constitutionalism Articles 27, 50 (2)(q) of the constitution and Section 26 (2) of the Penal Code, yet the same has overridden the proportional legal tenets of punishment thus does not achieve the objectives intended in the Sexual Offences Act No. 3 of 2006 and goes against the new developments in matters law.
(6) That the Learned Trial Magistrate erred in law and fact in finding that the prosecution proved its case beyond reasonable doubt ignoring the fact that there was no proof as to what caused penetration and how the same occurred.
(7) The learned Magistrate erred in law and in fact by failing to considered that the prosecution did not prove its case beyond reasonable doubt as there was no proof that any penetration was caused by the Appellant.
(8) The Learned Magistrate erred in law and in fact by failing to considered that the prosecution did not prove its case beyond reasonable doubt as crucial witnesses were never called to testify
(9) The Learned Magistrate erred in law by placing reliance on the uncorroborated testimony of a child of tender years.
(10) The Honourable Trial Magistrate erred in law by sentencing the appellant to life imprisonment ignoring mitigating factors and the unconstitutionality of the sentence.
8. The Appeal was canvassed by way of written submissions.
Respondent’s Case before the Trial Court
9. The Court examined PW1 conducted a voire dire and determined that the minor has sufficient intellect to understand importance of oath and telling the truth and as such she proceeded to give sworn evidence.
10. PW1 M.N.O. testified that she was at her aunt’s shop on the material date on the 7th March, 2022 in the evening. It was her testimony that one Moha who was in the shop told her to follow him to go buy a sweet. It was then that he took PW1 to a bush then proceeded to remove PW1’s short and panty, although he didn’t remove PW1’s top. Then, he removed his trouser and the inner wear, made PW1 lie on the ground and do to him ‘tabia mbaya’. It was her further testimony that He blocked PW1’s mouth so that he didn’t scream. And then put his private part to her private part. PW1 explained to the Trial Court that the private parts are used to ‘sussu’ and that even the Appellant’s was used for ‘sussu.’
11. PW1 also testified that he took her back to her aunt’s shop. PW1 cried and then told the truth. It was her testimony that the Appellant was a customer at the shop, he was a friend to the father of PW1. PW1 testified that she was taken to hospital at medical. PW1 was able to identify Moha as the accused before court.
12. During cross-examination, PW1 testified that the accused did ‘tambia mbaya’ and then returned her to her aunt’s shop. It was also her testimony that her mother didn’t beat her at the police station.
13. PW2, P.M., testified that she was the mother to PW1 and that on the material date 7th March, 2022, she was called by her sister’s child who asked her to go to the police station at Makongeni. PW2 further testified that she rushed there and was informed that her child (PW1) had been defiled. It was also her testimony that her father came and they went to hospital. She produced the P3- MFI 1 and PRC- MFI 2. PW2 also testified that PW1 was given medication some were for preventing HIV. It was also her testimony that PW1 told her that while at PW1’s sister’s shop, the accused called her to go buy her a sweet. He then took her to the bush and that he was a customer to both PW2 and the sister to PW2. She also testified that he had never had a dispute with the accused.
14. During cross-examination, he testified that she knew the accused and that the accused was there when the child was questioned.
15. PW3, R.K, testified that on the material date 7th March, 2022 at around 6.30 p.m., she was with PW1 at the shop. It was her testimony that at 3 PM, she went to Chania and that she left the child with Kendi. When she got back, Kendi asked her where the child was. They started looking for her. Njeri told them that she had seen the accused with PW1 and that after 30 minutes the accused and PW1 came. It was her further testimony that she asked PW1 where she was and she started screaming. PW3 grabbed Ahmed to restrain him. It was then when PW1 narrated how the accused took her to a bush and defiled her. Those around her assisted her to take the accused to the police since he wanted to escape. She raised alarm. It was also her testimony that they took him to Makongeni Police Station. PW3 identified the Appellant as the one who defiled PW1 and that they didn’t have any prior grudge and that he was her customer.
16. During cross-examination, PW3 testified that a relative could be a witness and that it depended on who witnessed the incident. She also testified that she gave testimony on what she witnessed. It was also her testimony that when the child started crying, she got concerned and grabbed the accused. She suspected foul play although she did not witness the actual defilement. It was also her testimony that the doctor would give his/her evidence.
17. PW4, George Maingi testified that he was a clinical officer at Thika Level 5 Hospital. He testified that he was there on behalf of Dr. Joel who had since been transferred. It was PW4’s testimony that he had the PRC for M. N. O. who was attended on the 7th March, 2022. He testified that the incident happened on that day and that the perpetrator was a neighbour. He testified that he accused took PW1 to a bush and promised to buy her a sweet. PW4 testified that the vaginal opening was reddish and had a discharge. The top was torn. The HVS revealed pus cells. PRC was filled the same day, which he wished to produce it -Ex. 2. PW4 also testified that he had the P3 and that it was just like the PRC. He testified that the girl was aged 7 years, the hymen was not intact and that it was not indicated if it was freshly torn. PW4 wished to produce it-Ex.1. During cross-examination, PW4 testified that he couldn’t tell why accused was not examined.
18. PW5, No. 58401 CPL Sabina Yorna attached at Gatundu North Sub County testified that she was the investigating officer. It was her testimony that she recalled on the 8th March 2022. She went to the office, she went through the occurrence book and she had been assigned this case which was defilement. It was her testimony that the complainant was seven (7) years old. She had come with relatives. PW5 testified that she contacted them and interrogated them. She talked to the child in the absence of the relatives and PW1 told her that she was in a shop belonging to one relative. The accused took her pretending he wanted to buy her sweets, he took her to a bush and raped her. The accused returned the child who was crying. The relatives interviewed the child. The accused tried to flee. He was restrained by the relatives and neighbours took the accused to the police station. It was also PW5’s testimony that te accused was well known to the child. PW5 testified that the child had been taken to hospital. PW5 issued them with a P3. The accused was later charged. She wished to produce the birth certificate which indicated that the minor was born on the 4th January, 2015 - Ex. 3. PW5 was also able to identify the accused as the one before Court.
19. During cross-examination, PW5 testified that the child was defiled and that the child knew well the accused. That the child described what the accused did to her and that the Appellant didn’t think the child would tell on him.
Appellant’s Case before the Trial Court.
20. The Appellant, giving unsworn testimony testified that he used to work with parcel vehicle and that he lived in Makongeni. It was his testimony that on the 7th March, 2022, he was at a miraa base and that they claimed he had defiled the girl and arrested him. It was also his testimony that he didn’t run since he had committed no offence. He urged the court to acquit him.
The Appellant’s Submissions
21. It was submitted that the Learned Trial Magistrate erred in facts by failing to establish that the matter of defilement before Court was out of grudge between the Appellant and the victim’s aunt. It was submitted that the Honourable Court failed to properly consider and establish that the matter of defilement arose out of a family grudge between the Appellant and the victim’s aunt. That the relationship between the Appellant and the victim’s family as neighbours presented a high probability of underlying family disputes, which may have motivated the false accusations.
22. It was also the Appellant’s submission that the victim admitted that she was tricked into going to buy a sweet. However, she did not provide crucial details that would have supported her version of events, such as whether the sweet was actually bought, where it was bought, or why it was not purchased from her aunt’s shop. The lack of these specifics raised doubts about the credibility of her testimony and whether the alleged defilement occurred at all. The Trial Court failed to address these inconsistencies, which should have weighed in favor of the Appellant.
23. On hearsay Evidence of PW1, PW2 and PW3, the Respondent argued that the Trial Court further erred by relying on the testimonies of PW1, PW2 and PW3. That the testimonies were based on hearsay evidence. Neither PW1 nor PW2 witnessed the alleged defilement, nor did they provide direct evidence linking the Appellant to the offense. That this ought to have been an eye opener for possible family dispute as only close family members testified. The law was clear that hearsay evidence could not be relied upon to secure a conviction in serious criminal matters such as defilement. The Trial Court should have dismissed this evidence for lack of direct observation or corroboration.
24. The Appellant also submitted that there was a possibility of a family grudge in that the Appellant and the victim’s family were neighbours, which created a high likelihood of existing family tensions or disputes. The Trial Court failed to properly investigate this possibility. It was submitted that the allegations of defilement may have been fabricated as part of a vendetta arising from prior family conflicts. The Trial Court should have considered this possibility when weighing the credibility of the prosecution’s case.
25. The Appellant urged the Court that the principles in Paul Mwangi Murunga v Republic [2008] eKLR are instructive. In that case, the Court emphasized the importance of scrutinizing the possibility of ill motives, especially in cases involving family disputes. The Court of Appeal quashed the conviction on the basis that the prosecution had failed to rule out a potential grudge between the accused and the complainant’s family. Similarly, in the present case, the Court ought to have seriously considered the likelihood of a family grudge and its influence on the victim’s testimony. As such the Trial Court erred by not investigating the likelihood of a family grudge between the Appellant and the victim’s aunt, which could have led to the false accusations. The reliance on hearsay evidence from Pw1 and Pw2 further weakened the prosecution’s case. As such, the Appellant’s conviction should be quashed, and the sentence set aside.
26. It was also submitted that the Learned Trial Magistrate erred in law and in facts by convicting and sentencing the Appellant to life imprisonment. This was without any credible evidence from the doctor’s evidence. It was submitted that the Honourable Court erred in law and fact by convicting and sentencing the Appellant to life imprisonment without credible medical evidence to support the charge. The conviction was based on insufficient and inconclusive evidence, specifically the lack of proper medical findings and forensic corroboration, which should have raised reasonable doubt in the Trial Court.
27. The Appellant postulated that there was lack of medical evidence on hymen condition arguing that the medical report presented during the trial did not establish whether the victim’s hymen was freshly torn at the time of examination. The fact that the victim was taken to the hospital on the same day of the alleged incident means that this crucial detail should have been properly documented and communicated by the medical examiner. The omission of such significant medical findings diminishes the probative value of the doctor’s testimony and leaves the question of whether the alleged defilement occurred uncertain.
28. It was also his submission that there was absence of forensic evidence linking the Appellant to the Offence. That as such the Trial Court further erred by failing to acknowledge the absence of forensic evidence that could have definitively linked the Appellant to the offence. Despite the accused being arrested on the same day, neither the doctor nor the investigating officer took steps to confirm the presence of spermatozoa on the victim, or whether such spermatozoa matched the Appellant’s. Such scientific evidence is crucial in defilement cases to establish whether penetration occurred and whether the appellant was responsible.
29. The Appellant submitted that there was failure to address reasonable doubt. That given the lack of conclusive medical and forensic evidence, the Trial Court should have raised reasonable doubt as to whether the prosecution had proved its case beyond a reasonable doubt. The Appellant’s right to a fair trial, including the right to be convicted based on credible and reliable evidence, was violated. The failure to provide key medical findings, such as the condition of the hymen or the presence of spermatozoa, casts significant doubt on the reliability of the conviction.
30. He urged Court to be guided by Philip Muiruri Ndaruga v Republic [2016] eKLR, where the Appellate Court quashed a conviction for defilement on similar grounds. In that case, the Court held that where there is a lack of credible medical or forensic evidence to support the charge, the conviction cannot be sustained. The absence of proper medical findings and forensic corroboration significantly weakened the prosecution's case and resulted in a miscarriage of justice.
31. In light of the above, it is submitted that the Trial Court erred in convicting and sentencing the Appellant to life imprisonment without credible medical and forensic evidence. The conviction should be quashed, and the sentence set aside on grounds of insufficient and unreliable evidence.
32. It was also submitted that the Learned Trial Magistrate erred in facts in failing to note and consider that the investigation tendered was shoddy/improper and not adding up. The Appellant submitted that the Honourable Court erred in fact by failing to note that the investigation into the matter was shoddy, improper, and did not add up to a reliable case against the Appellant. The investigative process was incomplete and lacked critical verification of facts, raising serious doubts about the prosecution’s case.
33. It was the Appellant’s argument that there was a failure to visit the scene of the alleged incident. The investigating officer did not visit the scene of the alleged incident to verify whether the area was indeed bushy as claimed by the prosecution. The absence of such a crucial investigative step deprived the Court of a clear understanding of the physical surroundings where the alleged act occurred. Hence, making it impossible to determine whether the scene could have facilitated the alleged defilement. The lack of a scene visit amounts to a serious flaw in the investigative process, leading to unreliable conclusions.
34. The Appellant also submitted that there was reliance on hearsay evidence as the court relied heavily on hearsay evidence provided by witnesses who did not observe the incident firsthand. The testimonies of the prosecution witnesses were all based on information relayed to them. That none of the witnesses provided direct evidence linking the Appellant to the alleged crime. Hearsay evidence, as a rule, is inadmissible in serious criminal cases, particularly where there is no corroborative direct testimony. This reliance on second-hand accounts significantly weakened the prosecution’s case.
35. It was also submitted on the public nature of the alleged scene of the incident. That the Appellant is said to have committed the alleged act on a public road used by members of the public. Given the public nature of the location, it is highly unlikely that such an act could have been committed without attracting the attention of passersby or other members of the public. The prosecution failed to call any independent witnesses from the public who may have been present at the scene, raising doubt as to whether the alleged incident occurred at all.
36. The Appellant contends that the principles in James Muthee Ngei v Republic [2011] eKLR are applicable in this case. In that matter, the Court held that where investigations are shoddy or incomplete, and the evidence presented by the prosecution is unreliable, the Court cannot safely convict an accused person. The Court quashed the conviction on the grounds that the investigating officer had failed to visit the scene, collect vital evidence and verify crucial facts.
37. In light of the above, it was submitted that the Trial Court erred in failing to note that the investigation was shoddy and incomplete. The investigating officer did not visit the scene, hearsay evidence was improperly relied upon, and the medical evidence was presented by a person who did not examine the victim. These critical investigative and evidentiary flaws raised serious doubt as to the guilt of the Appellant. The conviction should, therefore, be quashed, and the sentence set aside.
38. It was also submitted that the Learned Trial Magistrate further erred in both law and facts by failing to recognize that there was language barrier since the Appellant is not well conversant with english and Kiswahili. It was submitted that the Honourable Court erred in both fact and law by failing to recognize and address the language barrier that significantly affected the Appellant’s ability to fully participate in the trial. The Appellant is not conversant with English and Kiswahili. That the Trial Court failed to provide a proper interpretation of the proceedings, thus denying the Appellant his constitutional right to a fair hearing.
39. It was his contention that there was failure to ascertain the Appellant’s preferred language. That it is evident from the Court proceedings that the Trial Court never ascertained the language that the Appellant fully understands and is comfortable using. The record does not indicate that the Appellant was asked which language he prefers, nor does it show that an interpreter was provided to ensure that he understood the proceedings. The failure to ask and provide for the Appellant’s linguistic needs is a serious violation of his right to a fair trial under Article 50(2)(m) of the Constitution of Kenya. This article guarantees an accused person the right to have the assistance of an interpreter if they cannot understand the language of the Court.
40. The Appellant also submitted that it had an impact on cross-examination. That due to the language barrier, the Appellant was unable to actively and meaningfully participate in the trial, especially during cross-examination. The Appellant was deprived of the opportunity to ask critical questions that could have challenged the prosecution’s evidence and exposed inconsistencies. The right to cross-examine witnesses is fundamental to ensuring fairness in a trial. That the Appellant’s inability to do so due to the language barrier severely compromised his defense.
41. The language barrier also contributed to the Appellant’s inability to present a strong and coherent defense. Given that the appellant could not follow the proceedings adequately, he was unable to respond effectively to the charges, question witnesses, or highlight the loopholes in the prosecution’s case. As a result, the Appellant’s defense was weak and incomplete, not because of lack of merit, but due to his lack of understanding of the Court proceedings.
42. The Appellant urged Court that in David Njoroge Macharia v Republic [2011] eKLR, the Court of Appeal held that the right to a fair trial is one of the cornerstones of justice. That it cannot be undermined by language barriers or lack of understanding of the proceedings. The Court emphasized the necessity of providing an interpreter in cases where the accused person does not understand the language of the Court. The Court quashed the conviction in that case because the Appellant had not been provided with an interpreter, rendering the trial unfair. Similarly, in the present case, the failure to provide an interpreter prejudiced the Appellant’s right to a fair trial, leading to an unsafe conviction.
43. It was submitted that the Trial Court erred by failing to address the language barrier that existed throughout the trial. The Appellant was denied a fair trial because he could not understand the proceedings, ask cross-examination questions, or present a proper defense. In light of the violation of his constitutional rights and the principles established in case law, it is respectfully submitted that the conviction should be quashed, and the sentence set aside.
44. It was submitted that the Learned Trial Magistrate erred in law and facts by appreciating the sentence of life meted upon the Appellant without promoting the spirit of fairness and constitutionalism (art. 27, 50 (2) (p) of the Constitution and section 26 (2) of the Penal Code. Yet the same has overridden the proportional legal tenets of punishment and does not achieve the objectives intended in the Sexual Offenses Act No. 3 of 2006. That it goes against the new developments in matters law. Moreover, recent legal developments concerning life sentences require the Court to reconsider such severe penalties to ensure they align with constitutional values.
45. The Appellant contends that there is disregard for proportionality and fairness because the Court failed to appreciate that the sentence of life imprisonment. That in this case, it was disproportionate to the facts and circumstances of the case. Article 50(2)(p) of the Constitution of Kenya guarantees every accused person the right to the benefit of the least severe of the prescribed punishments. While the Sexual Offences Act provides for harsh penalties, including life imprisonment, the Court should have exercised judicial discretion to assess whether a life sentence was truly justified and proportional to the nature of the offense and the circumstances of the appellant.
46. The Appellant urged Court that in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, the Supreme Court of Kenya held that mandatory life sentences are unconstitutional. This is because they deprive Courts of the discretion to tailor punishments that fit the unique facts of each case. This principle applies to sentences under the Sexual Offences Act as well. The Trial Court, in this case, erred by not promoting the principles of fairness and proportionality. That these are critical to ensuring justice is done not only to the victim but also to the accused.
47. The Appellant also urged the Court that the objectives of sentencing under the Sexual Offences Act No. 3 of 2006 was enacted with the primary objectives of deterring sexual offenses, rehabilitating offenders, and protecting society from repeat offenders. However, these objectives must be balanced against the constitutional rights of the accused. Life sentences should only be imposed where they are necessary to meet the objectives of deterrence and rehabilitation, and where no other punishment would suffice. In this case, the Trial Court did not adequately consider whether the lesser sentence could have achieved the same objectives given the specific circumstances of the case.
48. It was also his contention that there was failure to consider the Appellant’s personal circumstances because the Court also failed to consider the Appellant’s personal circumstances, including his background, remorse (if any), and potential for rehabilitation. The principle of individualized sentencing, emphasized by the Supreme Court in Muruatetu’s case, requires Courts to take into account the personal circumstances of the offender. This is to ensure that the punishment fits both the crime and the individual. Imposing a life sentence without considering these factors undermines the fairness and constitutional balance required in the sentencing process.
49. The Appellant urged the Court to consider recent developments on life sentences. That these have highlighted the need to move away from mandatory or disproportionately harsh sentences that do not align with the objectives of the law or the principles of fairness. In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal reiterated that sentencing in sexual offenses must adhere to the principles of fairness and proportionality. The Court emphasized that life sentences, while permissible, must be applied judiciously and with regard to the facts of the case, and should not be used mechanically or as a default punishment. The decision to impose a life sentence should be carefully justified based on the unique circumstances of each case.
50. It is submitted that the Trial Court erred in law and fact by imposing a life sentence without promoting the spirit of fairness, constitutionalism, and proportionality. The sentence of life imprisonment was disproportionate in the circumstances of the case and failed to achieve the objectives of the Sexual Offences Act in a manner that is consistent with constitutional values. In light of recent legal developments, including the principles set out in Muruatetu and Kilwake, it is respectfully submitted that the life sentence should be reconsidered and set aside. That a more appropriate, proportional sentence should be imposed.
The Respondent’s Submissions
51. The Appeal is strongly opposed by the State.
52. On the issue of age, it was submitted that the complainant testified she was 7 years. That this was corroborated by the mother PW2 and the investigating officer who produced her birth certificate as exhibit 3 confirming date birth as 4th January 2015. It therefore meant that the complainant was aged 7 years at the time of the commission of the crime. Therefore, in the bracket defined by section 8(2) of the Sexual Offences Act, and as such, the prosecution proved the age of the complainant. Accordingly, the Trial Court came to the right conclusion that the age of the victim had been sufficiently proved. Reliance was placed in Mwalango Chichoro Mwanjembe v Republic (2016) eKLR.
53. On penetration, it was submitted that PW1 testified that the Appellant removed her short and panty. That he also removed his trouser and inner wear, and then inserted his penis into her vagina. PW4 a clinical officer prod
[...truncated]
(An appeal from judgment, conviction and sentence passed at the Chief Magistrate’s Court at Thika in Criminal (S.O) Case Number E022 OF 2022 by Honourable O.M. Wanyaga, Senior Resident magistrate, and judgement delivered on 28th day of November, 2023)
1. This is an Appeal against the judgment, conviction, and sentence delivered by Honourable O.M. Wanyaga, Senior Resident Magistrate , in Thika Chief Magistrate’s Court Criminal (S.O.) Case No. E022 of 2022 , on the 28th day of November, 2023.
Background Facts
2. The Appellant was convicted by Honourable O.M. Wanyaga, Senior Resident Magistrate, for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act (2006). The Particulars of the charge are that on the 7th day of March, 2022 at Kisii Estate in Thika West sub-county within Kiambu County, intentionally and unlawfully caused his penis to penetrate the vagina of M.N.O a child aged 7 years (SEVEN YEARS).
3. The Appellant also faced an alternative Charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (2006). The particulars of the charge are that on the 7th day of March, 2022 at Kisii Estate in Thika West Sub-County within Kiambu County intentionally touched the vagina of M.N.O a child aged 7 years with his penis.
4. The Appellant pleaded not guilty to the Charges before the Trial Court, and a full hearing was conducted. The prosecution called five (5) witnesses in support of its case.
5. At the close of the prosecution case, the Trial Court ruled that a prima facie case had been established against the Accused and he was put on his defence. He did not call any witnesses.
6. At the conclusion of the trial, he was convicted of the main charge and sentenced to serve life imprisonment in prison.
7. Being dissatisfied with the Judgment, the Accused appealed to this Court on the following grounds adduced in the Petition of Appeal dated 13th day of December 2023:
(1) The Honourable Trial Magistrate erred in fact by failing to establish that the matter of defilement before court was out of grudge between the appellant and the victim’s aunt.
(2) The Honourable Trial Magistrate erred in fact in failing to note and consider that the investigation tendered was shoddy/improper and not adding up.
(3) That the Trial Magistrate further erred in both law and facts to have relied on non-factual evidence without any tangible or concrete supporting proof from the police or the witnesses who testified against him.
(4) That the Learned Trial Magistrate further erred in both law and facts by failing to recognize that there was language barrier since the appellant is not well conversant with English and Kiswahili
(5) That the Learned Magistrate erred in law and fact by failing to appreciate the sentence of life meted upon the Appellant without promoting the spirit of fairness and constitutionalism Articles 27, 50 (2)(q) of the constitution and Section 26 (2) of the Penal Code, yet the same has overridden the proportional legal tenets of punishment thus does not achieve the objectives intended in the Sexual Offences Act No. 3 of 2006 and goes against the new developments in matters law.
(6) That the Learned Trial Magistrate erred in law and fact in finding that the prosecution proved its case beyond reasonable doubt ignoring the fact that there was no proof as to what caused penetration and how the same occurred.
(7) The learned Magistrate erred in law and in fact by failing to considered that the prosecution did not prove its case beyond reasonable doubt as there was no proof that any penetration was caused by the Appellant.
(8) The Learned Magistrate erred in law and in fact by failing to considered that the prosecution did not prove its case beyond reasonable doubt as crucial witnesses were never called to testify
(9) The Learned Magistrate erred in law by placing reliance on the uncorroborated testimony of a child of tender years.
(10) The Honourable Trial Magistrate erred in law by sentencing the appellant to life imprisonment ignoring mitigating factors and the unconstitutionality of the sentence.
8. The Appeal was canvassed by way of written submissions.
Respondent’s Case before the Trial Court
9. The Court examined PW1 conducted a voire dire and determined that the minor has sufficient intellect to understand importance of oath and telling the truth and as such she proceeded to give sworn evidence.
10. PW1 M.N.O. testified that she was at her aunt’s shop on the material date on the 7th March, 2022 in the evening. It was her testimony that one Moha who was in the shop told her to follow him to go buy a sweet. It was then that he took PW1 to a bush then proceeded to remove PW1’s short and panty, although he didn’t remove PW1’s top. Then, he removed his trouser and the inner wear, made PW1 lie on the ground and do to him ‘tabia mbaya’. It was her further testimony that He blocked PW1’s mouth so that he didn’t scream. And then put his private part to her private part. PW1 explained to the Trial Court that the private parts are used to ‘sussu’ and that even the Appellant’s was used for ‘sussu.’
11. PW1 also testified that he took her back to her aunt’s shop. PW1 cried and then told the truth. It was her testimony that the Appellant was a customer at the shop, he was a friend to the father of PW1. PW1 testified that she was taken to hospital at medical. PW1 was able to identify Moha as the accused before court.
12. During cross-examination, PW1 testified that the accused did ‘tambia mbaya’ and then returned her to her aunt’s shop. It was also her testimony that her mother didn’t beat her at the police station.
13. PW2, P.M., testified that she was the mother to PW1 and that on the material date 7th March, 2022, she was called by her sister’s child who asked her to go to the police station at Makongeni. PW2 further testified that she rushed there and was informed that her child (PW1) had been defiled. It was also her testimony that her father came and they went to hospital. She produced the P3- MFI 1 and PRC- MFI 2. PW2 also testified that PW1 was given medication some were for preventing HIV. It was also her testimony that PW1 told her that while at PW1’s sister’s shop, the accused called her to go buy her a sweet. He then took her to the bush and that he was a customer to both PW2 and the sister to PW2. She also testified that he had never had a dispute with the accused.
14. During cross-examination, he testified that she knew the accused and that the accused was there when the child was questioned.
15. PW3, R.K, testified that on the material date 7th March, 2022 at around 6.30 p.m., she was with PW1 at the shop. It was her testimony that at 3 PM, she went to Chania and that she left the child with Kendi. When she got back, Kendi asked her where the child was. They started looking for her. Njeri told them that she had seen the accused with PW1 and that after 30 minutes the accused and PW1 came. It was her further testimony that she asked PW1 where she was and she started screaming. PW3 grabbed Ahmed to restrain him. It was then when PW1 narrated how the accused took her to a bush and defiled her. Those around her assisted her to take the accused to the police since he wanted to escape. She raised alarm. It was also her testimony that they took him to Makongeni Police Station. PW3 identified the Appellant as the one who defiled PW1 and that they didn’t have any prior grudge and that he was her customer.
16. During cross-examination, PW3 testified that a relative could be a witness and that it depended on who witnessed the incident. She also testified that she gave testimony on what she witnessed. It was also her testimony that when the child started crying, she got concerned and grabbed the accused. She suspected foul play although she did not witness the actual defilement. It was also her testimony that the doctor would give his/her evidence.
17. PW4, George Maingi testified that he was a clinical officer at Thika Level 5 Hospital. He testified that he was there on behalf of Dr. Joel who had since been transferred. It was PW4’s testimony that he had the PRC for M. N. O. who was attended on the 7th March, 2022. He testified that the incident happened on that day and that the perpetrator was a neighbour. He testified that he accused took PW1 to a bush and promised to buy her a sweet. PW4 testified that the vaginal opening was reddish and had a discharge. The top was torn. The HVS revealed pus cells. PRC was filled the same day, which he wished to produce it -Ex. 2. PW4 also testified that he had the P3 and that it was just like the PRC. He testified that the girl was aged 7 years, the hymen was not intact and that it was not indicated if it was freshly torn. PW4 wished to produce it-Ex.1. During cross-examination, PW4 testified that he couldn’t tell why accused was not examined.
18. PW5, No. 58401 CPL Sabina Yorna attached at Gatundu North Sub County testified that she was the investigating officer. It was her testimony that she recalled on the 8th March 2022. She went to the office, she went through the occurrence book and she had been assigned this case which was defilement. It was her testimony that the complainant was seven (7) years old. She had come with relatives. PW5 testified that she contacted them and interrogated them. She talked to the child in the absence of the relatives and PW1 told her that she was in a shop belonging to one relative. The accused took her pretending he wanted to buy her sweets, he took her to a bush and raped her. The accused returned the child who was crying. The relatives interviewed the child. The accused tried to flee. He was restrained by the relatives and neighbours took the accused to the police station. It was also PW5’s testimony that te accused was well known to the child. PW5 testified that the child had been taken to hospital. PW5 issued them with a P3. The accused was later charged. She wished to produce the birth certificate which indicated that the minor was born on the 4th January, 2015 - Ex. 3. PW5 was also able to identify the accused as the one before Court.
19. During cross-examination, PW5 testified that the child was defiled and that the child knew well the accused. That the child described what the accused did to her and that the Appellant didn’t think the child would tell on him.
Appellant’s Case before the Trial Court.
20. The Appellant, giving unsworn testimony testified that he used to work with parcel vehicle and that he lived in Makongeni. It was his testimony that on the 7th March, 2022, he was at a miraa base and that they claimed he had defiled the girl and arrested him. It was also his testimony that he didn’t run since he had committed no offence. He urged the court to acquit him.
The Appellant’s Submissions
21. It was submitted that the Learned Trial Magistrate erred in facts by failing to establish that the matter of defilement before Court was out of grudge between the Appellant and the victim’s aunt. It was submitted that the Honourable Court failed to properly consider and establish that the matter of defilement arose out of a family grudge between the Appellant and the victim’s aunt. That the relationship between the Appellant and the victim’s family as neighbours presented a high probability of underlying family disputes, which may have motivated the false accusations.
22. It was also the Appellant’s submission that the victim admitted that she was tricked into going to buy a sweet. However, she did not provide crucial details that would have supported her version of events, such as whether the sweet was actually bought, where it was bought, or why it was not purchased from her aunt’s shop. The lack of these specifics raised doubts about the credibility of her testimony and whether the alleged defilement occurred at all. The Trial Court failed to address these inconsistencies, which should have weighed in favor of the Appellant.
23. On hearsay Evidence of PW1, PW2 and PW3, the Respondent argued that the Trial Court further erred by relying on the testimonies of PW1, PW2 and PW3. That the testimonies were based on hearsay evidence. Neither PW1 nor PW2 witnessed the alleged defilement, nor did they provide direct evidence linking the Appellant to the offense. That this ought to have been an eye opener for possible family dispute as only close family members testified. The law was clear that hearsay evidence could not be relied upon to secure a conviction in serious criminal matters such as defilement. The Trial Court should have dismissed this evidence for lack of direct observation or corroboration.
24. The Appellant also submitted that there was a possibility of a family grudge in that the Appellant and the victim’s family were neighbours, which created a high likelihood of existing family tensions or disputes. The Trial Court failed to properly investigate this possibility. It was submitted that the allegations of defilement may have been fabricated as part of a vendetta arising from prior family conflicts. The Trial Court should have considered this possibility when weighing the credibility of the prosecution’s case.
25. The Appellant urged the Court that the principles in Paul Mwangi Murunga v Republic [2008] eKLR are instructive. In that case, the Court emphasized the importance of scrutinizing the possibility of ill motives, especially in cases involving family disputes. The Court of Appeal quashed the conviction on the basis that the prosecution had failed to rule out a potential grudge between the accused and the complainant’s family. Similarly, in the present case, the Court ought to have seriously considered the likelihood of a family grudge and its influence on the victim’s testimony. As such the Trial Court erred by not investigating the likelihood of a family grudge between the Appellant and the victim’s aunt, which could have led to the false accusations. The reliance on hearsay evidence from Pw1 and Pw2 further weakened the prosecution’s case. As such, the Appellant’s conviction should be quashed, and the sentence set aside.
26. It was also submitted that the Learned Trial Magistrate erred in law and in facts by convicting and sentencing the Appellant to life imprisonment. This was without any credible evidence from the doctor’s evidence. It was submitted that the Honourable Court erred in law and fact by convicting and sentencing the Appellant to life imprisonment without credible medical evidence to support the charge. The conviction was based on insufficient and inconclusive evidence, specifically the lack of proper medical findings and forensic corroboration, which should have raised reasonable doubt in the Trial Court.
27. The Appellant postulated that there was lack of medical evidence on hymen condition arguing that the medical report presented during the trial did not establish whether the victim’s hymen was freshly torn at the time of examination. The fact that the victim was taken to the hospital on the same day of the alleged incident means that this crucial detail should have been properly documented and communicated by the medical examiner. The omission of such significant medical findings diminishes the probative value of the doctor’s testimony and leaves the question of whether the alleged defilement occurred uncertain.
28. It was also his submission that there was absence of forensic evidence linking the Appellant to the Offence. That as such the Trial Court further erred by failing to acknowledge the absence of forensic evidence that could have definitively linked the Appellant to the offence. Despite the accused being arrested on the same day, neither the doctor nor the investigating officer took steps to confirm the presence of spermatozoa on the victim, or whether such spermatozoa matched the Appellant’s. Such scientific evidence is crucial in defilement cases to establish whether penetration occurred and whether the appellant was responsible.
29. The Appellant submitted that there was failure to address reasonable doubt. That given the lack of conclusive medical and forensic evidence, the Trial Court should have raised reasonable doubt as to whether the prosecution had proved its case beyond a reasonable doubt. The Appellant’s right to a fair trial, including the right to be convicted based on credible and reliable evidence, was violated. The failure to provide key medical findings, such as the condition of the hymen or the presence of spermatozoa, casts significant doubt on the reliability of the conviction.
30. He urged Court to be guided by Philip Muiruri Ndaruga v Republic [2016] eKLR, where the Appellate Court quashed a conviction for defilement on similar grounds. In that case, the Court held that where there is a lack of credible medical or forensic evidence to support the charge, the conviction cannot be sustained. The absence of proper medical findings and forensic corroboration significantly weakened the prosecution's case and resulted in a miscarriage of justice.
31. In light of the above, it is submitted that the Trial Court erred in convicting and sentencing the Appellant to life imprisonment without credible medical and forensic evidence. The conviction should be quashed, and the sentence set aside on grounds of insufficient and unreliable evidence.
32. It was also submitted that the Learned Trial Magistrate erred in facts in failing to note and consider that the investigation tendered was shoddy/improper and not adding up. The Appellant submitted that the Honourable Court erred in fact by failing to note that the investigation into the matter was shoddy, improper, and did not add up to a reliable case against the Appellant. The investigative process was incomplete and lacked critical verification of facts, raising serious doubts about the prosecution’s case.
33. It was the Appellant’s argument that there was a failure to visit the scene of the alleged incident. The investigating officer did not visit the scene of the alleged incident to verify whether the area was indeed bushy as claimed by the prosecution. The absence of such a crucial investigative step deprived the Court of a clear understanding of the physical surroundings where the alleged act occurred. Hence, making it impossible to determine whether the scene could have facilitated the alleged defilement. The lack of a scene visit amounts to a serious flaw in the investigative process, leading to unreliable conclusions.
34. The Appellant also submitted that there was reliance on hearsay evidence as the court relied heavily on hearsay evidence provided by witnesses who did not observe the incident firsthand. The testimonies of the prosecution witnesses were all based on information relayed to them. That none of the witnesses provided direct evidence linking the Appellant to the alleged crime. Hearsay evidence, as a rule, is inadmissible in serious criminal cases, particularly where there is no corroborative direct testimony. This reliance on second-hand accounts significantly weakened the prosecution’s case.
35. It was also submitted on the public nature of the alleged scene of the incident. That the Appellant is said to have committed the alleged act on a public road used by members of the public. Given the public nature of the location, it is highly unlikely that such an act could have been committed without attracting the attention of passersby or other members of the public. The prosecution failed to call any independent witnesses from the public who may have been present at the scene, raising doubt as to whether the alleged incident occurred at all.
36. The Appellant contends that the principles in James Muthee Ngei v Republic [2011] eKLR are applicable in this case. In that matter, the Court held that where investigations are shoddy or incomplete, and the evidence presented by the prosecution is unreliable, the Court cannot safely convict an accused person. The Court quashed the conviction on the grounds that the investigating officer had failed to visit the scene, collect vital evidence and verify crucial facts.
37. In light of the above, it was submitted that the Trial Court erred in failing to note that the investigation was shoddy and incomplete. The investigating officer did not visit the scene, hearsay evidence was improperly relied upon, and the medical evidence was presented by a person who did not examine the victim. These critical investigative and evidentiary flaws raised serious doubt as to the guilt of the Appellant. The conviction should, therefore, be quashed, and the sentence set aside.
38. It was also submitted that the Learned Trial Magistrate further erred in both law and facts by failing to recognize that there was language barrier since the Appellant is not well conversant with english and Kiswahili. It was submitted that the Honourable Court erred in both fact and law by failing to recognize and address the language barrier that significantly affected the Appellant’s ability to fully participate in the trial. The Appellant is not conversant with English and Kiswahili. That the Trial Court failed to provide a proper interpretation of the proceedings, thus denying the Appellant his constitutional right to a fair hearing.
39. It was his contention that there was failure to ascertain the Appellant’s preferred language. That it is evident from the Court proceedings that the Trial Court never ascertained the language that the Appellant fully understands and is comfortable using. The record does not indicate that the Appellant was asked which language he prefers, nor does it show that an interpreter was provided to ensure that he understood the proceedings. The failure to ask and provide for the Appellant’s linguistic needs is a serious violation of his right to a fair trial under Article 50(2)(m) of the Constitution of Kenya. This article guarantees an accused person the right to have the assistance of an interpreter if they cannot understand the language of the Court.
40. The Appellant also submitted that it had an impact on cross-examination. That due to the language barrier, the Appellant was unable to actively and meaningfully participate in the trial, especially during cross-examination. The Appellant was deprived of the opportunity to ask critical questions that could have challenged the prosecution’s evidence and exposed inconsistencies. The right to cross-examine witnesses is fundamental to ensuring fairness in a trial. That the Appellant’s inability to do so due to the language barrier severely compromised his defense.
41. The language barrier also contributed to the Appellant’s inability to present a strong and coherent defense. Given that the appellant could not follow the proceedings adequately, he was unable to respond effectively to the charges, question witnesses, or highlight the loopholes in the prosecution’s case. As a result, the Appellant’s defense was weak and incomplete, not because of lack of merit, but due to his lack of understanding of the Court proceedings.
42. The Appellant urged Court that in David Njoroge Macharia v Republic [2011] eKLR, the Court of Appeal held that the right to a fair trial is one of the cornerstones of justice. That it cannot be undermined by language barriers or lack of understanding of the proceedings. The Court emphasized the necessity of providing an interpreter in cases where the accused person does not understand the language of the Court. The Court quashed the conviction in that case because the Appellant had not been provided with an interpreter, rendering the trial unfair. Similarly, in the present case, the failure to provide an interpreter prejudiced the Appellant’s right to a fair trial, leading to an unsafe conviction.
43. It was submitted that the Trial Court erred by failing to address the language barrier that existed throughout the trial. The Appellant was denied a fair trial because he could not understand the proceedings, ask cross-examination questions, or present a proper defense. In light of the violation of his constitutional rights and the principles established in case law, it is respectfully submitted that the conviction should be quashed, and the sentence set aside.
44. It was submitted that the Learned Trial Magistrate erred in law and facts by appreciating the sentence of life meted upon the Appellant without promoting the spirit of fairness and constitutionalism (art. 27, 50 (2) (p) of the Constitution and section 26 (2) of the Penal Code. Yet the same has overridden the proportional legal tenets of punishment and does not achieve the objectives intended in the Sexual Offenses Act No. 3 of 2006. That it goes against the new developments in matters law. Moreover, recent legal developments concerning life sentences require the Court to reconsider such severe penalties to ensure they align with constitutional values.
45. The Appellant contends that there is disregard for proportionality and fairness because the Court failed to appreciate that the sentence of life imprisonment. That in this case, it was disproportionate to the facts and circumstances of the case. Article 50(2)(p) of the Constitution of Kenya guarantees every accused person the right to the benefit of the least severe of the prescribed punishments. While the Sexual Offences Act provides for harsh penalties, including life imprisonment, the Court should have exercised judicial discretion to assess whether a life sentence was truly justified and proportional to the nature of the offense and the circumstances of the appellant.
46. The Appellant urged Court that in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, the Supreme Court of Kenya held that mandatory life sentences are unconstitutional. This is because they deprive Courts of the discretion to tailor punishments that fit the unique facts of each case. This principle applies to sentences under the Sexual Offences Act as well. The Trial Court, in this case, erred by not promoting the principles of fairness and proportionality. That these are critical to ensuring justice is done not only to the victim but also to the accused.
47. The Appellant also urged the Court that the objectives of sentencing under the Sexual Offences Act No. 3 of 2006 was enacted with the primary objectives of deterring sexual offenses, rehabilitating offenders, and protecting society from repeat offenders. However, these objectives must be balanced against the constitutional rights of the accused. Life sentences should only be imposed where they are necessary to meet the objectives of deterrence and rehabilitation, and where no other punishment would suffice. In this case, the Trial Court did not adequately consider whether the lesser sentence could have achieved the same objectives given the specific circumstances of the case.
48. It was also his contention that there was failure to consider the Appellant’s personal circumstances because the Court also failed to consider the Appellant’s personal circumstances, including his background, remorse (if any), and potential for rehabilitation. The principle of individualized sentencing, emphasized by the Supreme Court in Muruatetu’s case, requires Courts to take into account the personal circumstances of the offender. This is to ensure that the punishment fits both the crime and the individual. Imposing a life sentence without considering these factors undermines the fairness and constitutional balance required in the sentencing process.
49. The Appellant urged the Court to consider recent developments on life sentences. That these have highlighted the need to move away from mandatory or disproportionately harsh sentences that do not align with the objectives of the law or the principles of fairness. In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal reiterated that sentencing in sexual offenses must adhere to the principles of fairness and proportionality. The Court emphasized that life sentences, while permissible, must be applied judiciously and with regard to the facts of the case, and should not be used mechanically or as a default punishment. The decision to impose a life sentence should be carefully justified based on the unique circumstances of each case.
50. It is submitted that the Trial Court erred in law and fact by imposing a life sentence without promoting the spirit of fairness, constitutionalism, and proportionality. The sentence of life imprisonment was disproportionate in the circumstances of the case and failed to achieve the objectives of the Sexual Offences Act in a manner that is consistent with constitutional values. In light of recent legal developments, including the principles set out in Muruatetu and Kilwake, it is respectfully submitted that the life sentence should be reconsidered and set aside. That a more appropriate, proportional sentence should be imposed.
The Respondent’s Submissions
51. The Appeal is strongly opposed by the State.
52. On the issue of age, it was submitted that the complainant testified she was 7 years. That this was corroborated by the mother PW2 and the investigating officer who produced her birth certificate as exhibit 3 confirming date birth as 4th January 2015. It therefore meant that the complainant was aged 7 years at the time of the commission of the crime. Therefore, in the bracket defined by section 8(2) of the Sexual Offences Act, and as such, the prosecution proved the age of the complainant. Accordingly, the Trial Court came to the right conclusion that the age of the victim had been sufficiently proved. Reliance was placed in Mwalango Chichoro Mwanjembe v Republic (2016) eKLR.
53. On penetration, it was submitted that PW1 testified that the Appellant removed her short and panty. That he also removed his trouser and inner wear, and then inserted his penis into her vagina. PW4 a clinical officer prod
[...truncated]