The Appellant was convicted and sentenced to serve 25 years imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual Offences Act No 3 of 2006.
The particulars to the offence were that the Appellant on diverse dates between 31st of March 2023 AND 2nd April 2023 at Boige Sub-Location in Etago Sub-County in Kisii County intentionally and unlawfully caused his penis to penetrate the vagina of P. B. a child aged 17 years.
In the alternative the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Petition of Appeal dated 7th March 2024 and filed on the following grounds:
(a). That the Trial Magistrate erred in both law and fact by convicting the Appellant without observing that the offense of defilement was not proved beyond reasonable doubt.
(b). That the Trial Magistrate erred in both law and fact by the Appellant despite the glaring contradictions and inconsistencies thus making his conviction unsafe.
(c). That the Trial Magistrate further erred in law and fact by convicting the Appellant using scanty and fabricated medical Report.
(d). That the Trial Magistrate further erred in both law and fact by convicting the Appellant using shoddy investigation tendered by the Prosecution.
(e). That the sentence of 25 years imprisonment imposed to the Appellant is extremely harsh and punitive given that the Complainant was 17 years of age.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
The Appellant included additional ground in his written submissions dated 17th December 2024 as follows:
(a). That the Trial Magistrate erred in both law and fact by convicting the Appellant without considering the time spent in remand custody pursuant to Section 333(2) of the Criminal Procedure Code.
The Prosecution’s case was that the Complainant PW1 a form 4 leaver aged 17 years old recorded her statement at Etago Police Station and reported that she met the Appellant for the 1st time at Arua along the road when she was on her way to the market. That she stopped the Appellant who was riding a motor cycle and she requested him to take her to Etago. That the Appellant was by then having a pillion passenger. That they dropped the passenger together and the Appellant who carried her used a road that was not familiar and took her to a house. That she screamed and the Appellant threatened to stab her. That the Appellant locked the Complainant in the house and left. That the Appellant took her to the house at 1.00pm and returned at 10.00pm. PW1 said there were no neighbors in the area and the house where he was locked in had only one bedroom and sitting room. That when the Appellant returned he directed her to the bed saying she was his wife and had sex with her without any protection.
PW1 testified that the following day the Appellant again locked her in the bedroom and left in company of a young man. That when he returned at 1.00pm she did not speak to him and the Appellant did not give her food. She said further that on the 1st day the Appellant returned with a certain young man who spent the night on a seat. That the young man told the Complainant that the Appellant was a bad man and was feared and that is why she did not scream. She said the Appellant left at 4.00pm and returned home at 9.00pm in company of another young man and that he brought bread. That on the material night he shared the bed with the Appellant who raped her and also assaulted her. That on the 3rd day the Appellant sent her to the river to wash clothes in company of a certain girl he introduced her to. She testified that while in the river she met her aunt who is married in the area and she went with her mother. PW1 said she did not know how her aunt and mother knew where she was.
She said she was taken to Nduru Sub-County Hospital in Nyamarambe and she was treated and P3 form filled.
In cross examination PW1 said the Appellant threatened to stab her but she did not see a knife. She said the Appellant said he was going to pick something from his house. She said when she arrived at the river she saw her aunt but the Appellant was not there. She said it is members of public who told her aunt she was at the river. She also said her aunt’s child went to the river which is near the road and saw her and went to inform the aunt. PW1 said that she was locked in the house for 3 days and the Appellant could escort her to go and relieve herself.
PW2 the Complainant’s father Robert Nyambaso testified that he had given PW1 money on 31st March 2023 to go and buy a phone at Etago Market but when he called her using the mother’s phone which she had carried it was off. That on 1st April 2023 he followed up to know where the Complainant was but he was not successful. That on 1/4/2023 at 2.00pm Grace the aunty to the Complainant called and reported she her son had seen the Complainant in company of a boy called Alex Obunga at Ekona area. PW2 reported the matter to police and the following day he sent the Complainant’s mother to Grace and together they found the Appellant at a river. PW2 then went and took the Complainant to Nduru hospital where she was treated and P3 filled after which the Appellant was arrested and charged.
In cross examination PW2 said he met the Appellant for the 1st time when the Complainant identified him. He said the Complainant was found in the river in company of the Appellant’s sister. He said he met the Appellant when taking the Complainant to hospital.
PW3 Grace Kerubo the aunt to the Complainant testified that she knew the Appellant who was her neighbor and that the Complainant was her niece. She testified that on 1/4/2023 she sent her child to Ekona and on return he told her that he met the Complainant and on attempting beat her a certain young man who was escorting her attempted to beat him. That she called her brother PW2 and asked if the Complainant was at home. She was informed that the Complainant had gone to Etago the previous day but had not returned. She reported to her brother that the Complainant was seen at Ekona and promised to establish who the young man he was seen with was. That when she went to Ekona in the afternoon she met the Complainant in company of the Appellant but she let them pass and thereafter called her brother and reported. That the following day the Complainant’s mother went to PW3’S place’s and they went to Appellant’s home and found 2 girls guarding the Complainant. That when the Complainant saw them she started crying. That PW2 went and picked the Complainant. PW3 said the Appellant’s house is isolated from others.
In cross examination PW3 said she found the Complainant and 2 girls in the river. She said the 2 girls were sisters to the Appellant. She said it is when she saw the Complainant in company of the Appellant that she made a phone call to PW2. She said the Complainant was not tied when she was in company of the Appellant.
PW4 Isack Omwenga the Clinical Officer testified that on 2/4/2023 at around 5.00pm he attended to the Complainant herein who was having history of having been abducted by a person well known to her and who had sex with her for 2 days. On physical examination there were no bruises or wounds and there was no discharge. P3 was duly filled and produced.
PW5 P. C. Joshua Mutaku from Ekona Police Post testified that on 3/4/2023 he was at the report office when he received the Complainant in company of the father and who reported that she had been detained by the Appellant in his house for 3 days under threat that he would harm her if she raised alarm. That on 2/4/2023 the Complainant was rescued by the parents who made report on 3/4/2023. That the minor was treated and P3 filled and statements recorded after which the Appellant was charged.
PW5 said he did not visit the scene but he is the one who arrested the Appellant. He said that findings in the P3 form is that there was penetration. He said the Appellant threatened the Complainant with a knife but he never saw the knife.
The Trial Magistrate placed the Appellant on his defense and he gave unsworn statement and said that he was 23 years old and that on 16th April 2023 at 9.00pm he was from watching football when he found his younger brother had not returned home and he did not close the door. That after 30 minutes police officers from Ekona forced themselves into the house and arrested him. That he was escorted to the Police Post and informed he had defiled the Complainant. He said he met the Complainant in court. He said he had never been a boda boda rider.
This Appeal was canvassed by way of written submissions.
The Appellant’s written submissions are dated 1st December 2024. The Appellant submitted that the Prosecution’s evidence was full of contradictions such as the Complainant not being clear why she did not scream, whether the house where she was allegedly locked in was one room or it had a bedroom and sitting room. The Appellant also questioned when the Complainant was raped as she alleges. The Appellant further questioned why the Complainant did not scream when left with the 2 girls if it is true she was abducted.
It was further submitted that the testimony of PW3 that her son met the Complainant and the Appellant and that she also met the Appellant in company of the Complainant contradicts the Complainant’s evidence that she was locked in the house for 3 days.
He submitted further that PW1 testified that she was given one girl to accompany her to the river but PW3 contradicted that evidence by saying that they found 2 girls guarding the Complainant. The Appellant submitted that it is difficult to distinguish the truth from untruth where evidence is contradicted.
The Appellant also submitted that there was no evidence of penetration as medical examination established that there were no wounds or bruises in the Complainant’s genitalia and there was no vaginal discharge. He also said there was no finding as to whether or not the Complainant’s hymen was intact or broken.
The Appellant further submitted that the 25 years imposed on him was harsh and unjust as the evidence of the Complainant was not corroborated and the Trial Magistrate did not warn himself of the dangers of convicting based on uncorroborated evidence.
The Appellant also submitted that the Trial Magistrate did not consider the period he spent in remand during trial and he urged the court to factor it in his sentence.
The Respondent’s on the other hand filed written submissions dated 19th November 2024 and opposed the appeal. They submitted that all the ingredients of the offence of defilement had been proved and the Trial Magistrate properly invoked the provisions of Section 124 of the Evidence Act as the sole evidence of the victim was sufficient to prove the offence was committed.
On identification of the perpetrator it was submitted that the Complainant testified that the Appellant defiled her in his house for 2 consecutive nights and PW3 also knew him as a neighbor and he was therefore identified properly.
Regarding sentence, the Respondent submitted that the court had the discretion to give a proper sentence guided by the circumstances of the offence. That the Appellant had confined the child and was not remorseful. That since the Act provides for the minimum sentence the court acted within the law in sentencing the Appellant and exercised the discretion judiciously.
The court was urged to dismiss the appeal and find that the conviction was safe and uphold it.
Analysis and Determination
In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze 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 demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are:
(a). Whether the ingredients of the offense of defilement was proved beyond reasonable doubt.
(b). Whether conviction of the Appellant was based on contradictory and inconsistent evidence and scanty and fabricated medical Report.
(c). Whether the investigations leading to charging, trial and conviction of the Apellant was shoddy.
(d). Whether the sentence of 25 years imprisonment was extremely harsh and punitive given that the Complainant was 17 years of age.
On whether the ingredients of the offence of defilement were proved beyond reasonable doubt Section 8 (1) as read with 8(4) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
From the evidence of PW1 she said she was 17 years and was a form 4 leaver. The Complainant’s father PW2 produced her certificate of birth showing she was born on 28th September, 2006 and was therefore 17 years and 8 months at the time of the incident. The Investigating Officer PW5 also confirmed the Complainant was 17 years. The Complainant was therefore a child in accordance with provisions of the Children’s Act though she was 4 months shy of attaining the age of majority.
In the Court of Appeal case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR it was stated as follows on proof of age.
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
On the issue of penetration, PW1 testified that she was on the way to Etago market when she stopped the Appellant who was riding a motorcycle to take her to the market but after they had dropped another passenger the Appellant took a route she did not know and ended up detaining her in his house for 3 days where he defiled her. Upon examination by PW4 he said the Complainant’s genitalia was normal with no wounds or bruises and there was no discharge. As submitted by the Appellant there was no mention that the Complainant’s hymen was broken or intact. This court has had a look at the medical report and there is no finding in it that could have supported the finding that the Complainant was defiled. The Complainant’s evidence that she was abducted and the Court’s view that the Appellant ought to have been charged with the offence of kidnapping and/ or abduction is not supported in view of PW3’s evidence that the Complainant was seen by her son in company of the Appellant and that later on the same day she also saw them together and she let them pass instead of raising alarm and letting the public know that her niece was in danger. It is not true that the Complainant was abducted in the circumstances. It is highly likely that she voluntarily went to the Appellant’s house in the area where her aunt PW3 is married. When she went to wash clothes for the Appellant and was accompanied to the river by the Appellant’s sister the Complainant had the opportunity to escape and or raise alarm but she did nothing until her aunt and mother found her in the river and took her to PW3’s home. The Complainant left for Etago market to go and buy a phone but when she did not return she also switched off the phone she had. She did not explain why she switched off the phone or why she did not contact her parents or anyone and report she had been abducted.
This court would equate the Complainant’s situation here to the Court of Appeal in the case of Eliud Waweru Wambui Vrs Republic (2019) eklr held:
“………We need to add as we dispose off this appeal that the Act does cry out for a serious re-examination in a sober, pragmatic manner. Many other jurisdictions criminalize only sexual conduct with children of a age younger than 16 years old. We think it is rather unrealistic to assume that teenagers and maturing adults in the since employed by the English house of lords in Gillick Vrs West Norefolk & Wisbech Area Health Authority (1985) 3 ALL ER 402, do not engage in, and often seek sexual activities with their eyes fully open. They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process and not a series of disjointed leaps. As lord scarman put it in that case ( at page 421);“if the law should impose on the process of, “growing up” fixed limits where nature knows only a continuous process, the price would be artificially and lack of realism in an area where the law must be sensitive to human development and society change.” At page 422The law also referred to the judgment of chief justice Lord Parker in R vrs Howard (1965) 3 ALL ER 684“…. Where he ruled that in the case of prosecution charging rape of a girl under the age of 16 the crown must prove either lack of her consent or that she was not in a position to decide whether to consent or resist and added the comment that, “there are many girls who know full well what it is all about and can properly consent”.
The Complainant made an informed decision to visit the Appellant and it would be wrong to assume that at 17 years and 8 months it is the Appellant who had the upper hand when they are actually in the same age bracket. This court finds that invoking Section 124 of the Evidence Act was not appropriate where the evidence tendered by the prosecution was so doubtful.
The Appellant faulted the Trial Magistrate for passing a harsh and excessive sentence despite the fact that the Section 8(4) of the Sexual Offences Act provides for a minimum sentence of 15 years.
Section 8 (1) as read with 8(4) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
In consideration of the finding by this court that the prosecution evidence was contradictory and doubtful this court finds that it was erroneous for the Trial Magistrate to convict and sentence the Appellant to 25 years when the sentence provided is 15 years and the same was therefore harsh and excessive in the circumstances that evidence of PW1 was unbelievable. If the Complainant had been abducted as the Trial Magistrate suspected she had 3 opportunities to escape but she did not.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal has merit and the conviction is quashed and sentence set aside. The Appellant is to be set at liberty unless lawfully detained.
Right of Appeal 14 days.
Dated, Signed and Delivered at Kisii this 27th day of June, 2025
The particulars to the offence were that the Appellant on diverse dates between 31st of March 2023 AND 2nd April 2023 at Boige Sub-Location in Etago Sub-County in Kisii County intentionally and unlawfully caused his penis to penetrate the vagina of P. B. a child aged 17 years.
In the alternative the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Petition of Appeal dated 7th March 2024 and filed on the following grounds:
(a). That the Trial Magistrate erred in both law and fact by convicting the Appellant without observing that the offense of defilement was not proved beyond reasonable doubt.
(b). That the Trial Magistrate erred in both law and fact by the Appellant despite the glaring contradictions and inconsistencies thus making his conviction unsafe.
(c). That the Trial Magistrate further erred in law and fact by convicting the Appellant using scanty and fabricated medical Report.
(d). That the Trial Magistrate further erred in both law and fact by convicting the Appellant using shoddy investigation tendered by the Prosecution.
(e). That the sentence of 25 years imprisonment imposed to the Appellant is extremely harsh and punitive given that the Complainant was 17 years of age.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
The Appellant included additional ground in his written submissions dated 17th December 2024 as follows:
(a). That the Trial Magistrate erred in both law and fact by convicting the Appellant without considering the time spent in remand custody pursuant to Section 333(2) of the Criminal Procedure Code.
The Prosecution’s case was that the Complainant PW1 a form 4 leaver aged 17 years old recorded her statement at Etago Police Station and reported that she met the Appellant for the 1st time at Arua along the road when she was on her way to the market. That she stopped the Appellant who was riding a motor cycle and she requested him to take her to Etago. That the Appellant was by then having a pillion passenger. That they dropped the passenger together and the Appellant who carried her used a road that was not familiar and took her to a house. That she screamed and the Appellant threatened to stab her. That the Appellant locked the Complainant in the house and left. That the Appellant took her to the house at 1.00pm and returned at 10.00pm. PW1 said there were no neighbors in the area and the house where he was locked in had only one bedroom and sitting room. That when the Appellant returned he directed her to the bed saying she was his wife and had sex with her without any protection.
PW1 testified that the following day the Appellant again locked her in the bedroom and left in company of a young man. That when he returned at 1.00pm she did not speak to him and the Appellant did not give her food. She said further that on the 1st day the Appellant returned with a certain young man who spent the night on a seat. That the young man told the Complainant that the Appellant was a bad man and was feared and that is why she did not scream. She said the Appellant left at 4.00pm and returned home at 9.00pm in company of another young man and that he brought bread. That on the material night he shared the bed with the Appellant who raped her and also assaulted her. That on the 3rd day the Appellant sent her to the river to wash clothes in company of a certain girl he introduced her to. She testified that while in the river she met her aunt who is married in the area and she went with her mother. PW1 said she did not know how her aunt and mother knew where she was.
She said she was taken to Nduru Sub-County Hospital in Nyamarambe and she was treated and P3 form filled.
In cross examination PW1 said the Appellant threatened to stab her but she did not see a knife. She said the Appellant said he was going to pick something from his house. She said when she arrived at the river she saw her aunt but the Appellant was not there. She said it is members of public who told her aunt she was at the river. She also said her aunt’s child went to the river which is near the road and saw her and went to inform the aunt. PW1 said that she was locked in the house for 3 days and the Appellant could escort her to go and relieve herself.
PW2 the Complainant’s father Robert Nyambaso testified that he had given PW1 money on 31st March 2023 to go and buy a phone at Etago Market but when he called her using the mother’s phone which she had carried it was off. That on 1st April 2023 he followed up to know where the Complainant was but he was not successful. That on 1/4/2023 at 2.00pm Grace the aunty to the Complainant called and reported she her son had seen the Complainant in company of a boy called Alex Obunga at Ekona area. PW2 reported the matter to police and the following day he sent the Complainant’s mother to Grace and together they found the Appellant at a river. PW2 then went and took the Complainant to Nduru hospital where she was treated and P3 filled after which the Appellant was arrested and charged.
In cross examination PW2 said he met the Appellant for the 1st time when the Complainant identified him. He said the Complainant was found in the river in company of the Appellant’s sister. He said he met the Appellant when taking the Complainant to hospital.
PW3 Grace Kerubo the aunt to the Complainant testified that she knew the Appellant who was her neighbor and that the Complainant was her niece. She testified that on 1/4/2023 she sent her child to Ekona and on return he told her that he met the Complainant and on attempting beat her a certain young man who was escorting her attempted to beat him. That she called her brother PW2 and asked if the Complainant was at home. She was informed that the Complainant had gone to Etago the previous day but had not returned. She reported to her brother that the Complainant was seen at Ekona and promised to establish who the young man he was seen with was. That when she went to Ekona in the afternoon she met the Complainant in company of the Appellant but she let them pass and thereafter called her brother and reported. That the following day the Complainant’s mother went to PW3’S place’s and they went to Appellant’s home and found 2 girls guarding the Complainant. That when the Complainant saw them she started crying. That PW2 went and picked the Complainant. PW3 said the Appellant’s house is isolated from others.
In cross examination PW3 said she found the Complainant and 2 girls in the river. She said the 2 girls were sisters to the Appellant. She said it is when she saw the Complainant in company of the Appellant that she made a phone call to PW2. She said the Complainant was not tied when she was in company of the Appellant.
PW4 Isack Omwenga the Clinical Officer testified that on 2/4/2023 at around 5.00pm he attended to the Complainant herein who was having history of having been abducted by a person well known to her and who had sex with her for 2 days. On physical examination there were no bruises or wounds and there was no discharge. P3 was duly filled and produced.
PW5 P. C. Joshua Mutaku from Ekona Police Post testified that on 3/4/2023 he was at the report office when he received the Complainant in company of the father and who reported that she had been detained by the Appellant in his house for 3 days under threat that he would harm her if she raised alarm. That on 2/4/2023 the Complainant was rescued by the parents who made report on 3/4/2023. That the minor was treated and P3 filled and statements recorded after which the Appellant was charged.
PW5 said he did not visit the scene but he is the one who arrested the Appellant. He said that findings in the P3 form is that there was penetration. He said the Appellant threatened the Complainant with a knife but he never saw the knife.
The Trial Magistrate placed the Appellant on his defense and he gave unsworn statement and said that he was 23 years old and that on 16th April 2023 at 9.00pm he was from watching football when he found his younger brother had not returned home and he did not close the door. That after 30 minutes police officers from Ekona forced themselves into the house and arrested him. That he was escorted to the Police Post and informed he had defiled the Complainant. He said he met the Complainant in court. He said he had never been a boda boda rider.
This Appeal was canvassed by way of written submissions.
The Appellant’s written submissions are dated 1st December 2024. The Appellant submitted that the Prosecution’s evidence was full of contradictions such as the Complainant not being clear why she did not scream, whether the house where she was allegedly locked in was one room or it had a bedroom and sitting room. The Appellant also questioned when the Complainant was raped as she alleges. The Appellant further questioned why the Complainant did not scream when left with the 2 girls if it is true she was abducted.
It was further submitted that the testimony of PW3 that her son met the Complainant and the Appellant and that she also met the Appellant in company of the Complainant contradicts the Complainant’s evidence that she was locked in the house for 3 days.
He submitted further that PW1 testified that she was given one girl to accompany her to the river but PW3 contradicted that evidence by saying that they found 2 girls guarding the Complainant. The Appellant submitted that it is difficult to distinguish the truth from untruth where evidence is contradicted.
The Appellant also submitted that there was no evidence of penetration as medical examination established that there were no wounds or bruises in the Complainant’s genitalia and there was no vaginal discharge. He also said there was no finding as to whether or not the Complainant’s hymen was intact or broken.
The Appellant further submitted that the 25 years imposed on him was harsh and unjust as the evidence of the Complainant was not corroborated and the Trial Magistrate did not warn himself of the dangers of convicting based on uncorroborated evidence.
The Appellant also submitted that the Trial Magistrate did not consider the period he spent in remand during trial and he urged the court to factor it in his sentence.
The Respondent’s on the other hand filed written submissions dated 19th November 2024 and opposed the appeal. They submitted that all the ingredients of the offence of defilement had been proved and the Trial Magistrate properly invoked the provisions of Section 124 of the Evidence Act as the sole evidence of the victim was sufficient to prove the offence was committed.
On identification of the perpetrator it was submitted that the Complainant testified that the Appellant defiled her in his house for 2 consecutive nights and PW3 also knew him as a neighbor and he was therefore identified properly.
Regarding sentence, the Respondent submitted that the court had the discretion to give a proper sentence guided by the circumstances of the offence. That the Appellant had confined the child and was not remorseful. That since the Act provides for the minimum sentence the court acted within the law in sentencing the Appellant and exercised the discretion judiciously.
The court was urged to dismiss the appeal and find that the conviction was safe and uphold it.
Analysis and Determination
In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze 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 demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are:
(a). Whether the ingredients of the offense of defilement was proved beyond reasonable doubt.
(b). Whether conviction of the Appellant was based on contradictory and inconsistent evidence and scanty and fabricated medical Report.
(c). Whether the investigations leading to charging, trial and conviction of the Apellant was shoddy.
(d). Whether the sentence of 25 years imprisonment was extremely harsh and punitive given that the Complainant was 17 years of age.
On whether the ingredients of the offence of defilement were proved beyond reasonable doubt Section 8 (1) as read with 8(4) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
From the evidence of PW1 she said she was 17 years and was a form 4 leaver. The Complainant’s father PW2 produced her certificate of birth showing she was born on 28th September, 2006 and was therefore 17 years and 8 months at the time of the incident. The Investigating Officer PW5 also confirmed the Complainant was 17 years. The Complainant was therefore a child in accordance with provisions of the Children’s Act though she was 4 months shy of attaining the age of majority.
In the Court of Appeal case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR it was stated as follows on proof of age.
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
On the issue of penetration, PW1 testified that she was on the way to Etago market when she stopped the Appellant who was riding a motorcycle to take her to the market but after they had dropped another passenger the Appellant took a route she did not know and ended up detaining her in his house for 3 days where he defiled her. Upon examination by PW4 he said the Complainant’s genitalia was normal with no wounds or bruises and there was no discharge. As submitted by the Appellant there was no mention that the Complainant’s hymen was broken or intact. This court has had a look at the medical report and there is no finding in it that could have supported the finding that the Complainant was defiled. The Complainant’s evidence that she was abducted and the Court’s view that the Appellant ought to have been charged with the offence of kidnapping and/ or abduction is not supported in view of PW3’s evidence that the Complainant was seen by her son in company of the Appellant and that later on the same day she also saw them together and she let them pass instead of raising alarm and letting the public know that her niece was in danger. It is not true that the Complainant was abducted in the circumstances. It is highly likely that she voluntarily went to the Appellant’s house in the area where her aunt PW3 is married. When she went to wash clothes for the Appellant and was accompanied to the river by the Appellant’s sister the Complainant had the opportunity to escape and or raise alarm but she did nothing until her aunt and mother found her in the river and took her to PW3’s home. The Complainant left for Etago market to go and buy a phone but when she did not return she also switched off the phone she had. She did not explain why she switched off the phone or why she did not contact her parents or anyone and report she had been abducted.
This court would equate the Complainant’s situation here to the Court of Appeal in the case of Eliud Waweru Wambui Vrs Republic (2019) eklr held:
“………We need to add as we dispose off this appeal that the Act does cry out for a serious re-examination in a sober, pragmatic manner. Many other jurisdictions criminalize only sexual conduct with children of a age younger than 16 years old. We think it is rather unrealistic to assume that teenagers and maturing adults in the since employed by the English house of lords in Gillick Vrs West Norefolk & Wisbech Area Health Authority (1985) 3 ALL ER 402, do not engage in, and often seek sexual activities with their eyes fully open. They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process and not a series of disjointed leaps. As lord scarman put it in that case ( at page 421);“if the law should impose on the process of, “growing up” fixed limits where nature knows only a continuous process, the price would be artificially and lack of realism in an area where the law must be sensitive to human development and society change.” At page 422The law also referred to the judgment of chief justice Lord Parker in R vrs Howard (1965) 3 ALL ER 684“…. Where he ruled that in the case of prosecution charging rape of a girl under the age of 16 the crown must prove either lack of her consent or that she was not in a position to decide whether to consent or resist and added the comment that, “there are many girls who know full well what it is all about and can properly consent”.
The Complainant made an informed decision to visit the Appellant and it would be wrong to assume that at 17 years and 8 months it is the Appellant who had the upper hand when they are actually in the same age bracket. This court finds that invoking Section 124 of the Evidence Act was not appropriate where the evidence tendered by the prosecution was so doubtful.
The Appellant faulted the Trial Magistrate for passing a harsh and excessive sentence despite the fact that the Section 8(4) of the Sexual Offences Act provides for a minimum sentence of 15 years.
Section 8 (1) as read with 8(4) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
In consideration of the finding by this court that the prosecution evidence was contradictory and doubtful this court finds that it was erroneous for the Trial Magistrate to convict and sentence the Appellant to 25 years when the sentence provided is 15 years and the same was therefore harsh and excessive in the circumstances that evidence of PW1 was unbelievable. If the Complainant had been abducted as the Trial Magistrate suspected she had 3 opportunities to escape but she did not.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal has merit and the conviction is quashed and sentence set aside. The Appellant is to be set at liberty unless lawfully detained.
Right of Appeal 14 days.
Dated, Signed and Delivered at Kisii this 27th day of June, 2025