(Being an appeal against conviction and sentence to serve 19-years imprisonment by Hon. Martha Mutuku (PM) in a case of Defilement contrary to Section 8(1)(3) of the Sexual Offences Act).
1. The Appellant was convicted for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act on 31/07/2023 in Criminal Case S.O. 108 of 2022 and was sentenced to 19 years imprisonment. He filed the Appeal challenging the conviction and sentence on 07/08/2023 and it is on that basis that we wish to respond.
2. He raised the following grounds:-
i. THAT, the trial court erred in law and fact for failing to observe the complainant’s evidence was influenced by her mother.
ii. THAT, the trial court erred in law for failing to observe that prosecution witnesses did not establish his guilty to the required standard of proof beyond reasonable doubt.
iii. THAT, the trial magistrate erred in law and fact for convicting him on the charge without observing that the matter was not proved to the required stand by the law.
iv. THAT, his defence was not considered thereby leaving gaps in the prosecution’s case.
3.The Duty of the trial court-
The role of this court being the first appellant court is now settled as was stated in the case of Odeno Versus Republic (1977) EALR32 and later Mark Oiruri Mose Versus Republic ( 2013) e KLR among other decisions that this court is duty bound to revisit the evidence tendered before the trail court afresh, evaluate it analyses it and come to its own conclusion on the matter but laws bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them giving evidence and give allowance for that.
4.In the above matter the court held that “an Appellant on first appeal is entitled to expect the evidence as whole to be subject to a fresh and exhaustive examination (Pandya versus Republic 1975) E.A 336 and to the Appellant court’s Own decision on the evidence. The first appellant court must its weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala Versus Republic (1957) E.A 570. It is not the function of the Appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court findings and conclusions. It must make its own findings and draw its own conclusion. Only then can it decides whether the magistrate’s findings should be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses (Peter vs Sunday Post 1978) E.A. 424”
5.Evidence on record.
The background information of this case emanates from original Criminal Case SOA Case No. E008 of 2022 at Mombasa Law Court where upon conviction he was sentenced to nineteen (19) years imprisonment. That prompted to this appeal before this Honorable Court with regard to the decision passed by the trial Court.
6.INGREDIENTS OF THE OFFENCE
For the offence of defilement, the following ingredients need be proved;
i. Age of the victim
ii. Penetration
iii. Identity of the perpetrator
7.Age of the Complainant
The appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. It provides: -
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction be sentenced to imprisonment for a term of not less than 20 years”.
9.The offence is alleged to have occurred on diverse dates between 5/08/2022 and 7/08/2022 when PW – 1 was aged 14 years and the birth certificate was produced as Exhibit 2 in proof of the same.
10.The court finds that the age of the victim has established by medical evidence, birth certificate, the victim, parents or guardian through their testimony before trial court.
11. In the case of Mwalango Chichoro vs R, Mombasa Criminal Appeal no. 24 of 2015, the Court of Appeal held that:-
“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 documentary 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. It has even been held in a long line of decisions from the high court that age can also be proved by observation and common sense”.
The prosecution sufficiently discharged the burden to prove the age of the victim.
12.Penetration and identification’
We will handle these two together to avoid repetition/
Penetration is defined under Section 2 of the Sexual Offences Act to mean,
“the partial or complete insertion of the genital organs of a person into the genital organs of another person”.
13. PW -1 in her testimony before the trial court at pages 7 and 8 of the record of Appeal states that:
“………he came close to me and touched my breast, buttocks and waist…….he pulled me and placed on the bed. I do not recall what happened. I came to my own on Saturday morning…..I was also feeling tired at my vagina…..on Sunday I woke and found myself on the bed. This was on 7th August, 2022. I was still naked……….”
14.The prosecution side relied on the medical documents which were produced as exhibits 3,4,5 and 6. They showed that the complainant had tenderness on the labia majora, hymen broken and old scar. They submitted that the act of penetration was sufficiently proved by testimony of the victim and corroborated by the medical documents.
15. The state further argued that PW 1 undertook a voire dire examination which was done by the trial court and she was in the eye of the court, a competent witness. The trial magistrate had the chance to see the complainant and observe her demeanor. He found that the complainant was truthful and properly relied on her evidence to convict the appellant.
16.The Respondent cited the case of George Kioji vs Republic Criminal Appeal No. 270/2012 in which the Court of Appeal held that-
“where available, medical evidence arising from examination of an accused linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and the records the reasons for such belief”.
17.On his part , the Appellant submitted that The trial court erred in law and fact for failing to observe the complainant’s evidence was influenced by her mother in framing up of the charge against him. This he said , can be noted on page 9 lines 3 when she stated that and he quoted “mum demanded to know”.
ANALYSIS
18. On the first issue of the evidence having been directed, the court finds that a demand to know does not amount to an influence. There is no direction given to the witnesses.
19.The other ground of appeal was that the trial Magistrate erred in law when she failed to critically analyze the evidence of PW 1 the complainant. The Appellant argued that it is quite confusing that the complainant returned to the appellant in the evening to drink the same said Fanta orange only to feel a deep sleep and be raped twice. He urged this court to re-evaluate the evidence a fresh and unravel the truth that was hidden in the entire evidence that it could not be possible for the complainant to return to the alleged perpetrator. He posed that she ought to have gone home straight and reported the matter on the first day she was defiled even if the clothes were wet having been provided with other clothes.
20. The court notes that this was a child complainant. Her decision making ability should not be used against her. She is not a trial and this was not an examination on her decision making capacity. What the court ought to bear in mind is whether she gave a truthful and credible account of what went on. The court then has to look at the entire evidence.
21. The Appellant also challenged the medical evidence that was relied upon to corroborate the complaint’s evidence. He argued that the absence of hymen in the minor as alleged by the clinical officer should not have been used to infringe and frustrate the appellant herein as scientific evidence has proved that some girls are even born without hymen. Besides this the doctor said on page 18 lines 19-21 that on examination she found that there was marked tenderness on the labia majora and hymen broken with old scar.
22. Indeed, it is true that penal penetration is not the only means that can break the hymen and one has to carefully analyze the evidence. The child complainant in this case said she took the fanta, fell asleep, woke up totally naked and feeling tired between her legs.
23. The appellant challenged her evidence mostly as she did not escape when she got a chance to. As earlier stated, at the tender age of 14 the child victim cannot be expended to act in the manner an adult would have. It is true she could have left or reported to the neighbor but that does not negate what went on. She was most probably scared and ashamed, which this court takes judicial notice of.
24. From the totality of the evidence, she was not coerced to go to the appellant house and she had a chance to escape. That she did not escape does not make her presence lawful nor give any consent since she lacked the capacity to do so. Consent ought not to be presumed. In Festus Kakai Ndinda v Republic [2022] eKLR the court ruled out a minors legal capacity to consent and held thus;
I am persuaded by the Respondent’s contention that the appellant being the adult in the illicit affair should have known better. A minor has no capacity to give legal consent to sex. That means that even if the complainant testified that she willingly engaged in the forbidden sexual engagement with the appellant, the same cannot offer the appellant a defence in this sort of offence. If it was rape, or sexual encounter with an adult, it could have offered a reprieve but with defilement consent is not a defence.
25.I have looked at the evidence afresh and I am persuaded that she told the truth. The appellant was not a stranger to her and she went to his house voluntarily. Her position is that she did not give any consent to any sexual activity and even if she did, she had no capacity to do so. The medical documents show there were abrasions and lacerations and this corroborated her version.
26.She led her parents back to the appellant’s house where her shoes were recovered. Clearly this was not a case of mistaken identity and the appellant did not raise any substantive grounds which would have made the child or the parents frame him.
27.I find that penetration and the identity of the perpetrator were sufficiently proved.
28.That means that all the ingredients of a defilement were proved the appeal on conviction cannot be sustained .
29.The sentence was also lawful.
30.The upshot is that the appeal against both the conviction and the sentence is dismissed. The appellant to continue serving his sentence
23. It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this ……27th…………day of ……SEPTEMBER……………………2024
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
THE APPELLANT IN PERSON
MS MAINA FOR THE STATE
MSS BEBORA COURT ASSISTANT