The Appellant Baraka Chacha was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006.
Particulars of the offense are that on the 3rd of October 2022 at Komasincha village within Kuria West Sub county within Migori County, the accused (Hereafter Appellant) intentionally caused his penis to enter the vagina of M.S.M, a child aged 3 years.
He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
Particulars of the Alternative charge are that on the 3rd of October 2022 at Komasincha village within Kuria West Sub County within Migori County, the Appellant intentionally touched the vagina of M.S.M, a child aged 3 years with his penis.
Based on the evidence of three (3) prosecution witnesses against the evidence of the Appellant (DW1), the Trial Magistrate convicted him and sentenced him to 30 years’ imprisonment.
The Appellant was aggrieved by the conviction and sentence and he lodged his Petition of Appeal dated 13th December 2022, which he later amended and filed on 29th May, 2024 together with his written submissions based on the following grounds:
1. That the trial magistrate erred in law and fact by failure to give the Appellant enough time to prepare for his defense hence prejudiced.
2. That the trial magistrate erred in law and fact by failing to observe that confession and (or) an admission cannot be given as evidence against the accused as judge’s rules were not observed or followed hence prejudiced.
3. That the trial magistrate erred in law and fact by failure to observe that mandatory life sentence and /or the mandatory minimum sentences were unconstitutional and voided.
4. That the trial magistrate erred in law and fact by failing to observe that the sentence imposed was manifestly harsh, excessive, inhumane and degrading.
5. That the trial magistrate erred in law and fact by failing to observe that the prosecution had failed to prove their case to the required standard of cogent proof beyond reasonable doubt, by failing to call their crucial/vital witness to testify.
6. That the trial magistrate erred in law on the face of record and/or made blatant disregard to the law by failing to evaluate the rampant material contradictions, material discrepancies in evidence which led to a misjudgment.
7. That the trial magistrate erred in law and fact by basing his conviction on insufficient evidence that was inconsistent hence misguided.
8. That the trial magistrate erred in law and fact by failing to write or put on record/proceedings whatever the witness testified for the victim was telling the truth or not hence leading to a miscarriage of justice.
9. That the trial magistrate erred in law and fact by failing to observe that the elements and the ingredients for the offense of defilement was not fully established.
10. That the trial magistrate erred in law and fact by failing to see that the victim was threatened, coerced, beaten and tortured in order to implicate and intimidate the Appellant hence prejudiced.
11. That there was disparity in the medical evidence between the victim and the suspect and a premeditated filling of the medical forms without the presence of the officer.
12. That the trial magistrate failed to evaluate his ALIBI defense and the grudge between the families of the complainant and the Appellant, but shifted the burden of proof to the accused hence prejudiced.
Reasons wherefore the Appellant prayed that his appeal be allowed, conviction quashed and sentence set aside and the appellant be freed at liberty.
The Prosecution’s case was backed up by three (3) witnesses whose testimonies are summarized herein as follows:
PW1, Neema Nyangi Tingo testified that she was the mother of the complainant named M.S.M. She stated that her daughter was born on 2/08/2019 and was 3 years old. That on the 3rd of October 2022, the daughter had just been brought home by the Appellant who worked for her as a herder and resided with them in her home. That when she left M.S.M inside the house while going to pour dirty water outside she returned and did not find her. Despite numerous calls the child did not respond. That she also called out for the Appellant and did not get any response as well. It was PW1’s testimony that when she went round the compound she met the Complainant coming from the other gate carrying guava on her hand. That on inquiring where she had been, the Complainant who was still in school uniform responded that she had been with uncle Baraka under the guava tree. That PW1 removed the child’s clothes to wash her and found grass on them which the Minor did not explain where the grass came from. She further testified that the child’s panty had blood on it and when asked where the blood came from she remained quiet. Upon the silence, PW1 testified that she beat the Complainant and that was when she disclosed to her that Baraka was with her at the guava tree where he asked her to remove her pant and put his “DUDU” inside her. “Uncle aliniambia nitoe panty akanieka dudu yake ndani” she said pointing at her vagina. That she looked at the girl’s vagina and found it was reddish in color. She then called the childs father who advised her to take the child to the hospital.
PW1 took the child to the hospital where she was examined, treated and the medical records of pediatric prescription, treatment notes, P3 form and PRC forms were filled. When the Appellant was questioned what he had done to the child he denied. That the Appellant collected his items and fled but members of the public pursued and caught up with him and beat him up. That the Appellant then asked for forgiveness and was escorted to Kehancha Police Station where he was identified by the Complainant as the assailant.
PW2, George Omondi Olocho the Clinical Officer working at Kuria West Sub County hospital testified that he examined and treated the Complainant on 3/10/2022. That the Complainant was taken to the facility by her mother around 5:14 Pm with a history of being sexually assaulted by someone known to her. That on examination the patient looked ill and had bruises on her right labia minora and majora and that her hymen was freshly broken. He further stated that urinalysis, VDRL, PITC and high vaginal swab were done. That on urinalysis, the color was red and bloody on appearance, that on microscopy, there were red blood cells seen and pus cells +++. That no yeast cells nor transvaginal cells were seen. Further, that there were active and motile spermatozoa seen. That the VDRL and HIV tests turned negative. PW2 prescribed medication for the patient and filled the PRC form with similar findings to those indicated in the treatment notes. It was his further testimony that while the patient had changed clothes, she still appeared sick looking and in pain. Subject to the above analysis, PW2 stated that he formed the impression that the patient was defiled. He produced the treatment notes as Pex No.3, the P3 form as Pex No. 5. He further stated that the accused was not examined.
PW3 237754 IP Agatha Wekesa the investigating officer in the matter testified that on the 3/10/2022 she was informed of a report made by a girl aged 3 years who had been defiled and the suspect taken to the police station by members of the public. That she was also informed that the child’s mother had taken the girl to the hospital for examination and treatment. The next day the mother brought the child to the police station and she escorted them to the hospital for the filling of the P3 form as the PRC form had been filed the previous day. It was PW3’s testimony that the girl refused to talk upon interrogation. The mother reported that the previous day in the evening the daughter came home from school and then disappeared. That she resurfaced carrying two guavas and reported to the mother that the Appellant had given them to her. That when the mother removed the girl’s clothes to wash her she noted blood stains on her pant which was green and whitish in color. That on asking the girl about it she kept quiet. That finally the girl told her mother that uncle Baraka had asked her to remove her pant and then inserted his “DUDU” which she described as “Kitu yake ya kukojoa.” That the mother panicked and rushed the daughter to the hospital after calling her husband. That when she interrogated the child, she only kept saying “Uncle Baraka.” She then produced a copy of the girl’s birth certificate as Pex No. 1 and confirmed that the girl was 3 years old, having been born on 2/9/2019.
With that the prosecution closed its case and the Appellant was placed on his defense for a case to answer. The Appellant elected to give unsworn statement and said that he understood the charges against him well. That he knew the complainant well as she was the daughter of his employer whom he worked for as a herder. That he begun working for the complainant’s family on 3/1/2022 and worked till October 2022. That on the material day around 2:00 Pm, he was in church and stayed in church till around 5:00Pm and when he arrived home, the Complainant had not yet come home from school. That when the Complainant’s father came back he called him and asked him why he had defiled the Complainant and he denied. That he was asked to collect his items and go away but he forgot two of his clothes and as he returned to collect them, he found a crowd of people who had gathered and they apprehended him and beat him up on allegations of defiling the Complainant. That all this time the Complainant was at home and said nothing.
That he was later escorted to the police station. The Appellant denied having defiled the girl as alleged and claimed that he was framed because sometime in February cows had strayed into the shamba and destroyed food crops. That he bore no grudges towards the Complainant.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 29th May 2024 and he submitted that he was not given enough time to prepare for his defense thus his right to a fair trial under Article 50 (2)(c) of the Constitution of Kenya 2010 was contravened. The said Article provides:
“every accused person has a right to fair trial which include the right to have adequate time and facilities to prepare a defense.”
He submitted that the court orders a re-trial to cure the irregularities done by the trial court.
The Appellant also submitted that his right under Article 49 (1) (d) of the Constitution of Kenya was violated as the alleged confession and/or admission was obtained through torture by mob justice. He cited the case of Ndegwa v Republic [1985] eKLR where the Court of Appeal at Nakuru observed that;
“No rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system of our legal administration.”
It was also submitted that mandatory life sentence and the Mandatory minimum sentences was an unconstitutional and void. The Appellant cited the case of Julius Kitsao Manyeso v Republic (2023) where mandatory life sentences were deemed unconstitutional.
The Appellant also submitted that the sentence of 30 years imposed on him was harsh, excessive, inhumane and degrading hence he was prejudiced. He argued that the life span of a human being was 67 years according to the World’s Standard on Age and he was apprehended at the age of 20 years. He cited the case of S v Scott-Crossley (677/06) [2007] ZASCA 127 where the Supreme Court of Appeal of South Africa held that:
“Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones. Against that must be weighed the appellant’s prospects of reformation and rehabilitation, which appear to be good. It is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”
The Appellant also submitted that the prosecution failed to prove the case to the required standard of cogent proof beyond reasonable doubt occasioning a miscarriage of justice since they failed to summon their vital/essential witnesses to testify. He mentioned one boy B aged five years who was not called to testify and cited the case of Bukenya & Others versus Uganda [1972] EA 549 where the predecessor of the Court of Appeal placed an obligation on the prosecution to make available all witnesses necessary to establish the truth even if their evidence may be inconsistent and a corresponding obligation was placed on the court to call witnesses whose evidence is essential for the just decision of the case.
It was also submitted that the Trial Magistrate failed to evaluate the rampant material contradictions and material discrepancies in the evidence leading to a misjudgment. The Appellant relied on the case of Ndungu Kimani v Republic (1979) KLR 282 where the court stated that:
“a witness in a criminal trial whose evidence is proposed to be relied on, should not create an impression in the mind of the court that he is not a straight forward person and raise suspicion about his trustworthiness.”
The Appellant submitted that PW3 stated that the complainant on interrogation kept on saying “Uncle Baraka” and PW3 also testified that the girl on interrogation refused to talk. Thus the contradiction or discrepancy was not resolved in his favor.
The Appellant also submitted that the evidence tendered was insufficient, inconsistent and was not water-tight enough to sustain a conviction. He cited the case of Busiku Thomas v Uganda, SC Criminal Appeal No. 33 of 2O11 where the Supreme Court of Uganda observed that:
“The appellate court on any appeal against conviction shall allow the appeal if it thinks that the judgment should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that it should be set aside on the ground of a wrong decision on any question of law if the decision has in fact caused a miscarriage of justice, or on any other ground if the court is satisfied that there has been a miscarriage of justice, and in any other case shall dismiss the appeal; except that the court shall, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
It was also submitted that the Trial Magistrate erred in law and in fact by failure to put on record on whether PW1 testifying on behalf of the victim was telling the truth or not. The Appellant submitted that the medical examination was pre-meditated and the victim was taken to the hospital prior to making any report at the police station such that everything in the Treatment Notes and PRC forms were already filled before the police escorted the minor to the hospital. It was also submitted that no laboratory tests or DNA test were conducted on the accused to establish if he was the perpetrator.
Finally, the Appellant submitted that there existed bad blood between him and the victim’s family which was not evaluated thus causing an injustice on his part. That the learned Trial Magistrate stage managed the case for the prosecution by filling gaps notwithstanding that it was bad in law to do such as the same prejudiced him. He also submitted that his defense of Alibi was rejected without the court giving reasons for such rejection and that the burden of proof was shifted to him hence prejudiced.
The Respondents opposed the appeal and filed submissions dated 22nd February 2024 to the effect that the Prosecution proved all the ingredients of the offence of defilement to the required standards and that the provisions of Article 50(2) (g) & (h) of the Constitution were fully complied with. The Respondent urged the court to find the appeal lacks merit and dismiss it in its entirety and uphold the conviction and sentence.
Analysis and Determination
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the often cited case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate 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 to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: -
1. Whether the Appellant’s constitutional right under article 50 (2) (c) was breached, consequently affecting his right to a fair trial process?
2. Whether the Appellant’s rights under article 49 (1) (d) of the Constitution was breached (Confession).
3. Whether the ingredients of the offence of defilement were proved beyond reasonable doubt and whether the testimony of the intermediary was proper and truthful?
4. Whether the prosecution’s case was full of discrepancies and their evidence inconsistent. (Medical evidence)
5. Whether the Appellant’s defense of Alibi was considered by the Trial Court and Whether the Trial Court Shifted the burden of proof to the Appellant?
6. Whether the sentence meted by the trial court was harsh and excessive, unconstitutional, inhumane and degrading?
On Whether the Appellant’s constitutional right under article 50 (2) (c) was breached, consequently affecting his right to a fair trial process.
Article 50(2) (c) of the Constitution provides:
(2) Every accused person has the right to a fair trial, which includes the right—
(c) to have adequate time and facilities to prepare a defense;
The Appellant claimed that he was not given enough time to prepare for his defense. He alleged that he was not ready to proceed but the Trial Court proceeded to take evidence of PW1 on 14th October 2022. From the proceedings dated 11th October 2022 the Appellant told the court that he was not ready to proceed as he was yet to prepare his defense. He requested to be allowed to read through the statements and indicated that he would be ready to proceed the same week on a Friday. His request was allowed and hearing deferred to 14th October 2022.
On 14/10/2022 he told the court that he was ready to proceed. This clearly shows that he was prepared for the same otherwise he would have told the court once more that he was not prepared and ask for a later date which he did not. The Appellant participated in the trial and even cross examined PW1. Subsequently the matter was adjourned to 2nd November 2022 and similarly the Appellant indicated he was ready to proceed. PW2 and PW3 testified and the Appellant cross examined PW2.
There is nothing on record to show that the Appellant’s rights under Article 50(2) (c) were violated in any way.
On Whether the Appellant’s rights under article 49 (1) (d) of the Constitution was breached.
Article 49(1) (d) of the Constitution of Kenya provides:
(1) An arrested person has the right—
(d) not to be compelled to make any confession or admission that could be used in evidence against the person;
The Appellant submitted that his confession was obtained through torture by mob justice. He claims that when he was questioned on what he had done to the Complainant he denied and collected his items and ran away where members of the public caught up with him and beat him up. That he then asked for forgiveness and was escorted to Kehancha Police Station where the Complainant identified him as the assailant. A look at the evidence adduced by the Prosecution witnesses does not show that any confession was taken from the Appellant. None of the members of public who apprehended the Appellant testified to say that the Appellant confessed having committed the offence. In his unsworn statement the Appellant did not raise the issue of having made any confession to anyone and he did not cross examine the Investigating Officer PW3 as to any statement that he may have recorded during his arrest and investigations. The ground that the Appellant confessed due to mob injustice is therefore extraneous and falls on the side.
Whether the ingredients of the offence of defilement were proved beyond reasonable doubt and whether the prosecution’s case was full of discrepancies and inconsistencies.
Section 8 (1) & (2) of the Sexual Offence Act No. 3 of 2006 provides that:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
The offence of defilement is anchored on three (3) main ingredients namely; (1) The Age of the victim, (2) Penetration, and (3) The Proper Identification of the Perpetrator.
In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
Likewise, the Court of Appeal in Edwin Nyambogo Onsongo vs Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... 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.”
Further in P.M.M vs Republic [2018] eKLR, it was held thus:
“… whilst the best evidence of Age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
In this case, the minor’s age was proved by the production of her birth certificate as Pex No. 1 which confirmed that the Complainant’s was 3 years old, having been born on 2/9/2019. Thus the first element of proof of Age beyond reasonable doubt was established.
On Proof of Penetration the term is defined under Section 2 of the Sexual Offences Act No. 3 of 2006 to mean:
“the partially or complete insertion of the genital organs of another person.”
When PW1 was washing the Complainant, she noticed blood stains in her pants and upon examining her vagina, she found it was reddish. When PW1 questioned the Complainant about the blood stains in her pants she kept quiet and it is only after she was beaten using a slipper that she said “Uncle Baraka aliniambia nitoe panty akanieka dudu yake ndani (pointing at her vagina)”
When the child was taken to hospital and examined it was established that her hymen was freshly broken and there were Lacerations on the right labia majora, Bleeding from bruises on the minora and Bruises on the labia minora.
The medical examination and Laboratory reports revealed spermatozoa and red blood cells. The Clinical Officer upon examination formed the opinion that the minor was defiled. He filled and produced PRC and P3 forms dated 4/10/2022 all bearing the same results as those of the treatment notes with a diagnosis of defilement.
In consideration of the evidence of PW1 and PW2 this court finds that the element of penetration was proved beyond reasonable doubt.
In his submissions and grounds of Appeal, the Appellant faulted the Trial Magistrate for allowing the mother to the Complainant to testify as an intermediary and questioned the credibility of the mother’s evidence.
Article 50(7) of the Constitution provides:
“In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.”
Section 29 of The Children Act CAP 141 provides that:
(1) Any person may institute court proceedings claiming that any right or fundamental freedom of the child protected under this Part has been denied, violated or infringed, or is threatened.
(2) Without prejudice to the generality of subsection (1), court proceedings maybe instituted by—
(a) a parent or guardian acting in the interest of their child;
In the case of Kennedy Chimwani Mulokoto V. Republic Eldoret High Court Criminal Appeal No. 51 of 2011, Ochieng, J(As he then was) found that the Trial Magistrate properly appointed as an intermediary the mother of a 3 year old girl, a victim of defilement who was unable to testify, due to her tender years. The learned Judge said: -
“When the mother of the little girl gave her evidence, she was deemed to be giving evidence on behalf of that little girl…. Therefore, for all intents and purposes, when the mother of the little girl gave evidence, she did so as a legally recognized intermediary, for and on behalf of the little girl. Such evidence was admissible.” (Emphasis ours).
From the trial court’s record, and from the evidence provided by the prosecution, when the Complainant appeared in court on 14th October 2022 the Trial Magistrate tried to interrogate her but established that she appeared scared and was mute and could not even say her name. She was declared vulnerable and the Prosecution’s application made on 11th October 2022 that she testifies through an intermediary was allowed.
The Complainants mother testified on her own behalf and as the intermediary to the Complainant and her evidence was corroborated by the circumstances of the case and the evidence of the Clinical Officer who confirmed that indeed the child was defiled. Her evidence was therefore truthful and credible.
On identification of the Perpetrator in Stephen Kimari Gathano v Republic [2022] eKLR the court stated that:
“It bears repeating that the Appellant was a person known to the complainant. I do not find any element of mistaken identity of the Appellant as the person who penetrated her genitalia. She was categorical it was Mzee was Purity- She knew the accused as such.”
The Appellant in this case was well known to the Complainant and her family as admitted by both parties herein. PW1 in her statement stated that the Appellant had been employed since February 2022 working for the family as a herder, and lived with them. The Appellant admitted the same and in fact stated that he begun working for PW1 on 3/1/2022.
The incident occurred on the 3/10/2022 in the evening hours when the complainant came home from school and was still in school uniform. It is the Appellant who had brought her and her 5 years old cousin from school. When PW1 noticed blood stains in her daughter’s pant when she was bathing her and also saw that her genitalia was reddened she questioned her and with a little beating she said “Uncle Baraka aliniambia nitoe panty akanieka dudu yake ndani (pointing at her vagina)”
The Court of Appeal in acknowledging the use of euphemisms by children when describing acts of sexual intercourse in Muganga Chilejo Saha v Republic [2017] eKLR had this to say;
“Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement. We, however, need to remind trial courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M V R Voi H.C Cr. App. No. 35 of 2014, EMM V R Mombasa H.C Cr. Case No. 110 of 2015, among several others. Trial courts should record as nearly as possible what the child says happened to him or her.
From the description given by the Complainant, it was the Appellant whom she referred to as “Uncle Baraka” who had put his “dudu” in her genitalia. Both PW1 and PW3 c
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Particulars of the offense are that on the 3rd of October 2022 at Komasincha village within Kuria West Sub county within Migori County, the accused (Hereafter Appellant) intentionally caused his penis to enter the vagina of M.S.M, a child aged 3 years.
He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
Particulars of the Alternative charge are that on the 3rd of October 2022 at Komasincha village within Kuria West Sub County within Migori County, the Appellant intentionally touched the vagina of M.S.M, a child aged 3 years with his penis.
Based on the evidence of three (3) prosecution witnesses against the evidence of the Appellant (DW1), the Trial Magistrate convicted him and sentenced him to 30 years’ imprisonment.
The Appellant was aggrieved by the conviction and sentence and he lodged his Petition of Appeal dated 13th December 2022, which he later amended and filed on 29th May, 2024 together with his written submissions based on the following grounds:
1. That the trial magistrate erred in law and fact by failure to give the Appellant enough time to prepare for his defense hence prejudiced.
2. That the trial magistrate erred in law and fact by failing to observe that confession and (or) an admission cannot be given as evidence against the accused as judge’s rules were not observed or followed hence prejudiced.
3. That the trial magistrate erred in law and fact by failure to observe that mandatory life sentence and /or the mandatory minimum sentences were unconstitutional and voided.
4. That the trial magistrate erred in law and fact by failing to observe that the sentence imposed was manifestly harsh, excessive, inhumane and degrading.
5. That the trial magistrate erred in law and fact by failing to observe that the prosecution had failed to prove their case to the required standard of cogent proof beyond reasonable doubt, by failing to call their crucial/vital witness to testify.
6. That the trial magistrate erred in law on the face of record and/or made blatant disregard to the law by failing to evaluate the rampant material contradictions, material discrepancies in evidence which led to a misjudgment.
7. That the trial magistrate erred in law and fact by basing his conviction on insufficient evidence that was inconsistent hence misguided.
8. That the trial magistrate erred in law and fact by failing to write or put on record/proceedings whatever the witness testified for the victim was telling the truth or not hence leading to a miscarriage of justice.
9. That the trial magistrate erred in law and fact by failing to observe that the elements and the ingredients for the offense of defilement was not fully established.
10. That the trial magistrate erred in law and fact by failing to see that the victim was threatened, coerced, beaten and tortured in order to implicate and intimidate the Appellant hence prejudiced.
11. That there was disparity in the medical evidence between the victim and the suspect and a premeditated filling of the medical forms without the presence of the officer.
12. That the trial magistrate failed to evaluate his ALIBI defense and the grudge between the families of the complainant and the Appellant, but shifted the burden of proof to the accused hence prejudiced.
Reasons wherefore the Appellant prayed that his appeal be allowed, conviction quashed and sentence set aside and the appellant be freed at liberty.
The Prosecution’s case was backed up by three (3) witnesses whose testimonies are summarized herein as follows:
PW1, Neema Nyangi Tingo testified that she was the mother of the complainant named M.S.M. She stated that her daughter was born on 2/08/2019 and was 3 years old. That on the 3rd of October 2022, the daughter had just been brought home by the Appellant who worked for her as a herder and resided with them in her home. That when she left M.S.M inside the house while going to pour dirty water outside she returned and did not find her. Despite numerous calls the child did not respond. That she also called out for the Appellant and did not get any response as well. It was PW1’s testimony that when she went round the compound she met the Complainant coming from the other gate carrying guava on her hand. That on inquiring where she had been, the Complainant who was still in school uniform responded that she had been with uncle Baraka under the guava tree. That PW1 removed the child’s clothes to wash her and found grass on them which the Minor did not explain where the grass came from. She further testified that the child’s panty had blood on it and when asked where the blood came from she remained quiet. Upon the silence, PW1 testified that she beat the Complainant and that was when she disclosed to her that Baraka was with her at the guava tree where he asked her to remove her pant and put his “DUDU” inside her. “Uncle aliniambia nitoe panty akanieka dudu yake ndani” she said pointing at her vagina. That she looked at the girl’s vagina and found it was reddish in color. She then called the childs father who advised her to take the child to the hospital.
PW1 took the child to the hospital where she was examined, treated and the medical records of pediatric prescription, treatment notes, P3 form and PRC forms were filled. When the Appellant was questioned what he had done to the child he denied. That the Appellant collected his items and fled but members of the public pursued and caught up with him and beat him up. That the Appellant then asked for forgiveness and was escorted to Kehancha Police Station where he was identified by the Complainant as the assailant.
PW2, George Omondi Olocho the Clinical Officer working at Kuria West Sub County hospital testified that he examined and treated the Complainant on 3/10/2022. That the Complainant was taken to the facility by her mother around 5:14 Pm with a history of being sexually assaulted by someone known to her. That on examination the patient looked ill and had bruises on her right labia minora and majora and that her hymen was freshly broken. He further stated that urinalysis, VDRL, PITC and high vaginal swab were done. That on urinalysis, the color was red and bloody on appearance, that on microscopy, there were red blood cells seen and pus cells +++. That no yeast cells nor transvaginal cells were seen. Further, that there were active and motile spermatozoa seen. That the VDRL and HIV tests turned negative. PW2 prescribed medication for the patient and filled the PRC form with similar findings to those indicated in the treatment notes. It was his further testimony that while the patient had changed clothes, she still appeared sick looking and in pain. Subject to the above analysis, PW2 stated that he formed the impression that the patient was defiled. He produced the treatment notes as Pex No.3, the P3 form as Pex No. 5. He further stated that the accused was not examined.
PW3 237754 IP Agatha Wekesa the investigating officer in the matter testified that on the 3/10/2022 she was informed of a report made by a girl aged 3 years who had been defiled and the suspect taken to the police station by members of the public. That she was also informed that the child’s mother had taken the girl to the hospital for examination and treatment. The next day the mother brought the child to the police station and she escorted them to the hospital for the filling of the P3 form as the PRC form had been filed the previous day. It was PW3’s testimony that the girl refused to talk upon interrogation. The mother reported that the previous day in the evening the daughter came home from school and then disappeared. That she resurfaced carrying two guavas and reported to the mother that the Appellant had given them to her. That when the mother removed the girl’s clothes to wash her she noted blood stains on her pant which was green and whitish in color. That on asking the girl about it she kept quiet. That finally the girl told her mother that uncle Baraka had asked her to remove her pant and then inserted his “DUDU” which she described as “Kitu yake ya kukojoa.” That the mother panicked and rushed the daughter to the hospital after calling her husband. That when she interrogated the child, she only kept saying “Uncle Baraka.” She then produced a copy of the girl’s birth certificate as Pex No. 1 and confirmed that the girl was 3 years old, having been born on 2/9/2019.
With that the prosecution closed its case and the Appellant was placed on his defense for a case to answer. The Appellant elected to give unsworn statement and said that he understood the charges against him well. That he knew the complainant well as she was the daughter of his employer whom he worked for as a herder. That he begun working for the complainant’s family on 3/1/2022 and worked till October 2022. That on the material day around 2:00 Pm, he was in church and stayed in church till around 5:00Pm and when he arrived home, the Complainant had not yet come home from school. That when the Complainant’s father came back he called him and asked him why he had defiled the Complainant and he denied. That he was asked to collect his items and go away but he forgot two of his clothes and as he returned to collect them, he found a crowd of people who had gathered and they apprehended him and beat him up on allegations of defiling the Complainant. That all this time the Complainant was at home and said nothing.
That he was later escorted to the police station. The Appellant denied having defiled the girl as alleged and claimed that he was framed because sometime in February cows had strayed into the shamba and destroyed food crops. That he bore no grudges towards the Complainant.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 29th May 2024 and he submitted that he was not given enough time to prepare for his defense thus his right to a fair trial under Article 50 (2)(c) of the Constitution of Kenya 2010 was contravened. The said Article provides:
“every accused person has a right to fair trial which include the right to have adequate time and facilities to prepare a defense.”
He submitted that the court orders a re-trial to cure the irregularities done by the trial court.
The Appellant also submitted that his right under Article 49 (1) (d) of the Constitution of Kenya was violated as the alleged confession and/or admission was obtained through torture by mob justice. He cited the case of Ndegwa v Republic [1985] eKLR where the Court of Appeal at Nakuru observed that;
“No rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system of our legal administration.”
It was also submitted that mandatory life sentence and the Mandatory minimum sentences was an unconstitutional and void. The Appellant cited the case of Julius Kitsao Manyeso v Republic (2023) where mandatory life sentences were deemed unconstitutional.
The Appellant also submitted that the sentence of 30 years imposed on him was harsh, excessive, inhumane and degrading hence he was prejudiced. He argued that the life span of a human being was 67 years according to the World’s Standard on Age and he was apprehended at the age of 20 years. He cited the case of S v Scott-Crossley (677/06) [2007] ZASCA 127 where the Supreme Court of Appeal of South Africa held that:
“Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones. Against that must be weighed the appellant’s prospects of reformation and rehabilitation, which appear to be good. It is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”
The Appellant also submitted that the prosecution failed to prove the case to the required standard of cogent proof beyond reasonable doubt occasioning a miscarriage of justice since they failed to summon their vital/essential witnesses to testify. He mentioned one boy B aged five years who was not called to testify and cited the case of Bukenya & Others versus Uganda [1972] EA 549 where the predecessor of the Court of Appeal placed an obligation on the prosecution to make available all witnesses necessary to establish the truth even if their evidence may be inconsistent and a corresponding obligation was placed on the court to call witnesses whose evidence is essential for the just decision of the case.
It was also submitted that the Trial Magistrate failed to evaluate the rampant material contradictions and material discrepancies in the evidence leading to a misjudgment. The Appellant relied on the case of Ndungu Kimani v Republic (1979) KLR 282 where the court stated that:
“a witness in a criminal trial whose evidence is proposed to be relied on, should not create an impression in the mind of the court that he is not a straight forward person and raise suspicion about his trustworthiness.”
The Appellant submitted that PW3 stated that the complainant on interrogation kept on saying “Uncle Baraka” and PW3 also testified that the girl on interrogation refused to talk. Thus the contradiction or discrepancy was not resolved in his favor.
The Appellant also submitted that the evidence tendered was insufficient, inconsistent and was not water-tight enough to sustain a conviction. He cited the case of Busiku Thomas v Uganda, SC Criminal Appeal No. 33 of 2O11 where the Supreme Court of Uganda observed that:
“The appellate court on any appeal against conviction shall allow the appeal if it thinks that the judgment should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that it should be set aside on the ground of a wrong decision on any question of law if the decision has in fact caused a miscarriage of justice, or on any other ground if the court is satisfied that there has been a miscarriage of justice, and in any other case shall dismiss the appeal; except that the court shall, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
It was also submitted that the Trial Magistrate erred in law and in fact by failure to put on record on whether PW1 testifying on behalf of the victim was telling the truth or not. The Appellant submitted that the medical examination was pre-meditated and the victim was taken to the hospital prior to making any report at the police station such that everything in the Treatment Notes and PRC forms were already filled before the police escorted the minor to the hospital. It was also submitted that no laboratory tests or DNA test were conducted on the accused to establish if he was the perpetrator.
Finally, the Appellant submitted that there existed bad blood between him and the victim’s family which was not evaluated thus causing an injustice on his part. That the learned Trial Magistrate stage managed the case for the prosecution by filling gaps notwithstanding that it was bad in law to do such as the same prejudiced him. He also submitted that his defense of Alibi was rejected without the court giving reasons for such rejection and that the burden of proof was shifted to him hence prejudiced.
The Respondents opposed the appeal and filed submissions dated 22nd February 2024 to the effect that the Prosecution proved all the ingredients of the offence of defilement to the required standards and that the provisions of Article 50(2) (g) & (h) of the Constitution were fully complied with. The Respondent urged the court to find the appeal lacks merit and dismiss it in its entirety and uphold the conviction and sentence.
Analysis and Determination
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the often cited case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate 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 to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: -
1. Whether the Appellant’s constitutional right under article 50 (2) (c) was breached, consequently affecting his right to a fair trial process?
2. Whether the Appellant’s rights under article 49 (1) (d) of the Constitution was breached (Confession).
3. Whether the ingredients of the offence of defilement were proved beyond reasonable doubt and whether the testimony of the intermediary was proper and truthful?
4. Whether the prosecution’s case was full of discrepancies and their evidence inconsistent. (Medical evidence)
5. Whether the Appellant’s defense of Alibi was considered by the Trial Court and Whether the Trial Court Shifted the burden of proof to the Appellant?
6. Whether the sentence meted by the trial court was harsh and excessive, unconstitutional, inhumane and degrading?
On Whether the Appellant’s constitutional right under article 50 (2) (c) was breached, consequently affecting his right to a fair trial process.
Article 50(2) (c) of the Constitution provides:
(2) Every accused person has the right to a fair trial, which includes the right—
(c) to have adequate time and facilities to prepare a defense;
The Appellant claimed that he was not given enough time to prepare for his defense. He alleged that he was not ready to proceed but the Trial Court proceeded to take evidence of PW1 on 14th October 2022. From the proceedings dated 11th October 2022 the Appellant told the court that he was not ready to proceed as he was yet to prepare his defense. He requested to be allowed to read through the statements and indicated that he would be ready to proceed the same week on a Friday. His request was allowed and hearing deferred to 14th October 2022.
On 14/10/2022 he told the court that he was ready to proceed. This clearly shows that he was prepared for the same otherwise he would have told the court once more that he was not prepared and ask for a later date which he did not. The Appellant participated in the trial and even cross examined PW1. Subsequently the matter was adjourned to 2nd November 2022 and similarly the Appellant indicated he was ready to proceed. PW2 and PW3 testified and the Appellant cross examined PW2.
There is nothing on record to show that the Appellant’s rights under Article 50(2) (c) were violated in any way.
On Whether the Appellant’s rights under article 49 (1) (d) of the Constitution was breached.
Article 49(1) (d) of the Constitution of Kenya provides:
(1) An arrested person has the right—
(d) not to be compelled to make any confession or admission that could be used in evidence against the person;
The Appellant submitted that his confession was obtained through torture by mob justice. He claims that when he was questioned on what he had done to the Complainant he denied and collected his items and ran away where members of the public caught up with him and beat him up. That he then asked for forgiveness and was escorted to Kehancha Police Station where the Complainant identified him as the assailant. A look at the evidence adduced by the Prosecution witnesses does not show that any confession was taken from the Appellant. None of the members of public who apprehended the Appellant testified to say that the Appellant confessed having committed the offence. In his unsworn statement the Appellant did not raise the issue of having made any confession to anyone and he did not cross examine the Investigating Officer PW3 as to any statement that he may have recorded during his arrest and investigations. The ground that the Appellant confessed due to mob injustice is therefore extraneous and falls on the side.
Whether the ingredients of the offence of defilement were proved beyond reasonable doubt and whether the prosecution’s case was full of discrepancies and inconsistencies.
Section 8 (1) & (2) of the Sexual Offence Act No. 3 of 2006 provides that:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
The offence of defilement is anchored on three (3) main ingredients namely; (1) The Age of the victim, (2) Penetration, and (3) The Proper Identification of the Perpetrator.
In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
Likewise, the Court of Appeal in Edwin Nyambogo Onsongo vs Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... 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.”
Further in P.M.M vs Republic [2018] eKLR, it was held thus:
“… whilst the best evidence of Age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
In this case, the minor’s age was proved by the production of her birth certificate as Pex No. 1 which confirmed that the Complainant’s was 3 years old, having been born on 2/9/2019. Thus the first element of proof of Age beyond reasonable doubt was established.
On Proof of Penetration the term is defined under Section 2 of the Sexual Offences Act No. 3 of 2006 to mean:
“the partially or complete insertion of the genital organs of another person.”
When PW1 was washing the Complainant, she noticed blood stains in her pants and upon examining her vagina, she found it was reddish. When PW1 questioned the Complainant about the blood stains in her pants she kept quiet and it is only after she was beaten using a slipper that she said “Uncle Baraka aliniambia nitoe panty akanieka dudu yake ndani (pointing at her vagina)”
When the child was taken to hospital and examined it was established that her hymen was freshly broken and there were Lacerations on the right labia majora, Bleeding from bruises on the minora and Bruises on the labia minora.
The medical examination and Laboratory reports revealed spermatozoa and red blood cells. The Clinical Officer upon examination formed the opinion that the minor was defiled. He filled and produced PRC and P3 forms dated 4/10/2022 all bearing the same results as those of the treatment notes with a diagnosis of defilement.
In consideration of the evidence of PW1 and PW2 this court finds that the element of penetration was proved beyond reasonable doubt.
In his submissions and grounds of Appeal, the Appellant faulted the Trial Magistrate for allowing the mother to the Complainant to testify as an intermediary and questioned the credibility of the mother’s evidence.
Article 50(7) of the Constitution provides:
“In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.”
Section 29 of The Children Act CAP 141 provides that:
(1) Any person may institute court proceedings claiming that any right or fundamental freedom of the child protected under this Part has been denied, violated or infringed, or is threatened.
(2) Without prejudice to the generality of subsection (1), court proceedings maybe instituted by—
(a) a parent or guardian acting in the interest of their child;
In the case of Kennedy Chimwani Mulokoto V. Republic Eldoret High Court Criminal Appeal No. 51 of 2011, Ochieng, J(As he then was) found that the Trial Magistrate properly appointed as an intermediary the mother of a 3 year old girl, a victim of defilement who was unable to testify, due to her tender years. The learned Judge said: -
“When the mother of the little girl gave her evidence, she was deemed to be giving evidence on behalf of that little girl…. Therefore, for all intents and purposes, when the mother of the little girl gave evidence, she did so as a legally recognized intermediary, for and on behalf of the little girl. Such evidence was admissible.” (Emphasis ours).
From the trial court’s record, and from the evidence provided by the prosecution, when the Complainant appeared in court on 14th October 2022 the Trial Magistrate tried to interrogate her but established that she appeared scared and was mute and could not even say her name. She was declared vulnerable and the Prosecution’s application made on 11th October 2022 that she testifies through an intermediary was allowed.
The Complainants mother testified on her own behalf and as the intermediary to the Complainant and her evidence was corroborated by the circumstances of the case and the evidence of the Clinical Officer who confirmed that indeed the child was defiled. Her evidence was therefore truthful and credible.
On identification of the Perpetrator in Stephen Kimari Gathano v Republic [2022] eKLR the court stated that:
“It bears repeating that the Appellant was a person known to the complainant. I do not find any element of mistaken identity of the Appellant as the person who penetrated her genitalia. She was categorical it was Mzee was Purity- She knew the accused as such.”
The Appellant in this case was well known to the Complainant and her family as admitted by both parties herein. PW1 in her statement stated that the Appellant had been employed since February 2022 working for the family as a herder, and lived with them. The Appellant admitted the same and in fact stated that he begun working for PW1 on 3/1/2022.
The incident occurred on the 3/10/2022 in the evening hours when the complainant came home from school and was still in school uniform. It is the Appellant who had brought her and her 5 years old cousin from school. When PW1 noticed blood stains in her daughter’s pant when she was bathing her and also saw that her genitalia was reddened she questioned her and with a little beating she said “Uncle Baraka aliniambia nitoe panty akanieka dudu yake ndani (pointing at her vagina)”
The Court of Appeal in acknowledging the use of euphemisms by children when describing acts of sexual intercourse in Muganga Chilejo Saha v Republic [2017] eKLR had this to say;
“Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement. We, however, need to remind trial courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M V R Voi H.C Cr. App. No. 35 of 2014, EMM V R Mombasa H.C Cr. Case No. 110 of 2015, among several others. Trial courts should record as nearly as possible what the child says happened to him or her.
From the description given by the Complainant, it was the Appellant whom she referred to as “Uncle Baraka” who had put his “dudu” in her genitalia. Both PW1 and PW3 c
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