(Being an Appeal against conviction and sentence in Mombasa Chief Magistrates Courts S.O No. 073 of 2022 delivered on 21/8/2024 by Hon. D.O Odhiambo (SRM).)
1. The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on the 15 th day of May, 2022 at Kona Mpya area in Likoni Sub County within Mombasa County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of H.A a child aged 14 years.
3. He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006 , which particulars of the offence are that on even date in and within the same locality the appellant intentionally and unlawfully touched the vagina of H.A a child aged 14 years with his penis.
4. The appellant was after full trial found guilty of the main count upon which the alternative count was deemed spent, and thereby sentenced to twenty (20) years imprisonment.
5. The appellant was aggrieved by the conviction and sentence, and he preferred the present appeal based on grounds that the learned trial magistrate erred in law and fact by failing to appreciate that the offence was not proven beyond reasonable doubt, being that the visual identification of the assailant was not established, the conviction was based on the prosecutions shoddy evidence, and the sentence was manifestly harsh and unconstitutional.
6. As at the time of making this decision, neither of the parties had complied by filing of submissions on record.
Determination
7. It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
8. The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator . These ingredients are provided for under section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue.
9. Section 8(1) of the Sexual Offences Act provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
…
(5) It is a defence to a charge under this section if –
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
10. The first element is age . 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.” (emphasis added).
11. The age of the minor was established by the production an age assessment report dated 17 th May, 2022 from Coast Province General Hospital which approximated the complainant’s age to 15 years.
12. The second issue is whether the prosecution established proof of penetration of the complainant , beyond reasonable doubt. Penetration is proved through the evidence of the victim corroborated by medical evidence. Nevertheless, what this court requires is proof of facts that the offence was committed, the medical evidence, notwithstanding. The provisions of Section 124 of the Evidence Act are informative to the end that a conviction can rest squarely on the sole testimony of the victim. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
13. According to the appellant the prosecution failed in its undertaking to prove its case beyond reasonable doubt. He argued that the identification of the perpetrator was not evidentiary established.
14. PW1 in her testimony gave a cogent and vivid account of how while enroute to visit her uncle in Likoni, the appellant lured her on the pretext that he knew her uncle and would assist her get to his house only to turn on her and defile her. Specifically, they both walked for a long distance at which point the appellant purported that he wished to relieve himself. As the complainant waited, the appellant came back and held her neck, and threatened her that if she screamed, he would call his friends to gang rape her. The appellant removed the complainant’s clothes, removed his trouser, pushed her to the ground and penetrated his penis into her vagina. The complainant could however not scream as the appellant had held her on the neck.
15. That thereafter, the appellant dropped her off at the bus station (matatu stage) and left her there in pain.
16. PW1’s testimony was corroborated with the medical analysis report as presented by one Stephen Kalai, a Clinical Officer; PW5, produced the PRC Form and P3 Form, as exhibit 3 and 4, respectively. It was exhibited that the complainant had a broken hymen with fresh vaginal abrasions and foul-smelling vaginal discharge.
17. It is not lost to me that a broken hymen is not absolute certainty of penetration, but the same coupled with the testimony of the victim, leaves no room for doubt that the indeed penetration sufficed.
18. Simply put, I conclude therefore that the second ingredient namely penetration was adequately proven based on the victim’s evidence and the medical evidence.
19. On identification of the perpetrator , PW1 positively identified the appellant as her assailant, both prior and during his arrest and in court during trial as the perpetrator.
20. Having considered the appellant’s defence, it is clear that the same fell short in dislodging the prosecutorial evidence. I have no reason to differ from the findings of the trial magistrate who had the opportunity to hear and see the complainant as she testified and weigh the same against the appellant’s defence and tested both their demeanor.
21. As to the 20 years custodial sentence , imposed on the appellant, it is my view the trial court duly exercised it discretion and proceeded to sentence the appellant for a period of twenty (20) years, cognizant of Section 8 (1) (3) of the Sexual Offence Act, stipulates that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
22. The appellant contested the constitutionality of the minimum mandatory nature of his sentence. Contrary to the appellant’s position the jurisprudential trajectory by the recent decision by the Supreme Court in Republic v Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR)(delivered on 12th July, 2024) is that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional; and that trial courts have no discretion to go below the minimum statutory minimum sentences in sexual offences.
23. I find the sentence is inherently sound and guided by statute, thereby being the minimum sentence available on the offence.
24. For the above reasons, I find and hold that the prosecution proved its case against the appellant beyond reasonable doubt and that the appellant’s defence was a sham, wanting in merit. Accordingly, I uphold the conviction and sentence, and the appeal is hereby dismissed in its entirety.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…17TH…..day of…December..………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPELLANT(..........in person..................
FOR THE RESPONDENT.....MR NGIRI AND MR SIRIMA........................
COURT ASSISTANT.......BEBORA............................
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1. The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on the 15 th day of May, 2022 at Kona Mpya area in Likoni Sub County within Mombasa County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of H.A a child aged 14 years.
3. He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006 , which particulars of the offence are that on even date in and within the same locality the appellant intentionally and unlawfully touched the vagina of H.A a child aged 14 years with his penis.
4. The appellant was after full trial found guilty of the main count upon which the alternative count was deemed spent, and thereby sentenced to twenty (20) years imprisonment.
5. The appellant was aggrieved by the conviction and sentence, and he preferred the present appeal based on grounds that the learned trial magistrate erred in law and fact by failing to appreciate that the offence was not proven beyond reasonable doubt, being that the visual identification of the assailant was not established, the conviction was based on the prosecutions shoddy evidence, and the sentence was manifestly harsh and unconstitutional.
6. As at the time of making this decision, neither of the parties had complied by filing of submissions on record.
Determination
7. It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
8. The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator . These ingredients are provided for under section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue.
9. Section 8(1) of the Sexual Offences Act provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
…
(5) It is a defence to a charge under this section if –
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
10. The first element is age . 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.” (emphasis added).
11. The age of the minor was established by the production an age assessment report dated 17 th May, 2022 from Coast Province General Hospital which approximated the complainant’s age to 15 years.
12. The second issue is whether the prosecution established proof of penetration of the complainant , beyond reasonable doubt. Penetration is proved through the evidence of the victim corroborated by medical evidence. Nevertheless, what this court requires is proof of facts that the offence was committed, the medical evidence, notwithstanding. The provisions of Section 124 of the Evidence Act are informative to the end that a conviction can rest squarely on the sole testimony of the victim. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
13. According to the appellant the prosecution failed in its undertaking to prove its case beyond reasonable doubt. He argued that the identification of the perpetrator was not evidentiary established.
14. PW1 in her testimony gave a cogent and vivid account of how while enroute to visit her uncle in Likoni, the appellant lured her on the pretext that he knew her uncle and would assist her get to his house only to turn on her and defile her. Specifically, they both walked for a long distance at which point the appellant purported that he wished to relieve himself. As the complainant waited, the appellant came back and held her neck, and threatened her that if she screamed, he would call his friends to gang rape her. The appellant removed the complainant’s clothes, removed his trouser, pushed her to the ground and penetrated his penis into her vagina. The complainant could however not scream as the appellant had held her on the neck.
15. That thereafter, the appellant dropped her off at the bus station (matatu stage) and left her there in pain.
16. PW1’s testimony was corroborated with the medical analysis report as presented by one Stephen Kalai, a Clinical Officer; PW5, produced the PRC Form and P3 Form, as exhibit 3 and 4, respectively. It was exhibited that the complainant had a broken hymen with fresh vaginal abrasions and foul-smelling vaginal discharge.
17. It is not lost to me that a broken hymen is not absolute certainty of penetration, but the same coupled with the testimony of the victim, leaves no room for doubt that the indeed penetration sufficed.
18. Simply put, I conclude therefore that the second ingredient namely penetration was adequately proven based on the victim’s evidence and the medical evidence.
19. On identification of the perpetrator , PW1 positively identified the appellant as her assailant, both prior and during his arrest and in court during trial as the perpetrator.
20. Having considered the appellant’s defence, it is clear that the same fell short in dislodging the prosecutorial evidence. I have no reason to differ from the findings of the trial magistrate who had the opportunity to hear and see the complainant as she testified and weigh the same against the appellant’s defence and tested both their demeanor.
21. As to the 20 years custodial sentence , imposed on the appellant, it is my view the trial court duly exercised it discretion and proceeded to sentence the appellant for a period of twenty (20) years, cognizant of Section 8 (1) (3) of the Sexual Offence Act, stipulates that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
22. The appellant contested the constitutionality of the minimum mandatory nature of his sentence. Contrary to the appellant’s position the jurisprudential trajectory by the recent decision by the Supreme Court in Republic v Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR)(delivered on 12th July, 2024) is that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional; and that trial courts have no discretion to go below the minimum statutory minimum sentences in sexual offences.
23. I find the sentence is inherently sound and guided by statute, thereby being the minimum sentence available on the offence.
24. For the above reasons, I find and hold that the prosecution proved its case against the appellant beyond reasonable doubt and that the appellant’s defence was a sham, wanting in merit. Accordingly, I uphold the conviction and sentence, and the appeal is hereby dismissed in its entirety.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…17TH…..day of…December..………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPELLANT(..........in person..................
FOR THE RESPONDENT.....MR NGIRI AND MR SIRIMA........................
COURT ASSISTANT.......BEBORA............................
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