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JudgmentBENARD AWERA ONSONGO VS The Republic14 min read

BENARD AWERA ONSONGO VS The Republic

High Court at Nyamira High Court · · Wilfrida A. Okwany

  1. The Appellant herein, Bernard Awere Onsongo, 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. The particulars of the charge were that on 19th October 2021 at Keera location, Characharani Sub-location in Nyamira South Sub-County within Nyamira County intentionally and unlawfully caused his genital organ, penis, to penetrate the genital organ, vagina, of B.C. (particulars withheld) a child aged 10 years.
  2. The Appellant also faced the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on 19th October 2021 at Keera location, Characharani Sub-location in Nyamira South Sub-County within Nyamira County intentionally and unlawfully touched the genital organ, vagina, of B.C. (particulars withheld) a child aged 10 years with his genital organ, penis.
  3. He pleaded not guilty to both charges and a trial ensued in which the prosecution presented the evidence of a total of 5 witnesses as follows: -

The Prosecution’s Case

  1. PW1, B.M. (particulars withheld) the victim’s grandmother, testified that she returned home from the hospital at around 5.00pm on the material day being, 19th October 2021 when she learnt that the victim had been defiled by a neighbour. She then escorted the victim to the hospital for examination and treatment.
  2. PW2, Agnes Kwamboka, the victims aunt, testified that she on the material day saw the victim leave the toilet while crying and holding her inner pants and that the Appellant also emerged from the same toilet shortly thereafter. She testified that the victim told her that the Appellant had defiled her.
  3. PW3 B.C. (particulars withheld) the victim, testified that the Appellant defiled her on 19th October 2021. She stated that her PW2 found her in the toilet with the Appellant as he was defiling her and that she was later escorted to the hospital.
  4. PW4, Rodgers Onganga, the Clinical Officer from Nyamira County Hospital examined the victim on 20th October 2021 found that she had been defiled. H He produced the P3 Form (P.Exh1), Treatment Notes (P.Exh2), PRC Form (P.Exh3) and Lab Results (P.Exh4).
  5. PW5, No. 95892 Cpl. Vanice Michira, was the Investigating Officer who received the victim and her grandmother at the police station. He recorded the victim’s statement alongside the statements of other witnesses. He also booked the Appellant and placed him in the cells. He testified that the victim’s aunt, one Mercy, attempted to compromise the case but did not return to the station. PW5 stated that the victim was subjected to an age assessment which revealed that she was 10 years old. He produced the said age assessment report as (P.Exh5).
  6. At the close of the Prosecution’s case, the Appellant was placed on his defence and he elected to tender a sworn statement but did not call any witnesses.

The Defence Case

  1. The Appellant, DW1, testified that he knew the victim as his neighbour’s daughter. He implored the court to consider both sides of the case.

The Trial Court’s Decision

  1. In a judgment rendered on , the trial court found that the prosecution had established its case against the Appellant beyond reasonable doubt and the Appellant was consequently convicted and sentenced to serve (30) years’ imprisonment.

The  Appeal

  1. Aggrieved by the trial court’s decision, the Appellant filed the present appeal challenging both the conviction and sentence. The Appellant listed the following grounds of appeal in the Petition of Appeal: -
  2. THAT the trial court erred in both law and fact in finding that the Prosecution had proved its case beyond reasonable doubt.
  3. THAT the trial court faulted in both law and fact by convicting the appellant out of mere fabricated evidence having no credible proof.
  4. THAT the learned trial magistrate equally faulted in both law and facts in not considering that the prosecution’s case was riddled with glaring contradictions and inconsistencies.
  5. THAT the learned trial magistrate erred in law notwithstanding that the medical evidence did not link the appellant.
  6. THAT the trial court erred in law by giving out heavy sentence without noticing that no investigation that was conducted in the instance case.
  7. THAT the Appellant was not given enough time to interrogate the witnesses and the whole trial process was conducted virtually hence there was poor network connection.
  8. THAT the trial court faulted in law and fact by not taking into consideration the Appellant’s defence which was equally to cast the doubts.
  9. THAT the sentence of 30 years imprisonment was too deterrent and excessive given the fact that the Appellant is too young.
  10. THAT the Appellant equally prays to be served with certified trial court proceedings to enable him to erect more grounds and wished to attend the hearing of the appeal.
  11. The Appeal was canvassed by written submissions which I have read and considered.
  12. The duty of a first appellate court was determined in Kariuki Karanja vs. R (1986) KLR 190 thus: -

“On a first appeal from a conviction by a judge or a magistrate, the appellant is entitled to have the Appellate Court\'s own consideration and view of the evidence as a whole and its own decision thereon. The Court has a duty to rehear the case and reconsider the materials before the Judge or Magistrate with such materials as it may have been decided to admit.”

Analysis and Determination

  1. I have considered the record of appeal and the rival submissions of the parties. I find that the main issues for determination are whether the prosecution proved the charge of defilement beyond reasonable doubt and whether the sentence imposed on the Appellant was legal and appropriate.
  2. Whether the charge of defilement proven by the prosecution to the required standard.
  3. The offence of defilement is premised on Section 8 (1) of the Sexual Offences Act (the Act)which stipulates as follows: -

8. Defilement

(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.

  1. The ingredients of the offence of defilement that can be derived from the above section are; proof of age, proof of penetration and positive identification of the perpetrator. (See also Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013).
  2. In Mwalongo Chichoro Mwajembe vs. Republic, Msa. App. No. 24 of 2015 (UR), the Court of Appeal dealt with the manner in which the age of a victim can be determined thus: -

‘‘ …..the question of proof of age has finally been settled by 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 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 decision from the High Court that age can also be proved by observation and common sense.  (See Denis Kinywa - vs – Republic, Criminal Appeal No. 19 of 2014 and Omar Uche Vs Republic, Criminal Appeal No. 11 of 2015).  We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond reasonable doubt.  This form of proof is a direct influence by the decision of the Court of court Appeal of Uganda in Francis Omuroni is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable…’’

  1. In the present case, the Prosecution presented the evidence of PW1 the victim’s grandmother, PW2 the victim’s aunt and PW3 the victim herself who testified that the victim was 10 years old. PW5 Cpl. Michira produced an Age Assessment Report (P.Exh 5) wherein the age of victim was estimated to be 10 years. I am therefore satisfied that the minority age of the victim was proved to the required standard.
  2. The second ingredient of penetration is defined under Section 2 of the Act as follows: -

\"penetration\" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

  1. The victim (PW3)testified as follows: -

“….On 19/10/2021 the accused ‘alinifanyia tabia mbaya’ (did bad manners to me). He removed my inner pant and ‘akanifanyia tabia mbaya’. The accused removed his trouser We were at my aunt’s toilet…”

  1. The trial court made the following observations during the victim’s testimony: -

“NB: Witness points to her vagina while saying that the accused ‘alinifanyia tabia mbaya’ hapa using ‘hiyo kitu yake’. ‘Kitu yake’ is the thing that he uses to urinate.”

  1. Courts have accepted the use of euphemisms by minors when describing acts of sexual penetration. In Muganga Chilejo Saha vs. Republic [2017] eKLR, the Court of Appeal acknowledged the use of euphemisms and stated thus: - 

“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 courtroom. 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.”

  1. In the present case, the victim’s evidence pointed to penetration as she stated that the Appellant ‘did bad manners’ to her. I have also considered the medical evidence presented by PW4, Rodgers Onganga, who testified that the victim had a broken healing hymen with whitish vaginal discharge. The Clinical Officer also noted that the victim’s vagina was wet with semen, had puss cells and white blood cells seen with sperms noted on urinalysis. I have perused the victim’s P3 Form (P.Exh1) and noted that physical examination of the external genitalia revealed no visible injuries save for the hymen which was healing. The PRC Form (P.Exh 3) also indicated that the hymen was broken and was healing but that the vaginal canal was normal. The Treatment Notes from Nyamira District Hospital also indicated that there were no bruises on the vagina or vulva but that the hymen was not intact.
  2. The question which arises from the above findings is whether the absence of hymen can be considered as conclusive proof of penetration. Courts have severally held that the mere fact that a victims hymen is broken or absent is not prima facie proof of penetration as there are other factors that may lead to the absence of hymen. In PKW vs. Republic [2012] eKLR, the Court of Appeal held: -

“[15]. In their analysis of the evidence on record, the two courts below…appear to have placed a high premium on the finding that the child’s hymen had been broken.  Was this justified$1  Is hymen only ruptured by sexual intercourse$2

[16].Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born.  In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge.  That is, however, an erroneous assumption.  Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen vs Manuel Vincent Quintanila [1999] AB QB 769.”

  1. The principle that emerges from the above decision is that the absence of hymen alone is not conclusive proof of penetration. This means that there ought to be other evidence to support the ingredient of penetration besides the aspect of absence of hymen. In the instant case I note that the evidence to the effect that the victim’s hymen was healing points to the fact that she may have been defiled on the evening in question. I note that in addition to the evidence of broken hymen, the prosecution also tendered medical evidence which indicated that there was spermatozoa in the victim’s vagina thus corroborating the victim’s claim that she was defiled.
  2. I have further considered the testimony of PW2 who stated that she saw the victim leave the toilet while in distress and carrying her inner pants after which the Appellant also emerged from the same toilet shortly thereafter. I am satisfied that the ingredient of penetration was proved to the required standard.
  3. Turning to the identification of the Appellant as the perpetrator of the said offence of defilement, I note that it was not disputed that the Appellant was well known to the victim who referred to him by his two names during her testimony. I further note that the Appellant also stated, in his defence, that he knew the victim as his neighbour’s child. The incident of defilement is reported to have occurred at 5.00 p.m. when there was still sufficient natural light to enable the victim see and identify her assailant. I find that the identification was made easier by the fact that it was one of recognition of a person well-known to the victim.
  4. PW2 was also categorical that the Appellant was in the toilet with the victim on the said date. PW2 testified that: -

“…Then I heard the sound of Bernard. The accused told me to go away since he was in the toilet….The accused was in the toilet situated behind my brother’s house.  I did not go away. I headed towards the toilet. The accused again told me to leave. I saw Brenda leave the toilet while crying and holding her inner pants. She had worn her other clothes. Also Bernard left the same toilet. They were both inside the toilet….”

  1. I am satisfied that the Appellant was positively identified as the perpetrator of the offence of defilement. It is my finding that the charge of defilement was proved beyond reasonable doubt. I therefore uphold the conviction by the trial court.

(ii)    Whether the sentence was legal and appropriate.

  1. Section 8(2) of the Act stipulates that the offence of defilement attracts the mandatory sentence of life imprisonment. It is trite that courts may depart from imposing the prescribed mandatory sentences if the circumstances of a case so permit. In this case, I note that the trial court considered the nature of the offence, the age of the victim and the Appellant’s mitigation before passing the sentence of 30 years imprisonment.
  2. The circumstances under which an appellate court can interfere with the sentence imposed by the trial court were discussed in the case of S vs. Malgas 2001 (1) SACR 469 (SCA) at para 12 where it was held that: -

“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”

  1. I have considered the gravity of the offence and the fact that the Appellant took advantage of his neighbour’s child by assaulting her in the most callous manner. I find that the trial court was justified in imposing a deterrent sentence considering the gravity of the offence and the minor’s tender age.
  2. I have also considered the sentences passed by other courts in similar cases and I find that the trial court cannot be said to have gone off the mark when it imposed a 30 years’ imprisonment sentence. In Maripett Loonkomok vs. Republic [2016] eKLR, where the Court of Appeal upheld the sentence of 20 years imprisonment imposed by the trial court and upheld by the High Court where the Appellant had defiled a 10-year-old child. In Peter Nyakundi Omariba vs. Republic [2020] eKLR, Ougo J. reduced a sentence of life imprisonment to 30 years imprisonment where the Appellant was convicted for defiling an 8-year old minor.
  3. In balancing the fact that the Appellant was a first offender who was remorseful for his actions with the age of the victim, the principles of sentencing under the Judiciary Sentencing Policy Guidelines (2016) and the above cited decided cases, I find that sentence of 20 years imprisonment will be appropriate punishment for the offence of defilement. I further find that the trial court should have considered the time that the Appellant spent in custody while awaiting his trial during sentencing in line with the provisions of Section 333 (2) of the Criminal Procedure Code. (See Ahmad Abolfathi and Another vs. Republic (2019) eKLR).
  4. In the final analysis, while I dismiss the appeal against the conviction, I will allow the appeal on sentence which means that the 30 years imprisonment sentence shall be substituted with a sentence of 20 years imprisonment but with a rider that the imprisonment term shall begin to run from the date of the Appellant’s arrest being 22nd October 2021 as indicated on the charge sheet.
  5. It is so ordered.


    BENARD AWERA ONSONGO VS The Republic BENARD AWERA ONSONGO VS The Republic