The Appellant was convicted and sentenced to serve 20 years imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act.
The particulars of the offence were that the Appellant on diverse dates between 15th day of April 2023 and 17th day of April 2023 at Mosache village in Nyansore Location in Gucha Sub-County within Kisii County intentionally and unlawfully caused his penis to penetrate into the vagina of JNO a girl aged 14 years.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Petition of Appeal filed on 25th January 2024 on the following grounds :-
- That the Learned Trial Magistrate erred in both law and facts in finding and holding that the Appellant was culpable over the two counts and arrived at the wrong decision and/ or judgement.
- That the Learned Trial Magistrate erred in both law and fact in finding and holding that the Respondent had proved its case beyond reasonable doubt whilst the evidence tendered by the prosecution was riddled with pertinent and material contradictions which negated the probative value.
- That the Learned Trial Magistrate erred in both law and facts in failing to understudy the misapprehended the substance of the contradictions which were evident and significant to the extent that same casts doubt in the veracity of the evidence on record.
- That the Learned Trial Magistrate erred in both law and fact by failing to understudy the evidence of Clifford Obera Mboya (PW1) the Clinical Officer who did not find any evidence of any defilement meted on the minor but proceeded to convict and sentence the Appellant.
- That the Learned Trial Magistrate erred in both law and fact by making a decision based on the broken hymen when PW1 testified that the said broken hymen was not freshly broken.
- That the Learned Trial Magistrate erred in law in making a determination based on epithelial and pus cells which components were not connected with the Appellant.
- That the Learned Trial Magistrate erred in both law and facts in failing to understudy the evidence of the prosecution witnesses and thereby arrived at a wrong decision.
- That the Learned Trial Magistrate erred in both law and facts by failing to understudy the evidence of CPL Rodney Mumbui (PW4) which was baseless and associated with misinformation and many contradictions which could not be confirmed whatsoever.
- That the Learned Trial Magistrate failed to take into account the fact that the charge sheet had many contradictions as to dates the alleged offences happened. The judgment delivered was without any legal foundation whatsoever.
- That the Learned Trial Magistrate erred in law in failing to properly execute, appraise and/ or analyse the evidence on record and thereby did not appreciate the material and relevant contradictions which were apparent and evident.
- That the Learned Trial Magistrate shifted the burden of proof upon the Appellant and thereby requiring the Appellant to prove his innocence contrary to and in
- That the Learned Trial Magistrate erred in both law and facts in finding and holding
- That the judgement of the Learned Trial Magistrate is colored with serious misdirection and error in law and hence same is substantially vitiated,
- That the sentence meted out by the Learned Trial Magistrate is manifestly excessive, harsh and / or punitive taking into account did not commit the offences alluded.
- That the Learned Trial Magistrate erred in both law and facts in finding and holding
- That the Learned Trial Magistrate failed to execute the evidence tendered and thereby arrived at a wrong decision.
- The judgement delivered by the Learned Trial Magistrate is not based on any law and evidence. It is a judgement which has no legal foundation whatsoever.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
Prosecution’s case was that PW1 - Clifford Odera Mboya a clinical officer testified examined the complainant herein on 19th April 2023 at Rongo Sub County Hospital. The complainant was taken to the facility by police officers on allegations of having been defiled between 15th April 2023 and 17th April 2023. He testified that on examination, the complainant had normal external genitalia and there were no bruises found on the genitalia. He however found the hymen to have been broken although not fresh. It was his evidence that there was no discharge and on laboratory investigation the syphilis and pregnancy tests were negative but epithelial and pus cells were seen. According to PW 1, the presence of epithelial and pus cells was indicative of an infection. He produced the P3 Form, Post Rape Care Form and treatment notes all dated 25th April 2023 as exhibits 1, 2 and 3 respectively. PW1 established the complainant's age medically as 14 years old and produced Age Assessment Report dated 25th April 2023 as exhibit 4. In cross examination PW 1 testified that from the examination there was evidence of vaginal penetration proved from the broken hymen and presence of epithelial cells albeit he could not establish when the hymen was broken.
PW2 – Joyvine Nyaboke Onderi the complainant herein testified that she was 15 years old and attended Iringa Primary School. She stated that between 15th and 17th April 2023 she was at the Appellant's home in company of her classmate one Benta. It was her testimony that she had known the Appellant from January 2023 and that he was her boyfriend. According to PW2, Benta picked her and her sister from their home and took them to the Appellant’s home. She testified that she had sex with the accused on 15th and 16th April 2023 when the Appellant asked her for sex and left for her home on 17th April 2023. It was her testimony that she found her parents home and told them she was with the Appellant and had sex with him. She additionally testified that it was Benta's father who reported the matter to the police. PW1 testified that she did not know the Appellant’s age but the Appellant knew that she was a student. In cross examination she stated that she was arrested from her home and was informed of the reasons for arrest. She stated that she was not raped.
PW3 - Benta Mokobo testified that she was 16 years old and lived with her siblings and attended Iringa Primary School. She testified that she knew both the Appellant and PW2 and that they were together at the Appellant’s house between 15th and 17th April 2023. She stated that one Tabitha and one Pilot were also with them. According to PW3, the Appellant and the Complainant had met for the first time on 15th April 2023 and slept together on the same bed during the night. It was her testimony that the Appellant and PW2 slept together for all the days they stayed at the Appellant’s home and that the Appellant and the Complainant were in a romantic relationship and so was she and Pilot. It was her further testimony that she, Joyvine, Tabitha and Pilot were arrested on 19th April 2023 by the local chief and taken to Riosiri Police Station. In cross examination PW 3 testified that it was Pilot who took them to the Appellant’s house. That on 15th April 2023 they all slept in the same room but she could not tell whether the Appellant and the complainant had sex. She testified that she disappeared so that she could not attend court because Pilot’s mother and a relative to the Appellant had cautioned her against attending court.
PW4 - Corporal Rodney Momboi (Number 729263) of Riosiri Patrol Base testified that on 19th April 2023 around 3:15 p.m the Chief Nyansore Location in company of the community policing members took the Appellant and PW3 to the patrol base. That upon interrogation of the people who effected the arrest they learnt that 3 - 4 primary school girls were found in the Appellant’s house engaging in immoral behavior and they re-arrested the Appellant and PW3. PW4 testified that they established that the Appellant had sex with the complainant and established that the PW3 had sex with Pilot. In cross examination PW4 testified that they arrested the complainant after PW3 told them that she was also in the house. That from his investigations he established that the complainant was in class eight (8) in Iringa Primary school and informed the parents of the case upon which the complainant agreed to attend court but failed to turn up in the first instance. It was his further testimony that he had to get the head teacher involved and seek warrants of arrest against the remaining witnesses including the complainant’s parents who were frustrating the prosecution.
When placed on defense the Appellant gave sworn statement and said that he was arrested by the village Elder as he was treating a wound and was taken to Riosiri Police Patrol Base and later to Nyamarambe Police Station where he remained for 9 days. The Appellant said the Village Elder did not testify and that he never committed the offence. He said the doctor who examined the Complainant testified and told the court his findings. He further said he was not found in company of the Complainant.
This Appeal was canvassed by way of written submissions.
The Appellant’s Counsel M/S Ochwangi & Co Advocates filed submissions dated 2nd December 2024 and argued that from the evidence of PW1 the Clinical Officer it was clear that the minor was not defiled by the Appellant as it was found that her hymen was not freshly broken and yet the offence was said to have been committed between 15th and 17th April 2023 hardly 2 days to the date she was examined.
It was further submitted that a broken hymen is not evidence of defilement and the case of Kevin Mangwana Olukuru Vs Republic cited to show that the hymen could be broken in any other way than by penetration of the vagina by a penis.
The Appellant’s Counsel also submitted that the age of the Complainant was not proved by the prosecution and yet it determines the penalty to be passed when one is found guilty.
It was further submitted that the Chief and the members of Community Policing who allegedly arrested the Appellant did not testify and Benta who was the one said to have been found with the Appellant was not the Complainant and did not connect the Appellant to the offence. While urging the court to find that failure to call crucial witnesses was fatal to the prosecution case the Appellant’s Counsel cited the holding in Nyamira H. C. CRA NO E019 of 2022.
The Appellant also submitted that the charge sheet was defective as there was contradiction as to the date when the Complainant was defiled and the same is therefore unreliable.
On sentence the Appellant faulted the trial court for passing harsh sentence where the evidence relied on was uncorroborated. He urged the court to allow his appeal.
The Respondent on the other hand filed written submissions dated 24th September 2024 and opposed the appeal and argued that all the ingredients of the offence of defilement namely age of the Complainant, penetration and identity of the perpetrator had been proved by the evidence tendered by the Complainant and the Clinical Officer among others. It was submitted that the evidence of the child was corroborated by that of the Clinical Officer that the Complainant was defiled.
On identification of the perpetrator it was submitted that the Complainant identified the Appellant as her boyfriend and had known him since February 2023. The Complainant also said she had cohabited with the Appellant from 15th to 17th April 2023 and PW3 who was also in the same house confirmed that the Appellant and the Complainant were in the house in question and slept on the same bed. It was contended that the Appellant did not challenge this evidence and there was proof of his identification as the perpetrator.
On ground No 13 the Respondent submitted that the sentence of 20 years imprisonment meted was lawful as it is the minimum provided under Section 8(3) of the Sexual Offences Act.
The court was urged to dismiss the appeal and find that the conviction was safe and the same should be upheld.
Analysis and Determination
In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are:
(a). whether the ingredients of the offence of defilement were proved beyond reasonable doubt,
(b). Whether the Appellant was convicted based on evidence riddled with material discrepancies/contradictions and / or inconsistencies
©. Whether the charge sheet was defective
(d). Whether the Trial Magistrate shifted the burden of proof upon the Appellant
(e). Whether the sentence is manifestly harsh and excessive in the circumstances
Section 8 (1) as read with 8(3) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (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.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
In the Court of Appeal case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR it was stated as follows on proof of age.
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
From the evidence of PW2 she said she was 15 years by the time she was testifying on 26th October 2023 and was a pupil at Iringa Primary School. PW1 the Clinical Officer who examined the Complainant also testified that as at the time the Complainant was being examined she was 14 years. It is to be noted that the offence was allegedly committed between 15th and 17th April 2023 and the Complainant was examined on 19th April 2023 but it was not until on 26th October 2023 that she testified in court several months after the offence was committed. The Appellant did not challenge the evidence as to the Complainant’s age during trial and he did not bring evidence that she was older or younger than the age indicated in the charge sheet and as such this court finds that the age of the Complainant fell within the bracket under Section 8(3) of the Act and the 1st ingredient of the offence of defilement was duly proved.
On the issue of penetration, the Complainant PW2 testified that the Appellant was her boyfriend and that she had sex with him on 15th and 16th April 2023 at his home where she was also in company of her sister and her classmate Benta who picked them from home and took them to the Appellant’s home. That when she returned home on 17th April 2023 she found her parents and told them she had been with the Appellant and she had sex with him. PW2 said that when the Appellant asked whether she was a student she did not answer and Benta said they were students at Iringa Primary school. She said she did not know the age of the Appellant.
PW3 saw the Appellant and PW2 spend the night on one bed as she also slept with Pilot who was her boyfriend. She confirmed they were at the Appellant’s house from 15thApril 2023 and on 19th April 2023 the Chief arrested her together with PW2, Pilot and Tabitha and they were taken to Riosiri Police Station.
Although PW1 the Clinical Officer examined the Complainant and found that her hymen was not freshly broken there is corroborative evidence that she spent 2 nights with the Appellant and had consensual sex. When PW2 and her sister Tabitha left the Appellant’s house on 17th April 2023 PW3 remained there and it is upon PW2 disclosing where she had been that PW3’s father reported the matter to the police and the Appellant was arrested together with PW3 and they were taken to the police station. PW3 confirmed that her boyfriend Pilot escaped when she was apprehended together with the Appellant. She said that she is the one who took PW2 and her sister to the Appellant’s house and they stayed there from 15th to 17th April 2023 when PW2 and her sister left but she remained as she feared being beaten.
The evidence of the Clinical Officer that he examined the Complainant and established she had a broken hymen was not the only evidence that the Complainant had sex with the Appellant. The Appellant had no other reason to sleep with the Complainant on one bed other than sexually exploiting her. This court therefore finds that both the ingredient of penetration and identity of the perpetrator have been proved beyond all reasonable doubt.
On whether crucial witnesses were not called to testify Section 143 of the Evidence Act provides that
“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.”
The Court of Appeal in Julius Kalewa Mutunga v Republic stated as follows:-
“…As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive.”
The Appellant did not point out which crucial evidence the said witnesses could have tendered as they were not present when the Appellant defiled the Complainant. From the evidence of PW4 the Investigating Officer the said members of public and Community Policing Members merely arrested the Appellant.
The Trial Court conducted voire dire examination of the Complainant and PW3 and established they understood the nature and importance of an oath and therefore took their evidence on oath and believed they had given truthful testimonies. They were cross examined by the Appellant and their evidence was not shaken. There was sufficient evidence upon which the Trial Magistrate based his finding of the Appellant’s guilt and there is no reason to warrant unsettling the same.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal has lacks merit and the same is dismissed.
Right of Appeal 14 days.
Dated, signed and delivered this 30thth day of April, 2025