The appellant was charged, Convicted and Sentenced to life imprisonment for the offence of defilement contrary to section 8(1) as read with section 8(2) of the sexual offence Act Cap63A of the laws of Kenya. The particulars of the offence were on 19th day of April 2020 at Ndinyika Village, Kimana trading Centre of Loitokitok Sub- County within Kajiado County intentionally caused his penis to penetrate the anus of Samuel Sankale a child aged 7 years.
The appellant also faced an alternative count of Committing an indecent Act with a child contrary to section 11(1) of the Sexual offences Act whose particulars are as follows; that on 19th day of April 2020 at Ndinyika, Kimana Trading Centre of Loitokitok Sub- County within Kajiado County intentionally touched the anus of Samuel Sankale a child aged 7 years with his Penis.
Aggrieved with the decision of the trial court, the appellant preferred the present appeal setting out the following grounds;
I. THAT the learned trial magistrate erred in law and in fact by finding that the prosecution had proved the key elements of the offence of defilement beyond reasonable doubt.
II. THAT, the learned trial magistrate erred in law and in fact by putting undue reliance on the inconsistent and inadequate evidence which was improper.
III. THAT the learned trial magistrate erred in matters law and fact by not establishing that the appellants constitutional right to legal representation had been violated by failing to promptly inform him of his right to legal counsel.
IV. THAT the learned trial magistrate erred in law and in fact by failing to properly consider the appellant plausible defence.
V. THAT the learned trial magistrate erred in law and fact by misapplying the law of sentencing and principles of rehabilitation, leading to an excessive and harsh sentence of life imprisonment.
The appellant thus prays that the appeal be allowed in its entirety and the sentence set aside.
Prosecution Case
Five witnesses were called by the state to establish the charge against the appellant whose testimonies are as follows albeit in brief.
PW1 Minor S.S gave sworn testimony; the court having been satisfied as to his competence to do so. He told the court that his father had sent him to go to the farm and on his way, he met the appellant who grabbed him and put him on his shoulder. The appellant took him to his house and defiled him. The specific details are that the appellant laid the victim on a mattress on the floor, removed his trouser smeared saliva on his (victims) buttock and inserted his penis. He screamed loudly in pain attracting people came and found the appellant in the house and arrested him. The victim was taken to the hospital and later to the hospital for treatment.
PW2 ROSE NAILANI, the victim’s Mother testified and told the court that she was in the farm when she was called and informed by PC Langat that her son had been defiled by one Benson Mutua who she had known for 2 years as Chomolea.
PW3 NO 119338 PC WELDON KIPKORIR LANGAT testified and told the court that on 19th April 2020, he had been called by his superior and assigned some duties regarding an incident that had been reported. Together with other officers including Corporal Moffat they proceeded to the scene of crime and found the suspect in his house asleep in his house. He was bleeding from the beating that he had received. The appellant was arrested and taken to the hospital.
PW4 ANTONY NYAGA MUTHEE testified on behalf of his colleague Simon Lesinet who was indisposed at the time and could not be available. He told the court that the victm was taken to the facility on 19th April 2020 by a police officer by the name Moffat. He was examined and the following details injury to the anus noted. That tear with laceration was noted as well as blood on the anal orifice.
PW5 NO 105076 PC FAITH MUTUA took over investigations from Corporal Moffat who had been transferred to Bomet and explained the circumstances leading to the arrest and eventual arraignment in court. The witness produced the statement of the initial investigating officer as exhibit 6. In that statement, the investigating officer stated that while in the office he received a report of defilement at Kimana town near PEFA church. He proceeded there immediately and on arrival found the accused surrounded by members of the public. Also present was a young boy who had been defiled. He escorted both the accused and the child to the hospital where both were examined. The accused was then taken to the police station where the charges were preferred.
On the basis of the prosecution evidence, the court was satisfied that a prima facie case had been made sufficient to warrant placing the accused on his defence. The appellant gave unsworn testimony and told the court that he had gone to the farm on 17th April 2020 and worked until 12:00 pm. That earlier he had met a neighbour whom he argued with for he (neighbour) had let the goats into his farm. At around 3:00 pm while in his house, he heard police officers waking him up. He was arrested and taken to police station and while on the way he saw the lady he had quarrelled with earlier. He was told that he had defiled the child an offence he denies.
Submissions
The appellants submit that the prosecution failed to prove key elements of the offence of defilement as required by law especially with regard to the penetration. The appellant submits that there was no evidence of penetration whatsoever and that the presence of bruises in the anal area is not indicative of penetration. He contends that an expert should have been called to confirm whether the bleeding and bruising was as a result of penetration.
The appellant also challenged the prosecution evidence on the basis that there were numerous contradictions and inconsistencies which should have been resolved in his favour. The appellant contend that the exact nature and scope of the act described do not clearly establish penetration a crucial element under the Act.
It is submitted by the appellant that his constitutional right to legal representation under Article 50 (2) (h) of the Constitution was violated for the reason that the court failed to promptly inform him of such right.
The state submissions support the trial court findings on both Conviction and sentence contending that all the necessary ingredients of the offence with which the appellant was charged, were present. That the age of the victim was well established by the testimony of PW2 Rose Nailani the complainants’ mother and the age assessment report produced by the clinical officer PW4. As regards penetration, it is the prosecution contention that the evidence of the complainant and the medical report clearly establishes that there was penetration. The P3 indicated that there was tear, laceration and blood from the anal area which corroborated the complainant testimony.
It is also submitted by the state that the identity of the appellant was not in doubt. First, the appellant was known to the complainant who he would see every day. Secondly, the complainant mother had known him for about two years as he would move about in their locality repairing plastic items hence the name chomelea.
Analysis and determination
From the Amended Grounds of appeal, the submissions and the evidence on record, the issue for determination is whether the prosecution proved the case against the appellant in the magistrate court beyond reasonable doubt and whether the sentence meted out was excessive in the circumstances.
The appellant challenged the conviction and sentence on the grounds that the prosecution did not prove all the necessary ingredients of the offence with which he was charged.
The offence of defilement is proved when the age of the victim in relation to the offence is ascertained, the fact of penetration is established and the identity of the perpetrator. See Charles Wamukoya vs Republic Cr appeal no 72 of 2013 and George Opondo Olunga vs Republic (2016) eklr.
As regards the age of the victim, PW2 ROSE Nailani the victim’s mother told the court that her child was born 29th May 2013 and the offence committed on 19th April 2020. The age assessment report was produced by the clinical officer without any objection from the appellant which showed that the minor was 7 years at the time of assessment. This fact of the complainant age has not been contested by the appellant before the trial court and this court.
I am therefore satisfied that the age of the minor was established and that there was no material contradiction in this regard.
On the matter of penetration, the clinical officer PW4 confirmed that upon examination of the victim on 19th April 2020, it was established that the anal region was torn with lacerations. The blood on the anal area appeared recent. The appellants contention that there was no penetration and that an expert should have been called to determine whether the blood on the anal area was as a result of defilement is not convincing. The injuries on the victim support the prosecution case that indeed there was sexual assault. There is therefore no doubt based on the medical evidence and the testimony of the complainant that there was penetration partial or complete. In the case of Alex Chemwotei Sakong v Republic [2108] eKLR the court held as follows as what penetration entails in a sexual offence;
“Penetration is defined under section 2 of the Sexual Offences Act to mean the partial or complete insertion of the genital organ of a person into the genital organs of another person. This position was explained by the court of appeal (Onyango Otieno, Azangalala & Kantai JJ A) in the case of Mark Oiruri vs. Republic Criminal Appeal 295 of 2012 [2013] eKLR in which they opined thus:
“…and the effect that the medical examination was carried out on her on 16th November, 2008 five days after the event, and that during that time she must have taken a bath and no spermatozoa could be found. In any event the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ…”
I am satisfied that this element of the offence was sufficiently proved.
On identification of the appellant, PW1 told the court that he had been sent to the farm by his father and on the way he met the appellant whom he had known before. The appellant grabbed him, put him on his shoulder and took him to his house and defiled him. It was during the day and so there was no possibility of error in identification of the perpetrator who was in any case known to the victim by name. The appellant was arrested at the scene of crime by members of the public who responded to the victim’s cries. And although none of those who responded were called, the police found the appellant beaten and re-arrested him. I am satisfied that the appellant was identified as the perpetrator of the offence.
The appellant contended before this court in his submissions that his right to legal representation was violated and infringed as he was not informed of the right nor was he accorded legal presentation by and at the state expense.
Article 50 of the Constitution provides for the right of an accused person as follows;
50(2) Every accused person has the right to a fair trial, which includes the right-
(g)to choose, and be represented by, an advocate, and to be informed of his right promptly;
(h) to have an advocate assigned to the accused person by the state and at the state expense, if substantial injustice would otherwise result and to be informed of this right promptly
The right to legal representation in my view under the above provision of the constitution is not an absolute right. It only arises in situation where substantial injustice would occur in absence of such representation. In David Macharia Njoroge vs Republic (2011) eKLR, the court observed that state funded legal representation is a right in certain instances,” we are of the considered view that in addition to situations where substantial injustice would otherwise result, persons accused of capital offences where the penalty is loss of life have the right to legal representation at the state expense…”
The court in Karisa Chengo & 2 others vs Republi (2014) stated that “substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state be obligated to provide legal representation”
In the present matter, the appellant is raising the issue of legal representation for the first time in this appeal. Though it is the duty of the trial court to inform the accused of this right, in my view such failure did not occasion an injustice and is not fatal. In any case the punishment for the offence with which he was charged and convicted does not involve loss of life. A sentence of life imprisonment does not amount to loss of life. There is life in life imprisonment although considerably restricted.
The appellant challenged the evidence tendered by the prosecution as largely full of contradictions and inconsistencies. In my re-evaluation of the evidence I found no basis for this attack. The prosecution evidence was overwhelming.
As regard the maximum sentence imposed by the magistrate court, the supreme court in Republic vs Joshua Gichuki Mwangi Petition no E018 of 2023 delivered on 12th July 2024, held that the mandatory minimum sentences as prescribed in the sexual offences Act are not unconstitutional. The learned magistrate was therefore perfectly within the law to impose the mandatory sentence as provided for by law.
Accordingly, I am unable to disturb the conviction and the sentence passed by the trial court and therefore the appeal herein is dismissed.
The appellant also faced an alternative count of Committing an indecent Act with a child contrary to section 11(1) of the Sexual offences Act whose particulars are as follows; that on 19th day of April 2020 at Ndinyika, Kimana Trading Centre of Loitokitok Sub- County within Kajiado County intentionally touched the anus of Samuel Sankale a child aged 7 years with his Penis.
Aggrieved with the decision of the trial court, the appellant preferred the present appeal setting out the following grounds;
I. THAT the learned trial magistrate erred in law and in fact by finding that the prosecution had proved the key elements of the offence of defilement beyond reasonable doubt.
II. THAT, the learned trial magistrate erred in law and in fact by putting undue reliance on the inconsistent and inadequate evidence which was improper.
III. THAT the learned trial magistrate erred in matters law and fact by not establishing that the appellants constitutional right to legal representation had been violated by failing to promptly inform him of his right to legal counsel.
IV. THAT the learned trial magistrate erred in law and in fact by failing to properly consider the appellant plausible defence.
V. THAT the learned trial magistrate erred in law and fact by misapplying the law of sentencing and principles of rehabilitation, leading to an excessive and harsh sentence of life imprisonment.
The appellant thus prays that the appeal be allowed in its entirety and the sentence set aside.
Prosecution Case
Five witnesses were called by the state to establish the charge against the appellant whose testimonies are as follows albeit in brief.
PW1 Minor S.S gave sworn testimony; the court having been satisfied as to his competence to do so. He told the court that his father had sent him to go to the farm and on his way, he met the appellant who grabbed him and put him on his shoulder. The appellant took him to his house and defiled him. The specific details are that the appellant laid the victim on a mattress on the floor, removed his trouser smeared saliva on his (victims) buttock and inserted his penis. He screamed loudly in pain attracting people came and found the appellant in the house and arrested him. The victim was taken to the hospital and later to the hospital for treatment.
PW2 ROSE NAILANI, the victim’s Mother testified and told the court that she was in the farm when she was called and informed by PC Langat that her son had been defiled by one Benson Mutua who she had known for 2 years as Chomolea.
PW3 NO 119338 PC WELDON KIPKORIR LANGAT testified and told the court that on 19th April 2020, he had been called by his superior and assigned some duties regarding an incident that had been reported. Together with other officers including Corporal Moffat they proceeded to the scene of crime and found the suspect in his house asleep in his house. He was bleeding from the beating that he had received. The appellant was arrested and taken to the hospital.
PW4 ANTONY NYAGA MUTHEE testified on behalf of his colleague Simon Lesinet who was indisposed at the time and could not be available. He told the court that the victm was taken to the facility on 19th April 2020 by a police officer by the name Moffat. He was examined and the following details injury to the anus noted. That tear with laceration was noted as well as blood on the anal orifice.
PW5 NO 105076 PC FAITH MUTUA took over investigations from Corporal Moffat who had been transferred to Bomet and explained the circumstances leading to the arrest and eventual arraignment in court. The witness produced the statement of the initial investigating officer as exhibit 6. In that statement, the investigating officer stated that while in the office he received a report of defilement at Kimana town near PEFA church. He proceeded there immediately and on arrival found the accused surrounded by members of the public. Also present was a young boy who had been defiled. He escorted both the accused and the child to the hospital where both were examined. The accused was then taken to the police station where the charges were preferred.
On the basis of the prosecution evidence, the court was satisfied that a prima facie case had been made sufficient to warrant placing the accused on his defence. The appellant gave unsworn testimony and told the court that he had gone to the farm on 17th April 2020 and worked until 12:00 pm. That earlier he had met a neighbour whom he argued with for he (neighbour) had let the goats into his farm. At around 3:00 pm while in his house, he heard police officers waking him up. He was arrested and taken to police station and while on the way he saw the lady he had quarrelled with earlier. He was told that he had defiled the child an offence he denies.
Submissions
The appellants submit that the prosecution failed to prove key elements of the offence of defilement as required by law especially with regard to the penetration. The appellant submits that there was no evidence of penetration whatsoever and that the presence of bruises in the anal area is not indicative of penetration. He contends that an expert should have been called to confirm whether the bleeding and bruising was as a result of penetration.
The appellant also challenged the prosecution evidence on the basis that there were numerous contradictions and inconsistencies which should have been resolved in his favour. The appellant contend that the exact nature and scope of the act described do not clearly establish penetration a crucial element under the Act.
It is submitted by the appellant that his constitutional right to legal representation under Article 50 (2) (h) of the Constitution was violated for the reason that the court failed to promptly inform him of such right.
The state submissions support the trial court findings on both Conviction and sentence contending that all the necessary ingredients of the offence with which the appellant was charged, were present. That the age of the victim was well established by the testimony of PW2 Rose Nailani the complainants’ mother and the age assessment report produced by the clinical officer PW4. As regards penetration, it is the prosecution contention that the evidence of the complainant and the medical report clearly establishes that there was penetration. The P3 indicated that there was tear, laceration and blood from the anal area which corroborated the complainant testimony.
It is also submitted by the state that the identity of the appellant was not in doubt. First, the appellant was known to the complainant who he would see every day. Secondly, the complainant mother had known him for about two years as he would move about in their locality repairing plastic items hence the name chomelea.
Analysis and determination
From the Amended Grounds of appeal, the submissions and the evidence on record, the issue for determination is whether the prosecution proved the case against the appellant in the magistrate court beyond reasonable doubt and whether the sentence meted out was excessive in the circumstances.
The appellant challenged the conviction and sentence on the grounds that the prosecution did not prove all the necessary ingredients of the offence with which he was charged.
The offence of defilement is proved when the age of the victim in relation to the offence is ascertained, the fact of penetration is established and the identity of the perpetrator. See Charles Wamukoya vs Republic Cr appeal no 72 of 2013 and George Opondo Olunga vs Republic (2016) eklr.
As regards the age of the victim, PW2 ROSE Nailani the victim’s mother told the court that her child was born 29th May 2013 and the offence committed on 19th April 2020. The age assessment report was produced by the clinical officer without any objection from the appellant which showed that the minor was 7 years at the time of assessment. This fact of the complainant age has not been contested by the appellant before the trial court and this court.
I am therefore satisfied that the age of the minor was established and that there was no material contradiction in this regard.
On the matter of penetration, the clinical officer PW4 confirmed that upon examination of the victim on 19th April 2020, it was established that the anal region was torn with lacerations. The blood on the anal area appeared recent. The appellants contention that there was no penetration and that an expert should have been called to determine whether the blood on the anal area was as a result of defilement is not convincing. The injuries on the victim support the prosecution case that indeed there was sexual assault. There is therefore no doubt based on the medical evidence and the testimony of the complainant that there was penetration partial or complete. In the case of Alex Chemwotei Sakong v Republic [2108] eKLR the court held as follows as what penetration entails in a sexual offence;
“Penetration is defined under section 2 of the Sexual Offences Act to mean the partial or complete insertion of the genital organ of a person into the genital organs of another person. This position was explained by the court of appeal (Onyango Otieno, Azangalala & Kantai JJ A) in the case of Mark Oiruri vs. Republic Criminal Appeal 295 of 2012 [2013] eKLR in which they opined thus:
“…and the effect that the medical examination was carried out on her on 16th November, 2008 five days after the event, and that during that time she must have taken a bath and no spermatozoa could be found. In any event the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ…”
I am satisfied that this element of the offence was sufficiently proved.
On identification of the appellant, PW1 told the court that he had been sent to the farm by his father and on the way he met the appellant whom he had known before. The appellant grabbed him, put him on his shoulder and took him to his house and defiled him. It was during the day and so there was no possibility of error in identification of the perpetrator who was in any case known to the victim by name. The appellant was arrested at the scene of crime by members of the public who responded to the victim’s cries. And although none of those who responded were called, the police found the appellant beaten and re-arrested him. I am satisfied that the appellant was identified as the perpetrator of the offence.
The appellant contended before this court in his submissions that his right to legal representation was violated and infringed as he was not informed of the right nor was he accorded legal presentation by and at the state expense.
Article 50 of the Constitution provides for the right of an accused person as follows;
50(2) Every accused person has the right to a fair trial, which includes the right-
(g)to choose, and be represented by, an advocate, and to be informed of his right promptly;
(h) to have an advocate assigned to the accused person by the state and at the state expense, if substantial injustice would otherwise result and to be informed of this right promptly
The right to legal representation in my view under the above provision of the constitution is not an absolute right. It only arises in situation where substantial injustice would occur in absence of such representation. In David Macharia Njoroge vs Republic (2011) eKLR, the court observed that state funded legal representation is a right in certain instances,” we are of the considered view that in addition to situations where substantial injustice would otherwise result, persons accused of capital offences where the penalty is loss of life have the right to legal representation at the state expense…”
The court in Karisa Chengo & 2 others vs Republi (2014) stated that “substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state be obligated to provide legal representation”
In the present matter, the appellant is raising the issue of legal representation for the first time in this appeal. Though it is the duty of the trial court to inform the accused of this right, in my view such failure did not occasion an injustice and is not fatal. In any case the punishment for the offence with which he was charged and convicted does not involve loss of life. A sentence of life imprisonment does not amount to loss of life. There is life in life imprisonment although considerably restricted.
The appellant challenged the evidence tendered by the prosecution as largely full of contradictions and inconsistencies. In my re-evaluation of the evidence I found no basis for this attack. The prosecution evidence was overwhelming.
As regard the maximum sentence imposed by the magistrate court, the supreme court in Republic vs Joshua Gichuki Mwangi Petition no E018 of 2023 delivered on 12th July 2024, held that the mandatory minimum sentences as prescribed in the sexual offences Act are not unconstitutional. The learned magistrate was therefore perfectly within the law to impose the mandatory sentence as provided for by law.
Accordingly, I am unable to disturb the conviction and the sentence passed by the trial court and therefore the appeal herein is dismissed.