1. The appellant, Brian Omondi was convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SoA) that on 30/4/2022 at Tudor area in Mvita Sub-County within Mombasa County, intentionally and unlawfully caused his penis to penetrate the vagina of S.H. a girl aged 6 years.
2. He was also charged with an alternative with committing an indecent act with a child contrary to section 11(1) of the SoA that on the same day, place and time as in the principal charge the appellant intentionally and unlawfully caused his penis to touch the vagina of S.H. a child aged 6 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing.
4. The prosecution called 5 witnesses in support of its case. PW 1, S.C. was the complainant, PW 2, M.N., the complainant’s maternal uncle aged 13 years, PW 3, B.A. the complainant’s maternal grandmother and mother of PW 2, PW 4, Dr. Tumaini Kitsao and PW 5, PC Anne Maina of Makupa police station and the investigating officer in the case.
5. The appellant DW 1, gave sworn evidence in defence and did not call a witness. He denied that he committed the offence.
6. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve life imprisonment.
7. The appellant was aggrieved by the decision of the trial court and has set out to challenge the decision based on the following amended grounds of appeal, that are undated but filed in court on 30/1/2025:
a. That the learned trial magistrate erred in law and in fact for not appreciating that there was positive identification when the same was not proved as required in the legal fields.
b. That the learned trial magistrate erred in law and in fact for not considering that section 216 and 329 of the Criminal Procedure Code were to be invited to mitigate sentence for a just end of the trial.
c. That the trial magistrate imposed harsh and excessive sentence because of not considering the reasoning of the Supreme Court’s decision of declaring sentences arising from the Sexual Offences Act to be unconstitutional.
d. That the learned trial magistrate failed to consider the appellant’s defence evidence which was not vitiated by the prosecution party.
8. The appeal was disposed of by way of written submissions filed by the appellant alone. The prosecution did not file any grounds of opposition or submissions despite being given the opportunity to do so on various occasions.
9. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
10. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
11. Sections 8(1) and 8(2) of the SoA under which the appellant was convicted provide as follows:
S. 8(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.
12. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
13. I have reviewed the evidence tendered before the trial court.
14. PW 1, the complainant was subjected to a brief voire dire examination by the trial court at the end of which, the learned magistrate was satisfied that she was possessed of sufficient intelligence to justify reception of her evidence and understood the duty of speaking the truth and thus directed her to give unsworn evidence. She then gave her evidence of how the appellant whom she identified by the name Brian defiled her.
15. PW 2, a child aged 13 years was also properly subjected to voire dire examination at the end of which, the learned magistrate was satisfied that he was possessed of sufficient intelligence to justify the reception of his evidence and understood the nature of an oath. He gave sworn evidence. His evidence was that he was at home with the complainant and the appellant Brian on that day. He said Brian, the appellant was in the kids’ room. The complainant was crying for another child’s doll and PW 2 told her to go get her doll from the kids’ room and she left. PW 2 went to pick toys for the complainant from the play group. He did not find her there. He asked her friends where she was. He went to the kids’ house and found the door closed. He went back a second time and found the complainant outside the house appearing annoyed. The complainant told him that Brian had done bad manners to her. PW 2 did not see Brian at that time. He took her to his mother, PW 3 and told her whatever had happened and left them together.
16. PW 3 said the complainant told her what the appellant had done to her. PW 3 says she could not believe. The appellant is PW 3’s sister’s son and was staying with them at the time. She checked the complainant’s private parts and noticed that there were injuries. When she went to check on Brian, the appellant, she was told he had gone to the mosque. When he came back, PW 3 asked him about the issue. The appellant denied that he had done what the complainant was alleging against him. The following day, PW 3 took the complainant and the appellant to Makupa police station where she made a report and PW 4 took up the case for investigations. PW 3 said they were referred to Nairobi Women’s hospital where the complainant was attended to.
17. PW 5, interrogated the complainant and other witnesses, collected evidence and had the appellant charged in court with the offences.
18. PW 4, examined the complainant at the Nairobi Women’s hospital. She gave evidence that the complainant was six year’s old. She complained of pain in her private parts. There were lacerations on the private parts and her hymen was broken. PW 4 produced P3 form, PRC form and treatment notes which she prepared as exhibits in the case.
19. The appellant was not represented by counsel at the trial. He did not ask any of the witnesses any question in cross-examination.
20. The appellant gave sworn evidence in defence and said that on the material day, a Friday, he had left home in the morning as usual and gone to work. He left work at 6.00 p.m. and when he got home he was told about the allegations. He said that the complainant (obviously referring to the complainant’s grandmother, PW 3, owed him KShs 2,500/= for work he had done for her. When he asked for the money, she promised to pay but that was when he was framed up for this offence.
21. In cross-examination, the appellant said that he did not meet the victim on the material day as he spent the whole day at work.
22. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of defilement of a child aged 6 years against the appellant beyond a reasonable doubt and thus convicted him of the offence and sentenced him to life imprisonment.
23. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof. I have also carefully examined and re-evaluated the evidence tendered before the trial court. The appellant in his grounds of appeal contends that the case by the prosecution was not proved beyond a reasonable doubt. In his submissions he said he concurred with the prosecution on the issue of the age and the prosecution, meaning that for him, these two elements had been proved beyond a reasonable doubt. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
24. I will start with the credibility of the evidence tendered seeing that the complainant was a child of tender years who made an unsworn statement.
25. The complainant was the only witness to testify that the appellant caused penetration of her sexual organ with his sexual organ. The court is therefore enjoined to consider her unsworn testimony on the three elements of the offence of defilement to determine whether each of them was proved beyond a reasonable doubt.
26. The manner in which the court should proceed to consider the unsworn evidence of a child victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 19(1). Oaths and Statutory Declarations Act:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”
S. 124. Evidence Act:
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
27. I am satisfied that the trial court complied with the requirements of section 19 of the Oaths and Statutory Declarations Act and allowed the complainant to give unsworn evidence.
28. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
29. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
30. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
31. The first issue is proof that the complaint was a child. I note that the appellant is not challenging the issue of age. However, it is important to re-evaluate the evidence, seeing that the appellant was not represented by counsel at the hearing and he did not raise any questions in cross-examination.
32. Was the age of the complainant conclusively established? Apparently, neither the complainant, her grandmother nor her uncle mentioned her age in their respective testimonies. The only witnessed who mentioned the complainant’s age was PW 4, the doctor. She did not however state how she arrived at that age, that is, whether she was shown any medical document or she was told by the complainant or her grandmother. She simply stated that the complainant was six years old. PW 5, the investigating officer also mentioned that the complainant was six years old and added that her grandmother did not have her certificate of birth.
33. At one point the prosecution requested that the complainant be taken for age assessment but that request does not seem to have been acted upon as there is no age assessment report produced in evidence. PW 5 said that the complainant and her grandmother could not be traced afterwards.
34. The learned trial magistrate found that the complainant’s age had been proved through the writings in the P3 form (Exh. 1) and PRC form (Exh. 2) both produced by Dr. Tumaini Kitsao, PW 4. The learned trial magistrate also stated that she was satisfied from her appearance and demeanor that PW 1 was a minor. Dr. Kitsao indeed said in his evidence that the complainant was aged about six years and the investigating officer also said that the complainant was six year’s old.
35. On the question of proof of age, the Court of Appeal had this to say in the case of Mwalango Chichoro Mwanjembe v Republic [2016] eKLR:
“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 documentary 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 presented in proof of the victim’s age, it has to be credible and reliable.
36. The learned trial magistrate relied on a similar finding by the Court of Appeal in the case of Edwin Nyambogo Onsongo v. Republic (2019) eKLR. In the Mwalango case however, the Court of Appeal expressed doubt on the ability of a court to assess age by mere observation in the following manner:
“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 any reasonable doubt.”
37. From the above decisions, what the court needs to be satisfied on proof of age is that the evidence is credible and reliable. In the present case, the learned trial magistrate relied on the evidence of the doctor and the entry in the P3 form and PRC form that the complainant was born on 6/9/2016.
38. I find no fault in the trial magistrate’s finding that from the evidence of PW 4 and the entries in the two documents and her own observation, the complainant was a minor, that is, under 18 years of age as provided for under section 8(1) of the SoA. So that, taking the caution expressed by the Court of Appeal, here, the trial court was not just relying on its own assessment but there was evidence of two other professionals who by the nature of their work, frequently come in contact with children, the doctor and the police officer. I do not think that even in the absence of any document of birth, the doctor would accept the date of birth as 6/9/2016and six years if that was not the apparent age of the complainant. The court is entitled under section 119 of the Evidence Act to presume the existence of any fact which it thinks likely to have happened. The section states:
39. “The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
40. I am satisfied that from the evidence of the doctor, the investigating officer and the trial magistrate, all who had the opportunity to see the complainant before them, the trial magistrate was entitled to presume that the apparent age of the complainant was under the age of eighteen years as per her date of birth entered in the P3 and PRC forms as 6/9/2016.
41. However, for purposes of the sentence to be meted out under section 8(2) SOA, I would have had reservations on the evidence of observation by the doctor, the police officer and the trial magistrate and the use of the entry on the date of birth in the two documents. In that case, the issue of sentence would have to be decided differently with the benefit of doubt going to the accused person as regards to the period of the sentence. However, in this case, the appellant had no problem with the proof of the age of the complainant as six years and seeing that they were related and staying together at the time, I would leave the issue at that.
42. I am therefore satisfied as the learned trial magistrate was that the complainant was a child as provided for under section 8(1) of the SoA.
43. On the elements of penetration and identification of the appellant as the culprit, the appellant submits that in his evidence, PW 2 referred to one Bwana as the person with whom he was left and not Brian. He also takes issue with the fact that in the P3 form, it was simply indicated that the culprit was a person known to the complainant without naming him as Brian and that the name Bwana had not been used to refer to him as an alias anywhere by the witnesses.
44. I have looked at both the typed and handwritten proceedings from the trial court. It is unfortunate that the typed proceedings wrote the name as Bwana but the correct name is Brian as captured in the handwritten proceedings. The trial court never referred to the name Bwana but Brian in its judgment. Therefore, the appellant’s submission that there was lack of identification of the culprit due to that error of typing is not valid. Other than that single instance in the typed proceedings, the complainant as well as PW 2 and PW 3 referred to the appellant as Brian and never as Bwana. Besides referring to the name, they also pointed at him in the dock.
45. The evidence of the complainant was consistent with that of her uncle, PW 2 in several respects. Both of them said that they had not gone to school that day as it was not a school day. PW said it was a Saturday. Both of them said that the complainant went to pick a doll with PW 2 stating that the doll was in the kids’ house. Both of them as well as PW 3 said that PW 3 was in a different room/house from where the incident allegedly took place. To that extend, I find that there was consistence in the evidence of the two witnesses on important aspects of penetration and identification.
46. The complainant stated in evidence that when she went to pick her doll, she met the appellant who put her on a bed and committed the offence. PW 2 on his part confirmed that at the material time, the appellant was in the room used by kids and that this was where the complainant went to pick her doll. I find no reason to doubt the evidence of PW 2 that the appellant was in that room at the material time. The evidence by PW 1 that she found the appellant in that room as supported by that of PW 2 that indeed the appellant was in that room at the time discounts the appellant’s evidence that he was away at work at the time. There is no dispute that the appellant was related to and staying with PW 1 and PW 2 together with PW 3 at the time and so there is no issue of mistaken identity whatsoever.
47. I am satisfied that the complainant having gone into the room where the appellant was at the time, with all the other children outside, the appellant had the opportunity to commit the act of defilement upon the complainant.
48. In addition to that opportunity and in support of the complainant’s evidence, PW 2 said that when he first went to the door of that room to check where the complainant was, he found it closed. Concerned that he could not trace the complainant, he went back to the room where he supposed the complainant should be because she had proceeded there to pick her doll. This time he found the complainant in a distressed condition outside the room with the door open. The complainant immediately reported to him that Brian, the appellant had done bad manners to her. I find that the complainant’s distressed condition and her immediate report to PW 2 of what and happened makes her a witness of truth. She had no time to conjure up a story of where she had been when PW 2 was looking for her. She had no ill will towards the appellant as confirmed by the appellant in his defence. She was distressed because something untoward had happened to her.
49. I am satisfied and find that her distressed condition, arising from the fact that a short while before, she ad been locked up with the appellant in the same room corroborates her evidence that the appellant had done something unpleasant to her.
50. The complainant gave evidence that the appellant caused penetration of her genital organ with his. She was not as explicit and that is expected of a child her age. She said that after he had placed her on the bed, “he removed his ‘dudu’ the one he uses to urinate, removed my panties and also removed his. He put his ‘dudu’ in my private part” while pointing at her vagina. She said that when the appellant had done this, she felt pain. PW 3 said that she checked the complainant shortly after the incident when the complainant and PW 2 reported to her and she found that the complainant was injured in her private parts.
51. The complainant’s evidence that her private parts had been shortly before penetrated was corroborated by the evidence of injuries therein as observed by PW 3. It was further corroborated by the medical evidence adduced by PW 4 who said that upon examining the complainant’s private parts, she found that there were lacerations and the complainant complained of pain in her private parts. I find that this was evidence of recent penetration. The complainant’s hymen was also missing.
52. I therefore find and uphold the learned trial magistrate’s finding that there was penetration of the complainant’s genital organ by the appellant who was properly identified as the culprit.
53. The appellant’s evidence that he was framed by the complainant's grandmother, PW 2 for owing him some money for work done, was unbelievable and the learned trial magistrate correctly rejected it. There was nothing in that evidence to challenge the strong evidence tendered by the prosecution witnesses.
54. Consequently, I am satisfied that the appellant was correctly convicted of the offence of defilement of a child contrary to section 8(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya.
55. I will not therefore interfere with conviction by the trial court on its finding on the same. The appeal on conviction is therefore dismissed.
56. On sentence section 8(2) of SoA provides that 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. It is not correct as contended by the appellant that the Supreme Court has ever declared sentences under the SoA to be unconstitutional. The learned trial magistrate therefore passed the correct sentence upon the appellant.
57. However, the learned trial magistrate imposed an indefinite term of life imprisonment upon the appellant. He did not take his mitigation even as she indicated in her sentencing that she had considered it. It is important that mitigation be taken and considered even where the court is constrained to pass a minimum sentence. The offender may still benefit from the Presidential Power of Mercy or any other from of early release available.
58. Considering the emerging jurisprudence from the Court of Appeal on indeterminate life sentence, I find it appropriate for this court to review the sentence to be in line thereof. I would therefore impose a determinate term of life imprisonment in line with recent Court of Appeal decisions determining that an indeterminate term of life imprisonment is unconstitutional (see the cases of and Manyeso v Republic [2023] KECA 827 (KLR), Ayako v Republic [2023] KECA 1563 (KLR) and MB v Republic [2024] KECA 324 (KLR). In the cases of in Evans Nyamari Ayako v Republic (supra), and MB v Republic (supra) the Court of Appeal substituted indeterminate life imprisonment terms with a term sentence of 30 years’ imprisonment.
59. Consequently, the indeterminate sentence of life imprisonment meted upon the appellant is reviewed to provide that the same shall translate to a period of 30 years imprisonment. The sentence will run from the date of arrest on 1/5/2022 in line with section 333(2) CPC.
60. Otherwise the appeal is dismissed.
61. Orders accordingly.
62. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 4th day of March 2025 in the presence of:
The appellant in person in Shimo prison.
Ms Valerie h/b for Ngiri for the respondent.
Johnson h/b for Etropia court assistant.
2. He was also charged with an alternative with committing an indecent act with a child contrary to section 11(1) of the SoA that on the same day, place and time as in the principal charge the appellant intentionally and unlawfully caused his penis to touch the vagina of S.H. a child aged 6 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing.
4. The prosecution called 5 witnesses in support of its case. PW 1, S.C. was the complainant, PW 2, M.N., the complainant’s maternal uncle aged 13 years, PW 3, B.A. the complainant’s maternal grandmother and mother of PW 2, PW 4, Dr. Tumaini Kitsao and PW 5, PC Anne Maina of Makupa police station and the investigating officer in the case.
5. The appellant DW 1, gave sworn evidence in defence and did not call a witness. He denied that he committed the offence.
6. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve life imprisonment.
7. The appellant was aggrieved by the decision of the trial court and has set out to challenge the decision based on the following amended grounds of appeal, that are undated but filed in court on 30/1/2025:
a. That the learned trial magistrate erred in law and in fact for not appreciating that there was positive identification when the same was not proved as required in the legal fields.
b. That the learned trial magistrate erred in law and in fact for not considering that section 216 and 329 of the Criminal Procedure Code were to be invited to mitigate sentence for a just end of the trial.
c. That the trial magistrate imposed harsh and excessive sentence because of not considering the reasoning of the Supreme Court’s decision of declaring sentences arising from the Sexual Offences Act to be unconstitutional.
d. That the learned trial magistrate failed to consider the appellant’s defence evidence which was not vitiated by the prosecution party.
8. The appeal was disposed of by way of written submissions filed by the appellant alone. The prosecution did not file any grounds of opposition or submissions despite being given the opportunity to do so on various occasions.
9. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
10. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
11. Sections 8(1) and 8(2) of the SoA under which the appellant was convicted provide as follows:
S. 8(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.
12. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
13. I have reviewed the evidence tendered before the trial court.
14. PW 1, the complainant was subjected to a brief voire dire examination by the trial court at the end of which, the learned magistrate was satisfied that she was possessed of sufficient intelligence to justify reception of her evidence and understood the duty of speaking the truth and thus directed her to give unsworn evidence. She then gave her evidence of how the appellant whom she identified by the name Brian defiled her.
15. PW 2, a child aged 13 years was also properly subjected to voire dire examination at the end of which, the learned magistrate was satisfied that he was possessed of sufficient intelligence to justify the reception of his evidence and understood the nature of an oath. He gave sworn evidence. His evidence was that he was at home with the complainant and the appellant Brian on that day. He said Brian, the appellant was in the kids’ room. The complainant was crying for another child’s doll and PW 2 told her to go get her doll from the kids’ room and she left. PW 2 went to pick toys for the complainant from the play group. He did not find her there. He asked her friends where she was. He went to the kids’ house and found the door closed. He went back a second time and found the complainant outside the house appearing annoyed. The complainant told him that Brian had done bad manners to her. PW 2 did not see Brian at that time. He took her to his mother, PW 3 and told her whatever had happened and left them together.
16. PW 3 said the complainant told her what the appellant had done to her. PW 3 says she could not believe. The appellant is PW 3’s sister’s son and was staying with them at the time. She checked the complainant’s private parts and noticed that there were injuries. When she went to check on Brian, the appellant, she was told he had gone to the mosque. When he came back, PW 3 asked him about the issue. The appellant denied that he had done what the complainant was alleging against him. The following day, PW 3 took the complainant and the appellant to Makupa police station where she made a report and PW 4 took up the case for investigations. PW 3 said they were referred to Nairobi Women’s hospital where the complainant was attended to.
17. PW 5, interrogated the complainant and other witnesses, collected evidence and had the appellant charged in court with the offences.
18. PW 4, examined the complainant at the Nairobi Women’s hospital. She gave evidence that the complainant was six year’s old. She complained of pain in her private parts. There were lacerations on the private parts and her hymen was broken. PW 4 produced P3 form, PRC form and treatment notes which she prepared as exhibits in the case.
19. The appellant was not represented by counsel at the trial. He did not ask any of the witnesses any question in cross-examination.
20. The appellant gave sworn evidence in defence and said that on the material day, a Friday, he had left home in the morning as usual and gone to work. He left work at 6.00 p.m. and when he got home he was told about the allegations. He said that the complainant (obviously referring to the complainant’s grandmother, PW 3, owed him KShs 2,500/= for work he had done for her. When he asked for the money, she promised to pay but that was when he was framed up for this offence.
21. In cross-examination, the appellant said that he did not meet the victim on the material day as he spent the whole day at work.
22. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of defilement of a child aged 6 years against the appellant beyond a reasonable doubt and thus convicted him of the offence and sentenced him to life imprisonment.
23. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof. I have also carefully examined and re-evaluated the evidence tendered before the trial court. The appellant in his grounds of appeal contends that the case by the prosecution was not proved beyond a reasonable doubt. In his submissions he said he concurred with the prosecution on the issue of the age and the prosecution, meaning that for him, these two elements had been proved beyond a reasonable doubt. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
24. I will start with the credibility of the evidence tendered seeing that the complainant was a child of tender years who made an unsworn statement.
25. The complainant was the only witness to testify that the appellant caused penetration of her sexual organ with his sexual organ. The court is therefore enjoined to consider her unsworn testimony on the three elements of the offence of defilement to determine whether each of them was proved beyond a reasonable doubt.
26. The manner in which the court should proceed to consider the unsworn evidence of a child victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 19(1). Oaths and Statutory Declarations Act:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”
S. 124. Evidence Act:
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
27. I am satisfied that the trial court complied with the requirements of section 19 of the Oaths and Statutory Declarations Act and allowed the complainant to give unsworn evidence.
28. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
29. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
30. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
31. The first issue is proof that the complaint was a child. I note that the appellant is not challenging the issue of age. However, it is important to re-evaluate the evidence, seeing that the appellant was not represented by counsel at the hearing and he did not raise any questions in cross-examination.
32. Was the age of the complainant conclusively established? Apparently, neither the complainant, her grandmother nor her uncle mentioned her age in their respective testimonies. The only witnessed who mentioned the complainant’s age was PW 4, the doctor. She did not however state how she arrived at that age, that is, whether she was shown any medical document or she was told by the complainant or her grandmother. She simply stated that the complainant was six years old. PW 5, the investigating officer also mentioned that the complainant was six years old and added that her grandmother did not have her certificate of birth.
33. At one point the prosecution requested that the complainant be taken for age assessment but that request does not seem to have been acted upon as there is no age assessment report produced in evidence. PW 5 said that the complainant and her grandmother could not be traced afterwards.
34. The learned trial magistrate found that the complainant’s age had been proved through the writings in the P3 form (Exh. 1) and PRC form (Exh. 2) both produced by Dr. Tumaini Kitsao, PW 4. The learned trial magistrate also stated that she was satisfied from her appearance and demeanor that PW 1 was a minor. Dr. Kitsao indeed said in his evidence that the complainant was aged about six years and the investigating officer also said that the complainant was six year’s old.
35. On the question of proof of age, the Court of Appeal had this to say in the case of Mwalango Chichoro Mwanjembe v Republic [2016] eKLR:
“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 documentary 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 presented in proof of the victim’s age, it has to be credible and reliable.
36. The learned trial magistrate relied on a similar finding by the Court of Appeal in the case of Edwin Nyambogo Onsongo v. Republic (2019) eKLR. In the Mwalango case however, the Court of Appeal expressed doubt on the ability of a court to assess age by mere observation in the following manner:
“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 any reasonable doubt.”
37. From the above decisions, what the court needs to be satisfied on proof of age is that the evidence is credible and reliable. In the present case, the learned trial magistrate relied on the evidence of the doctor and the entry in the P3 form and PRC form that the complainant was born on 6/9/2016.
38. I find no fault in the trial magistrate’s finding that from the evidence of PW 4 and the entries in the two documents and her own observation, the complainant was a minor, that is, under 18 years of age as provided for under section 8(1) of the SoA. So that, taking the caution expressed by the Court of Appeal, here, the trial court was not just relying on its own assessment but there was evidence of two other professionals who by the nature of their work, frequently come in contact with children, the doctor and the police officer. I do not think that even in the absence of any document of birth, the doctor would accept the date of birth as 6/9/2016and six years if that was not the apparent age of the complainant. The court is entitled under section 119 of the Evidence Act to presume the existence of any fact which it thinks likely to have happened. The section states:
39. “The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
40. I am satisfied that from the evidence of the doctor, the investigating officer and the trial magistrate, all who had the opportunity to see the complainant before them, the trial magistrate was entitled to presume that the apparent age of the complainant was under the age of eighteen years as per her date of birth entered in the P3 and PRC forms as 6/9/2016.
41. However, for purposes of the sentence to be meted out under section 8(2) SOA, I would have had reservations on the evidence of observation by the doctor, the police officer and the trial magistrate and the use of the entry on the date of birth in the two documents. In that case, the issue of sentence would have to be decided differently with the benefit of doubt going to the accused person as regards to the period of the sentence. However, in this case, the appellant had no problem with the proof of the age of the complainant as six years and seeing that they were related and staying together at the time, I would leave the issue at that.
42. I am therefore satisfied as the learned trial magistrate was that the complainant was a child as provided for under section 8(1) of the SoA.
43. On the elements of penetration and identification of the appellant as the culprit, the appellant submits that in his evidence, PW 2 referred to one Bwana as the person with whom he was left and not Brian. He also takes issue with the fact that in the P3 form, it was simply indicated that the culprit was a person known to the complainant without naming him as Brian and that the name Bwana had not been used to refer to him as an alias anywhere by the witnesses.
44. I have looked at both the typed and handwritten proceedings from the trial court. It is unfortunate that the typed proceedings wrote the name as Bwana but the correct name is Brian as captured in the handwritten proceedings. The trial court never referred to the name Bwana but Brian in its judgment. Therefore, the appellant’s submission that there was lack of identification of the culprit due to that error of typing is not valid. Other than that single instance in the typed proceedings, the complainant as well as PW 2 and PW 3 referred to the appellant as Brian and never as Bwana. Besides referring to the name, they also pointed at him in the dock.
45. The evidence of the complainant was consistent with that of her uncle, PW 2 in several respects. Both of them said that they had not gone to school that day as it was not a school day. PW said it was a Saturday. Both of them said that the complainant went to pick a doll with PW 2 stating that the doll was in the kids’ house. Both of them as well as PW 3 said that PW 3 was in a different room/house from where the incident allegedly took place. To that extend, I find that there was consistence in the evidence of the two witnesses on important aspects of penetration and identification.
46. The complainant stated in evidence that when she went to pick her doll, she met the appellant who put her on a bed and committed the offence. PW 2 on his part confirmed that at the material time, the appellant was in the room used by kids and that this was where the complainant went to pick her doll. I find no reason to doubt the evidence of PW 2 that the appellant was in that room at the material time. The evidence by PW 1 that she found the appellant in that room as supported by that of PW 2 that indeed the appellant was in that room at the time discounts the appellant’s evidence that he was away at work at the time. There is no dispute that the appellant was related to and staying with PW 1 and PW 2 together with PW 3 at the time and so there is no issue of mistaken identity whatsoever.
47. I am satisfied that the complainant having gone into the room where the appellant was at the time, with all the other children outside, the appellant had the opportunity to commit the act of defilement upon the complainant.
48. In addition to that opportunity and in support of the complainant’s evidence, PW 2 said that when he first went to the door of that room to check where the complainant was, he found it closed. Concerned that he could not trace the complainant, he went back to the room where he supposed the complainant should be because she had proceeded there to pick her doll. This time he found the complainant in a distressed condition outside the room with the door open. The complainant immediately reported to him that Brian, the appellant had done bad manners to her. I find that the complainant’s distressed condition and her immediate report to PW 2 of what and happened makes her a witness of truth. She had no time to conjure up a story of where she had been when PW 2 was looking for her. She had no ill will towards the appellant as confirmed by the appellant in his defence. She was distressed because something untoward had happened to her.
49. I am satisfied and find that her distressed condition, arising from the fact that a short while before, she ad been locked up with the appellant in the same room corroborates her evidence that the appellant had done something unpleasant to her.
50. The complainant gave evidence that the appellant caused penetration of her genital organ with his. She was not as explicit and that is expected of a child her age. She said that after he had placed her on the bed, “he removed his ‘dudu’ the one he uses to urinate, removed my panties and also removed his. He put his ‘dudu’ in my private part” while pointing at her vagina. She said that when the appellant had done this, she felt pain. PW 3 said that she checked the complainant shortly after the incident when the complainant and PW 2 reported to her and she found that the complainant was injured in her private parts.
51. The complainant’s evidence that her private parts had been shortly before penetrated was corroborated by the evidence of injuries therein as observed by PW 3. It was further corroborated by the medical evidence adduced by PW 4 who said that upon examining the complainant’s private parts, she found that there were lacerations and the complainant complained of pain in her private parts. I find that this was evidence of recent penetration. The complainant’s hymen was also missing.
52. I therefore find and uphold the learned trial magistrate’s finding that there was penetration of the complainant’s genital organ by the appellant who was properly identified as the culprit.
53. The appellant’s evidence that he was framed by the complainant's grandmother, PW 2 for owing him some money for work done, was unbelievable and the learned trial magistrate correctly rejected it. There was nothing in that evidence to challenge the strong evidence tendered by the prosecution witnesses.
54. Consequently, I am satisfied that the appellant was correctly convicted of the offence of defilement of a child contrary to section 8(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya.
55. I will not therefore interfere with conviction by the trial court on its finding on the same. The appeal on conviction is therefore dismissed.
56. On sentence section 8(2) of SoA provides that 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. It is not correct as contended by the appellant that the Supreme Court has ever declared sentences under the SoA to be unconstitutional. The learned trial magistrate therefore passed the correct sentence upon the appellant.
57. However, the learned trial magistrate imposed an indefinite term of life imprisonment upon the appellant. He did not take his mitigation even as she indicated in her sentencing that she had considered it. It is important that mitigation be taken and considered even where the court is constrained to pass a minimum sentence. The offender may still benefit from the Presidential Power of Mercy or any other from of early release available.
58. Considering the emerging jurisprudence from the Court of Appeal on indeterminate life sentence, I find it appropriate for this court to review the sentence to be in line thereof. I would therefore impose a determinate term of life imprisonment in line with recent Court of Appeal decisions determining that an indeterminate term of life imprisonment is unconstitutional (see the cases of and Manyeso v Republic [2023] KECA 827 (KLR), Ayako v Republic [2023] KECA 1563 (KLR) and MB v Republic [2024] KECA 324 (KLR). In the cases of in Evans Nyamari Ayako v Republic (supra), and MB v Republic (supra) the Court of Appeal substituted indeterminate life imprisonment terms with a term sentence of 30 years’ imprisonment.
59. Consequently, the indeterminate sentence of life imprisonment meted upon the appellant is reviewed to provide that the same shall translate to a period of 30 years imprisonment. The sentence will run from the date of arrest on 1/5/2022 in line with section 333(2) CPC.
60. Otherwise the appeal is dismissed.
61. Orders accordingly.
62. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 4th day of March 2025 in the presence of:
The appellant in person in Shimo prison.
Ms Valerie h/b for Ngiri for the respondent.
Johnson h/b for Etropia court assistant.