[1] The appellant was the accused person in Oyugis Senior Principal Magistrate’s Sexual Offence Case No. 20 of 2021: Republic v Calvins Okoth Onger. He was charged with the offence of defilement, contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the charge were that on the 26 th day of July 2021 at Kakelo Dudi Sub-location in Rachuonyo East Sub-County within Homa Bay County, he intentionally and unlawfully caused his penis to penetrate the vagina of F A O, a child aged 2 years.
[2] In the alternative, the appellant was charged with indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on the 26 th day of July 2021 at Kakelo Dudi Sub-location in Rachuonyo East Sub-County within Homa Bay County, he intentionally touched the vagina of F A O, a child aged 2 years, with his penis.
[3] The appellant denied those allegations and after trial, he was found guilty of the substantive count of defilement. He was consequently convicted thereof and sentenced to 30 years’ imprisonment.
[4] Being dissatisfied with that decision, the appellant filed this appeal on the following grounds:
[a] That the offence of defilement was not proved to the required standard.
[b] That the learned magistrate erred both in law and fact by convicting the appellant to 30 years notwithstanding that he never committed the alleged crime.
[c] That the trial court failed to comply with Article 50(2)(g) and (h) of the Constitution.
[d] That the sentence was harsh and excessive.
[e] That the trial magistrate erred in law and fact in convicting him on evidence which did not meet the required standard.
[f] That the trial magistrate erred in law and fact by depending on evidence which was based on theory and conspiracy.
[5] On the basis of the foregoing grounds the appellant prayed that his appeal be allowed, his conviction quashed and the sentence of 30 years’ imprisonment be set aside.
[6] The appeal was canvassed by way of written submissions. To that end, the appellant filed undated written submissions in which he impugned the evidence of the prosecution witnesses, particularly the evidence of PW2 and PW5, the parents of the minor. He questioned why the parents of the complainant did not take her to hospital immediately if indeed she was defiled as alleged. The appellant also questioned the evidence of the Clinical Officer who testified as PW1 on the ground that he was not the one who examined the minor.
[7] The appellant dwelt majorly on his contention that the learned magistrate erred in the manner of admission of the evidence of the minor. He submitted that the minor, who testified as PW3, was too young to understand the nature of oath and therefore ought not to have been sworn without an appropriate inquiry. He made reference to Section 17 of the Oaths and Statutory Instruments Act, Chapter 15 of the Laws of Kenya, and Section 151 of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya and several authorities to support his argument that the magistrate was under obligation to establish whether the minor understands the nature and import of an oath as well as the difference between truth and lies. The appellant made reference to various authorities to support his submissions and urged the Court to allow the appeal.
[8] There is no indication that the respondent filed written submissions as directed. I have nevertheless given careful consideration to the Grounds of Appeal set out in the Petition of Appeal, the written submissions filed herein by the appellant as well as the entirety of the evidence presented before the lower court. This being a first appeal, I am mindful of the obligation to reconsider afresh the evidence adduced before the lower court and the need for this Court to come to its own conclusions on the basis of that evidence. (see Okeno v Republic [1972] EA 32)
[9] The evidence presented before the lower court by the 5 prosecution witnesses was that the parents of the complainant, PW1 and PW5, left her at home with his younger brother, William . Upon return, PW5 heard the minor crying as she emerged from a thicket behind their house. As she approached her, she saw the appellant running away from the spot where the minor had emerged from. She asked the minor, who was then about three years old at the time, what had happened and she told her that the appellant had pierced her vagina with his penis; referring to him by name.
[10] PW5 further told the lower court that she checked the girl’s genitalia and noted that she was bleeding from her vagina and that her clothes were also bloodstained. PW2 corroborated the evidence of PW5 and stated that he returned home at about 7.30 pm and the first thing that occurred was that the minor went to him crying saying she felt pain while pointing at her vagina. She took her to the house and checked her private part and noted that her vagina was swollen. She asked her what had happened and the girl report that that Okoth (the appellant) had had hurt her vagina.
[11] It was the evidence of both PW2 and PW5 that the child was taken to hospital the following day and a report made to the police. They explained that the appellant is their neighbor and that he used to frequent their home. The minor testified as PW3 and explained that she was at home playing with her brother William when the appellant went there and sent William to the shop to buy a matchbox. She added that after William left, the appellant dragged her to a bush behind their house and defiled her.
[12] PW4 confirmed that the incident was reported to Ringa Police Station; and that the minor was escorted to Rachuonyo Sub-County Hospital for examination. He also confirmed that he received the minor’s blood-stained clothes and produced them as exhibits before the lower court.
[13] PW1 was Otieno Philip , the Clinical Officer who produced the medical documents pertaining to the minor’s examination and treatment. He testified that the minor was examined by a colleague, Clinical Officer Serem who had been transferred. He confirmed that the minor’s hymen had been broken and that she had wounds and lacerations around the vulva with a whitish discharge. According to PW1, the physical findings confirmed vaginal penetration. He produced the P3 Form, treatment notes, Lab Request form, PRC form and hospital payment receipt as exhibits before the lower court.
[14] In defence, the appellant conceded that he had known the minor since her birth; and that she was aged between 2 to 3 years at the time of the alleged offence. The appellant further conceded that the parents of the minor are neighbours. Regarding the events of 26 th July 2021 the appellant told the lower court he could not remember. He opted to explain the events of 5 th August 2021 when he was arrested at Apondo Secondary School. He stated that he did not know why he was arrested and charged with the offence of defilement involving a neighbour’s child yet their families enjoyed good relations with no grudges.
[15] The Main Count, which the appellant was convicted of, was laid pursuant to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, which provision stipulates that:
(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 life imprisonment.
[16] In the premises, the issues for my reconsideration and determination are:
[a] Whether the complainant was, at the material time, a child for purposes of Section 8(2) of the Sexual Offences Act ;
[b] Whether there was penetration of the complainant's genital organ;
[c] Whether the penetration was perpetrated by the appellant.
[d] Whether the appellant’s constitutional right under Article 50(2)(g) and (h) of the Constitution was violated; and if so, whether that violation vitiates the lower court proceedings.
[e] Whether the learned magistrate erred in sentencing the appellant to 30 years’ imprisonment:
A. On the age of the Complainant:
[17] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic Criminal Appeal No. 504 of 2010 thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[18] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules it is recognized that:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[19] It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Moreover, in P.M.M. v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[20] Hence, in proof of the age of the complainant, the Prosecution relied on the Birth Notification Form marked the Prosecution’s Exhibit 11. It shows that PW3 was born on 14 th October 2018. There is therefore no dispute that the girl was 2 years and 9 months as at 26 th July 2021 when the incident occurred. The parents of the complainant also testified herein and gave her age as 3 years. It is also noteworthy that in his sworn statement of defence the accused conceded that:
“I know the complainant. She is a child. I saw him [sic] since the day she was born. She is 2-3 years old…I used to play with the child in the home of PW2. PW2 is Mr. Ogweno the father of the complainant.”
[21] I am therefore satisfied that the Prosecution adduced credible evidence to prove beyond reasonable doubt that the complainant herein was within the age bracket envisaged by Section 8(2) of the Sexual Offences Act.
B. On Penetration of the Complainant:
[22] The lower court relied on the evidence of the complainant. She testified that she was defiled in a thicket behind her parent’s home. She immediately reported the incident to her father, PW2 who together with his wife and mother to the minor PW5 took action and reported the incident to the Police. The minor was issued with a P3 Form and was escorted to Rachuonyo Sub-County Hospital. She was examined and treated by Clinical Officer Serem on 29 th July 2021.
[23] Because Mr. Serem had been transferred, the P3 Form was produced on his behalf by a colleague, Mr. Philip Otieno (PW1). PW1 testified as to the observations and findings of Mr. Serem and stated that the minor’s hymen was recently torn and that she had bruises on both her labia majora and labia minora. PW1 also pointed out that the girl had wounds and lacerations around the vulva and that whitish discharge was also seen around the vulva. She was sent to the lab and the lab report produced as the Prosecution’s Exhibit 7. The conclusion by Mr. Serem was that the minor had been subjected to penetration by a male organ.
[24] The complainant’s blood stained clothes were also presented before the lower court along with the documents in proof of penetration. In the premises, there was cogent evidence to prove penetration and I so find.
C. On whether the penetration of the complainant was perpetrated
by the appellant :
[25] The complainant’s mother testified that she heard the complainant crying inside a thicket behind her house. On approaching, she saw the accused running away from the same spot; and that he hid himself behind the bushes next to her house. PW5 further stated that she asked PW3 what had happened to her and she told her that Okoth , the accused, had pierced her vagina with his penis.
[26] PW5 explained that the appellant is a cousin of her husband’s and a neigbour who frequently visited their home and was therefore well known to their children. PW2, the father of the complainant also testified that he returned home at about 7.30 p.m. and found the complainant crying; and when he asked her what the matter was, the complainant pointed to her private parts. He checked her private parts and noted that the girl’s vagina was swollen and on asking what had happened, the complainant told him “Baba, Okoth ameumiza dudu yangu”.
[27] On his part, the appellant admitted under oath that the complainant was defiled; and that he asked her parents for pardon him and for the complainant to forgive him. He further stated:
“It is true that I was seen running away from the scene. My trouser was falling so I was pulling it up that day…”
[28] In the circumstances the appellant was properly identified and placed at the scene of the crime by the evidence presented by the PW3 and PW5.
[29] The appellant impugned the evidence of PW3 and submitted at length on why he thought the learned magistrate fell into error by causing her to testify on oath. Section 19 of the Oaths and Statutory Declarations Act states that:
(1) 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.”
[30] Pursuant to the above provision, the Court of Appeal in Johnson Muiruri v Republic [1983] KLR 445 held as follows:
“Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which [case] his sworn evidence may be received. If the court is not so satisfied, his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.”
[31] In Maripett Loonkomok v Republic [2015] eKLR, the Court of Appeal posed the question as to who is a child of tender years and held thus:
“The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82 the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 10 years. This Court has recently in Patrick Kathurima v R,Criminal Appeal No.137 of 2014 and in Samuel Warui Karimiv R Criminal Appeal No.16 of 2014 stated categorically that the definition in the Children Act is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination..."
[32] In this instance, contrary to the assertions of the appellant, the learned magistrate conducted voir dire and was impressed with the complainant’s courage and level of comprehension. She accordingly ruled that she would give sworn evidence. Therefore, the appellant has no reason to complain granted that he was thereby granted the opportunity to cross-examine the minor. Not much turns on the fact that the girl was about 3 years old as there is no age limit for witnesses. Section 125 (1) of the Evidence Act , states:
“ All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause.”
[33] In this instance, the lower court was of the impression that the girl was competent to testify on oath. At page 15 of the Record of Appeal, the learned magistrate noted as follows after conducting voir dire :
“The minor is intelligent. She is speaking clearly and she can even look around the court without fear. She is allowed to give sworn testimony.”
[34] Later, in her judgment she stated as follows:
“It is worth noting that the minor herein was very young, very tender in terms of age, but what shocked me is that she spoke and communicated clearly. She took control of her testimony and did not contradict herself at any point. She was consistent and believable.
She gave evidence on oath and was very bold. She answered questions posed by the accused during cross-examination and did not appear like she had been coached to lie before the court.
Even without the admission by the accused, I would have comfortably relied on the evidence of PW2, 3 and 5, on identification to convict the accused herein.
[35] I therefore find no reason to impugn the evidence of PW3 or fault the position taken by the learned magistrate.
D. Whether the appellant’s constitutional right under Article 50(2) of the Constitution was violated; and if so, whether that violation vitiates the lower court proceedings:
[36] Article 50(2) of the Constitution provides as follows in Sub-Articles (g) and (h):
“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 this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
[37] The record of the lower court shows that the appellant was duly informed of his right to legal representation and that he opted to proceed in person. He actually stated:
“I am ready to proceed in person. I do not need a Lawyer.”
[38] I therefore find no merit in this ground of appeal.
E. On the sentence imposed by the trial court:
[39] First and foremost, it must be acknowledged that sentence is a matter within the discretion of the trial court; and that an appellate court ought not to interfere simply because it would have meted a lesser or stiffer sentence. Hence, in Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[40] Accordingly, in Dismas Wafula Kilwake v Republic [2018] eKLR the Court of Appeal held that:
“…the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand…”
[41] Similarly, in Jared Koita Injiri v Republic [2018] KECA 78 (KLR), the Court of Appeal held:
28. It therefore goes without say that the mandatory life sentence imposed by Section 8(2) of the Sexual Offences Act cannot stand. However, that is not to say that a court cannot render a life sentence upon convicting an accused person where the victim is of the age of 11 years old and below. A court must always reserve its discretion to consider the circumstances of each case independently and set an appropriate sentence. What the Constitution contemplates is that the sentence of life imprisonment cannot be the only sentence as currently proclaimed by Section 8(2) of the Sexual Offences Act. A court has discretion to render a life sentence as one of the lawful sentences upon consideration of mitigations and properly directing its legal mind on the factors for consideration in sentencing.
[42] It is therefore my finding that the sentence imposed on the appellant is lawful and was imposed at the discretion of the learned trial magistrate.
[43] In the result, I find no merit in the appeal. The same is hereby dismissed in its entirely.
It is so ordered.
DATED, SIGNED AND DELIVERED AT HOMA BAY THIS 29 TH DAY OF MAY, 2025
[2] In the alternative, the appellant was charged with indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on the 26 th day of July 2021 at Kakelo Dudi Sub-location in Rachuonyo East Sub-County within Homa Bay County, he intentionally touched the vagina of F A O, a child aged 2 years, with his penis.
[3] The appellant denied those allegations and after trial, he was found guilty of the substantive count of defilement. He was consequently convicted thereof and sentenced to 30 years’ imprisonment.
[4] Being dissatisfied with that decision, the appellant filed this appeal on the following grounds:
[a] That the offence of defilement was not proved to the required standard.
[b] That the learned magistrate erred both in law and fact by convicting the appellant to 30 years notwithstanding that he never committed the alleged crime.
[c] That the trial court failed to comply with Article 50(2)(g) and (h) of the Constitution.
[d] That the sentence was harsh and excessive.
[e] That the trial magistrate erred in law and fact in convicting him on evidence which did not meet the required standard.
[f] That the trial magistrate erred in law and fact by depending on evidence which was based on theory and conspiracy.
[5] On the basis of the foregoing grounds the appellant prayed that his appeal be allowed, his conviction quashed and the sentence of 30 years’ imprisonment be set aside.
[6] The appeal was canvassed by way of written submissions. To that end, the appellant filed undated written submissions in which he impugned the evidence of the prosecution witnesses, particularly the evidence of PW2 and PW5, the parents of the minor. He questioned why the parents of the complainant did not take her to hospital immediately if indeed she was defiled as alleged. The appellant also questioned the evidence of the Clinical Officer who testified as PW1 on the ground that he was not the one who examined the minor.
[7] The appellant dwelt majorly on his contention that the learned magistrate erred in the manner of admission of the evidence of the minor. He submitted that the minor, who testified as PW3, was too young to understand the nature of oath and therefore ought not to have been sworn without an appropriate inquiry. He made reference to Section 17 of the Oaths and Statutory Instruments Act, Chapter 15 of the Laws of Kenya, and Section 151 of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya and several authorities to support his argument that the magistrate was under obligation to establish whether the minor understands the nature and import of an oath as well as the difference between truth and lies. The appellant made reference to various authorities to support his submissions and urged the Court to allow the appeal.
[8] There is no indication that the respondent filed written submissions as directed. I have nevertheless given careful consideration to the Grounds of Appeal set out in the Petition of Appeal, the written submissions filed herein by the appellant as well as the entirety of the evidence presented before the lower court. This being a first appeal, I am mindful of the obligation to reconsider afresh the evidence adduced before the lower court and the need for this Court to come to its own conclusions on the basis of that evidence. (see Okeno v Republic [1972] EA 32)
[9] The evidence presented before the lower court by the 5 prosecution witnesses was that the parents of the complainant, PW1 and PW5, left her at home with his younger brother, William . Upon return, PW5 heard the minor crying as she emerged from a thicket behind their house. As she approached her, she saw the appellant running away from the spot where the minor had emerged from. She asked the minor, who was then about three years old at the time, what had happened and she told her that the appellant had pierced her vagina with his penis; referring to him by name.
[10] PW5 further told the lower court that she checked the girl’s genitalia and noted that she was bleeding from her vagina and that her clothes were also bloodstained. PW2 corroborated the evidence of PW5 and stated that he returned home at about 7.30 pm and the first thing that occurred was that the minor went to him crying saying she felt pain while pointing at her vagina. She took her to the house and checked her private part and noted that her vagina was swollen. She asked her what had happened and the girl report that that Okoth (the appellant) had had hurt her vagina.
[11] It was the evidence of both PW2 and PW5 that the child was taken to hospital the following day and a report made to the police. They explained that the appellant is their neighbor and that he used to frequent their home. The minor testified as PW3 and explained that she was at home playing with her brother William when the appellant went there and sent William to the shop to buy a matchbox. She added that after William left, the appellant dragged her to a bush behind their house and defiled her.
[12] PW4 confirmed that the incident was reported to Ringa Police Station; and that the minor was escorted to Rachuonyo Sub-County Hospital for examination. He also confirmed that he received the minor’s blood-stained clothes and produced them as exhibits before the lower court.
[13] PW1 was Otieno Philip , the Clinical Officer who produced the medical documents pertaining to the minor’s examination and treatment. He testified that the minor was examined by a colleague, Clinical Officer Serem who had been transferred. He confirmed that the minor’s hymen had been broken and that she had wounds and lacerations around the vulva with a whitish discharge. According to PW1, the physical findings confirmed vaginal penetration. He produced the P3 Form, treatment notes, Lab Request form, PRC form and hospital payment receipt as exhibits before the lower court.
[14] In defence, the appellant conceded that he had known the minor since her birth; and that she was aged between 2 to 3 years at the time of the alleged offence. The appellant further conceded that the parents of the minor are neighbours. Regarding the events of 26 th July 2021 the appellant told the lower court he could not remember. He opted to explain the events of 5 th August 2021 when he was arrested at Apondo Secondary School. He stated that he did not know why he was arrested and charged with the offence of defilement involving a neighbour’s child yet their families enjoyed good relations with no grudges.
[15] The Main Count, which the appellant was convicted of, was laid pursuant to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, which provision stipulates that:
(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 life imprisonment.
[16] In the premises, the issues for my reconsideration and determination are:
[a] Whether the complainant was, at the material time, a child for purposes of Section 8(2) of the Sexual Offences Act ;
[b] Whether there was penetration of the complainant's genital organ;
[c] Whether the penetration was perpetrated by the appellant.
[d] Whether the appellant’s constitutional right under Article 50(2)(g) and (h) of the Constitution was violated; and if so, whether that violation vitiates the lower court proceedings.
[e] Whether the learned magistrate erred in sentencing the appellant to 30 years’ imprisonment:
A. On the age of the Complainant:
[17] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic Criminal Appeal No. 504 of 2010 thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[18] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules it is recognized that:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[19] It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Moreover, in P.M.M. v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[20] Hence, in proof of the age of the complainant, the Prosecution relied on the Birth Notification Form marked the Prosecution’s Exhibit 11. It shows that PW3 was born on 14 th October 2018. There is therefore no dispute that the girl was 2 years and 9 months as at 26 th July 2021 when the incident occurred. The parents of the complainant also testified herein and gave her age as 3 years. It is also noteworthy that in his sworn statement of defence the accused conceded that:
“I know the complainant. She is a child. I saw him [sic] since the day she was born. She is 2-3 years old…I used to play with the child in the home of PW2. PW2 is Mr. Ogweno the father of the complainant.”
[21] I am therefore satisfied that the Prosecution adduced credible evidence to prove beyond reasonable doubt that the complainant herein was within the age bracket envisaged by Section 8(2) of the Sexual Offences Act.
B. On Penetration of the Complainant:
[22] The lower court relied on the evidence of the complainant. She testified that she was defiled in a thicket behind her parent’s home. She immediately reported the incident to her father, PW2 who together with his wife and mother to the minor PW5 took action and reported the incident to the Police. The minor was issued with a P3 Form and was escorted to Rachuonyo Sub-County Hospital. She was examined and treated by Clinical Officer Serem on 29 th July 2021.
[23] Because Mr. Serem had been transferred, the P3 Form was produced on his behalf by a colleague, Mr. Philip Otieno (PW1). PW1 testified as to the observations and findings of Mr. Serem and stated that the minor’s hymen was recently torn and that she had bruises on both her labia majora and labia minora. PW1 also pointed out that the girl had wounds and lacerations around the vulva and that whitish discharge was also seen around the vulva. She was sent to the lab and the lab report produced as the Prosecution’s Exhibit 7. The conclusion by Mr. Serem was that the minor had been subjected to penetration by a male organ.
[24] The complainant’s blood stained clothes were also presented before the lower court along with the documents in proof of penetration. In the premises, there was cogent evidence to prove penetration and I so find.
C. On whether the penetration of the complainant was perpetrated
by the appellant :
[25] The complainant’s mother testified that she heard the complainant crying inside a thicket behind her house. On approaching, she saw the accused running away from the same spot; and that he hid himself behind the bushes next to her house. PW5 further stated that she asked PW3 what had happened to her and she told her that Okoth , the accused, had pierced her vagina with his penis.
[26] PW5 explained that the appellant is a cousin of her husband’s and a neigbour who frequently visited their home and was therefore well known to their children. PW2, the father of the complainant also testified that he returned home at about 7.30 p.m. and found the complainant crying; and when he asked her what the matter was, the complainant pointed to her private parts. He checked her private parts and noted that the girl’s vagina was swollen and on asking what had happened, the complainant told him “Baba, Okoth ameumiza dudu yangu”.
[27] On his part, the appellant admitted under oath that the complainant was defiled; and that he asked her parents for pardon him and for the complainant to forgive him. He further stated:
“It is true that I was seen running away from the scene. My trouser was falling so I was pulling it up that day…”
[28] In the circumstances the appellant was properly identified and placed at the scene of the crime by the evidence presented by the PW3 and PW5.
[29] The appellant impugned the evidence of PW3 and submitted at length on why he thought the learned magistrate fell into error by causing her to testify on oath. Section 19 of the Oaths and Statutory Declarations Act states that:
(1) 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.”
[30] Pursuant to the above provision, the Court of Appeal in Johnson Muiruri v Republic [1983] KLR 445 held as follows:
“Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which [case] his sworn evidence may be received. If the court is not so satisfied, his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.”
[31] In Maripett Loonkomok v Republic [2015] eKLR, the Court of Appeal posed the question as to who is a child of tender years and held thus:
“The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82 the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 10 years. This Court has recently in Patrick Kathurima v R,Criminal Appeal No.137 of 2014 and in Samuel Warui Karimiv R Criminal Appeal No.16 of 2014 stated categorically that the definition in the Children Act is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination..."
[32] In this instance, contrary to the assertions of the appellant, the learned magistrate conducted voir dire and was impressed with the complainant’s courage and level of comprehension. She accordingly ruled that she would give sworn evidence. Therefore, the appellant has no reason to complain granted that he was thereby granted the opportunity to cross-examine the minor. Not much turns on the fact that the girl was about 3 years old as there is no age limit for witnesses. Section 125 (1) of the Evidence Act , states:
“ All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause.”
[33] In this instance, the lower court was of the impression that the girl was competent to testify on oath. At page 15 of the Record of Appeal, the learned magistrate noted as follows after conducting voir dire :
“The minor is intelligent. She is speaking clearly and she can even look around the court without fear. She is allowed to give sworn testimony.”
[34] Later, in her judgment she stated as follows:
“It is worth noting that the minor herein was very young, very tender in terms of age, but what shocked me is that she spoke and communicated clearly. She took control of her testimony and did not contradict herself at any point. She was consistent and believable.
She gave evidence on oath and was very bold. She answered questions posed by the accused during cross-examination and did not appear like she had been coached to lie before the court.
Even without the admission by the accused, I would have comfortably relied on the evidence of PW2, 3 and 5, on identification to convict the accused herein.
[35] I therefore find no reason to impugn the evidence of PW3 or fault the position taken by the learned magistrate.
D. Whether the appellant’s constitutional right under Article 50(2) of the Constitution was violated; and if so, whether that violation vitiates the lower court proceedings:
[36] Article 50(2) of the Constitution provides as follows in Sub-Articles (g) and (h):
“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 this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
[37] The record of the lower court shows that the appellant was duly informed of his right to legal representation and that he opted to proceed in person. He actually stated:
“I am ready to proceed in person. I do not need a Lawyer.”
[38] I therefore find no merit in this ground of appeal.
E. On the sentence imposed by the trial court:
[39] First and foremost, it must be acknowledged that sentence is a matter within the discretion of the trial court; and that an appellate court ought not to interfere simply because it would have meted a lesser or stiffer sentence. Hence, in Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[40] Accordingly, in Dismas Wafula Kilwake v Republic [2018] eKLR the Court of Appeal held that:
“…the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand…”
[41] Similarly, in Jared Koita Injiri v Republic [2018] KECA 78 (KLR), the Court of Appeal held:
28. It therefore goes without say that the mandatory life sentence imposed by Section 8(2) of the Sexual Offences Act cannot stand. However, that is not to say that a court cannot render a life sentence upon convicting an accused person where the victim is of the age of 11 years old and below. A court must always reserve its discretion to consider the circumstances of each case independently and set an appropriate sentence. What the Constitution contemplates is that the sentence of life imprisonment cannot be the only sentence as currently proclaimed by Section 8(2) of the Sexual Offences Act. A court has discretion to render a life sentence as one of the lawful sentences upon consideration of mitigations and properly directing its legal mind on the factors for consideration in sentencing.
[42] It is therefore my finding that the sentence imposed on the appellant is lawful and was imposed at the discretion of the learned trial magistrate.
[43] In the result, I find no merit in the appeal. The same is hereby dismissed in its entirely.
It is so ordered.
DATED, SIGNED AND DELIVERED AT HOMA BAY THIS 29 TH DAY OF MAY, 2025