JUDGMENT
1. The appellant had been charged with the offence of defilement contrary to section 8(1) as read with section 8 (4) of the Sexual Offences Act of 2006. The particulars were that on diverse dates between February 2020 and 18th January 2021 at Bangladesh area of Jomvu sub-county within Mombasa County, the accused unlawfully and intentionally caused his penis to penetrate the vagina of (undisclosed) a girl child aged 16 years.
2. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The particulars were that on diverse dates between February 2020 and 18th January 2021, in the Bangladesh area in Likoni Sub—county within Mombasa County, the accused intentionally and unlawfully did an indecent act by touching the vagina of (undisclosed) a child aged 16 years with his penis.
3. The appellant was found guilty on both counts and was convicted and sentenced to 10 years’ imprisonment
4. The appellant was not satisfied with the judgment of the Hon. David Odhiambo, Senior Resident Magistrate in the Magistrate Court at Mombasa in S.O CASE E021/2021and thus sought this appeal.
5. The Appellant’s grounds of appeal are summarised as follows;
a) That the learned Magistrate erred in law and fact by relying entirely on the evidence of the complainant.
b) That the learned Magistrate erred in law and fact by dismissing the contradiction arising from the evidence of the complainant.
Firstly, by identifying the appellant as James and not Samuel, yet she alleges she has been defiled for over one year by the appellant.
Secondly, the discrepancy on the amount of money allegedly given to the complainant, where she indicated it as Kshs 20 while the mother claimed it was Kshs 50.
c) That the learned magistrate erred in fact and law by acknowledging the evidence, facts, and medical report that confirmed that the complainant’s hymen was not freshly broken and could have been defiled by a person other than the complainant.
d) That the learned Magistrate misdirected himself by shifting the burden of proof by disregarding the evidence of the appellant of a pre-existing grudge between the appellant and the complainant’s mother, and might have been framed.
e) That the learned Magistrate erred in fact and law by failing to appreciate that all the ingredients of defilement were not met, that is, penetration, age of the child, and positive identification.
f) That the learned Magistrate erred in fact and law by arriving at a decision which led to the conviction of the appellant, while the benefit of doubt favoured him.
6. This court has a legal duty to re-analyse, re-evaluate, and assess the evidence adduced in the lower court to come up with its own conclusions, bearing in mind that it did not have the benefit of seeing the witnesses testify. See Okeno v Republic.
7. The prosecution called four witnesses to prove its case beyond a reasonable doubt.
a) PW1 stated that she was the victim in this case and that she was 16 years old. She stated that in February 2020, on a Sunday, she left home for church, and on the way, the accused James (while pointing to the accused) used to give her money, and that he had a shop within the estate. On her way home from church, the accused asked her to enter his shop, where he told her to undress and proceeded to defile her. She wore her clothes after the incident and left for home. From that day, she stated that the accused continued to give her money (sadaka) and defile her. On 17/1/2021, the accused gave her sadaka, and when she went home, her mom saw her with the Kshs 20/- and asked her where she had got the money from, to which she told him from James. The Mom went to see James. She stated that her mother beat her. She was taken to the hospital the following day, 18/1/2021, and she told the police what happened. She pointed to the accused while calling him James. Upon cross-examination, she stated that it was the mother who told her what to write at the police station and that she had previously slept with a man. On re-examination she stated there was no hatred between her family and James and that she slept with James.
b) PW 2 is a medical officer from Portreitz sub-county hospital. She stated the PRC form was filled by Dr. John Kinguri, with whom she is well acquainted for 1 year and knows his handwriting and signature. She stated the P3 form was filled by Dr. Said, who was on duty at the time. She confirmed that indeed the Hymen was broken, no bleeding or discharge. She gave the PRC form. She stated that it was 9 days after the incident. When she was examined. A blunt object was used. During cross-examination, PW 2 confirmed she was not the one who examined the child.
c) PW 3 is the complainant’s mother. She brought forward the victim’s birth certificate, confirming that the daughter was 16 years old and thus a minor. She stated that on 17/01/2021, after going to church, she found her son with Kshs. 50, and upon inquiry, she found out it was from her daughter. In the evening, after she called both children and questioned the source of the money. The daughter told her that it was from the shop attendant within the area who usually gave her money, then defile her. The daughter took them to the appellant’s shop with her husband. She stated that the appellant told them he used to give her daughter an offering. On 18/01/2021, they went to the hospital and reported the defilement. She stated that she did not have any grudge against the appellant.
d) PW 4 was the investigating officer. He stated that on 18/01/2021, the mother came with her child to the station to report the defilement. He recorded their statement. He said he took the child to the hospital. On 23/2/2021, together with a colleague and the mother, they went to the shop and arrested him.
8. In his defence, the appellant gave sworn testimony and stated as follows: That on 17/01/2021 at 6 pm, a man and a woman came to the shop and questioned him about a man named James who had been giving their daughter money, and they wanted to tell him to stop. He told them that they should tell their daughter to stop asking people for money. The woman then told him that he would teach him a lesson. He was informed by people that the woman had a history of collecting money from people like that. Later on 3/2/2021, the woman came back with police, and he was arrested and taken to the police station and locked up. He stated that the following day, the woman came back, and he was told to talk to her, but he refused. He stated that on the alleged date of February 2020, when the offence allegedly started, he was with his wife as she was expectant.
9. The issues for determination are whether the offence of Defilement had been proved beyond a reasonable doubt and whether the discrepancies in the prosecution’s case affect proving the case.
10. On whether the prosecution proved its case beyond a reasonable doubt, Section 8(1) of the Sexual Offences Act provides that “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. While section 8(4) states that “A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.’’
11. In the case of George Opondo Olunga v Republic (2016) eKLR, the ingredients for the offence of defilement were set out as:
a) Proof of the age of the victim.
b) Proof of penetration or indecent act.
c) Identification of the perpetrator.
12. On the issue of proof of age of the victim, the record shows that the birth certificate of the complainant was produced as exhibit 4, showing the child was born on 1/6/2004, which meant she was 16 years old on the day of the alleged defilement. This court agrees with the trial court that this ingredient was sufficiently proved.
13. On penetration, Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. It is proven through the evidence of the victim, corroborated by medical evidence from a medical practitioner and a PRC form, which was marked as Exhibit 2. The complainant gave her testimony during the trial court as PW 1. PW 1's testimony is further corroborated by PW 3’s testimony in court.
14. In the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the court held that, “The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
15. Consequently, I find that the evidence of the victim and the medical Doctor, PW2, was sufficient to prove the ingredient of penetration, and there is no reason to disturb the finding of the trial court. I affirm that penetration was proven.
16. On the issue of Identification, both PW1 and PW3 identified the appellant in the trial court, and PW3 further stated that she knew the appellant as she was a customer at his shop.
17. However, I find the discrepancies during identification to be that the complainant identified the appellant as James, not Samuel, in court, and the other issue is whether PW3 tainted the identification by telling the complainant what to write at the police station.
18. On the issue of the complainant calling the appellant James not Samuel, I have taken into consideration that the complainant might have been deceived during the period of defilement. The court also takes into account that there was nobody else at the shop when the parents of the complainant went to the shop to find out who was defiling their daughter.
19. On whether the mother coached the identification by telling the complainant what to write, I find this highly unlikely since the police are the ones who oversee questioning at the police station, and the Investigation Officer, PW4, would have raised the issue during questioning.
20. The case of Joseph Maina Mwangi v Republic CA NO.73 of 1992 held that, “In any trial, there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.”
21. I therefore find the discrepancies mentioned above not to be fundamental enough to cause prejudice to the appellant or make them face an unfair trial.
22. I conclude that the third element of defilement was proved, and the appellant was positively identified as the one who committed the offence on the complainant.
23. About the discrepancies in the prosecution’s case as to the amount of money, whether it was Kshs 20 or 50/-, I am guided by the court in Philip Nzaka Watu vs. Republic [2016] eKLR, where the Court of Appeal held that, “.........However, it must be remembered that when it comes to human recollection, no two witnesses recall the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible, and no two people perceive the same phenomena exactly the same way.”
24. After careful analysis and determination, I find that the prosecution did prove its case beyond a reasonable doubt, and so, consequently, I find no reason to interfere with the trial court's decision on sentencing. I find no merit in the argument that the learned trial Magistrate misdirected himself on the law or the evidence, nor do I find any basis to hold that he erred in arriving at the conviction and the sentence. The upshot is that this appeal against both conviction and sentence is dismissed.
25. It is so ordered.
DELIVERED, DATED AND SIGNED THIS ........15th ......... DAY OF........MAY............. 2025.
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF THE
APPELLANT
MR NGIRI PROSECUTOR
BEBORA COURT ASSISTANT
1. The appellant had been charged with the offence of defilement contrary to section 8(1) as read with section 8 (4) of the Sexual Offences Act of 2006. The particulars were that on diverse dates between February 2020 and 18th January 2021 at Bangladesh area of Jomvu sub-county within Mombasa County, the accused unlawfully and intentionally caused his penis to penetrate the vagina of (undisclosed) a girl child aged 16 years.
2. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The particulars were that on diverse dates between February 2020 and 18th January 2021, in the Bangladesh area in Likoni Sub—county within Mombasa County, the accused intentionally and unlawfully did an indecent act by touching the vagina of (undisclosed) a child aged 16 years with his penis.
3. The appellant was found guilty on both counts and was convicted and sentenced to 10 years’ imprisonment
4. The appellant was not satisfied with the judgment of the Hon. David Odhiambo, Senior Resident Magistrate in the Magistrate Court at Mombasa in S.O CASE E021/2021and thus sought this appeal.
5. The Appellant’s grounds of appeal are summarised as follows;
a) That the learned Magistrate erred in law and fact by relying entirely on the evidence of the complainant.
b) That the learned Magistrate erred in law and fact by dismissing the contradiction arising from the evidence of the complainant.
Firstly, by identifying the appellant as James and not Samuel, yet she alleges she has been defiled for over one year by the appellant.
Secondly, the discrepancy on the amount of money allegedly given to the complainant, where she indicated it as Kshs 20 while the mother claimed it was Kshs 50.
c) That the learned magistrate erred in fact and law by acknowledging the evidence, facts, and medical report that confirmed that the complainant’s hymen was not freshly broken and could have been defiled by a person other than the complainant.
d) That the learned Magistrate misdirected himself by shifting the burden of proof by disregarding the evidence of the appellant of a pre-existing grudge between the appellant and the complainant’s mother, and might have been framed.
e) That the learned Magistrate erred in fact and law by failing to appreciate that all the ingredients of defilement were not met, that is, penetration, age of the child, and positive identification.
f) That the learned Magistrate erred in fact and law by arriving at a decision which led to the conviction of the appellant, while the benefit of doubt favoured him.
6. This court has a legal duty to re-analyse, re-evaluate, and assess the evidence adduced in the lower court to come up with its own conclusions, bearing in mind that it did not have the benefit of seeing the witnesses testify. See Okeno v Republic.
7. The prosecution called four witnesses to prove its case beyond a reasonable doubt.
a) PW1 stated that she was the victim in this case and that she was 16 years old. She stated that in February 2020, on a Sunday, she left home for church, and on the way, the accused James (while pointing to the accused) used to give her money, and that he had a shop within the estate. On her way home from church, the accused asked her to enter his shop, where he told her to undress and proceeded to defile her. She wore her clothes after the incident and left for home. From that day, she stated that the accused continued to give her money (sadaka) and defile her. On 17/1/2021, the accused gave her sadaka, and when she went home, her mom saw her with the Kshs 20/- and asked her where she had got the money from, to which she told him from James. The Mom went to see James. She stated that her mother beat her. She was taken to the hospital the following day, 18/1/2021, and she told the police what happened. She pointed to the accused while calling him James. Upon cross-examination, she stated that it was the mother who told her what to write at the police station and that she had previously slept with a man. On re-examination she stated there was no hatred between her family and James and that she slept with James.
b) PW 2 is a medical officer from Portreitz sub-county hospital. She stated the PRC form was filled by Dr. John Kinguri, with whom she is well acquainted for 1 year and knows his handwriting and signature. She stated the P3 form was filled by Dr. Said, who was on duty at the time. She confirmed that indeed the Hymen was broken, no bleeding or discharge. She gave the PRC form. She stated that it was 9 days after the incident. When she was examined. A blunt object was used. During cross-examination, PW 2 confirmed she was not the one who examined the child.
c) PW 3 is the complainant’s mother. She brought forward the victim’s birth certificate, confirming that the daughter was 16 years old and thus a minor. She stated that on 17/01/2021, after going to church, she found her son with Kshs. 50, and upon inquiry, she found out it was from her daughter. In the evening, after she called both children and questioned the source of the money. The daughter told her that it was from the shop attendant within the area who usually gave her money, then defile her. The daughter took them to the appellant’s shop with her husband. She stated that the appellant told them he used to give her daughter an offering. On 18/01/2021, they went to the hospital and reported the defilement. She stated that she did not have any grudge against the appellant.
d) PW 4 was the investigating officer. He stated that on 18/01/2021, the mother came with her child to the station to report the defilement. He recorded their statement. He said he took the child to the hospital. On 23/2/2021, together with a colleague and the mother, they went to the shop and arrested him.
8. In his defence, the appellant gave sworn testimony and stated as follows: That on 17/01/2021 at 6 pm, a man and a woman came to the shop and questioned him about a man named James who had been giving their daughter money, and they wanted to tell him to stop. He told them that they should tell their daughter to stop asking people for money. The woman then told him that he would teach him a lesson. He was informed by people that the woman had a history of collecting money from people like that. Later on 3/2/2021, the woman came back with police, and he was arrested and taken to the police station and locked up. He stated that the following day, the woman came back, and he was told to talk to her, but he refused. He stated that on the alleged date of February 2020, when the offence allegedly started, he was with his wife as she was expectant.
9. The issues for determination are whether the offence of Defilement had been proved beyond a reasonable doubt and whether the discrepancies in the prosecution’s case affect proving the case.
10. On whether the prosecution proved its case beyond a reasonable doubt, Section 8(1) of the Sexual Offences Act provides that “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. While section 8(4) states that “A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.’’
11. In the case of George Opondo Olunga v Republic (2016) eKLR, the ingredients for the offence of defilement were set out as:
a) Proof of the age of the victim.
b) Proof of penetration or indecent act.
c) Identification of the perpetrator.
12. On the issue of proof of age of the victim, the record shows that the birth certificate of the complainant was produced as exhibit 4, showing the child was born on 1/6/2004, which meant she was 16 years old on the day of the alleged defilement. This court agrees with the trial court that this ingredient was sufficiently proved.
13. On penetration, Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. It is proven through the evidence of the victim, corroborated by medical evidence from a medical practitioner and a PRC form, which was marked as Exhibit 2. The complainant gave her testimony during the trial court as PW 1. PW 1's testimony is further corroborated by PW 3’s testimony in court.
14. In the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the court held that, “The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
15. Consequently, I find that the evidence of the victim and the medical Doctor, PW2, was sufficient to prove the ingredient of penetration, and there is no reason to disturb the finding of the trial court. I affirm that penetration was proven.
16. On the issue of Identification, both PW1 and PW3 identified the appellant in the trial court, and PW3 further stated that she knew the appellant as she was a customer at his shop.
17. However, I find the discrepancies during identification to be that the complainant identified the appellant as James, not Samuel, in court, and the other issue is whether PW3 tainted the identification by telling the complainant what to write at the police station.
18. On the issue of the complainant calling the appellant James not Samuel, I have taken into consideration that the complainant might have been deceived during the period of defilement. The court also takes into account that there was nobody else at the shop when the parents of the complainant went to the shop to find out who was defiling their daughter.
19. On whether the mother coached the identification by telling the complainant what to write, I find this highly unlikely since the police are the ones who oversee questioning at the police station, and the Investigation Officer, PW4, would have raised the issue during questioning.
20. The case of Joseph Maina Mwangi v Republic CA NO.73 of 1992 held that, “In any trial, there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.”
21. I therefore find the discrepancies mentioned above not to be fundamental enough to cause prejudice to the appellant or make them face an unfair trial.
22. I conclude that the third element of defilement was proved, and the appellant was positively identified as the one who committed the offence on the complainant.
23. About the discrepancies in the prosecution’s case as to the amount of money, whether it was Kshs 20 or 50/-, I am guided by the court in Philip Nzaka Watu vs. Republic [2016] eKLR, where the Court of Appeal held that, “.........However, it must be remembered that when it comes to human recollection, no two witnesses recall the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible, and no two people perceive the same phenomena exactly the same way.”
24. After careful analysis and determination, I find that the prosecution did prove its case beyond a reasonable doubt, and so, consequently, I find no reason to interfere with the trial court's decision on sentencing. I find no merit in the argument that the learned trial Magistrate misdirected himself on the law or the evidence, nor do I find any basis to hold that he erred in arriving at the conviction and the sentence. The upshot is that this appeal against both conviction and sentence is dismissed.
25. It is so ordered.
DELIVERED, DATED AND SIGNED THIS ........15th ......... DAY OF........MAY............. 2025.
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF THE
APPELLANT
MR NGIRI PROSECUTOR
BEBORA COURT ASSISTANT