JUDGMENT
1. The appellant, Charles Omondi Muga, was convicted by the trial court of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. He was sentenced to twenty (20) years imprisonment. Dissatisfied with both the conviction and sentence, the appellant lodged this appeal citing several grounds, including claims of consent, inconsistent evidence, failure to prove the case beyond reasonable doubt, and failure to meet the ingredients of the offence of defilement.
Background
2. The appellant, a pastor, was accused of defiling a minor, Ephy Achieng, aged 13 years, on multiple occasions in September 2021. The complainant was sent to the appellant’s home by her mother to perform house chores. During her stay, the appellant allegedly defiled her and threatened her to remain silent, promising to provide for her needs. The complainant later confided in another individual, leading to the appellant’s arrest. The appellant chose not to present a defense but claimed that the complainant went to his house of her own accord.
Grounds of Appeal
3. The appellant raised the following grounds of appeal:
a. The mandatory sentence of twenty (20) years was excessive.
b. The sexual intercourse was consensual.
c. The evidence presented was inconsistent and uncorroborated.
d. The prosecution failed to prove the case beyond reasonable doubt.
e. The main ingredients of the offence of defilement were not met.
f. The prosecution failed to present exhibits in court.
4. As a first appellate court, our duty is to re-evaluate the entirety of the evidence on record and arrive at our own conclusions, taking into account that we did not have the opportunity to see the witnesses, as held in the case of Kiilu & Another vs. Republic (2005) 1 KLR 174:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence."
5. Regarding the ingredients of the offence of defilement, the prosecution must establish the complainant’s age, the act of penetration, and the positive identity of the perpetrator.
Analysis and Determination
Upon reviewing the submissions from both the appellant and the respondent, the court makes the following findings:
Age of the Complainant
6. The prosecution provided sufficient evidence to establish the complainant’s age. The charge sheet, medical documents, and age assessment report confirmed that the complainant was 13 years old at the time of the offence. This was not challenged, satisfying the first ingredient of the offence of defilement.
Penetration
7. It is well-established that any penetration, however slight, is sufficient to constitute the offence of defilement. The complainant testified that she was sent to the appellant's house to help with chores and she slept in a separate room in his house and that in the middle of the night she discovered that he was sleeping next to her and had interfered with her vagina . She reported that the appellant defiled her multiple times until a lady came looking for him, leading to her confession about the sexual encounters. The appellant did not challenge this testimony and admitted in his defense that the complainant went to his house voluntarily. The complainant’s testimony was clear and credible, detailing the acts of defilement committed by the appellant. Medical evidence corroborated her account, confirming the presence of a broken hymen and other physical evidence consistent with defilement. The P3 form and treatment notes were duly produced to support the prosecution's case. I find that penetration was proved beyond reasonable doubt.
Identification
8. The appellant was a pastor known to both the complainant and her mother. The complainant stayed in his house for about three days, and he was arrested at the scene. The was no possibility of mistaken identity . This constitutes a clear case of recognition. I agree with the learned trial magistrate that the appellant was properly placed at the scene.
Consent
9. The appellant’s claim that the sexual intercourse was consensual was dismissed by the learned trial magistrate. The age of majority in Kenya is 18 years; thus, a minor below this age cannot consent to sexual activity. The appellant’s argument regarding consent is therefore without merit, as correctly found by the learned magistrate.
Inconsistencies and Lack of Exhibits
10. The appellant contended that the prosecution's evidence was inconsistent and that some exhibits were not produced. However, the P3 form, treatment notes, and age assessment report (Pexh 1, 2, and 3, respectively) were presented to support the prosecution's case. The court finds that the evidence presented by the prosecution was credible, consistent, and corroborated by multiple witnesses.
12. The sentence of twenty (20) years imprisonment is lawful and in accordance with Section 8(3) of the Sexual Offences Act. The Supreme Court in the case of Republic v Joshua Gichuki Mwangi, Petition No. E018 of 2023 held that sentencing provisions in sexual offences must be interpreted strictly, as the courts lack jurisdiction to amend statutory provisions, which is the role of Parliament. The learned trial magistrate acted within the principles of the law, and the sentence was proportionate to the offence.
13. Regarding whether the remand period of the convict was taken into account, I note that the appellant was first arraigned in court on 6.9.21 and was convicted and sentence on 24.8.22. Section 333(2) of the Criminal Procedure Code provides that the remand period of a convict should be considered in computing the sentence . This was not done.
Conclusion
14. In light of the above findings, the appellant’s conviction and sentence were proper and lawful. The trial court applied the principles of law correctly, and there was no miscarriage of justice.
Orders
15. In the upshot I proceed to issue the following orders:
a. The appeal is hereby dismissed in its entirety.
b. The conviction and sentence of twenty (20) years imprisonment imposed by the trial court are upheld.
c. The remand period between 6.9.21 and 24.8.22 be considered in computing his period.
T.A ODERA JUDGE
5.2.26
Delivered Virtually Via Teams Platform on this 5th day of February 2025, in the presence of the appellant, Miss Moenga, and CA Ogendo.
1. The appellant, Charles Omondi Muga, was convicted by the trial court of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. He was sentenced to twenty (20) years imprisonment. Dissatisfied with both the conviction and sentence, the appellant lodged this appeal citing several grounds, including claims of consent, inconsistent evidence, failure to prove the case beyond reasonable doubt, and failure to meet the ingredients of the offence of defilement.
Background
2. The appellant, a pastor, was accused of defiling a minor, Ephy Achieng, aged 13 years, on multiple occasions in September 2021. The complainant was sent to the appellant’s home by her mother to perform house chores. During her stay, the appellant allegedly defiled her and threatened her to remain silent, promising to provide for her needs. The complainant later confided in another individual, leading to the appellant’s arrest. The appellant chose not to present a defense but claimed that the complainant went to his house of her own accord.
Grounds of Appeal
3. The appellant raised the following grounds of appeal:
a. The mandatory sentence of twenty (20) years was excessive.
b. The sexual intercourse was consensual.
c. The evidence presented was inconsistent and uncorroborated.
d. The prosecution failed to prove the case beyond reasonable doubt.
e. The main ingredients of the offence of defilement were not met.
f. The prosecution failed to present exhibits in court.
4. As a first appellate court, our duty is to re-evaluate the entirety of the evidence on record and arrive at our own conclusions, taking into account that we did not have the opportunity to see the witnesses, as held in the case of Kiilu & Another vs. Republic (2005) 1 KLR 174:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence."
5. Regarding the ingredients of the offence of defilement, the prosecution must establish the complainant’s age, the act of penetration, and the positive identity of the perpetrator.
Analysis and Determination
Upon reviewing the submissions from both the appellant and the respondent, the court makes the following findings:
Age of the Complainant
6. The prosecution provided sufficient evidence to establish the complainant’s age. The charge sheet, medical documents, and age assessment report confirmed that the complainant was 13 years old at the time of the offence. This was not challenged, satisfying the first ingredient of the offence of defilement.
Penetration
7. It is well-established that any penetration, however slight, is sufficient to constitute the offence of defilement. The complainant testified that she was sent to the appellant's house to help with chores and she slept in a separate room in his house and that in the middle of the night she discovered that he was sleeping next to her and had interfered with her vagina . She reported that the appellant defiled her multiple times until a lady came looking for him, leading to her confession about the sexual encounters. The appellant did not challenge this testimony and admitted in his defense that the complainant went to his house voluntarily. The complainant’s testimony was clear and credible, detailing the acts of defilement committed by the appellant. Medical evidence corroborated her account, confirming the presence of a broken hymen and other physical evidence consistent with defilement. The P3 form and treatment notes were duly produced to support the prosecution's case. I find that penetration was proved beyond reasonable doubt.
Identification
8. The appellant was a pastor known to both the complainant and her mother. The complainant stayed in his house for about three days, and he was arrested at the scene. The was no possibility of mistaken identity . This constitutes a clear case of recognition. I agree with the learned trial magistrate that the appellant was properly placed at the scene.
Consent
9. The appellant’s claim that the sexual intercourse was consensual was dismissed by the learned trial magistrate. The age of majority in Kenya is 18 years; thus, a minor below this age cannot consent to sexual activity. The appellant’s argument regarding consent is therefore without merit, as correctly found by the learned magistrate.
Inconsistencies and Lack of Exhibits
10. The appellant contended that the prosecution's evidence was inconsistent and that some exhibits were not produced. However, the P3 form, treatment notes, and age assessment report (Pexh 1, 2, and 3, respectively) were presented to support the prosecution's case. The court finds that the evidence presented by the prosecution was credible, consistent, and corroborated by multiple witnesses.
12. The sentence of twenty (20) years imprisonment is lawful and in accordance with Section 8(3) of the Sexual Offences Act. The Supreme Court in the case of Republic v Joshua Gichuki Mwangi, Petition No. E018 of 2023 held that sentencing provisions in sexual offences must be interpreted strictly, as the courts lack jurisdiction to amend statutory provisions, which is the role of Parliament. The learned trial magistrate acted within the principles of the law, and the sentence was proportionate to the offence.
13. Regarding whether the remand period of the convict was taken into account, I note that the appellant was first arraigned in court on 6.9.21 and was convicted and sentence on 24.8.22. Section 333(2) of the Criminal Procedure Code provides that the remand period of a convict should be considered in computing the sentence . This was not done.
Conclusion
14. In light of the above findings, the appellant’s conviction and sentence were proper and lawful. The trial court applied the principles of law correctly, and there was no miscarriage of justice.
Orders
15. In the upshot I proceed to issue the following orders:
a. The appeal is hereby dismissed in its entirety.
b. The conviction and sentence of twenty (20) years imprisonment imposed by the trial court are upheld.
c. The remand period between 6.9.21 and 24.8.22 be considered in computing his period.
T.A ODERA JUDGE
5.2.26
Delivered Virtually Via Teams Platform on this 5th day of February 2025, in the presence of the appellant, Miss Moenga, and CA Ogendo.