Introduction
1. The Appellant, Charles Otieno Okeno was convicted of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act, No 3 of 2006. On 15/12/2022, the Appellant was sentenced to ten (10) years imprisonment.
2. The particulars were that on the 26/8/2020 at Nyamasaria area in Kasule sub-location in Kisumu East sub-county within Kisumu County in the Republic of Kenya unlawfully and intentionally caused his penis to penetrate the vagina of N.B.A., a child aged 11 years.
3. 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, Cap. 63A, the particulars being that on the 26/8/2020 at Nyamasaria estate in Kisumu East sub-county within Kisumu County intentionally touched the vagina of N.B.A., a child aged 11 years with his penis.
The Appeal
4. The Appellant challenges the conviction and the sentence vide an Amended Petition of Appeal filed on 17th October 2022, raising the following grounds; -
i. That the learned the Trial Magistrate erred in law and in fact by placing the burden of proof on the appellant and, thereby arriving at an erroneous decision.
ii. That the learned Trial Magistrate erred in law and fact by disregarding the testimony of the appellant and his witnesses hence arriving at a wrong decision.
iii. That the learned trial magistrate erred in law and in fact by convicting the appellant solely based on the uncorroborated evidence of the victim and more particularly the evidence relating to the actual act of defiling the minor.
iv. That the learned trial magistrate erred in law and in fact by convicting the appellant despite the glaring gaps in the witness testimonies and more particularly the unexplained period between the time of the alleged rape and the time the minor informed the mother of the defilement.
v. That the learned trial Magistrate erred in law and in fact by convicting the appellant despite the incomplete testimony of the prosecution witness especially PW4 and PW5 and more particularly the events leading to the revelations of the defilement by the minor.
vi. That the learned magistrate erred in law and in fact by finding that the evidence placed the appellant at the scene of the crime yet the complainant raised the issue of defilement much later after the offence was allegedly committed and the exact scene of crime could not, therefore, be established.
vii. That the learned trial magistrate erred in law by failing to find that the prosecution had not discharged their burden to the required standard; which is beyond reasonable doubt.
viii. That the learned magistrate erred in law and in fact by misapprehending the Appellant's defence and, therefore, finding that he had raised the defence of ALIBI which was never the case.
ix. That the learned trial magistrate erred in law by failing to find that the medical reports produced in evidence were inadmissible as the same were never produced by the makers or laying a basis for their production as required by the Evidence Act.
Submissions
5. The appeal was canvassed by way of written submissions. The Respondent filed its submissions dated 21st November 2024 but the Appellant did not file any submissions on the Appeal. However, in his Petition of Appeal, the Appellant prayed that the appeal be allowed, the conviction be quashed and the sentence set aside with the consequence of him being set at liberty.
6. In his amended memorandum (petition) of appeal dated 17th December 2022, I note that, despite raising numerous grounds, the main contention by the Appellant is that the trial court erred in its decision by failing to find that the prosecution did not discharge its burden of proof to the required standards; That the conviction was based on inadmissible evidence, That the court convicted the Appellant based solely on the uncorroborated evidence of the victim and that the evidence/defence of the Appellant was not taken into account/misapprehended. As indicated earlier, no submissions were filed by the Appellant on this appeal despite the fact that the amended petition of appeal was filed way back in December 2022.
7. The Respondent on its part submitted that the prosecution proved its case to the standards required in law. The Respondent asserted that the age of the complainant at the time she was defiled was 11 years and 3 months, therefore within the 11 years bracket. That this was proved in evidence at trial by the production of the minor’s Birth certificate (Pex.4) which indicated that she was born on 17/5/2009, and corroborated by the evidence of PW4 (the complainant). That PW2, the doctor who examined the Complainant, and PW3 the clinical officer stated that the genitalia had a broken hymen and that she had a reddish mark at 4 o'clock of the vagina. They produced the P3 form (PEX 2) and the PRC (PEX 3) from JOOTRH. The medical evidence proved the minor had been defiled.
8. Regarding the identity of the perpetrator, the Respondent submitted that the Appellant, being the perpetrator, was positively identified. The complainant stated in her testimony that the appellant who is her neighbor was the one who defiled her in their house. This means the appellant was a person known to her and she could positively identify him. The complainant also pointed at the appellant in court as the perpetrator. That the Appellant was therefore positively identified by recognition as the perpetrator.
9. On the sentence meted out by the trial court, the Respondent submitted that the sentence was too lenient and prayed that this court enhance the same to life imprisonment provided under section 8(2) of the Sexual Offences Act. According to the Respondent, this court should be alive to the seriousness of this offence and the circumstances of the instant case, taking into account that the life of the 11year old girl was changed because of this offence. That the appellant herein should not be given a chance to deflower another young girl.
10. Citing the Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023)[2024] KESC 34(KLR)(12 July 2024), the Respondent submitted that the court is bound by the doctrine of stare decisis and urged this court to substitute the 10 years sentence by the legal sentence which is life sentence.
11. The Respondent therefore prayed that this court finds the appeal to be without merit, dismiss the same and uphold the conviction. Regarding the sentence, the Respondent urged the court to find the sentence meted out by the trial court is too lenient and enhance and/or uphold the same.
Analysis and Determination
12. In dealing with this appeal, this court is fully cognizant of its duty as the first appellate court as expressed by the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows: -
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
13. Further in the case of Okeno Vs R (1972) EA 32 the court stated as follows on the duty of the first appellate court: -
“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 the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion”.
14. This court is equally aware that this being a criminal case, the standard of proof required is that of beyond any reasonable doubt and that the same is a burden placed by law on the prosecution. In Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR, the court (Mativo, J, as he then was) expressed himself on the issue as hereunder: -
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
15. What amounts to reasonable doubt has been clarified by the Court of Appeal in the case of Moses Nato Raphael vs. Republic [2015] eKLR as follows; -
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated: -
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
16. Guided by the above general principles, I now turn to the instant appeal. I have perused and considered the grounds of appeal, the record of appeal and the Respondent’s submissions filed herein and identify the following as the issues for determination; -
i. Whether the ingredients of the offence of defilement were proved beyond reasonable doubt
ii. Whether the sentence meted out to the Appellant was harsh and excessive.
i) Whether the ingredients of the offence of defilement were proven.
17. This court notes that the appellant was charged with the offence of defilement contrary to Section 8 (1) as read with 8 (2) of the Sexual Offences Act, Cap. 63A Laws of Kenya. The said provisions provide as follows: -
“(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.”
18. The above provision requires the prosecution to present evidence to prove three key ingredients of the offence of defilement, namely; the age of the victim, penetration and the positive identification of the assailant. The said ingredients were outlined in the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 [2015] eKLR as follows: -
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
a) Age of the victim
19. Regarding proof of age, the Court of Appeal in Edwin Nyambogo Onsongo Vs Republic (2016 eKLR stated as follows; -
“... the question of proof of age has finally been settled by recent decision of this court to the effect that it can be proved by documents, evidence such as birth certificate, baptism, card or by oral evidence of the parents or the guardian or medical evidence among other credible form of proof. We think that what ought to be stressed is that whatever the nature of the evidence preferred in proof of the victim's age it has to be credible and reliable.”
20. The above position by the Kenyan Court of Appeal is similar to that held by its counterpart, the Ugandan Court of Appeal in the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000 that; -
“In defilement cases medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian, and by observation and common sense.”
21. In the instant case, to prove the age of the complainant, the prosecution called as a witness, called PW4, the complainant who after voire dire examination, testified that she was 12 years old. The complainant’s mother, PW5 also testified and stated that the minor was born on 17th May 2009 and produced as Pexh 4, a birth certificate of the victim.
22. I have carefully considered the evidence on record regarding the complainant's age. I note that in the charge sheet, the victim’s age was indicated to be 11 years on 26th August 2020 when the offence (defilement) is alleged to have been committed. According to the birth certificate (Pexh 4), the complainant was born on 17 May 2009 making her 11 years 3 months old as at 26th August 2020. The complainant testified in court on 13th July 2022 and stated that she was then 12 years old by then, meaning she was approximately 11 years old at the time of the alleged offence.
23. Fron the above, it is the finding of this court that the age of the complainant was proved by the prosecution to the standards required in law. From the authorities cited above, it is clear that age can be proved by among others, the “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.” In the instant case, the evidence of the minor on her age was corroborated by the evidence of her mother who produced in court as Pexh 4, the victim’s birth certificate.
24. The proof of age of the victim in a defilement case is critical since the sentence to be imposed depends on the age of the victim. In Hadson Ali Mwachongo Vs R the Court of Appeal underscored this point when it stated that “The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
25. In this case, this court is satisfied that the age of the victim was proved to the required standards by the prosecution and that the victim was aged 11 years at the material time.
b) Penetration
26. Regarding proof of penetration, Section 2 of the Sexual Offences Act defines penetration as follows; -
“The partial or complete insertion of the genital organs of a person into the genital organs of another person.”
27. Penetration can be proved through the victim’s sole testimony or through the victim’s testimony corroborated by medical evidence. (See Bassita Hussein vs. Uganda, Supreme Court Criminal Appeal No. 35 of 1995). Where medical examination may not be available, or inconclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child in order to determine whether there was penetration.
28. In this case, the Prosecution presented evidence on the question of penetration when the complainant (PW4) testified as follows: -
“He undressed me, undressed himself and he put his fingers inserted in my vagina. He told me to bend over and he inserted his penis in my private parts…..”
29. The clinical officer (PW3), K. Tanui who examined the complainant on 28.8.2020 also stated in her evidence that the genital exam of the victim revealed a normal outer genitalia reddish mark at 4 and 5 o’clock at vagina and that that the hymen was broken. She produced a PRC form (Pexh 3) in that regard.
30. From my review of the evidence adduced by the prosecution on the issue of penetration, I find that the fact of penetration was proved to the required standards. The evidence of the complainant on the question was duly corroborated by the medical evidence adduced in court.
c) Identification
31. On identification of the perpetrator, it is on record that the appellant was known to the victim, PW4. The appellant himself in his testimony before the trial court admitted that they were neighbours with the victim who lived with her mother. The victim in her evidence also testified and told court that there was light in the house when the Appellant came to their house at 8.00pm and that she knew the Appellant, including his wife.
32. From the above, it is clear that this was a case of recognition, which is much more reliable for the purposes of identification of the perpetrator. In the case of Reuben Taabu Anjononi & 2 Others Vs Republic the Court of Appeal in Nairobi held that; -
“………. recognition not identification of assailants is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. See also the case of Julius Waititu Muthutite Vs Republic.
33. Based on the fact that this was based on recognition, I find that the victim positively identified the appellant as the perpetrator.
Whether the sentence meted was lawful
34. Regarding the sentence meted out by the trial court, I note that the Appellant was charged with defilement contrary to sections 8(1) and 8(2) of the sexual offences Act No 3 of 2006. Section 8(2) of the said sexual offences Act is clear that a person found guilty of defilement of a child ages eleven (11) years or less shall upon conviction be sentenced to imprisonment for life.
35. Upon conviction, the Appellant did mitigate and the trial Magistrate sentenced him to serve a period of ten (10) years. The court however did not indicate the period from which the sentence was to start running. which sentence was to run from 28.03.2019, when the said appellant was charged in court.
36. It is trite law that sentencing is a matter of discretion of the trial court and the appellate court will not easily interfere unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. In the case of Benard Kimani Gacheru Vs Republic (2002) eKLR, the Court of Appeal stated as follows on the issue; -
“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.
37. It has not been demonstrated by the Appellant that the trial magistrate made any error while sentencing the Appellant. Further, based on my review of the facts and evidence of this case, it is the opinion that the sentence meted out by the trial court is not manifestly high/excessive in the circumstances of the case nor has it been shown that the trial court overlooked some mutual factors or took into account some wrong material or based his decision upon a wrong principle. In fact, I note that the Appellant benefited from the trial court’s discretion when the court opted not to hand down the mandatory life sentence as provided for under the said Act.
Determination
38. Accordingly, having considered the evidence adduced and submissions made, I do find that this Appeal is not merited and proceed to dismiss the same.
39. I, however, direct that the sentence of ten (10) years meted out by the trial court is to run from 03.09.2020, when the said appellant was charged in court.
40. Right of Appeal 14 days.
41. It is so ordered.
SIGNED, DATED, AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 20TH DAY OF FEBRUARY 2025
ADO MOSES
JUDGE
In the Presence of: -
C/A………. Moses
………………….for the Appellant
………………for the Respondent