1. The appellant was charged with the offence of defilement contrary to Section 8(1) (2) of Sexual Offences Act No. 3 of 2006.
2. The particulars are that on the 7th day of February, 2021 at Gaturere Village, Ichuga location in Mathira West sub-County within Nyeri County the appellant intentionally caused his penis to penetrate the vagina of W.W.N. a child aged 8 years.
3. In the alternative count the appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offence Act No. 3 of 2006.
4. The particulars being that on the 10th of February, 2021 at Gaturere Village Icuga location in Mathira West- Sub County, intentionally touched the vagina of W.W.N. a child aged 8 years with his fingers.
5. The appellant entered a plea of not guilty on 11th February, 2021 – the prosecution called a total number of five (5) witnesses to charge its burden of proof.
6. The appellant was placed on his defence and he gave an unsworn statement with no witnesses.
7. He was convicted on 1st September, 2021 and sentenced to life imprisonment.
8. It is against this backdrop that he has appealed to this honourable court against both conviction and sentence.
9. He based his Appeal on the following grounds: -
(a) THAT the learned trial magistrate erred in failing to appreciate that critical elements of defilement namely penile penetration and the identity of the purported defiler were not established occasioning a prejudice.
(b) THAT the learned trial magistrate again failed to consider that there was a multiplicity of material contradictions which were capable of unsettling the verdict.
(c) THAT the learned trial magistrate further failed to acknowledge that there was no investigation carried out, an existing grudge and the matter was not proved to the required standards.
(d) THAT and without prejudice, the sentence of life was harsh and manifestly excessive and urge for a review of the same downwards.
Penetration
10. The Respondent argued that under Section 2 of the Sexual Offence Act, penetration is defined as the partial or complete insertion of the genital organ into the genital organ of another person.
11. Penetration is proven by the vivo voce evidence of the victim corroborated by medical evidence.
12. That PW1, (Moses Nderi) states that the minor (PW2) told him that the appellant on the 7th February, 2021, had picked and taken her to another room leaving her sisters Gladys (PW3) and Jolyne.
13. The appellant told PW1 AND Jolyne that he would bring them sugarcane. When the appellant entered the room where all the three minors were, he hugged the minor and left with her.
14. PW1 was told by PW2, that the appellant had removed her clothes and his, put her on the ground, and did things to her then wiped her (page 5 of the proceedings).
15. PW2, (The complainant minor) in her evidence, stated that the appellant had brought clothes cows to the shed where he found PW2 with PW3 and Jolyne.
16. The appellant told them to turn on the TV and it was raining. The appellant took PW2 to his house, he removed his trousers and removed the minor trousers. He then did bad manners. He used his handkerchief to clean PW2’s peeing part (her words).
17. She continued to testify that he was wiping “uchafu” that he had applied PW2 also states that the bad manners that the appellant it was done when lying on her. She completed testimony saying that she felt pain on the part use for peeing. (page 7 of the record).
18. (PW3 (Gladys Nyambura) corroborate the testimony of PW1 and PW2).
19. At page 9 of the record she states.
“I remember the day the cows left the cowshed, grandfather came and put them back. He came to our house and sat down. I was with Winrose and Joylinee. He called Winrose and told her to sit on him and he hugged her. WInrosee came with a sugarcane. Winrose is the one who told us what grandfather had done. Bad manners involving removing of clothes. He wiped her peeing part. mother later came an Winrose told her and dad what had happened.”
20. PW4 (Dr. Stephen Nderitu) provided a P3 form on behalf of Dr. Ichangai. The P3 was filed on 8th February, 2021, less than 24 hours after the incident and it was noted that the minor had a bruise at the entrance of the vagina and the hymen was freshly broken (page 10 of the record).
21. The evidence of PW2 in curt is corroborated by PW1 and PW3.
22. Medical evidence also adds the probative value of the evidence of PW2 since she was examined less than twenty-four hours after the incident and she had bruises in her vagina and a freshly broken hymen.
23. In conclusion penetration was proved beyond reasonable doubt by both vivo voce evidence and the medical evidence.
Positive Identification
24. The appellant was positively identified by PW2 and PW3. It was a case of recognition as the penetrator was their grandfather.
25. In her evidence PW3 identified the appellant at the dock. On page 7 PW2 states “grandfather is here (points at the accused).
26. PW3 also referred to the grandfather as the perpetrator.
27. As the accudes was positively identified by multiple witnesses, the dock identification affirms that this position, the prosecution has thus proven this element.
Age of the victim
28. The age of the minor was proved by a birth certificate (EXB 3) produced by the minor’s father, PW1, (Moses Nderi) he testified that the minor was eight years.
29. The age of the minor has thus been proven beyond reasonable doubt.
Whether the sentence meted on the appellant was safe
30. The directions and guidelines on the sentencing criteria in sexual offences has now gone full circle. The problems started with the initial decision by the Apex court in what is now commonly known as Muruatetu1 in December 2017, where the Mandatory nature of the death sentence in Murder cases was declared un constitutional.
31. The courts , taking cue from there, declared that those who had been sentenced in sexual offences on the basis that the trail court had no discretion but to impose the mandatory minimum sentences, were at liberty to petition the high court for orders of resentencing . Many such Applications were filled even in the subordinate courts leading to a lot of chaos and confusion the arena.’
32. The Supreme Court then gave directions on the application of the said Petition 15 and 16 of 2015 (Francis Kerioko Muruatetu and Another vs Republic) in 2021.
In the said directions at No. 11, the Supreme Court Held that;
“We therefore reiterate that his court’s decision in Muruatetu did not invalidate mandatory sentences in the penal Code, the Sexual Offences Act or any other statute.”
At part 18(1) the Supreme Court guidelines provided
“The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under Sections 203 and 204 of the Penal Code.
32. The issue did not settle as the courts continued to interpret the law. The Hon Judge of Appeal, Odunga J, then sitting at Machakos High court stated that sentences given under the guise that the trial courts hands were tied could be revisited. The Court of Appeal sitting in Malindi in Criminal Appeal No. 12 OF 2021 (Julius Kitsao Manyeso vs R). declared life sentence unconstitutional it stated.
“We are of the view that the reasoning in Francis Karioko Muruatteu & another vs Republic (2015) eKLR equally applies to the imposition of mandatory indeterminate life sentence; namely that such a sentence, denies a convict facing life imprisonment an opportunity to be heard in mitigation.”
33. The issue eventually found its way back to the Supreme Court in R vs JAMES GICHUKI MWANGI where the Apex court restated that they did not declare the life imprisonment sentence unconstitutional. The directions from the Supreme Court are binding over the Court of Appeal and their recent pronunciation in the Julius Kitsao case (supra) and James Gichuki were respectfully impugned.
34. The Supreme Court did not do away with mandatory Sentences for Sexual Offences,.
35. I am accordingly guided and I find that the sentence meted on the Appellant by the trial court was safe.
Whether the grounds of appeal and submission by the appellant dislodges the prosecution’s case.
36. I have perused the grounds of appeal and submissions and find that the appellant does not dislodge the prosecution’s case.
Whether the defence of the appellant was considered
37. The appellant from the proceedings raised the issue of a succession case, where he alleged that PW1 brought the case that he could not pay Kshs. 150,000/= in respect of the succession case. The trial court looked at them and was satisfied and I find no reason to disturb the finding
38. The evidence is consistent, reliable and corroborated. The court noted as such at pages 3 and 4 of the judgment and the defence was correctly dismissed.
39. The defence was considered and dismissed.
Conclusion
40. The upshot of the foregoing is that this court finds no merit in the appeal, dismisses it and upholds its conviction and sentence of the appellant.
DELIVERED, DATED and SIGNED at MOMBASA on this …31st…. day of July, 2024. Judgment delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of:-
The Appellant
Ms Maina…………………. for the Respondent.
Court Assistant - …Bebora……………………..