1. Daniel Maina Ng’ang’a, the Appellant, was charged with an offence of Defilement contrary to Section 8 (1) as read with Sub-section (3) of the Sexual Offences Act, 2006. Particulars thereof being that on the 6 th day of January, 2020 at Gatundia shopping centre in Laikipia West Sub-County in Laikipia County, the Appellant intentionally caused his penis to penetrate the vagina of G. W. I. a child aged 13 years.
2. In the alternative the Appellant faced a count of Committing an Indecent Act with a child, contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006. Particulars were that on the afore stated date he intentionally touched the vagina of G. W. I. a child aged 13 years.
3. Having denied the charges, the Appellant was taken through a full trial, found guilty and convicted on the main count of defilement and sentenced to serve twenty (20) years' imprisonment.
4. Aggrieved, the Appellant appeals against the conviction and sentence on the grounds that can be condensed that his right to fair hearing was violated by failure of the trial court to accord him a chance to present his defence and that the evidence tendered was full of inconsistencies and contradictions, insufficient to hold a conviction of the charge preferred against him. With respect to the sentence, the Appellant based his appeal on the grounds that the sentence was unconstitutional, harsh and excessive.
5. The evidence adduced before the trial court was that PW1 had left her home to fetch water in the Appellant’s homestead whereby she was grabbed, and fainted. She would then wake up on the Appellant’s bed, naked and felt pain to her abdomen and private parts with traces of blood and had difficulty in walking. She saw the Appellant upon fully regaining consciousness. The Appellant went to inform PW3 Gladys Wairimu the grandmother of the complainant that she fell into the tank and fainted hence he took her inside the house but upon PW3 going to the house she found the complainant’s clothes and shoes soaked in blood. She was taken to hospital for treatment and admitted then discharged after 5 days. A medical examination done would reveal that her vagina was forcefully penetrated and that she was bleeding and had a tear in her vagina measuring about 2-3 cm long.
6. The matter was reported to the police who conducted investigations that culminated into the Appellant being charged.
7. Upon being placed on his defence, the Appellant requested to be furnished with the proceedings before he could put up a defence. The proceedings were supplied to the Appellant. However, he initially refused to render his defence on the allegation that the proceedings given to him were defective. On the following date set by the trial court for the defence hearing he sought more time to prepare which was granted and on the final opportunity that had been granted to him to testify he would repeat his initial allegation on defective proceedings. The trial court marked the failure to give a defence on the said date a waiver of his right to render his defence following the previous opportunities accorded to him and closed the defence’s case. The trial court then accordingly entered judgment against him.
8. The appeal was canvassed through written submissions. It was urged by the Appellant that the trial court had erred by failing to grant him an opportunity to render his defence, appreciate the inconsistencies in the evidence rendered by the prosecution that failed to identify him as the person who penetrated the complainant and imposing an unconstitutional, harsh and excessive sentence.
9. The Appellant urged the court to set aside both the conviction and sentence based on the grounds that his right to fair trial was violated by closing the defence before he could testify, upholding a conviction based on evidence marred by inconsistencies, contradictions and weaknesses and sentencing the Appellant to an unlawful, harsh and excessive sentence.
10. The Respondent reiterated the evidence presented in the subordinate court together with the Appellant’s failure to submit a defence before the trial court and expressed its approval of the trial court’s conviction and sentence.
11. This being a first appeal, this court is required to re-evaluate the evidence tendered in the trial court, and come to an independent conclusion as to whether or not to uphold the conviction and sentence. The role of the first appellate court is well settled in the case of Okeno v Republic (1972) EA 32 whereby the court is required to revisit the evidence tendered before the trial court afresh, evaluate it, analyse and come to its own independent conclusion on the matter. This task must have regard to the fact that this court never saw or heard the witnesses testify; thus, the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence.
12. Ingredients of the offence of defilement are captured under Section 8(1) of the Sexual Offences Act that provides as follows;
A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.
13. Proof of the stated ingredients was well captured in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the court stated thus:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
14. On the question of age, it was held in Fappyton Mutuku Ngui v Republic [2012] KEHC 5491 eKLR that:
“…. that “conclusive” proof of age in cases under the Sexual Offences Act does not necessarily mean that there has to be a formal age assessment report or the production of a birth certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases.”
15. The age of the complainant herein was proved by evidence of a birth certificate produced by her father, PW5, which proved the age of the complainant to be 13 years. This was not controverted by the Appellant.
16. Section 2 of the Children Act defines a Child as an individual who has not attained the age of 18 years. The evidence adduced therefore proved that the complainant was a child.
17. Penetration is defined by Section 2 of the Sexual Offences Act as;
“The partial or complete insertion of the genital organs of a person into the genital organs of another person.”
18. The complainant’s testimony was that she was suddenly pulled from behind and she fainted. She did not see her assailant. In Kassim Ali v Republic Criminal Appeal No 84 of 2005 (MSA) the court stated that;
“… (The) Absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”
19. In Bassita v Uganda SC Criminal Appeal No 35 of 1995 the Supreme court of Uganda stated that;
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence . Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.” (emphasis added.)
20. The complainant on regaining consciousness had sustained injuries in her genital organs. And the medical report presented to the trial court proved that there was indeed partial or complete insertion of a penis into the complainant’s vagina, resulting in a tear and bleeding that necessitated the complainant’s admission to hospital. The evidence adduced therefore proved beyond reasonable doubt that the insertion of the male genital organ into the complainant’s genitalia had occurred.
21. With respect to the identification of the assailant, the complainant testified that even though she had passed out during the occurrence of the offence, she woke up naked on the Appellant’s bed and in the presence of the Appellant. She was in pain in both her abdomen area and her genitals and that she was bleeding. Further, she also stated that she had a problem walking as a result of the ordeal that she had gone through.
22. The complainant also testified to a request by the Appellant to take Kshs. 100 to secure her silence and lie to her grandmother as to the cause of the bleeding to which she did not take the money. However, she initially kept silent on the ordeal until she revealed what transpired when persuaded by the grandmother, PW3, at the hospital.
23. The circumstances of the case place the Appellant squarely at the scene of crime. The Appellant did not demonstrate how he ended up being in the presence of the complainant while she was naked, bleeding and in pain while on his bed. During the cross-examination of the complainant, the Appellant presented himself as a good samaritan in the ordeal but did not render an account of the circumstances that led him to be at the scene of the defilement.
24. Further, Section 124 of the Evidence Act on the requirement for corroboration in criminal cases, provides that;
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
25. Having listened to and recorded the testimony of the complainant, the trial court, in a well-reasoned judgment, believed the complainant as having been truthful in her testimony placing the Appellant as the perpetrator of the defilement ordeal. Therefore, contrary to the allegations of the Appellant, it is my considered view that all the ingredients of the offence of defilement were proved beyond reasonable doubt.
26. As to whether the Appellant’s right to a fair trial was violated by closing the defence’s case before the Appellant could present his defence, I will delve into the circumstances that gave rise to the outcome by the trial court.
27. After the accused was placed on his defence and Section 211 of the Criminal Procedure Code was explained to him, he informed the court that he would give an unsworn testimony and made a request for typed proceedings, which were presented to him. The proceedings were presented to him on the 26 th of October, 2022, and a date for the defence hearing was set for the 29 th of November, 2022. On the set date, the Appellant indicated that he was not ready to proceed, alleging that the proceedings were inaccurate. The matter was adjourned to the 14 th of December, 2022, for the defence hearing. On the set date for the defence hearing, the accused requested 2 weeks to prepare for his defence hearing. The request was granted, and the matter was adjourned to the 12 th of January, 2023, for his defence hearing, more than 4 weeks later. On the said date, the Appellant indicated that he was not ready to proceed with the hearing on the original claim that the proceedings were inaccurate. Against this background, the trial magistrate closed the defence and retired to draft the judgment.
28. In the case of Reuben Shangi Akelo v Republic [2017] KECA 364 (KLR), the Court of Appeal upheld the closing of the defence hearing whereby the appellant in that matter at the trial stage failed to give his defence on several occasions culminating in the trial court’s decision to close the defence on account of the accused person’s conduct. It is my view that the Appellant in this case was given ample opportunity to present his defence but failed to do so as read from his conduct. He cannot, therefore, claim to have been denied an opportunity to be heard or that his right to a fair hearing was curtailed.
29. The Appellant urged the court to set aside the trial court’s sentence on the grounds that the sentence was unconstitutional, harsh and excessive. This was based on the fact that the court imposed the mandatory minimum sentence as provided by Section 8 (3) of the Sexual Offences Act. The Appellant argues that the trial court failed to consider his mitigation in imposing the sentence.
30. It is noteworthy that during mitigation at the trial court, the Appellant only requested for leniency. It is after the mitigation that the trial court proceeded to impose a 20-year sentence in accordance with Section 8 (3) of the Sexual Offences Act.
31. The Supreme Court, in Republic v Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR), was clear in holding that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional and that trial courts have no discretion to go below the statutory minimum sentences in sexual offences in so far as Section 8 of the Sexual Offences Act remains valid. In the circumstances, I find that the sentence imposed on the Appellant to be appropriate and lawful and find no reason to interfere with the sentence.
32. In the result, I find the appeal lacking merit. Accordingly, it is dismissed in its entirety.
2. In the alternative the Appellant faced a count of Committing an Indecent Act with a child, contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006. Particulars were that on the afore stated date he intentionally touched the vagina of G. W. I. a child aged 13 years.
3. Having denied the charges, the Appellant was taken through a full trial, found guilty and convicted on the main count of defilement and sentenced to serve twenty (20) years' imprisonment.
4. Aggrieved, the Appellant appeals against the conviction and sentence on the grounds that can be condensed that his right to fair hearing was violated by failure of the trial court to accord him a chance to present his defence and that the evidence tendered was full of inconsistencies and contradictions, insufficient to hold a conviction of the charge preferred against him. With respect to the sentence, the Appellant based his appeal on the grounds that the sentence was unconstitutional, harsh and excessive.
5. The evidence adduced before the trial court was that PW1 had left her home to fetch water in the Appellant’s homestead whereby she was grabbed, and fainted. She would then wake up on the Appellant’s bed, naked and felt pain to her abdomen and private parts with traces of blood and had difficulty in walking. She saw the Appellant upon fully regaining consciousness. The Appellant went to inform PW3 Gladys Wairimu the grandmother of the complainant that she fell into the tank and fainted hence he took her inside the house but upon PW3 going to the house she found the complainant’s clothes and shoes soaked in blood. She was taken to hospital for treatment and admitted then discharged after 5 days. A medical examination done would reveal that her vagina was forcefully penetrated and that she was bleeding and had a tear in her vagina measuring about 2-3 cm long.
6. The matter was reported to the police who conducted investigations that culminated into the Appellant being charged.
7. Upon being placed on his defence, the Appellant requested to be furnished with the proceedings before he could put up a defence. The proceedings were supplied to the Appellant. However, he initially refused to render his defence on the allegation that the proceedings given to him were defective. On the following date set by the trial court for the defence hearing he sought more time to prepare which was granted and on the final opportunity that had been granted to him to testify he would repeat his initial allegation on defective proceedings. The trial court marked the failure to give a defence on the said date a waiver of his right to render his defence following the previous opportunities accorded to him and closed the defence’s case. The trial court then accordingly entered judgment against him.
8. The appeal was canvassed through written submissions. It was urged by the Appellant that the trial court had erred by failing to grant him an opportunity to render his defence, appreciate the inconsistencies in the evidence rendered by the prosecution that failed to identify him as the person who penetrated the complainant and imposing an unconstitutional, harsh and excessive sentence.
9. The Appellant urged the court to set aside both the conviction and sentence based on the grounds that his right to fair trial was violated by closing the defence before he could testify, upholding a conviction based on evidence marred by inconsistencies, contradictions and weaknesses and sentencing the Appellant to an unlawful, harsh and excessive sentence.
10. The Respondent reiterated the evidence presented in the subordinate court together with the Appellant’s failure to submit a defence before the trial court and expressed its approval of the trial court’s conviction and sentence.
11. This being a first appeal, this court is required to re-evaluate the evidence tendered in the trial court, and come to an independent conclusion as to whether or not to uphold the conviction and sentence. The role of the first appellate court is well settled in the case of Okeno v Republic (1972) EA 32 whereby the court is required to revisit the evidence tendered before the trial court afresh, evaluate it, analyse and come to its own independent conclusion on the matter. This task must have regard to the fact that this court never saw or heard the witnesses testify; thus, the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence.
12. Ingredients of the offence of defilement are captured under Section 8(1) of the Sexual Offences Act that provides as follows;
A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.
13. Proof of the stated ingredients was well captured in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the court stated thus:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
14. On the question of age, it was held in Fappyton Mutuku Ngui v Republic [2012] KEHC 5491 eKLR that:
“…. that “conclusive” proof of age in cases under the Sexual Offences Act does not necessarily mean that there has to be a formal age assessment report or the production of a birth certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases.”
15. The age of the complainant herein was proved by evidence of a birth certificate produced by her father, PW5, which proved the age of the complainant to be 13 years. This was not controverted by the Appellant.
16. Section 2 of the Children Act defines a Child as an individual who has not attained the age of 18 years. The evidence adduced therefore proved that the complainant was a child.
17. Penetration is defined by Section 2 of the Sexual Offences Act as;
“The partial or complete insertion of the genital organs of a person into the genital organs of another person.”
18. The complainant’s testimony was that she was suddenly pulled from behind and she fainted. She did not see her assailant. In Kassim Ali v Republic Criminal Appeal No 84 of 2005 (MSA) the court stated that;
“… (The) Absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”
19. In Bassita v Uganda SC Criminal Appeal No 35 of 1995 the Supreme court of Uganda stated that;
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence . Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.” (emphasis added.)
20. The complainant on regaining consciousness had sustained injuries in her genital organs. And the medical report presented to the trial court proved that there was indeed partial or complete insertion of a penis into the complainant’s vagina, resulting in a tear and bleeding that necessitated the complainant’s admission to hospital. The evidence adduced therefore proved beyond reasonable doubt that the insertion of the male genital organ into the complainant’s genitalia had occurred.
21. With respect to the identification of the assailant, the complainant testified that even though she had passed out during the occurrence of the offence, she woke up naked on the Appellant’s bed and in the presence of the Appellant. She was in pain in both her abdomen area and her genitals and that she was bleeding. Further, she also stated that she had a problem walking as a result of the ordeal that she had gone through.
22. The complainant also testified to a request by the Appellant to take Kshs. 100 to secure her silence and lie to her grandmother as to the cause of the bleeding to which she did not take the money. However, she initially kept silent on the ordeal until she revealed what transpired when persuaded by the grandmother, PW3, at the hospital.
23. The circumstances of the case place the Appellant squarely at the scene of crime. The Appellant did not demonstrate how he ended up being in the presence of the complainant while she was naked, bleeding and in pain while on his bed. During the cross-examination of the complainant, the Appellant presented himself as a good samaritan in the ordeal but did not render an account of the circumstances that led him to be at the scene of the defilement.
24. Further, Section 124 of the Evidence Act on the requirement for corroboration in criminal cases, provides that;
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
25. Having listened to and recorded the testimony of the complainant, the trial court, in a well-reasoned judgment, believed the complainant as having been truthful in her testimony placing the Appellant as the perpetrator of the defilement ordeal. Therefore, contrary to the allegations of the Appellant, it is my considered view that all the ingredients of the offence of defilement were proved beyond reasonable doubt.
26. As to whether the Appellant’s right to a fair trial was violated by closing the defence’s case before the Appellant could present his defence, I will delve into the circumstances that gave rise to the outcome by the trial court.
27. After the accused was placed on his defence and Section 211 of the Criminal Procedure Code was explained to him, he informed the court that he would give an unsworn testimony and made a request for typed proceedings, which were presented to him. The proceedings were presented to him on the 26 th of October, 2022, and a date for the defence hearing was set for the 29 th of November, 2022. On the set date, the Appellant indicated that he was not ready to proceed, alleging that the proceedings were inaccurate. The matter was adjourned to the 14 th of December, 2022, for the defence hearing. On the set date for the defence hearing, the accused requested 2 weeks to prepare for his defence hearing. The request was granted, and the matter was adjourned to the 12 th of January, 2023, for his defence hearing, more than 4 weeks later. On the said date, the Appellant indicated that he was not ready to proceed with the hearing on the original claim that the proceedings were inaccurate. Against this background, the trial magistrate closed the defence and retired to draft the judgment.
28. In the case of Reuben Shangi Akelo v Republic [2017] KECA 364 (KLR), the Court of Appeal upheld the closing of the defence hearing whereby the appellant in that matter at the trial stage failed to give his defence on several occasions culminating in the trial court’s decision to close the defence on account of the accused person’s conduct. It is my view that the Appellant in this case was given ample opportunity to present his defence but failed to do so as read from his conduct. He cannot, therefore, claim to have been denied an opportunity to be heard or that his right to a fair hearing was curtailed.
29. The Appellant urged the court to set aside the trial court’s sentence on the grounds that the sentence was unconstitutional, harsh and excessive. This was based on the fact that the court imposed the mandatory minimum sentence as provided by Section 8 (3) of the Sexual Offences Act. The Appellant argues that the trial court failed to consider his mitigation in imposing the sentence.
30. It is noteworthy that during mitigation at the trial court, the Appellant only requested for leniency. It is after the mitigation that the trial court proceeded to impose a 20-year sentence in accordance with Section 8 (3) of the Sexual Offences Act.
31. The Supreme Court, in Republic v Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR), was clear in holding that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional and that trial courts have no discretion to go below the statutory minimum sentences in sexual offences in so far as Section 8 of the Sexual Offences Act remains valid. In the circumstances, I find that the sentence imposed on the Appellant to be appropriate and lawful and find no reason to interfere with the sentence.
32. In the result, I find the appeal lacking merit. Accordingly, it is dismissed in its entirety.