JUDGEMENT
(Being an appeal from the judgment and sentence of the Chief Magistrate’s Court, Thika, delivered on the 16th and 18th days of December 2020, respectively, in Criminal Case No. 1359 of 2014)
1. This is a judgement in respect to the Appellant’s Petition of appeal dated 15th January, 2020 and an amended grounds of appeal dated the 10th December, 2024 adducing the following grounds:
(1) THAT, the trial court erred in matters of law and facts by convicting the appellant herein for the offence of defilement despite the prosecution failing to prove its case beyond reasonable doubt as required by law.
(2) THAT, the trial court failed in matters of law and facts by failing to find that the failure to call the investigations officer as fatal to the prosecution case.
(3) THAT, the learned trial court magistrate erred in matters law and facts by failing to consider all relevant factors while exercising the discretion to sentence the appellant herein.
(4) THAT, I am 68 years old, and I pray that this Honourable court considers age as a relevant factor to interfere with the imposed sentence.
2. Pursuant to the directions issued by this Court, the Appeal was disposed of by way written submissions.
Background Facts
3. The Appellant was charged at the Chief Magistrate’s Court at Ruiru with the offence of defilement contrary to section 8(1), read together with section 8(3) of the Sexual Offences Act, 2006. The particulars are that on 28th day of March 2014 at Gitambaa Village of Ruiru within Kiambu County intentionally and unlawfully caused his penis to penetrate the vagina of S.M. a child aged 13 years.
4. The Appellant further faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, 2006. The Prosecution case was that in the 28th day of March 2014 at Gitambaa village within Ruiru sub county in Kiambu County intentionally and unlawfully caused contact with his penis with the vagina of S.M. a child aged 13 years.
5. The Appellant entered a plea of not guilty. Prosecution adduced evidence through three (3) witnesses. The Appellant gave unsworn testimony without calling witnesses. The Trial Court on the 16th December 2020 convicted the Appellant and was sentenced to serve twenty (20) years imprisonment. Being dissatisfied by the Trial Court Judgment, the Appellant filed appeal before the High Court.
Respondent’s Case Before the Trial Court
6. During Voire Dire Examination, PW1, S.M. said she was 14 years old. When asked if she went to school, she responded affirmatively, stating that she attended Mariakani Primary School and was in Class 6. She confirmed that she knew her location, stating, "I am in Court." When asked about her understanding of giving evidence, she responded, "I don't know." She further stated that she had never been to Court before.
7. The Court found that the child possessed sufficient knowledge and could be sworn. The minor was duly sworn before Hon. G. Onsarigo (R.M.) on 3rd December 2015.
8. The minor stated that she resided at Mama Ngina Children's Home in South B. She was a pupil at Mariakani Primary School, in Class 5. She had been at the Children's Home since December 2014. Before that, we lived in Ruiru with her mother, M.K. As of 28th March 2014, they were residing in Ruiru.
9. PW1 testified that on the material date of 28 March 2014, the accused did something to her. She knew him. He used to be her brother's friend and a neighbour. He was known as Dishon Omungu. Her mother had sent her to the shop. Dishon was seated outside his house. He asked her my name and she told him and he further inquired if her mother was Margaret and she said yes. She continued with her journey. That was around midday. Her mother later sent her to shop to buy sugar at around 5 p.m. Dishon was standing outside his door and he called her. She went and entered with him to his house which is one room and it had a bed. He told her to remove her clothes. She had a trouser and he forced her to remove it together with her under wear.
10. PW1further testified that he removed his clothes and placed her on his bed and he came on top of her and he raped her. She tried pushing him away but she did not manage. She told him to stop. He entered her Vagina and anus using his penis. When he finished, he told her to wear her clothes and leave the house. It was at night. She went home but did not find her mother. The following day she started experiencing headache. she went and told her teacher on what transpired and she took her to the police station. She went to Ruiru Hospital for treatment.
11. PW1 produced the P3 form - MFI 1, Treatment notes dated 31st March, 2012 - MFI 2, Post Rape Care- MFI 3 Laboratory - MFI 4. Laboratory marked- MFI 5.
12. She also testified that she was born in December, 2002. This was the first time that kind of an incident had occurred. It was also her testimony that she recalled and knew it was Dishon who committed the incident. PW1 was able to identify the Appellant, as present in Court.
13. During cross-examination, she gave the testimony that she went to his house at around 5 p.m. She found him alone in the house. She didn’t remember the exact time she left his house. There were no people around his house when she left his house. It was a weekday. He told her to remove his clothes. She found him alone, and that she recalled his son was not there, and that he also removed his clothes and he raped her by inserting his penis in her vagina and anus.
14. PW2, a female adult Christian, was sworn and testified that her name was Irene Waithera Mburu. She stated that she resided in Ruiru and was a preschool teacher at Railway Junior Academy. She said that in March 2014; she was still working at the school.
15. She testified that on 31st March 2014, around the lunch break, she had gone to buy a snack outside the school. While there, she saw her former student, PW1, walking towards town carrying a little baby on her back. She approached PW1 and asked why she was not in school. PW1 told her that her mother had sent her to her grandmother's home. Upon further inquiry, PW1 informed her that her mother was at home in bed with a man.
16. PW2 stated that she had been carrying mandazi at the time, and PW1 asked for some, saying they had not eaten supper or breakfast. She told PW1 to sit down and eat the mandazi, but noticed that PW1 was uncomfortable sitting. Since PW1 had been a friend to her, she asked her about life generally and what she thought about school. At that point, PW1 began to cry.
17. PW2 testified that she initially thought PW1 was crying because she had not eaten, but PW1 then told her she was in pain in her susu area (vaginal area) and buttocks. When asked what had happened, PW1 said that someone had been inserting something into her vagina. PW2 asked which man had done that, and PW1 said it was a friend of her mother. PW1 told her that the man had done “tabia mbaya” (bad behavior) with her.
18. PW2 further stated that she took PW1 back to the school, then to the police station, and later to Ruiru Sub-District Hospital. From there, they went to PW1’s grandmother's place, where they left the boy, she had been carrying. She then took PW1 to her home, where PW1 stayed for three days.
19. PW2 also testified that during the 3 days, she was told to go to Children office to report and ask for authority for PW1 to stay in her home because PW1 had requested to go back to her mother. PW1 told me her that she knew the man who had been defiling her. PW1 said the man comes to their home and her mother also sends her to the man's house where the defilement happens. PW1 led her and police to the man's house and was arrested. The accused’s home where PW1 took them was located Ruiru village called Kwa Kitamba. The house was located behind Spinners Company. The said house was near PW1’s home. PW1 led them to the gate, then to the house where PW1 knocked the door and the man opened the door. PW1 then told them that was the man and that was the bed the incident had happened. Pointing to a bed inside the house. The house was a one roomed house.
20. PW2 testified that the man pointed out by PW1 was the accused before Court. PW2 further asserted that she had not seen him before the incident. PW2 further stated that PW1 was currently in standard 8. After the incident, PW1 went to live in Muthaiga Children's Home. She later learnt PW1 lives with her grandmother. PW2 also saw PW1’s P3 - MFI 1, treatment notes -2, lab request form -4, PRC form -3. At the hospital, the doctor told her PW1 had been infected with sexual transmitted decease (STD). Her anus had wounds that is why she was unable to sit down and she had discharges coming out. PW2 did not ask PW1. PW1 herself told PW2.
21. During Cross-examination, PW2 testified that she was a teacher by profession and had extensive experience with children, particularly in pre-school education. She stated that she was aware that child abandonment was a criminal offence but admitted that she did not report any such abandonment in this case.
22. PW2 testified that she met PW1 on the road and that she knew PW1’s mother very well but did not involve her in the matter. She stated that she had previously taught PW1 and would often communicate school needs to PW1’s mother, including the need for books, pens, and food. According to PW2, PW1’s mother showed no interest in her child’s education and appeared unbothered.
23. PW2 recalled that on one occasion, she met PW1 on the road near the school and PW1 stated that she was coming from her mother's house, where she had left her mother lying in bed. PW2 opined that PW1’s mother might have been unaware of what was happening to PW1, possibly due to a lack of time or emotional detachment.
24. PW2 further testified that she had known PW1 for over ten years and noted that when she met PW1 on the road, the child was not attending school. Upon inquiry, PW1 informed her that her mother had instructed her to stop going to school so that she could take care of the baby she was carrying.
25. PW2 stated that she did not know the accused's name but had seen him in Ruiru town. According to her testimony, PW1 disclosed that the defilement had occurred multiple times and that it typically happened whenever her mother sent her to the accused’s home. PW1 allegedly told PW2 that the most recent incident had occurred the day before they met, which was on 31st March 2014. PW2 also mentioned that PW1’s grandmother lived closest to the school.
26. PW2 testified that she once took PW1 to the hospital because her mother did not have a close friend to assist her. She did not accompany PW1 into the laboratory but paid the required laboratory fees and waited outside. The doctor later informed her that PW1 had contracted a sexually transmitted disease and had sustained wounds on her anus. She stated that the P3 form indicated the approximate age of the injuries was three days and that the last incident of defilement occurred on or about 25th March 2014.
27. PW2 emphasized that, based on PW1’s account, the accused would frequently come and sleep at their home and that PW1’s mother often sent her to the accused's residence. She concluded by stating that she did not know whether PW1’s mother had been called as a witness in the case.
28. During re-examination, PW2 testified that she had known PW1 for over ten years and that their families were well acquainted. She first knew PW1 when she was in baby class at her school. PW2 stated that she believed PW1’s mother would not have taken any action regarding the defilement because, in the past, she had abandoned PW1 at her grandmother’s home, which was located near the school.
29. PW2 explained that she took steps to assist PW1 because she was a child in need, adding that she herself was a mother and had a passion for helping children. She stated that she had previously taken other children into her home under similar circumstances, especially when parents had abandoned them at her school. In such instances, she would first report the matter to the Children’s Office before taking temporary custody of the child.
30. PW2 further testified that PW1 had informed her that the defilement had occurred on multiple occasions, with the most recent incident taking place the day before PW2 met her. According to PW1, the perpetrator was her mother’s friend, a man she knew well, who would frequently sleep at their home. PW1 also disclosed that her mother would often send her to the man’s house.
31. PW2 confirmed that the P3 form showed results from a urinalysis test which indicated the presence of pus cells, consistent with a sexually transmitted infection.
32. PW3, a female adult Christian, was sworn and testified in English. She stated that her name was Joan Munene, a clinical officer stationed at Ruiru Level 4 Hospital, and that she holds a Bachelor of Science degree in Clinical Medicine.
33. PW3 testified that she examined PW1, a 13-year-old female, who had reported allegations of defilement. The complainant presented herself for medical examination and P3 form processing three days after the alleged incident.
34. Upon examination, PW3 noted the following findings: the hymen was absent; there was tenderness at the introitus (vaginal opening); there was a profuse white vaginal discharge; and bruising and tenderness were observed in the anal region. PW3 further testified that the pregnancy test and HIV test were both negative, and that tests for venereal diseases also yielded negative results. However, a high vaginal swab revealed the presence of pus cells, numerous epithelial cells, and spermatozoa. Additionally, urinalysis showed the presence of pus cells. She concluded that the degree of injury was classified as grievous harm and referred the complainant for trauma counselling. Based on her clinical findings, she concluded that PW1 had been defiled.
35. PW3 sought to produce the following documents as exhibits: P3 Form as Exhibit 1, Post-Rape Care (PRC) Form as Exhibit 2, Treatment Card as Exhibit 3, Laboratory Results as Exhibit 4.
36. In cross-examination, PW3 stated that she had served as a clinical officer for 12 years. She testified that the incident occurred at approximately 6:00 p.m. on 28th March 2015, while the victim was brought to the hospital on 31st March 2018. The witness noted that although a victim can be brought for examination at any time, it is ideally done immediately after the incident. PW3 observed that the victim remained calm during the general examination but experienced pain during the genital examination. The witness explained that she had noted the absence of the hymen, which indicated that penetration had occurred. However, she also mentioned that the vaginal walls could be affected by other factors such as excessive exercise.
37. Regarding the presence of vaginal discharge, PW3 testified that it could result from infection, hormonal imbalance, or interference with the vaginal area, and there might be other causes as well. Lastly, PW3 stated that no spermatozoa were detected, which she attributed either to the victim presenting three days after the incident or possibly due to withdrawal by the perpetrator.
Appellant’s Case Before the Trial
38. DW1 testified that he was Dishon Omungu Omulama and resided in Ruiru. He worked as a construction labourer. On 28th March 2014 at around 6:35 p.m., a girl named Celina came to his house but did not find him initially. He met her at the gate, then proceeded to open his door and asked her what had brought her to his house. She told him that her mum had sent her to the shop with Kshs. 50/=, but she had lost the money. She requested that he give her Kshs. 50/=. He informed her that he only had Kshs. 25/= on the table inside the house and told her to take it if it could help. She took the money and left. She stayed inside the house for about one minute. There was no one else present in the house. He knew Celina’s mother.
Appellants Submissions
39. The Court has seen and read the Appellant’s submissions.
40. The Appellant humbly submits that he was denied the right to fair hearing within the meaning of Article 50 of the Constitution. That the Trail Court rejected an application for an adjournment forcing the Appellant to conduct the trial by himself. It is submitted so because despite the Trial Court being cognizant that the Appellant was a layman in law, uneducated and represented by Counsel, the Court sustained the objection to an adjournment by the Accused. This is notwithstanding that in its turn, the prosecution sought adjournments that the Appellant was not opposed to. This is because he believed the Court was a level playing ground for all. Moreover, the Appellant submits so because despite making an application for adjournment as his Counsel was not present in Court, the Court ruled against him contrary to the dictates of natural justice. The Trail Court stated the following;
"Court: No subtractive (sic) reason has been advanced as to why this matter should be adjourned. This matter came to court on 19/8/2014 when Mr. Macharia for accused sought an adjournment on account of just having been instructed. On 25/11/2014, Mr. Macharia for the accused sought another adjournment on account of his file being stolen. On 3rd December 2015, this matter came for hearing but the witness was stood down. This morning the accused has not indicated to the court where his advocate is. This attempt to adjourn this matter again is outrightly rejected. Matter to proceed."
41. The Appellant implores this Court to note the irregular action and application by the prosecution for adjournment on 03/12/2015, as it was in bad faith bearing in mind the following: -
"Court Prosecutor: I am constrained to apply that PWI be stood down"
42. The Prosecutor in his application to stand the witness down, gave no specific reason for the said application. Hence, this Court has authority to make an inference in favour of the Appellant. This is because the action of the Trial Court allowing a subsequent adjournment based of the prosecution's application without proper reasons prejudiced him further. This because unless in support of the application a cogent reason is supplied, the Trial Court was bound to infer that the application resulted from what the alleged victim said prior: "I cannot recall very well." If the said victim could not remember very well, whatever the question was, could it be said that this particular witness was credible? The Appellant submitted, the credibility of the child’s evidence is questionable. That if a witness is unable to recall events, refreshing of one's memory is allowed during hearing as a normal legal practice. That if the refreshing cannot be done in open Court, then the subsequent testimony can only be thought to be as a result of coercion and other tactics that are meant to abuse the Court process. Reliance was placed in the case of Jesse Onyimbo Ochieng Vs Rep (2010) eKLR.
43. The Appellant also submitted that the impropriety and irregularities in the subject case did not end at PW1 being stood down. They continued throughout the trial. That the near peak being the application by the prosecution to close its case without calling the Investigating Officer on 04/08/2020. This renders the prosecution case not proved as the first report of the alleged offence, and subsequent record of actions by the police, in relation to investigations of the complaint, in their mandate to investigate a sexual offence under the law espoused by virtue of Regulations 3,4 and 6 of the Sexual Offences (Medical Treatment) Regulations, 2012 were not proved. Reliance was placed in the case of Samson John Nderitu Vs Attorney General (2010) eKLR.
44. It is his view that the police, the Respondent herein, have in their possession the record of investigation findings by virtue of Section 51 of the National Police Service Act. Which investigations, includes interrogation of the suspect and the complainant, including all other relevant witnesses to determine facts of the case. Hence, without the Investigation Officer testifying, the Appellant herein was disadvantaged materially. This was contrary to the dictates of fair hearing and the public interest espoused by broad constitutional meaning of Article 157 of the Constitution. The fact that the alleged victim's mother was not involved in the matter, then it was relevant for the Investigation Officer to tender evidence to prove existence of the alleged circumstances before a conviction can be securely recorded against the appellant. Reliance was placed in the case of Akumu Vs Republic (1954) 21 EACA
45. The Appellant implores this Court to find that it was fatal for the prosecution to fail to avail the Investigating Officer, the police, hence the conviction is not safe. It is prayed so because, without the evidence of the Investigating Officer, it is not known what was reported and investigated, or whether the collection of evidence met the threshold espoused by the dictates of Article 50(4) of the Constitution. Reliance was placed in the case of George Nguku VSR CRA No. 166 of 1983 at Kisumu.
46. The Appellant also submits that that the prosecution failed to prove its case beyond reasonable doubt as required by Section 107 within the meaning of Section 9 of the Evidence Act. This is because it was upon the prosecution to prove that indeed the alleged circumstances by PW2 existed, or explain why PW1's mother was not a witness, or even why this particular witness failed to involve PW1's mother. Further, considering that PWI's testimony on how PW2 became cognizant of the matter, is contradictory to that of PW2. The Record stated as follows:
PW1 "the following day I started experiencing headache. I went and told my teacher on what transpired and she took me to the police station."
PW2 "In March 2014, I was still working at school. On 31/3/2014 around lunch break, I had gone to buy snack outside school. I saw my former student PW1 walking towards town carrying a little baby on her back. I approached her and asked why she is not in school. She told me her mother had sent her to grandmother's home. Upon further inquiry, she told me her mother was at home in bed with a man."
47. The Appellant also submits that while PW2 testified during cross-examination that she knew the alleged victim's mother very well, she failed to give any satisfactory answer why she failed to involve her from the start or whether PW1's mother was a witness in the case. Begging the question, was it not proper for her to involve PW1's mother? Was it not natural to first bring the attention of PW1’s mother? What was her interests?
48. The Appellant submits that PW2 was led by malice and chicanery to falsely frame him for the current charges. And without the evidence by the Investigating Officer. the Appellant was denied the benefit of criminal investigation results. This because investigative services under the law are not an entitlement for the prosecution only, but as well available to both parties within the context of fair hearing espoused by Article 50 of the Constitution. Therefore, this Court was urged to find that from the actions of the prosecution applying to stand PW1 down without a valid reason; and further, closing its case without calling the Investigation Officer to testify, renders the conviction unsafe.
49. Further, the prosecution failed to give a satisfactory reason why the investigation report could not be tabled in Court, because by dint of Section 49(1)(3) of the National Police Service Act, within the context of Section 50(1), the record was available in the hands of the OCS Ruiru Police Station, even though the designated investigating officer was ailing as stated by the prosecution.
50. The prosecution witnesses on record failed to help the prosecution prove its case beyond reasonable doubt. This is because there is no cogent evidence proving the ingredients of the alleged offence as understood under Section 8(1) of the Sexual Offences Act. It was humbly submitted so because, considering the evidence on record that PW1 was defiled on 28/03/2014, then the next day referred to by PW1 was 29/03/2014. That therefore the alleged meeting on between PW2 and PW1 on 31/03/2014 was an invention to frame the Appellant for an offence he knew nothing about.
51. The Appellant urged the Court to consider the genesis of the charges herein. He submitted, this case started with PW2, who claimed to have met PW1 on the way and had the conversation. That this conversation as indicated earlier is questionable considering their testimonies of PW1 and PW2.
52. It is submitted that the prosecution evidence used to identify the Appellant herein as the perpetrator of the alleged defilement is not sufficient to found a conviction. It is submitted so because, from the two versions of how PW2 came to learn of the incident raise credibility questions. It was submitted that if indeed PW2 was a family friend, as she wanted Court to believe, then it was not possible that she did not know whether the complainant's mother was a witness. Secondly, from the conversation alluded to by PW2 and the mandazi variable introduced, PW1 may have been coerced to give evidence against the Appellant. This is because there is no evidence on record on the role that PWI's mother played in seeking justice for the minor, or her conduct when the said allegations were made.
53. To which case, PW1 testifying against the Appellant, it was submitted might have been attributed to coercion considering the grudge that was brewed against him by PW2. She openly stated that PW1’s Mother had no best interests of the minor at heart. That the Appellant was to blame considering her testimony. As such this Court should give the benefit of doubt the evidence on record as suggested by the Appellant herein, by setting him at liberty as the law requires.
54. It is submitted that the Appellant herein neither had an obligation in law to prove his innocence nor did he have any obligation in law to provide any defense against the charges, as held in the case of Boniface Okeyo vs Republic (2001) eKLR.
55. On sentence, it is submitted, it is harsh and excessive in the circumstances, and considering the Appellant's age. In recent development of the law by the Court of Appeal, it has been found to be quite inhumane to sentence a senior citizen to an excessive sentence. This is considering the life expectancy rate phenomena indicated to be 67 years by WHO as described and applied in Ali Abdalla Mwanza v Republic [2018] eKLR.
56. It is submitted that, the Appellant herein is an old man with a family that depended on him; and as a result, it will be in the best interest of the state were the Appellant sentenced to serve a lesser term.
57. The Appellant prays that this Court treats him equally as was done in Wanyeso v Republic (Criminal Appeal 110 of 2022) [2023] KECA 709 (KLR) (9 June 2023) (Judgment). That the Appellate Court opined that it was inhuman to incarcerate senior citizens who are not even a danger to themselves. That the Appellant is 68 years old. Considering the time already served under the orders of the court from the date of arrest and conviction, this Court ought to interfere with the imposed sentence if not conviction.
58. Further considering the Appellant's age and other mitigating factors, the Trial Court had discretion to impose a lesser sentence other than 20 years imprisonment, including a non-custodial sentence by dint of Section 4 of the Probation of Offenders Act. It is implored so because, the community does not only win when an offender has been imprisoned, but also when they contribute to the restoration of the calm that has been disturbed by the offending behaviour, in the society and in the individual's life.
59. The Appellant also submits that despite the fact that an accused person pleaded not guilty, and was found guilty, this Court ought to consider all relevant factors in sentencing as espoused by the Sentencing Policy Guidelines. He urges the Court to find that time already served under the orders of the Court from the date of arrest to be sufficient sentence, or be in addition to a non-custodial sentence by dint of Section 4 of the Probation of Offenders Act. This is in the spirit of prison decongestion and to enable the Appellant rebuild his life and family, considering his age.
Respondent’s Submissions
60. The Court has also seen and read the Respondent’s submissions.
61. On whether the elements of the offence of defilement were conclusively proved to the required standard by the prosecution, it was submitted that PW1 testified that she was born in December of 2002. That earlier on while undergoing medical examination she had maintained that she was 13 years of age. That this fact was reiterated by the Clinical Officer who attended to her, as rightfully pointed out by the learned trial Magistrate. Finally, the Appellant did not at any time dispute the age of the complainant during trial. Reliance was placed in the Court of Appeal in Mwalango Chichoro Mwanjembe v Republic (2016) eKLR. As such, the Trial Court came to the right conclusion that the age of the victim had been sufficiently proved.
62. On the issue of penetration, the Respondent submits that the main evidence is that of the minor and the medical evidence contained in the P3 form. The minor told the Court with clarity and coherence that she had sex with the Appellant where he penetrated her vagina and anus. The Trial Court after analysing the evidence concluded that evidence on record evidently proved an act of penetration. The evidence produced during the trial clearly proved the element of penetration to the required standards.
63. On the issue of the identity of the perpetrator, the Respondent submits that proof of participation of an accused perso
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(Being an appeal from the judgment and sentence of the Chief Magistrate’s Court, Thika, delivered on the 16th and 18th days of December 2020, respectively, in Criminal Case No. 1359 of 2014)
1. This is a judgement in respect to the Appellant’s Petition of appeal dated 15th January, 2020 and an amended grounds of appeal dated the 10th December, 2024 adducing the following grounds:
(1) THAT, the trial court erred in matters of law and facts by convicting the appellant herein for the offence of defilement despite the prosecution failing to prove its case beyond reasonable doubt as required by law.
(2) THAT, the trial court failed in matters of law and facts by failing to find that the failure to call the investigations officer as fatal to the prosecution case.
(3) THAT, the learned trial court magistrate erred in matters law and facts by failing to consider all relevant factors while exercising the discretion to sentence the appellant herein.
(4) THAT, I am 68 years old, and I pray that this Honourable court considers age as a relevant factor to interfere with the imposed sentence.
2. Pursuant to the directions issued by this Court, the Appeal was disposed of by way written submissions.
Background Facts
3. The Appellant was charged at the Chief Magistrate’s Court at Ruiru with the offence of defilement contrary to section 8(1), read together with section 8(3) of the Sexual Offences Act, 2006. The particulars are that on 28th day of March 2014 at Gitambaa Village of Ruiru within Kiambu County intentionally and unlawfully caused his penis to penetrate the vagina of S.M. a child aged 13 years.
4. The Appellant further faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, 2006. The Prosecution case was that in the 28th day of March 2014 at Gitambaa village within Ruiru sub county in Kiambu County intentionally and unlawfully caused contact with his penis with the vagina of S.M. a child aged 13 years.
5. The Appellant entered a plea of not guilty. Prosecution adduced evidence through three (3) witnesses. The Appellant gave unsworn testimony without calling witnesses. The Trial Court on the 16th December 2020 convicted the Appellant and was sentenced to serve twenty (20) years imprisonment. Being dissatisfied by the Trial Court Judgment, the Appellant filed appeal before the High Court.
Respondent’s Case Before the Trial Court
6. During Voire Dire Examination, PW1, S.M. said she was 14 years old. When asked if she went to school, she responded affirmatively, stating that she attended Mariakani Primary School and was in Class 6. She confirmed that she knew her location, stating, "I am in Court." When asked about her understanding of giving evidence, she responded, "I don't know." She further stated that she had never been to Court before.
7. The Court found that the child possessed sufficient knowledge and could be sworn. The minor was duly sworn before Hon. G. Onsarigo (R.M.) on 3rd December 2015.
8. The minor stated that she resided at Mama Ngina Children's Home in South B. She was a pupil at Mariakani Primary School, in Class 5. She had been at the Children's Home since December 2014. Before that, we lived in Ruiru with her mother, M.K. As of 28th March 2014, they were residing in Ruiru.
9. PW1 testified that on the material date of 28 March 2014, the accused did something to her. She knew him. He used to be her brother's friend and a neighbour. He was known as Dishon Omungu. Her mother had sent her to the shop. Dishon was seated outside his house. He asked her my name and she told him and he further inquired if her mother was Margaret and she said yes. She continued with her journey. That was around midday. Her mother later sent her to shop to buy sugar at around 5 p.m. Dishon was standing outside his door and he called her. She went and entered with him to his house which is one room and it had a bed. He told her to remove her clothes. She had a trouser and he forced her to remove it together with her under wear.
10. PW1further testified that he removed his clothes and placed her on his bed and he came on top of her and he raped her. She tried pushing him away but she did not manage. She told him to stop. He entered her Vagina and anus using his penis. When he finished, he told her to wear her clothes and leave the house. It was at night. She went home but did not find her mother. The following day she started experiencing headache. she went and told her teacher on what transpired and she took her to the police station. She went to Ruiru Hospital for treatment.
11. PW1 produced the P3 form - MFI 1, Treatment notes dated 31st March, 2012 - MFI 2, Post Rape Care- MFI 3 Laboratory - MFI 4. Laboratory marked- MFI 5.
12. She also testified that she was born in December, 2002. This was the first time that kind of an incident had occurred. It was also her testimony that she recalled and knew it was Dishon who committed the incident. PW1 was able to identify the Appellant, as present in Court.
13. During cross-examination, she gave the testimony that she went to his house at around 5 p.m. She found him alone in the house. She didn’t remember the exact time she left his house. There were no people around his house when she left his house. It was a weekday. He told her to remove his clothes. She found him alone, and that she recalled his son was not there, and that he also removed his clothes and he raped her by inserting his penis in her vagina and anus.
14. PW2, a female adult Christian, was sworn and testified that her name was Irene Waithera Mburu. She stated that she resided in Ruiru and was a preschool teacher at Railway Junior Academy. She said that in March 2014; she was still working at the school.
15. She testified that on 31st March 2014, around the lunch break, she had gone to buy a snack outside the school. While there, she saw her former student, PW1, walking towards town carrying a little baby on her back. She approached PW1 and asked why she was not in school. PW1 told her that her mother had sent her to her grandmother's home. Upon further inquiry, PW1 informed her that her mother was at home in bed with a man.
16. PW2 stated that she had been carrying mandazi at the time, and PW1 asked for some, saying they had not eaten supper or breakfast. She told PW1 to sit down and eat the mandazi, but noticed that PW1 was uncomfortable sitting. Since PW1 had been a friend to her, she asked her about life generally and what she thought about school. At that point, PW1 began to cry.
17. PW2 testified that she initially thought PW1 was crying because she had not eaten, but PW1 then told her she was in pain in her susu area (vaginal area) and buttocks. When asked what had happened, PW1 said that someone had been inserting something into her vagina. PW2 asked which man had done that, and PW1 said it was a friend of her mother. PW1 told her that the man had done “tabia mbaya” (bad behavior) with her.
18. PW2 further stated that she took PW1 back to the school, then to the police station, and later to Ruiru Sub-District Hospital. From there, they went to PW1’s grandmother's place, where they left the boy, she had been carrying. She then took PW1 to her home, where PW1 stayed for three days.
19. PW2 also testified that during the 3 days, she was told to go to Children office to report and ask for authority for PW1 to stay in her home because PW1 had requested to go back to her mother. PW1 told me her that she knew the man who had been defiling her. PW1 said the man comes to their home and her mother also sends her to the man's house where the defilement happens. PW1 led her and police to the man's house and was arrested. The accused’s home where PW1 took them was located Ruiru village called Kwa Kitamba. The house was located behind Spinners Company. The said house was near PW1’s home. PW1 led them to the gate, then to the house where PW1 knocked the door and the man opened the door. PW1 then told them that was the man and that was the bed the incident had happened. Pointing to a bed inside the house. The house was a one roomed house.
20. PW2 testified that the man pointed out by PW1 was the accused before Court. PW2 further asserted that she had not seen him before the incident. PW2 further stated that PW1 was currently in standard 8. After the incident, PW1 went to live in Muthaiga Children's Home. She later learnt PW1 lives with her grandmother. PW2 also saw PW1’s P3 - MFI 1, treatment notes -2, lab request form -4, PRC form -3. At the hospital, the doctor told her PW1 had been infected with sexual transmitted decease (STD). Her anus had wounds that is why she was unable to sit down and she had discharges coming out. PW2 did not ask PW1. PW1 herself told PW2.
21. During Cross-examination, PW2 testified that she was a teacher by profession and had extensive experience with children, particularly in pre-school education. She stated that she was aware that child abandonment was a criminal offence but admitted that she did not report any such abandonment in this case.
22. PW2 testified that she met PW1 on the road and that she knew PW1’s mother very well but did not involve her in the matter. She stated that she had previously taught PW1 and would often communicate school needs to PW1’s mother, including the need for books, pens, and food. According to PW2, PW1’s mother showed no interest in her child’s education and appeared unbothered.
23. PW2 recalled that on one occasion, she met PW1 on the road near the school and PW1 stated that she was coming from her mother's house, where she had left her mother lying in bed. PW2 opined that PW1’s mother might have been unaware of what was happening to PW1, possibly due to a lack of time or emotional detachment.
24. PW2 further testified that she had known PW1 for over ten years and noted that when she met PW1 on the road, the child was not attending school. Upon inquiry, PW1 informed her that her mother had instructed her to stop going to school so that she could take care of the baby she was carrying.
25. PW2 stated that she did not know the accused's name but had seen him in Ruiru town. According to her testimony, PW1 disclosed that the defilement had occurred multiple times and that it typically happened whenever her mother sent her to the accused’s home. PW1 allegedly told PW2 that the most recent incident had occurred the day before they met, which was on 31st March 2014. PW2 also mentioned that PW1’s grandmother lived closest to the school.
26. PW2 testified that she once took PW1 to the hospital because her mother did not have a close friend to assist her. She did not accompany PW1 into the laboratory but paid the required laboratory fees and waited outside. The doctor later informed her that PW1 had contracted a sexually transmitted disease and had sustained wounds on her anus. She stated that the P3 form indicated the approximate age of the injuries was three days and that the last incident of defilement occurred on or about 25th March 2014.
27. PW2 emphasized that, based on PW1’s account, the accused would frequently come and sleep at their home and that PW1’s mother often sent her to the accused's residence. She concluded by stating that she did not know whether PW1’s mother had been called as a witness in the case.
28. During re-examination, PW2 testified that she had known PW1 for over ten years and that their families were well acquainted. She first knew PW1 when she was in baby class at her school. PW2 stated that she believed PW1’s mother would not have taken any action regarding the defilement because, in the past, she had abandoned PW1 at her grandmother’s home, which was located near the school.
29. PW2 explained that she took steps to assist PW1 because she was a child in need, adding that she herself was a mother and had a passion for helping children. She stated that she had previously taken other children into her home under similar circumstances, especially when parents had abandoned them at her school. In such instances, she would first report the matter to the Children’s Office before taking temporary custody of the child.
30. PW2 further testified that PW1 had informed her that the defilement had occurred on multiple occasions, with the most recent incident taking place the day before PW2 met her. According to PW1, the perpetrator was her mother’s friend, a man she knew well, who would frequently sleep at their home. PW1 also disclosed that her mother would often send her to the man’s house.
31. PW2 confirmed that the P3 form showed results from a urinalysis test which indicated the presence of pus cells, consistent with a sexually transmitted infection.
32. PW3, a female adult Christian, was sworn and testified in English. She stated that her name was Joan Munene, a clinical officer stationed at Ruiru Level 4 Hospital, and that she holds a Bachelor of Science degree in Clinical Medicine.
33. PW3 testified that she examined PW1, a 13-year-old female, who had reported allegations of defilement. The complainant presented herself for medical examination and P3 form processing three days after the alleged incident.
34. Upon examination, PW3 noted the following findings: the hymen was absent; there was tenderness at the introitus (vaginal opening); there was a profuse white vaginal discharge; and bruising and tenderness were observed in the anal region. PW3 further testified that the pregnancy test and HIV test were both negative, and that tests for venereal diseases also yielded negative results. However, a high vaginal swab revealed the presence of pus cells, numerous epithelial cells, and spermatozoa. Additionally, urinalysis showed the presence of pus cells. She concluded that the degree of injury was classified as grievous harm and referred the complainant for trauma counselling. Based on her clinical findings, she concluded that PW1 had been defiled.
35. PW3 sought to produce the following documents as exhibits: P3 Form as Exhibit 1, Post-Rape Care (PRC) Form as Exhibit 2, Treatment Card as Exhibit 3, Laboratory Results as Exhibit 4.
36. In cross-examination, PW3 stated that she had served as a clinical officer for 12 years. She testified that the incident occurred at approximately 6:00 p.m. on 28th March 2015, while the victim was brought to the hospital on 31st March 2018. The witness noted that although a victim can be brought for examination at any time, it is ideally done immediately after the incident. PW3 observed that the victim remained calm during the general examination but experienced pain during the genital examination. The witness explained that she had noted the absence of the hymen, which indicated that penetration had occurred. However, she also mentioned that the vaginal walls could be affected by other factors such as excessive exercise.
37. Regarding the presence of vaginal discharge, PW3 testified that it could result from infection, hormonal imbalance, or interference with the vaginal area, and there might be other causes as well. Lastly, PW3 stated that no spermatozoa were detected, which she attributed either to the victim presenting three days after the incident or possibly due to withdrawal by the perpetrator.
Appellant’s Case Before the Trial
38. DW1 testified that he was Dishon Omungu Omulama and resided in Ruiru. He worked as a construction labourer. On 28th March 2014 at around 6:35 p.m., a girl named Celina came to his house but did not find him initially. He met her at the gate, then proceeded to open his door and asked her what had brought her to his house. She told him that her mum had sent her to the shop with Kshs. 50/=, but she had lost the money. She requested that he give her Kshs. 50/=. He informed her that he only had Kshs. 25/= on the table inside the house and told her to take it if it could help. She took the money and left. She stayed inside the house for about one minute. There was no one else present in the house. He knew Celina’s mother.
Appellants Submissions
39. The Court has seen and read the Appellant’s submissions.
40. The Appellant humbly submits that he was denied the right to fair hearing within the meaning of Article 50 of the Constitution. That the Trail Court rejected an application for an adjournment forcing the Appellant to conduct the trial by himself. It is submitted so because despite the Trial Court being cognizant that the Appellant was a layman in law, uneducated and represented by Counsel, the Court sustained the objection to an adjournment by the Accused. This is notwithstanding that in its turn, the prosecution sought adjournments that the Appellant was not opposed to. This is because he believed the Court was a level playing ground for all. Moreover, the Appellant submits so because despite making an application for adjournment as his Counsel was not present in Court, the Court ruled against him contrary to the dictates of natural justice. The Trail Court stated the following;
"Court: No subtractive (sic) reason has been advanced as to why this matter should be adjourned. This matter came to court on 19/8/2014 when Mr. Macharia for accused sought an adjournment on account of just having been instructed. On 25/11/2014, Mr. Macharia for the accused sought another adjournment on account of his file being stolen. On 3rd December 2015, this matter came for hearing but the witness was stood down. This morning the accused has not indicated to the court where his advocate is. This attempt to adjourn this matter again is outrightly rejected. Matter to proceed."
41. The Appellant implores this Court to note the irregular action and application by the prosecution for adjournment on 03/12/2015, as it was in bad faith bearing in mind the following: -
"Court Prosecutor: I am constrained to apply that PWI be stood down"
42. The Prosecutor in his application to stand the witness down, gave no specific reason for the said application. Hence, this Court has authority to make an inference in favour of the Appellant. This is because the action of the Trial Court allowing a subsequent adjournment based of the prosecution's application without proper reasons prejudiced him further. This because unless in support of the application a cogent reason is supplied, the Trial Court was bound to infer that the application resulted from what the alleged victim said prior: "I cannot recall very well." If the said victim could not remember very well, whatever the question was, could it be said that this particular witness was credible? The Appellant submitted, the credibility of the child’s evidence is questionable. That if a witness is unable to recall events, refreshing of one's memory is allowed during hearing as a normal legal practice. That if the refreshing cannot be done in open Court, then the subsequent testimony can only be thought to be as a result of coercion and other tactics that are meant to abuse the Court process. Reliance was placed in the case of Jesse Onyimbo Ochieng Vs Rep (2010) eKLR.
43. The Appellant also submitted that the impropriety and irregularities in the subject case did not end at PW1 being stood down. They continued throughout the trial. That the near peak being the application by the prosecution to close its case without calling the Investigating Officer on 04/08/2020. This renders the prosecution case not proved as the first report of the alleged offence, and subsequent record of actions by the police, in relation to investigations of the complaint, in their mandate to investigate a sexual offence under the law espoused by virtue of Regulations 3,4 and 6 of the Sexual Offences (Medical Treatment) Regulations, 2012 were not proved. Reliance was placed in the case of Samson John Nderitu Vs Attorney General (2010) eKLR.
44. It is his view that the police, the Respondent herein, have in their possession the record of investigation findings by virtue of Section 51 of the National Police Service Act. Which investigations, includes interrogation of the suspect and the complainant, including all other relevant witnesses to determine facts of the case. Hence, without the Investigation Officer testifying, the Appellant herein was disadvantaged materially. This was contrary to the dictates of fair hearing and the public interest espoused by broad constitutional meaning of Article 157 of the Constitution. The fact that the alleged victim's mother was not involved in the matter, then it was relevant for the Investigation Officer to tender evidence to prove existence of the alleged circumstances before a conviction can be securely recorded against the appellant. Reliance was placed in the case of Akumu Vs Republic (1954) 21 EACA
45. The Appellant implores this Court to find that it was fatal for the prosecution to fail to avail the Investigating Officer, the police, hence the conviction is not safe. It is prayed so because, without the evidence of the Investigating Officer, it is not known what was reported and investigated, or whether the collection of evidence met the threshold espoused by the dictates of Article 50(4) of the Constitution. Reliance was placed in the case of George Nguku VSR CRA No. 166 of 1983 at Kisumu.
46. The Appellant also submits that that the prosecution failed to prove its case beyond reasonable doubt as required by Section 107 within the meaning of Section 9 of the Evidence Act. This is because it was upon the prosecution to prove that indeed the alleged circumstances by PW2 existed, or explain why PW1's mother was not a witness, or even why this particular witness failed to involve PW1's mother. Further, considering that PWI's testimony on how PW2 became cognizant of the matter, is contradictory to that of PW2. The Record stated as follows:
PW1 "the following day I started experiencing headache. I went and told my teacher on what transpired and she took me to the police station."
PW2 "In March 2014, I was still working at school. On 31/3/2014 around lunch break, I had gone to buy snack outside school. I saw my former student PW1 walking towards town carrying a little baby on her back. I approached her and asked why she is not in school. She told me her mother had sent her to grandmother's home. Upon further inquiry, she told me her mother was at home in bed with a man."
47. The Appellant also submits that while PW2 testified during cross-examination that she knew the alleged victim's mother very well, she failed to give any satisfactory answer why she failed to involve her from the start or whether PW1's mother was a witness in the case. Begging the question, was it not proper for her to involve PW1's mother? Was it not natural to first bring the attention of PW1’s mother? What was her interests?
48. The Appellant submits that PW2 was led by malice and chicanery to falsely frame him for the current charges. And without the evidence by the Investigating Officer. the Appellant was denied the benefit of criminal investigation results. This because investigative services under the law are not an entitlement for the prosecution only, but as well available to both parties within the context of fair hearing espoused by Article 50 of the Constitution. Therefore, this Court was urged to find that from the actions of the prosecution applying to stand PW1 down without a valid reason; and further, closing its case without calling the Investigation Officer to testify, renders the conviction unsafe.
49. Further, the prosecution failed to give a satisfactory reason why the investigation report could not be tabled in Court, because by dint of Section 49(1)(3) of the National Police Service Act, within the context of Section 50(1), the record was available in the hands of the OCS Ruiru Police Station, even though the designated investigating officer was ailing as stated by the prosecution.
50. The prosecution witnesses on record failed to help the prosecution prove its case beyond reasonable doubt. This is because there is no cogent evidence proving the ingredients of the alleged offence as understood under Section 8(1) of the Sexual Offences Act. It was humbly submitted so because, considering the evidence on record that PW1 was defiled on 28/03/2014, then the next day referred to by PW1 was 29/03/2014. That therefore the alleged meeting on between PW2 and PW1 on 31/03/2014 was an invention to frame the Appellant for an offence he knew nothing about.
51. The Appellant urged the Court to consider the genesis of the charges herein. He submitted, this case started with PW2, who claimed to have met PW1 on the way and had the conversation. That this conversation as indicated earlier is questionable considering their testimonies of PW1 and PW2.
52. It is submitted that the prosecution evidence used to identify the Appellant herein as the perpetrator of the alleged defilement is not sufficient to found a conviction. It is submitted so because, from the two versions of how PW2 came to learn of the incident raise credibility questions. It was submitted that if indeed PW2 was a family friend, as she wanted Court to believe, then it was not possible that she did not know whether the complainant's mother was a witness. Secondly, from the conversation alluded to by PW2 and the mandazi variable introduced, PW1 may have been coerced to give evidence against the Appellant. This is because there is no evidence on record on the role that PWI's mother played in seeking justice for the minor, or her conduct when the said allegations were made.
53. To which case, PW1 testifying against the Appellant, it was submitted might have been attributed to coercion considering the grudge that was brewed against him by PW2. She openly stated that PW1’s Mother had no best interests of the minor at heart. That the Appellant was to blame considering her testimony. As such this Court should give the benefit of doubt the evidence on record as suggested by the Appellant herein, by setting him at liberty as the law requires.
54. It is submitted that the Appellant herein neither had an obligation in law to prove his innocence nor did he have any obligation in law to provide any defense against the charges, as held in the case of Boniface Okeyo vs Republic (2001) eKLR.
55. On sentence, it is submitted, it is harsh and excessive in the circumstances, and considering the Appellant's age. In recent development of the law by the Court of Appeal, it has been found to be quite inhumane to sentence a senior citizen to an excessive sentence. This is considering the life expectancy rate phenomena indicated to be 67 years by WHO as described and applied in Ali Abdalla Mwanza v Republic [2018] eKLR.
56. It is submitted that, the Appellant herein is an old man with a family that depended on him; and as a result, it will be in the best interest of the state were the Appellant sentenced to serve a lesser term.
57. The Appellant prays that this Court treats him equally as was done in Wanyeso v Republic (Criminal Appeal 110 of 2022) [2023] KECA 709 (KLR) (9 June 2023) (Judgment). That the Appellate Court opined that it was inhuman to incarcerate senior citizens who are not even a danger to themselves. That the Appellant is 68 years old. Considering the time already served under the orders of the court from the date of arrest and conviction, this Court ought to interfere with the imposed sentence if not conviction.
58. Further considering the Appellant's age and other mitigating factors, the Trial Court had discretion to impose a lesser sentence other than 20 years imprisonment, including a non-custodial sentence by dint of Section 4 of the Probation of Offenders Act. It is implored so because, the community does not only win when an offender has been imprisoned, but also when they contribute to the restoration of the calm that has been disturbed by the offending behaviour, in the society and in the individual's life.
59. The Appellant also submits that despite the fact that an accused person pleaded not guilty, and was found guilty, this Court ought to consider all relevant factors in sentencing as espoused by the Sentencing Policy Guidelines. He urges the Court to find that time already served under the orders of the Court from the date of arrest to be sufficient sentence, or be in addition to a non-custodial sentence by dint of Section 4 of the Probation of Offenders Act. This is in the spirit of prison decongestion and to enable the Appellant rebuild his life and family, considering his age.
Respondent’s Submissions
60. The Court has also seen and read the Respondent’s submissions.
61. On whether the elements of the offence of defilement were conclusively proved to the required standard by the prosecution, it was submitted that PW1 testified that she was born in December of 2002. That earlier on while undergoing medical examination she had maintained that she was 13 years of age. That this fact was reiterated by the Clinical Officer who attended to her, as rightfully pointed out by the learned trial Magistrate. Finally, the Appellant did not at any time dispute the age of the complainant during trial. Reliance was placed in the Court of Appeal in Mwalango Chichoro Mwanjembe v Republic (2016) eKLR. As such, the Trial Court came to the right conclusion that the age of the victim had been sufficiently proved.
62. On the issue of penetration, the Respondent submits that the main evidence is that of the minor and the medical evidence contained in the P3 form. The minor told the Court with clarity and coherence that she had sex with the Appellant where he penetrated her vagina and anus. The Trial Court after analysing the evidence concluded that evidence on record evidently proved an act of penetration. The evidence produced during the trial clearly proved the element of penetration to the required standards.
63. On the issue of the identity of the perpetrator, the Respondent submits that proof of participation of an accused perso
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