Background
1. The Appellant was charged with the offence of defilement contrary to Section 8 (1) (2) of the sexual offences act with an alternative charge of Committing an indecent act with a child Contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the main charge are that on the 27th day of November, 2018 at Kiandu Area Tetu Sub-location within Nyeri County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of J.W.G, a child aged 10 years.
3. The particulars of the alternative charge are that on 27th day of November, 2018 at Kiandu area Tetu Sub- location within Nyeri County, the Appellant intentionally and unlawfully touched the vagina of J.W.G. a child aged 10 years with his penis.
4. The Appellant entered a plea of not guilty and the case proceeded to full trial. The prosecution called a total of six (6) witnesses. The Appellant gave sworn evidence and raised the defence of alibi. He called two witnesses. The trial court considered the evidence and convicted him of the main charge.
5. The Appellant was dissatisfied with the trial court’s verdict and filed an instant appeal against both the conviction and sentence. The Appellant’s grounds of appeal can be summarized as below: -
a. The trial court failed to consider the weight of the Appellant’s defence.
b. The prosecution witnesses were inconsistent in their evidence.
c. The trial court relied wholly on the evidence of PW1 despite it being marred with inconsistencies.
d. The judgment and sentence are misleading and centrally contrary to natural justice.
Duty of the first appellate court
6. The first appellate court must re-evaluate and reconsider afresh the evidence on record to arrive at its own conclusion while bearing in mind that it did not have the opportunity to observe the demeanor, of the witnesses. These Guiding principles are found in the cases of Okeno versus R (1972) EA 32 , Njoroge Versus R (1987) eKLR 19, Kiilu and another versus R 2005 1 KLR 174 amongst others.
The Evidence on record
7. PW1 testified that she was 10 years of age. That on the 27th November, 2018 at around 10 am, she was at home with her disabled sister. She left to go look for her uncle but did not find him. She stated that she saw the Appellant who is their neighbor push her disabled sister into their kitchen. She came to her rescue and that was when the Appellant pulled her into the kitchen, undressed her and then he made her lie on the chair. He removed her inner wear and inserted his private into her private. The record shows that she demonstrated to the court what she meant by private part by touching her private parts. She felt pain and cried throughout the ordeal. He threatened to kill her if she told anyone. PW1 later reported the incident to her mother, PW2.
8. PW2 testified that PW1 reported to her the incident on the same day at around 1.00 pm. She in turn, reported the matter to the Nyumba Kumi head and later to the police at around 7:00 pm.
9. PW3- PC Basilo Muriuki arrested the Appellant. He stated that the Nyumba Kumi head reported the matter to him. He recorded the statements of PW1 and PW2 and arrested the appellant with the help of PW5. They arrested the accused at around 11:00 pm on 27th November, 2018. PW4, the medical officer produced the P3 and PRC forms under Section 7 of the Evidence Act. PW6, No. 92727, PC Noor Abdullahi investigated the case.
10. ANALYSIS
11. The prosecution was required to establish the following ingredients: -
a) The age of the victim
b) The act of penetration
c) Proper identification of the perpetrator as the person who defiled the victim.
12. This criteria was set out in the case of Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013 where it was held that “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
Age of the Victim
13. In Hillary Nyongesa Vs Republic (Eldoret Criminal Appeal No. 123 of 2009) Mwilu J (as she then was) stated that:- “Age is such a critical aspect in Sexual Offences that it has to be conclusively proved … and this becomes more important because the punishment (sentence) under the Sexual Offences Act is determined by the age of the victim. In this case, PW1 testified that she was 10 years old. PW4 produced PW1’s birth certificate which indicated that PW1 was born on 13th November, 2008. This meant that the victim was 10 years of age at the time of her defilement. This evidence was never challenged at trial and neither is the Appellant challenging it now. So the aspect of age was properly proved.
The act of penetration
14. PW1 testified that the Appellant pulled her inside the kitchen, and undressed her. He made her lay on the chair, removed her inner wear and inserted his private into her private. She demonstrated to the trial court what private meant by touching. The court finds that she was only 10 years old and this description was adequate to enable the court to understand what went on.
15. PW1’s evidence was corroborated by the medical evidence by PW4 that when PW1 was presented in hospital, she had an inflamed vaginal opening, and the hymen was freshly broken. Even though spermatozoa were seen on a High vaginal swab, PW4 concluded that from the medical evidence, PW1 was defiled.
16. I must point out that it is not the role of the doctor to determine whether or not there is defilement as defilement is a legal term. Nevertheless, the court is satisfied from all the evidence that there was forceful penetration into PW1’s vagina, which not only ruptured her hymen but also caused her some pain and inflammation and the injury noted by the doctor.
17. This was further supported by her evidence that she was in pain and she cried all through the ordeal and the medical notes which show that the injury was fresh hence consistent with the timeline she gave.
18. After a fresh analysis, I am satisfied that the ingredient of penetration was sufficiently proven.
Identification of the Appellant
19. The victim identified the appellant as the perpetrator. She stated that the appellant was her neighbour and therefore, she knew and recognized him. He was not a stranger to her. Besides the incident occurred during the day and lighting was not a challenge for identification. This evidence was not discredited even in cross-examination. The appellant merely stated he was working but he did not give any reason which would have made either the 10-year-old victim or her mother implicate him falsely.
The grounds of Appeal
20. The 1st ground was that the trial court failed to consider the Appellant’s defence.
21. The Appellant raised the defence of alibi in an endeavour to discredit the prosecution side. He stated that he was cutting fodder for Mama Timo on that material day. The Appellant’s witnesses DW1 and DW2 testified that they saw the appellant at the farm.
22. The court notes that contrary to the Appellant’s assertion, the trial court could properly analyze the defence. She recorded that the two defence witnesses were not able to see the appellant all the time he was on the farm, and they could not account for his movements.
23. DW2 conceded that she did not watch the Appellant from 8:00 am to 1:00 pm as she was taking care of her ailing husband. DW3 also, could also not see the Appellant the whole time because she was grazing her goats and later went to attend to her household chores. I find that the trial court analysed the Defence and cited the appropriate case law on proof of alibi hence the ground fails.
24. The 2nd ground raised was that the prosecution witnesses were inconsistent in their evidence
25. From the evidence on record, there were no inconsistencies in the evidence of the prosecution witnesses. PW1’s evidence on all the elements of defilement was properly corroborated and their evidence’s probative value not diminished in cross examination.
26. In fact PWI was a child of a tender age, whose evidence need not to be corroborated and she satisfies the court and the court records, that she or he is a truthful and credible witness. This is as per Section 124 of the evidence act. In this case there was corroboration. The failure to adduce medical reports in respect to her differently-able sibling was not fatal as that was not an issue before court.
Conclusion
27. In conclusion, this appeal lacks merit and it is dismissed.
28. On the sentence, the trial court called for a pre-sentence report, which the trial court considered. She also took into account the mitigation by the Appellant and the effect of the offence on the victim. She reduced the mandatory sentence to 20 years. The Supreme court has now stated that the is no leeway to reduce the sentence on defilement and the Apex court even went ahead to enhance a sentence which had been reduced. The court notes the uncertainty which prevailed when the sentence was meted out and will therefore not disturb the sentence.
29. The net effect is that appeal on both the conviction and the sentence fail he Appeal is dismissed. The Appellant to continue serving his sentence which is hereby upheld.
DELIVERED, DATED and SIGNED on this …31ST …. day of July, 2024.
Judgment delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of:-
The Appellant
For the Respondent Ms Kaniu and Ms Maina
Court Assistant Bebora