1. The Appellant was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act in Iten Senior Principal Magistrates Criminal Case (S.O) no E055 of 2023. The particulars of the offence are that on 6th November 2023 at (particulars withheld) within Keiyo North Sub County, Elgeyo Marakwet County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of JJC, a child aged 5 years.
2. In the alternative, he was charged with the offence of committing and indecent act with a child contrary to section 11 of the Sexual Offences Act. The particulars of the offence are that on 6th November 2023 at (particulars withheld) within Keiyo North Sub County, Elgeyo Marakwet County, the Appellant intentionally and unlawfully touched the vagina of JJC, a child aged 5 years.
3. The Appellant pleaded not guilty and the matter proceeded to full hearing. The prosecution called 6 witnesses in support of its case whereas the Appellant testified as the only defence witness. Upon considering the evidence tendered in court and the testimonies of the witnesses, the trial court convicted the Appellant of the main charged and sentenced him to serve 100 years imprisonment.
4. Being dissatisfied with the conviction and sentence, the Appellant instituted the present appeal vide a Petition of filed on 9th July 2024. The appeal is premised on the following grounds;
i) The learned trial magistrate erred in law and in fact in convicting the appellant on a charge not proved beyond reasonable doubt.
ii) The learned trial magistrate erred in law and in fact on convicting him on evidence which did not meet the required standard.
iii) That the learned trial magistrate erred in law and fact by convicting the appellant on charges that were not tallying and were unfavourable.
iv) That the sentence of 100 years is harsh and excessive and goes beyond life expectancy as it was held in the case of Ali Abdallah Mwanza CO.A Criminal Appeal No. 259 of 2012 at Mombasa.
v) That I pray to be present during the hearing of the appeal to enable (me) lodge more grounds of appeal.
5. Additionally, the appellant filed supplementary grounds of appeal as follows;
1) That the learned trial magistrate erred in matters of law and fact by failing to note that the prosecution side failed to prove their Defilement case beyond reasonable doubt as required by law in the evidence act section 107 of Laws of Kenya .
2) That the learned trial magistrate erred in matters of law and fact in not declaring that the complainant was a vulnerable witness and proceed to deploy an intermediary to speak on her behalf. (My) case was prejudiced under article 50(2)(p) of the Constitution of Kenya following (my) attempts to challenge the testimony as (1) did not get any response from my cross-examination.
3) That the learned trial magistrate erred in matters of law and fact by not taking into account in its decision the inconsistences and contradictions in the case which went into the root of the prosecution case.
4) That the trial magistrate erred in law and fact by not complying with article 25 (c) and 50 (2)(p) of COK in the case denying (me) the benefit for a less severe sentence and limiting (my) right to a fair trial by not considering sentencing principles on my sentencing such as mitigation, proportionality, fairness and so on.
5) That the trial court magistrate erred in matters of law and fact by not taking judicial notice that the life expectancy in Kenya is 70 years. The appellant is currently aged 38 years and when the age is put together with the imposed sentence of 100 years brings it to 138 years. This means (my) life expectancy will lapse before completion of (my) sentence. (I) am urging the appellate court to take into consideration this reality of life and reduce (my) sentence in accordance to this realities in the circumstances of (my) case .The appellant relies on the Authority of Ali Abdalla Mwanza vs R (2018) eKLR. Where it reduced the appellants’ sentence in consideration of life expectancy.
6) That the trial magistrate erred in matters of law and fact by imposing an unusually excessive and harsh sentence of a 100 years’ imprisonment which denied (me) to a benefit of a less severe sentence under article 50 (2) (p) of the COK. This court has a good ground to interfere with the discretion of imposing a manifestly excessive sentence of 100 years. Reliance is placed on Shadrack Kipkoech Kogo Vs Rep in Eldoret Criminal Appeal No 253 of 2013
7) That the trial Magistrate erred in law and fact by imposing on (me) a very harsh and an excessive sentence by using the wrong principles on (my) sentencing which is evidenced by the imposed unusual sentence of 100 years where the sentence was not fair, disproportionate and non-application of mitigation on record. The sentencing principles were not applied during sentencing.
8) That the trial magistrate erred in law and fact by convicting and sentencing him when the prosecution witness (police) had not exhibited the pant of the complainant to prove their case indicating that he had forgotten it and with this omission the court went ahead to sentence him to 100 years imprisonment.
9) That the trial Magistrate erred in law and fact when she imposed the sentence on appellant and did not take into account the time appellant spent in remand custody of eight (8) months, as part of his 100 years sentence pursuant to Section 333(2) OF CPC.
10) That, the trial Magistrate erred in law and fact in not strictly adhering to section 124 of the evidence act as the complainant was not credible
11) That the learned trial magistrate erred in law and fact by not strictly complying with section 169 of the CPC .The judgement does not meet legal requirement as there is no clarity of facts which is discernible on her reasoning making her finding not to be clear either.
Prosecution evidence at the trial court
6. The trial court conducted a voire dire on the minor complainant and was satisfied that she appreciated the nature of what amounts to an oath and could give sworn testimony. PW1, the complainant, testified that she knew the Appellant. That he called her to accompany him to baba Michelle’s shop to buy him sweets. He then took her to the maize plantation, removed her trouser and pants, made her lie down on the ground and put his ‘dudu’ in her vagina and she felt a lot of pain. Further, that Chemu and Rono came and Chemu went to look for Sharon and Abby. They found her at the plantation and then took her home She found her mother at home together with her grand mother and three other people to whom she narrated what happened. Her mother screamed and took her to hospital and she was treated. She identified the Appellant and stated that he was in court. There was no cross examination of the witness.
7. PW2 was Jemeli Yego. She testified that PW1 is her daughter aged 5 years having been born on 26th July 2018. She availed her Birth Certificate. She testified that on 6th November 223 she was at home and had gone to look for vegetables. Upon returning, she found the minors MJ and V at home and asked them where PW1 was and they told her the appellant had asked her to accompany him to the shop to buy sweets. She told V to go and look for PW1. V came back with PW1 and told her he had seen them coming from the maize plantation. PW1 then told her that the appellant had taken her to the maize plantation and he removed her clothes and her vagina and anus were hurting. That PW2 examined her and noticed her private parts viz vagina and anus were swollen. She screamed and took PW1 to hospital where she was treated. Thereafter they went to the police and she reported the matter and she was issued with a P3. That in the meantime neighbours brought Emmanuel to hospital. She stated that the appellant was her neighbour whom she had known him for 7 years and she had no grudge with him. In cross examination she stated that the child had no sweets upon return, that the accused and the child did not reach the centre, her home is 50 meters from the accused home and that V found him with the child.
8. PW3 was MJ, a resident of Muno Village. She testified that on 06/11/2023 the appellant came and asked for Gogo and he went and greeted her. That PW1 at the time was playing at their compound. That the appellant called PW1 and PW1 who likes to call the appellant daddy followed him. That the witness was in the kitchen at the time. When the mother of PW1 came and asked for PW1, they told her that she had left with the appellant. They sent VK to look for her and they came back at around 6.30 pm. PW1 came back crying, saying that the Appellant had taken her to the maize plantation and removed her clothes. They screamed. She stated that she knew the appellant as he is a neighbour and she has no grudge with him. That the minor is her cousin, and she is aged 5 years old. In cross examination she stated that there were no neighbours on the path and so nobody saw him and the complainant
9. PW4 was Philemonn Kitony, a clinical officer at Iten County Hospital. He testified that the complainant came to the facility on 07/11/2023 with a history of defilement. On examination, her panty had a white substance at the front part and she was walking with her legs apart. He stated that she had bruises on the labia majora at 6 o’clock, labia minora at 9 o’clock and her vagina was reddened. The internal vagina was opened ant there was a white substance at the pubic area, the hymen was torn and there were pus cells present. He testified that he examined the minor within a period of less than 72 hours after the incident occurred. He concluded that there was recent vaginal penetration consistent with the history of defilement and he produced the PRC and P3 Form as exhibits 2&3. In cross examination, he stated that there were no blood stains and he handed the panty over to the Investigating Officer. He stated that he did not examine the appellant as he was never availed.
10. PW5 was PC Rael Ndiema, stationed at Iten police Station. She testified that on 06/11/2023, while at the station, CPL Onyango informed her that there was an incident at Muno village. When they went to the scene they found the Appellant surrounded by members of the public and he had been assaulted. There was an accusation of defilement involving a child aged 5 years and the victim had been escorted to hospital. She did her investigations and interrogated the victim who confirmed that the Appellant had taken her into the maize plantation and defiled her. She produced the birth certificate as PExh1, stating that the minor was born on 26/07/2018.
11. PW6 was VJ. He testified that he is a brother to the minor. That on 6th November 2023 at 4PM the appellant went to their home and picked the minor to accompany him to the shop. That the accused is their neighbour and he knows him well. That their mother told him to go and look for the minor and he left and went and while in the process he heard the voice of the appellant inside the maize plantation and soon thereafter saw him walking towards the road with the minor following him while crying. He took the minor home and she told their mother that the appellant had raped her. He went out to follow the appellant but he did not find him. He positively identified the accused in court. In cross and re-examination, he stated that the appellant’s m other ws present when he found the appellant and the minor
12. Upon considering the evidence and the testimonies of the prosecution witnesses, the magistrate was satisfied that the Appellant had a case to answer and he was then placed on his defence.
Defence Evidence at the trial court
13. The appellant gave an unsworn statement in his defence and called no witnesses. He stated that he woke up on 06/11/2023 and went to his shamba until 2pm. He then ate lunch and went to Samuel’s home where he sells chang’aa. His neighbour Kipkogei came and the appellant asked him for cigarettes. He then went to his home later. That Kipkogey bought two cups of changaa. That he went home and heard two people talking inside the house. He pushed the door open and found the complainants’ mother and Kipkogei kissing while drunk and he asked Kipkogey for the cigarettes and he refused to give him. He further testified that the mother of the brewer sent him with a container of chang’aa to take to the center.
14. He stated that he later went to the home of PW1’s mother, asked for Gogo and gave her the container and when he was leaving, PW1 followed him saying she was going to ask the father to buy “kangumu” for her. It was his testimony that the mother of the minor suspected he would report her to her husband and so PW6 followed him and took PW1 by force to take her home. He stated that he proceeded to the center with is step mother to look for Korir and he went to his home to hand over slippers. That he later heard the minors’ mother screaming and his name being mentioned. When he went back to find out what had happened he met a group of people who assaulted him. He was taken to the police station and later to the hospital. He maintained that he was framed by PW1s’ mother.
Judgement of the trial court
15. Upon considering the testimonies of the witnesses and the evidence tendered in court, the trial magistrate convicted the Appellant of the main charge. The Appellant was given an opportunity to mitigate and upon considering his mitigation, the trial court sentenced him to 100 years’ imprisonment.
Hearing of Appeal
16. The Appeal was prosecuted by way of written submissions. The Appellant filed submissions his own whereas the prosecution filed submissions through Prosecution Counsel Calvin Kirui.
Appellants’ Submissions
17. The Appellant submitted that the prosecution failed their duty of proving the case beyond reasonable doubt as the prosecution witnesses did not offer any solid evidence to implicate the Appellant in the case but that notwithstanding, the trial magistrate committed an error by convicting and sentencing Appellant based on insufficient evidence. He submitted that the ingredient of penetration was never established as it was the doctors’ evidence that there was no blood stain seen in the genitalia or the clothes she was wearing. The pant which was not exhibited was never presented to prove their case. Further, that the police woman who testified was not the investigating officer and as such the court ought to have taken into account this omission in making its decision.
18. The Appellant urged that the falling back on the section 124 of evidence act by the court is a true indication the other witnesses did not corroborate the claim by the complainant. He stated that they were all relying on what they were told (hearsay) in their testimony. He further submitted that the case was a subject of fabrication and an afterthought on the need to cover up an illicit affair . He urged the court should make a finding that this case was not proved beyond reasonable doubt and allow this appeal on this ground.
19. The Appellant submitted that the complainant in this case was of tender years (5 Years) and ought to have been declared a vulnerable witness. That during the cross examination, she was unable to respond to valid questions. He urged that this had the effect of violating the constitutional right to a fair trial of the Appellant in article 50 (7) of COK. He stated that his attempt to challenge the testimony was met with studious silence to his questions which prejudiced his case. He maintained that the failure to declare the complainant a vulnerable witness and provide an intermediary to assist her communicate in court prejudiced the case of Appellant. He urged the court to allow this appeal on this ground.
20. The Appellant submitted that the trial magistrate had committed an error of sentencing him to a lengthy sentence while the testimonies of the witnesses was full of contradictions and inconsistencies. The decision that was reached to imprison him to 100 years was not proper as there were inconsistencies and contradictions in the evidence provided which went to the root of the case. He urged that instances of this include the complainant indicating she was taken home by Chemu and Rono and there was another version that Victor took her home. PW2 claimed that the Appellant defiled the complainant on both the Vagina and Anus which was not substantiated. PW3 stated that PW1 followed Appellant but on being confronted, she changed her testimony. He urged that the case was full of contradictions and inconsistencies and therefore the appellate court should make a finding and allow the appeal.
21. The Appellant urged that the trial magistrate did not accord him a fair trial by violating the constitutional provisions in articles article 25 (c) and 50 (2)(p) of COK. That the principles of sentencing which include proportionality, mitigation and fairness were not observed in his case violating article 25 of the COK. He urged that Article 50 (2)(p) of COK entitled the Appellant to a benefit of the least severe sentence of the prescribed sentence. The consideration of the principles of sentencing would have the effect of a lenient sentence imposed on him. He stated that by limiting their application, the court denied him from getting a lesser sentence. He urged the court to consider the same and allow the appeal.
22. On sentence, the Appellant urged that the trial magistrate imposed an unusually excessive and lengthy sentence that will go past the life expectancy of the Appellant. He stated that the trial court did not take judicial notice that life expectancy in Kenya is 70 years. The Appellant is aged 39 years and when this is combined with 100 years which comes to 139 years. This means the life expectancy of the Appellant will lapse before the completion of the imposed sentence. He urged the court to consider this reality of life and reduce his sentence in accordance to the circumstances of his case. In this regard, he sought to rely on the Authority of Ali Abdala Mwanza vs R (2018) eKLR where the court reduced the Appellant’s sentence in consideration of life expectancy from 40 years to 20 years.
23. He stated that article 50 (2)(p) of the Constitution makes it a constitutional right to the Appellant to receive the least severe sentence available in the circumstances of his case. lt is on this account that the Appellant invited the court to consider this as a good ground to interfere with the discretion of the sentencing court. He cited the case of Shadrack Kipkoech Kogo vs Republic – Eldoret Criminal Appeal No. 253 of 2013 where it held that a harsh and excessive sentence is a very good ground in which the superior court can interfere with the discretion of the sentencing court. He urged that 100 years is not among the listed mandatory sentences hence does not fall within the parameters of the ruling of the Supreme court on the legality and constitutionality of these sentences.
24. The Appellant urged that the trial magistrate did not apply any principles of sentencing in his case to earn him a reduction of his sentence by one third according to the sentence policy guidelines 2023. He maintained that the trial court failed to consider his mitigation during his sentencing. Additionally, the Appellant urged that the trial court did not comply with Section 333(2) of the Criminal Procedure Code. He urged this court to consider the time he spent in custody during the pendency of the trial. He submitted that he was arrested on 12/07/2023 and his sentence should be considered from that date or in the alternative, a period of 6 months and 25 days be reduced from his sentence.
25. The Appellant faulted the trial magistrate for not strictly complying with Section 124 of the Evidence act. He urged that the complainant was not credible as she failed to answer one major question the Appellant posed to her on who sent her to implicate him. That from her demeanour it was obvious she was coached and further, that the trial magistrate had to intervene by stopping his line of questioning terming it misplaced. Following this the testimony of the complainant remained uncontested and was not credible enough to sustain a conviction. Her explanation of events was not corroborated by other witnesses and he therefore urged the court to allow the appeal on this ground.
26. The Appellant submitted that the trial courts’ judgement did not comply with section 169 of the criminal procedure code. Further, that it does not meet the legal requirement thereunder as it lacks clarity of facts which is picked from her reasoning that makes her finding unclear. He urged that the complainant made an allegation that she was defiled on both the vagina and anus but the anus defilement was not established and the court did not probe this fact. Further, that another fact is that defence of the Appellant was not given adequate consideration and was dismissed by the magistrate as an afterthought. He urged this court to find fault with compliance to Section 169 of Criminal Procedure Code by not giving adequate consideration the Appellant's defence. He prayed the court quash the conviction and sentence.
Respondents’ submissions
27. Learned counsel for the state cited the provisions of Sections 8(1) and 8(2) of the Sexual Offences Act under which the Appellant was charged and further, submitted that the ingredients of the offence of defilement were set out in the case of George Opondo Olunga v Republic [2016] eKLR, as identification or recognition of the offender, penetration and the age of the victim.
28. Counsel submitted that the issue of identification of the Appellant was clear. He recounted the testimony of the complainant and urged that the identification was by recognition. On penetration, counsel urged that “Penetration” is defined under Section 2 of the Act to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. He urged that PW1 testified that the Appellant took her to a maize planation where he removed her trousers and pants and then put his “dudu” into her vagina and she felt a lot of pain. Her siblings found her in the maize plantation and took her home after which she was taken to the hospital for treatment. This evidence shows that the Appellant caused penetration of his penis into the complainant’s vagina.
29. Counsel cited Section 124 of the Evidence Act in regards to corroboration of the evidence of the complainant and urged that her evidence was corroborated by that of the Clinical Officer (PW4) who testified that he examined the complainant and observed injuries consistent with the history of defilement. These findings were noted in the P3 form and post rape care reports produced as exhibits, which also confirmed penetration. This evidence proved beyond reasonable doubt that there was defilement as contemplated in the Act.
30. On the issue of age, counsel urged that PW2 was the victim’s mother who testified that the victim is 5 years old and was born on 26/7/2018. The investigating officer testified as PW5 and produced the complainant’s birth certificate as Exhibit No. 1 and the Appellant did not challenge the evidence or produce any contrary evidence was produced. As such, the age of the complainant was proved beyond any reasonable doubt.
31. Counsel reiterated that the ingredients of the offence was proved beyond reasonable doubt as the prosecution witnesses and evidence adduced in court were credible and consistent. He urged that these grounds must fail for lack of merit.
32. On the issue of sentencing, counsel submitted that the same is a discretion of the trial court and being so it must be done judiciously. He cited the case of Shadrack Kipkoech Kogo v R. Eldoret Criminal Appeal No.253 of 2003 in support of this submission. He urged that the Appellant was granted a chance to mitigate and prayed for a lenient sentence. The prosecution made sentencing submissions and highlighted he prevalence of the offence. The victim’s age, was an aggravating factor and the prosecution prayed for a deterrent sentence. He urged that the trial court considered both submissions and meted an appropriate sentence.
33. Counsel urged the court to dismiss the appeal for lack of merit.
Determination
34. In Okeno Versus Republic (1972) EA 32 the court stated-;
“The duty of the 1st appellate court is to analyze, revaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that.
35. Having outlined the duty of the first appellate court as above, from my consideration of the Grounds of Appeal as outlined by the Appellant as well as the submissions made by both the appellant and the learned Counsel for the State, it is my considered opinion that the issues that arise for determination in this case are two fold as hereunder;
i. Whether the prosecution proved its case to the required standard of beyond reasonable doubt
ii. Whether the sentence of 100 years’ imprisonment imposed upon the appellant is unusual, harsh and excessive
iii. Whether the Hon Magistrate complied with the provisions of Section 333(2) of the CPC in sentencing the appellant
iv. Whether the judgement is in compliance with the provisions of Section 169 of the CPC
36. Standard of Proof is not an exact science but the same can be said to have been achieved if the evidence by the prosecution can be said to be strong as to leave only a remote possibility in his favour. This is as per the finding of Lord Denning in the case Miller vs. Ministry of Pensions (1947) 2 All ER, 372 where his Lordship stated thus:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
37. In a case of defilement, the three specific and critical elements that the prosecution needs to prove as set out in the provisions of Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:
i. Age of the complainant;
ii. Proof of penetration in accordance with the definition of penetration as provided under the provisions of Section 2(1) of the Sexual Offences Act; and
iii. Positive identification of the assailant.
38. The Court of Appeal reiterated this in the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where it was stated that:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
39. In the instant case, the age of the minor herein is not in dispute. The mother of the minor who testified as PW2 produced her Birth Certificate which placed her at 5 years of age. The record of proceedings shows that this evidence was not challenged at all by the appellant and I am satisfied that the Hon Magistrate did not at all err in her finding on the age of the minor based on the same.
40. The appellant disputed the Hon Magistrate’s finding on the issue of penetration arguing that the P3 Form and PRC Report produced did not indicate that there was blood seen and further that the panty that was recovered was not availed to court. From the record of the lower court proceedings this is indeed correct. However, the court in considering the appellant’s grounds of appeal as well as his submissions notes that the appellant in challenging the medical evidence adduced, focus largely on what the said reports did not capture as opposed to what was reported. This then left the facts of the minor’s injuries and the Doctor’s findings as per the said reports as largely uncontroverted. The question the court needs to answer then is whether based on these reports the Hon Magistrates finding that there was indeed penetration of the genitalia of the minor that is consistent with a history of defilement was correct.
41. Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.
42. The Doctor testified that when he attended to the minor within a period of less than 72 hours after the incident, he observed that she had bruises on the labia majora at 6 o’clock, labia minora at 9 o’clock and her vagina was reddened. The internal vagina was opened and there was a white substance at the pubic area, the hymen was torn and there were pus cells present. That these observations led him to the conclusion that there was recent vaginal penetration consistent with the history of defilement. Apart from the fact that the Doctor’s finding concluded that there was a history of defilement based on what he observed from the complainant even if there were no blood stains, the court also notes that the definition of penetration as herein above also includes partial penetration.
43. Further, in considering the evidence, the court notes that the duration of time that passed between the time the appellant summoned the minor and went away with her and the time that they were found in the maize plantation was not long. In this regard, I am persuaded by the finding of the Court of Appeal in case of Mark Oiruri Mose v R [2013] eKLR which in my view adequately explains the reason as to why the penetration of the minor by the appellant did not draw blood. In the said case, the court stated thus;
“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”
44. On the issue of the identification of the appellant, the court takes into account the fact that it is not denied that the appellant and the minor were neighbours who knew one another well. In any event, this aspect of the prosecution evidence was not at all challenged by the appellant who also did not at any one time suggest that he was not known to the minor. The evidence therefore is that of recognition and is very well in tandem with what a court needs to be establish in any finding of identification by recognition as was held by the Court of Appeal in the case of Peter Musau Mwanzia v the Republic (2008) eKLR as follows: -
“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognise a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing that the suspect at the time of the offence can recall very well having seen him earlier on before the incident”
45. On the ground that the evidence was contradictory and so therefore it was unsafe for the court to rely on the same in reaching its determination, coupled with the appellant challenge to the invocation of Section 124 of the Evidence Act by the Hon Magistrate, I have considered the said evidence afresh as herein above summarised. I have also read the impugned Judgement. The first thing of note from the said evidence is that apart from the appellant denying that he defiled the minor in the maize plantation, the rest of the evidence of the accused given in his defence not only places him at the scene on the material date and time as alleged, but also corroborates the evidence of the prosecution witnesses in all its material particulars including the very material particular that when he left the minor’s homestead, he left with her in tow.
46. The second significant aspect of the record of proceedings is that the prosecution evidence as adduced was not substantially challenged by the appellant in cross examination and more particularly the evidence of crucial and critical witnesses being the minor, the Doctor, the mother of the minor and the witness who was sent to look for the minor.
47. Further, the appellant contends that because the minor was too young, the trial magistrate ought to have had the witness testify through an intermediary. In this regard, I have considered the voire dire examination that the Hon Magistrate conducted before proceeding to take the testimony of the minor, the questions that she posed to the minor and the responses that the minor gave. I have also considered the testimony of the minor in juxtaposition with that of the other witnesses including the medical reports.
48. Having addressed my mind to the same, I am satisfied with the Hon Magistrate’s finding that she found the minor to be sufficiently intelligent and understood the need to tell the truth and the meaning of taking an oath. By this finding then, I am satisfied that the child was able to testify without the need of an intermediary and further that if the trial court had deemed this to be necessary, it would have so directed. Also, there is no legal requirement that every minor must testify through an intermediary unless the court is satisfied that one is required from their observation of the minor’s demeanour during their testimony.
49. On the ground that the child was not able to and did not at all answer questions that were posed to her by the appellant it is my considered view that it is neither here nor there for reasons that the record of proceedings has no such reflection. But that aside, the appellant filed written submissions in the lower court which submissions I have read. Nowhere in these submissions was the alleged inability of the child to properly express herself and/or answer any questions that were posed to her by the appellant was raised. I therefore find this ground of appeal to be an afterthought.
50. On the ground that the minor’s mother fabricated these allegations against the appellant for the reasons herein summarised, as I have already indicated above, the appellant did not engage any of the prosecution witnesses to any cross examination of substance. Of significance however, is that in light of the fact that his defence is totally and completely anchored on the alleged animosity that PW2 harboured towards him, the court notes that the appellant did not in any way during his cross examination of the witness suggest and/or put to this witness all the issues that he raised in his defence regarding his allegedly strained relationship and the reasons thereof with PW2. In this regard, I agree with the Hon Magistrate’s finding that this line of defence was an afterthought
51. On the invocation of the provisions on Section 124 of the Evidence act, I find the same to be very much in order for reasons that apart from the evidence of the minor, there was no eye witness account of what transpired in the maize plantation where the appellant took the minor to and defiled her. This provision of the law provides for such scenarios and in fact allows the court to convict solely on the evidence of a victim. In this case however, and as provided under the said section, the court notes that the evidence of the minor was corroborated with what is therein referred to as other material evidence which in this case was the medical evidence.
52. All in all, in light of my conclusions as herein reached, I am satisfied that the Hon Trial Magistrate properly directed herself in her finding on the guilt and subsequent conviction of the appellant being satisfied that based on her consideration of the evidence on record in its entirety, the prosecution had proved its case beyond reasonable doubt. The conviction is therefore upheld.
53. On whether the court should interfere with the sentence, the sentence prescribed in law under Section 8(2) of the Sexual Offences Act is as follows;
“A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
54. In this regard then, even without considering the appellant’s submission that the sentence of 100 years meted out upon him by the Hon Trial Magistrate is unusual, is harsh and is also excessive, the said sentence is not as provided by law. Having found the appellant guilty and convicted him, under the provisions of Section 8(2) of the Sexual Offences Act which provides for the sentence to be meted out upon conviction, the Hon Magistrate ought to have sentenced the appellant to a sentence of life imprisonment. The sentence of 100 years’ imprisonment therefore amounts to an illegal sentence.
55. But even as regards the sentence of life imprisonment as provided under the Act, the decision of the Court of Appeal in the case of Julius Kitsao Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment) is relevant. Therein, the court held thus;
“We note that the decisions of this Court relied on by the Appellant, namely Evans Wanjala Wanyonyi v Rep [2019] eKLR and Jared Koita Injiri v Republic Kisumu Crim. App No 93 of 2014 were decided before the Supreme Court clarified the application of its decision in Francis Karioko Muruatetu & another v Republic [2021] eKLR and limited its finding of unconstitutionality of mandatory sentences to mandatory death sentences imposed on murder convicts pursuant to section 204 of the Penal Code. This fact notwithstanding, we are of the view that the reasoning in Francis Karioko Muruatetu & Another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. In addition, an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under Article 28, and we are in this respect persuaded by the reasoning of the European Court of Human Rights in Vinter and others v The United Kingdom (Application nos.66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.
56. The appellant in the above case was convicted for defiling a minor aged four and a half years. The court reduced the appellant’s sentence of life imprisonment to 40 years’ imprisonment. The circumstances of this case and the herein cited case are similar and particularly as regards the age of the minor. In this regard, I find this case to be relevant in assisting the court mete out an appropriate sentence. For these reasons, I now hereby set aside the sentence of 100 years’ imprisonment meted out upon the appellant by the Hon Trial Magistrate and substitute it with a term of 40 years’ imprisonment.
57. Whether the trial court complied with Section 333(2) of the Criminal Procedure Code, the simple answer is that the record of sentencing indicates that the period that the appellant spent in pre-trial custody was not factored in the sentence. The provisions of the said section are mandatory and they are as herein reproduced;
Section 333(2) of the Criminal Procedure Code;
(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
58. The lower court proceedings show that the plea was taken on 8th November 2023 and the appellant was sentenced on 20th June 2024 bringing the period spent in custody to an aggregate of 7 months and twelve days. In this regard, the court finds merit in the applicant’s application and directs that this period be factored in the appellants sentence as hereby reduced by this court.
59. On whether the judgement violated the provisions of Section 169 of the Criminal Procedure Code, the said section provides as follows;
(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.
(2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted, and the punishment to which he is sentenced.
(3) In the case of an acquittal, the judgment shall state the offence of which the accused person is acquitted, and shall direct that he be set at liberty.
60. I have read the judgement. I am satisfied that the same is in compliance with this provision in that the Hon Magistrate clearly set out the offences with which the appellant was charged as well as the particulars thereof at the beginning of the judgement and in its conclusion clearly sated which of the charges she was satisfied had been proved by the evidence adduced. I therefore find no merit on this ground of appeal and the same is accordingly dismissed.
61. In light of the above, the Appellants Appeal against the conviction lacks merit and the same is accordingly dismissed. The Appellant’s appeal against sentence is now hereby allowed and the sentence of imprisonment for a term of 100 years is now hereby set aside and the same is substituted with a term of 40 years’ imprisonment which is to run from the date when the appellant was first arraigned in the Lower Court for plea taking. Right of Appeal 14 days.
Read Dated and Signed at ITEN on 3rd April 2025
2. In the alternative, he was charged with the offence of committing and indecent act with a child contrary to section 11 of the Sexual Offences Act. The particulars of the offence are that on 6th November 2023 at (particulars withheld) within Keiyo North Sub County, Elgeyo Marakwet County, the Appellant intentionally and unlawfully touched the vagina of JJC, a child aged 5 years.
3. The Appellant pleaded not guilty and the matter proceeded to full hearing. The prosecution called 6 witnesses in support of its case whereas the Appellant testified as the only defence witness. Upon considering the evidence tendered in court and the testimonies of the witnesses, the trial court convicted the Appellant of the main charged and sentenced him to serve 100 years imprisonment.
4. Being dissatisfied with the conviction and sentence, the Appellant instituted the present appeal vide a Petition of filed on 9th July 2024. The appeal is premised on the following grounds;
i) The learned trial magistrate erred in law and in fact in convicting the appellant on a charge not proved beyond reasonable doubt.
ii) The learned trial magistrate erred in law and in fact on convicting him on evidence which did not meet the required standard.
iii) That the learned trial magistrate erred in law and fact by convicting the appellant on charges that were not tallying and were unfavourable.
iv) That the sentence of 100 years is harsh and excessive and goes beyond life expectancy as it was held in the case of Ali Abdallah Mwanza CO.A Criminal Appeal No. 259 of 2012 at Mombasa.
v) That I pray to be present during the hearing of the appeal to enable (me) lodge more grounds of appeal.
5. Additionally, the appellant filed supplementary grounds of appeal as follows;
1) That the learned trial magistrate erred in matters of law and fact by failing to note that the prosecution side failed to prove their Defilement case beyond reasonable doubt as required by law in the evidence act section 107 of Laws of Kenya .
2) That the learned trial magistrate erred in matters of law and fact in not declaring that the complainant was a vulnerable witness and proceed to deploy an intermediary to speak on her behalf. (My) case was prejudiced under article 50(2)(p) of the Constitution of Kenya following (my) attempts to challenge the testimony as (1) did not get any response from my cross-examination.
3) That the learned trial magistrate erred in matters of law and fact by not taking into account in its decision the inconsistences and contradictions in the case which went into the root of the prosecution case.
4) That the trial magistrate erred in law and fact by not complying with article 25 (c) and 50 (2)(p) of COK in the case denying (me) the benefit for a less severe sentence and limiting (my) right to a fair trial by not considering sentencing principles on my sentencing such as mitigation, proportionality, fairness and so on.
5) That the trial court magistrate erred in matters of law and fact by not taking judicial notice that the life expectancy in Kenya is 70 years. The appellant is currently aged 38 years and when the age is put together with the imposed sentence of 100 years brings it to 138 years. This means (my) life expectancy will lapse before completion of (my) sentence. (I) am urging the appellate court to take into consideration this reality of life and reduce (my) sentence in accordance to this realities in the circumstances of (my) case .The appellant relies on the Authority of Ali Abdalla Mwanza vs R (2018) eKLR. Where it reduced the appellants’ sentence in consideration of life expectancy.
6) That the trial magistrate erred in matters of law and fact by imposing an unusually excessive and harsh sentence of a 100 years’ imprisonment which denied (me) to a benefit of a less severe sentence under article 50 (2) (p) of the COK. This court has a good ground to interfere with the discretion of imposing a manifestly excessive sentence of 100 years. Reliance is placed on Shadrack Kipkoech Kogo Vs Rep in Eldoret Criminal Appeal No 253 of 2013
7) That the trial Magistrate erred in law and fact by imposing on (me) a very harsh and an excessive sentence by using the wrong principles on (my) sentencing which is evidenced by the imposed unusual sentence of 100 years where the sentence was not fair, disproportionate and non-application of mitigation on record. The sentencing principles were not applied during sentencing.
8) That the trial magistrate erred in law and fact by convicting and sentencing him when the prosecution witness (police) had not exhibited the pant of the complainant to prove their case indicating that he had forgotten it and with this omission the court went ahead to sentence him to 100 years imprisonment.
9) That the trial Magistrate erred in law and fact when she imposed the sentence on appellant and did not take into account the time appellant spent in remand custody of eight (8) months, as part of his 100 years sentence pursuant to Section 333(2) OF CPC.
10) That, the trial Magistrate erred in law and fact in not strictly adhering to section 124 of the evidence act as the complainant was not credible
11) That the learned trial magistrate erred in law and fact by not strictly complying with section 169 of the CPC .The judgement does not meet legal requirement as there is no clarity of facts which is discernible on her reasoning making her finding not to be clear either.
Prosecution evidence at the trial court
6. The trial court conducted a voire dire on the minor complainant and was satisfied that she appreciated the nature of what amounts to an oath and could give sworn testimony. PW1, the complainant, testified that she knew the Appellant. That he called her to accompany him to baba Michelle’s shop to buy him sweets. He then took her to the maize plantation, removed her trouser and pants, made her lie down on the ground and put his ‘dudu’ in her vagina and she felt a lot of pain. Further, that Chemu and Rono came and Chemu went to look for Sharon and Abby. They found her at the plantation and then took her home She found her mother at home together with her grand mother and three other people to whom she narrated what happened. Her mother screamed and took her to hospital and she was treated. She identified the Appellant and stated that he was in court. There was no cross examination of the witness.
7. PW2 was Jemeli Yego. She testified that PW1 is her daughter aged 5 years having been born on 26th July 2018. She availed her Birth Certificate. She testified that on 6th November 223 she was at home and had gone to look for vegetables. Upon returning, she found the minors MJ and V at home and asked them where PW1 was and they told her the appellant had asked her to accompany him to the shop to buy sweets. She told V to go and look for PW1. V came back with PW1 and told her he had seen them coming from the maize plantation. PW1 then told her that the appellant had taken her to the maize plantation and he removed her clothes and her vagina and anus were hurting. That PW2 examined her and noticed her private parts viz vagina and anus were swollen. She screamed and took PW1 to hospital where she was treated. Thereafter they went to the police and she reported the matter and she was issued with a P3. That in the meantime neighbours brought Emmanuel to hospital. She stated that the appellant was her neighbour whom she had known him for 7 years and she had no grudge with him. In cross examination she stated that the child had no sweets upon return, that the accused and the child did not reach the centre, her home is 50 meters from the accused home and that V found him with the child.
8. PW3 was MJ, a resident of Muno Village. She testified that on 06/11/2023 the appellant came and asked for Gogo and he went and greeted her. That PW1 at the time was playing at their compound. That the appellant called PW1 and PW1 who likes to call the appellant daddy followed him. That the witness was in the kitchen at the time. When the mother of PW1 came and asked for PW1, they told her that she had left with the appellant. They sent VK to look for her and they came back at around 6.30 pm. PW1 came back crying, saying that the Appellant had taken her to the maize plantation and removed her clothes. They screamed. She stated that she knew the appellant as he is a neighbour and she has no grudge with him. That the minor is her cousin, and she is aged 5 years old. In cross examination she stated that there were no neighbours on the path and so nobody saw him and the complainant
9. PW4 was Philemonn Kitony, a clinical officer at Iten County Hospital. He testified that the complainant came to the facility on 07/11/2023 with a history of defilement. On examination, her panty had a white substance at the front part and she was walking with her legs apart. He stated that she had bruises on the labia majora at 6 o’clock, labia minora at 9 o’clock and her vagina was reddened. The internal vagina was opened ant there was a white substance at the pubic area, the hymen was torn and there were pus cells present. He testified that he examined the minor within a period of less than 72 hours after the incident occurred. He concluded that there was recent vaginal penetration consistent with the history of defilement and he produced the PRC and P3 Form as exhibits 2&3. In cross examination, he stated that there were no blood stains and he handed the panty over to the Investigating Officer. He stated that he did not examine the appellant as he was never availed.
10. PW5 was PC Rael Ndiema, stationed at Iten police Station. She testified that on 06/11/2023, while at the station, CPL Onyango informed her that there was an incident at Muno village. When they went to the scene they found the Appellant surrounded by members of the public and he had been assaulted. There was an accusation of defilement involving a child aged 5 years and the victim had been escorted to hospital. She did her investigations and interrogated the victim who confirmed that the Appellant had taken her into the maize plantation and defiled her. She produced the birth certificate as PExh1, stating that the minor was born on 26/07/2018.
11. PW6 was VJ. He testified that he is a brother to the minor. That on 6th November 2023 at 4PM the appellant went to their home and picked the minor to accompany him to the shop. That the accused is their neighbour and he knows him well. That their mother told him to go and look for the minor and he left and went and while in the process he heard the voice of the appellant inside the maize plantation and soon thereafter saw him walking towards the road with the minor following him while crying. He took the minor home and she told their mother that the appellant had raped her. He went out to follow the appellant but he did not find him. He positively identified the accused in court. In cross and re-examination, he stated that the appellant’s m other ws present when he found the appellant and the minor
12. Upon considering the evidence and the testimonies of the prosecution witnesses, the magistrate was satisfied that the Appellant had a case to answer and he was then placed on his defence.
Defence Evidence at the trial court
13. The appellant gave an unsworn statement in his defence and called no witnesses. He stated that he woke up on 06/11/2023 and went to his shamba until 2pm. He then ate lunch and went to Samuel’s home where he sells chang’aa. His neighbour Kipkogei came and the appellant asked him for cigarettes. He then went to his home later. That Kipkogey bought two cups of changaa. That he went home and heard two people talking inside the house. He pushed the door open and found the complainants’ mother and Kipkogei kissing while drunk and he asked Kipkogey for the cigarettes and he refused to give him. He further testified that the mother of the brewer sent him with a container of chang’aa to take to the center.
14. He stated that he later went to the home of PW1’s mother, asked for Gogo and gave her the container and when he was leaving, PW1 followed him saying she was going to ask the father to buy “kangumu” for her. It was his testimony that the mother of the minor suspected he would report her to her husband and so PW6 followed him and took PW1 by force to take her home. He stated that he proceeded to the center with is step mother to look for Korir and he went to his home to hand over slippers. That he later heard the minors’ mother screaming and his name being mentioned. When he went back to find out what had happened he met a group of people who assaulted him. He was taken to the police station and later to the hospital. He maintained that he was framed by PW1s’ mother.
Judgement of the trial court
15. Upon considering the testimonies of the witnesses and the evidence tendered in court, the trial magistrate convicted the Appellant of the main charge. The Appellant was given an opportunity to mitigate and upon considering his mitigation, the trial court sentenced him to 100 years’ imprisonment.
Hearing of Appeal
16. The Appeal was prosecuted by way of written submissions. The Appellant filed submissions his own whereas the prosecution filed submissions through Prosecution Counsel Calvin Kirui.
Appellants’ Submissions
17. The Appellant submitted that the prosecution failed their duty of proving the case beyond reasonable doubt as the prosecution witnesses did not offer any solid evidence to implicate the Appellant in the case but that notwithstanding, the trial magistrate committed an error by convicting and sentencing Appellant based on insufficient evidence. He submitted that the ingredient of penetration was never established as it was the doctors’ evidence that there was no blood stain seen in the genitalia or the clothes she was wearing. The pant which was not exhibited was never presented to prove their case. Further, that the police woman who testified was not the investigating officer and as such the court ought to have taken into account this omission in making its decision.
18. The Appellant urged that the falling back on the section 124 of evidence act by the court is a true indication the other witnesses did not corroborate the claim by the complainant. He stated that they were all relying on what they were told (hearsay) in their testimony. He further submitted that the case was a subject of fabrication and an afterthought on the need to cover up an illicit affair . He urged the court should make a finding that this case was not proved beyond reasonable doubt and allow this appeal on this ground.
19. The Appellant submitted that the complainant in this case was of tender years (5 Years) and ought to have been declared a vulnerable witness. That during the cross examination, she was unable to respond to valid questions. He urged that this had the effect of violating the constitutional right to a fair trial of the Appellant in article 50 (7) of COK. He stated that his attempt to challenge the testimony was met with studious silence to his questions which prejudiced his case. He maintained that the failure to declare the complainant a vulnerable witness and provide an intermediary to assist her communicate in court prejudiced the case of Appellant. He urged the court to allow this appeal on this ground.
20. The Appellant submitted that the trial magistrate had committed an error of sentencing him to a lengthy sentence while the testimonies of the witnesses was full of contradictions and inconsistencies. The decision that was reached to imprison him to 100 years was not proper as there were inconsistencies and contradictions in the evidence provided which went to the root of the case. He urged that instances of this include the complainant indicating she was taken home by Chemu and Rono and there was another version that Victor took her home. PW2 claimed that the Appellant defiled the complainant on both the Vagina and Anus which was not substantiated. PW3 stated that PW1 followed Appellant but on being confronted, she changed her testimony. He urged that the case was full of contradictions and inconsistencies and therefore the appellate court should make a finding and allow the appeal.
21. The Appellant urged that the trial magistrate did not accord him a fair trial by violating the constitutional provisions in articles article 25 (c) and 50 (2)(p) of COK. That the principles of sentencing which include proportionality, mitigation and fairness were not observed in his case violating article 25 of the COK. He urged that Article 50 (2)(p) of COK entitled the Appellant to a benefit of the least severe sentence of the prescribed sentence. The consideration of the principles of sentencing would have the effect of a lenient sentence imposed on him. He stated that by limiting their application, the court denied him from getting a lesser sentence. He urged the court to consider the same and allow the appeal.
22. On sentence, the Appellant urged that the trial magistrate imposed an unusually excessive and lengthy sentence that will go past the life expectancy of the Appellant. He stated that the trial court did not take judicial notice that life expectancy in Kenya is 70 years. The Appellant is aged 39 years and when this is combined with 100 years which comes to 139 years. This means the life expectancy of the Appellant will lapse before the completion of the imposed sentence. He urged the court to consider this reality of life and reduce his sentence in accordance to the circumstances of his case. In this regard, he sought to rely on the Authority of Ali Abdala Mwanza vs R (2018) eKLR where the court reduced the Appellant’s sentence in consideration of life expectancy from 40 years to 20 years.
23. He stated that article 50 (2)(p) of the Constitution makes it a constitutional right to the Appellant to receive the least severe sentence available in the circumstances of his case. lt is on this account that the Appellant invited the court to consider this as a good ground to interfere with the discretion of the sentencing court. He cited the case of Shadrack Kipkoech Kogo vs Republic – Eldoret Criminal Appeal No. 253 of 2013 where it held that a harsh and excessive sentence is a very good ground in which the superior court can interfere with the discretion of the sentencing court. He urged that 100 years is not among the listed mandatory sentences hence does not fall within the parameters of the ruling of the Supreme court on the legality and constitutionality of these sentences.
24. The Appellant urged that the trial magistrate did not apply any principles of sentencing in his case to earn him a reduction of his sentence by one third according to the sentence policy guidelines 2023. He maintained that the trial court failed to consider his mitigation during his sentencing. Additionally, the Appellant urged that the trial court did not comply with Section 333(2) of the Criminal Procedure Code. He urged this court to consider the time he spent in custody during the pendency of the trial. He submitted that he was arrested on 12/07/2023 and his sentence should be considered from that date or in the alternative, a period of 6 months and 25 days be reduced from his sentence.
25. The Appellant faulted the trial magistrate for not strictly complying with Section 124 of the Evidence act. He urged that the complainant was not credible as she failed to answer one major question the Appellant posed to her on who sent her to implicate him. That from her demeanour it was obvious she was coached and further, that the trial magistrate had to intervene by stopping his line of questioning terming it misplaced. Following this the testimony of the complainant remained uncontested and was not credible enough to sustain a conviction. Her explanation of events was not corroborated by other witnesses and he therefore urged the court to allow the appeal on this ground.
26. The Appellant submitted that the trial courts’ judgement did not comply with section 169 of the criminal procedure code. Further, that it does not meet the legal requirement thereunder as it lacks clarity of facts which is picked from her reasoning that makes her finding unclear. He urged that the complainant made an allegation that she was defiled on both the vagina and anus but the anus defilement was not established and the court did not probe this fact. Further, that another fact is that defence of the Appellant was not given adequate consideration and was dismissed by the magistrate as an afterthought. He urged this court to find fault with compliance to Section 169 of Criminal Procedure Code by not giving adequate consideration the Appellant's defence. He prayed the court quash the conviction and sentence.
Respondents’ submissions
27. Learned counsel for the state cited the provisions of Sections 8(1) and 8(2) of the Sexual Offences Act under which the Appellant was charged and further, submitted that the ingredients of the offence of defilement were set out in the case of George Opondo Olunga v Republic [2016] eKLR, as identification or recognition of the offender, penetration and the age of the victim.
28. Counsel submitted that the issue of identification of the Appellant was clear. He recounted the testimony of the complainant and urged that the identification was by recognition. On penetration, counsel urged that “Penetration” is defined under Section 2 of the Act to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. He urged that PW1 testified that the Appellant took her to a maize planation where he removed her trousers and pants and then put his “dudu” into her vagina and she felt a lot of pain. Her siblings found her in the maize plantation and took her home after which she was taken to the hospital for treatment. This evidence shows that the Appellant caused penetration of his penis into the complainant’s vagina.
29. Counsel cited Section 124 of the Evidence Act in regards to corroboration of the evidence of the complainant and urged that her evidence was corroborated by that of the Clinical Officer (PW4) who testified that he examined the complainant and observed injuries consistent with the history of defilement. These findings were noted in the P3 form and post rape care reports produced as exhibits, which also confirmed penetration. This evidence proved beyond reasonable doubt that there was defilement as contemplated in the Act.
30. On the issue of age, counsel urged that PW2 was the victim’s mother who testified that the victim is 5 years old and was born on 26/7/2018. The investigating officer testified as PW5 and produced the complainant’s birth certificate as Exhibit No. 1 and the Appellant did not challenge the evidence or produce any contrary evidence was produced. As such, the age of the complainant was proved beyond any reasonable doubt.
31. Counsel reiterated that the ingredients of the offence was proved beyond reasonable doubt as the prosecution witnesses and evidence adduced in court were credible and consistent. He urged that these grounds must fail for lack of merit.
32. On the issue of sentencing, counsel submitted that the same is a discretion of the trial court and being so it must be done judiciously. He cited the case of Shadrack Kipkoech Kogo v R. Eldoret Criminal Appeal No.253 of 2003 in support of this submission. He urged that the Appellant was granted a chance to mitigate and prayed for a lenient sentence. The prosecution made sentencing submissions and highlighted he prevalence of the offence. The victim’s age, was an aggravating factor and the prosecution prayed for a deterrent sentence. He urged that the trial court considered both submissions and meted an appropriate sentence.
33. Counsel urged the court to dismiss the appeal for lack of merit.
Determination
34. In Okeno Versus Republic (1972) EA 32 the court stated-;
“The duty of the 1st appellate court is to analyze, revaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that.
35. Having outlined the duty of the first appellate court as above, from my consideration of the Grounds of Appeal as outlined by the Appellant as well as the submissions made by both the appellant and the learned Counsel for the State, it is my considered opinion that the issues that arise for determination in this case are two fold as hereunder;
i. Whether the prosecution proved its case to the required standard of beyond reasonable doubt
ii. Whether the sentence of 100 years’ imprisonment imposed upon the appellant is unusual, harsh and excessive
iii. Whether the Hon Magistrate complied with the provisions of Section 333(2) of the CPC in sentencing the appellant
iv. Whether the judgement is in compliance with the provisions of Section 169 of the CPC
36. Standard of Proof is not an exact science but the same can be said to have been achieved if the evidence by the prosecution can be said to be strong as to leave only a remote possibility in his favour. This is as per the finding of Lord Denning in the case Miller vs. Ministry of Pensions (1947) 2 All ER, 372 where his Lordship stated thus:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
37. In a case of defilement, the three specific and critical elements that the prosecution needs to prove as set out in the provisions of Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:
i. Age of the complainant;
ii. Proof of penetration in accordance with the definition of penetration as provided under the provisions of Section 2(1) of the Sexual Offences Act; and
iii. Positive identification of the assailant.
38. The Court of Appeal reiterated this in the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where it was stated that:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
39. In the instant case, the age of the minor herein is not in dispute. The mother of the minor who testified as PW2 produced her Birth Certificate which placed her at 5 years of age. The record of proceedings shows that this evidence was not challenged at all by the appellant and I am satisfied that the Hon Magistrate did not at all err in her finding on the age of the minor based on the same.
40. The appellant disputed the Hon Magistrate’s finding on the issue of penetration arguing that the P3 Form and PRC Report produced did not indicate that there was blood seen and further that the panty that was recovered was not availed to court. From the record of the lower court proceedings this is indeed correct. However, the court in considering the appellant’s grounds of appeal as well as his submissions notes that the appellant in challenging the medical evidence adduced, focus largely on what the said reports did not capture as opposed to what was reported. This then left the facts of the minor’s injuries and the Doctor’s findings as per the said reports as largely uncontroverted. The question the court needs to answer then is whether based on these reports the Hon Magistrates finding that there was indeed penetration of the genitalia of the minor that is consistent with a history of defilement was correct.
41. Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.
42. The Doctor testified that when he attended to the minor within a period of less than 72 hours after the incident, he observed that she had bruises on the labia majora at 6 o’clock, labia minora at 9 o’clock and her vagina was reddened. The internal vagina was opened and there was a white substance at the pubic area, the hymen was torn and there were pus cells present. That these observations led him to the conclusion that there was recent vaginal penetration consistent with the history of defilement. Apart from the fact that the Doctor’s finding concluded that there was a history of defilement based on what he observed from the complainant even if there were no blood stains, the court also notes that the definition of penetration as herein above also includes partial penetration.
43. Further, in considering the evidence, the court notes that the duration of time that passed between the time the appellant summoned the minor and went away with her and the time that they were found in the maize plantation was not long. In this regard, I am persuaded by the finding of the Court of Appeal in case of Mark Oiruri Mose v R [2013] eKLR which in my view adequately explains the reason as to why the penetration of the minor by the appellant did not draw blood. In the said case, the court stated thus;
“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”
44. On the issue of the identification of the appellant, the court takes into account the fact that it is not denied that the appellant and the minor were neighbours who knew one another well. In any event, this aspect of the prosecution evidence was not at all challenged by the appellant who also did not at any one time suggest that he was not known to the minor. The evidence therefore is that of recognition and is very well in tandem with what a court needs to be establish in any finding of identification by recognition as was held by the Court of Appeal in the case of Peter Musau Mwanzia v the Republic (2008) eKLR as follows: -
“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognise a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing that the suspect at the time of the offence can recall very well having seen him earlier on before the incident”
45. On the ground that the evidence was contradictory and so therefore it was unsafe for the court to rely on the same in reaching its determination, coupled with the appellant challenge to the invocation of Section 124 of the Evidence Act by the Hon Magistrate, I have considered the said evidence afresh as herein above summarised. I have also read the impugned Judgement. The first thing of note from the said evidence is that apart from the appellant denying that he defiled the minor in the maize plantation, the rest of the evidence of the accused given in his defence not only places him at the scene on the material date and time as alleged, but also corroborates the evidence of the prosecution witnesses in all its material particulars including the very material particular that when he left the minor’s homestead, he left with her in tow.
46. The second significant aspect of the record of proceedings is that the prosecution evidence as adduced was not substantially challenged by the appellant in cross examination and more particularly the evidence of crucial and critical witnesses being the minor, the Doctor, the mother of the minor and the witness who was sent to look for the minor.
47. Further, the appellant contends that because the minor was too young, the trial magistrate ought to have had the witness testify through an intermediary. In this regard, I have considered the voire dire examination that the Hon Magistrate conducted before proceeding to take the testimony of the minor, the questions that she posed to the minor and the responses that the minor gave. I have also considered the testimony of the minor in juxtaposition with that of the other witnesses including the medical reports.
48. Having addressed my mind to the same, I am satisfied with the Hon Magistrate’s finding that she found the minor to be sufficiently intelligent and understood the need to tell the truth and the meaning of taking an oath. By this finding then, I am satisfied that the child was able to testify without the need of an intermediary and further that if the trial court had deemed this to be necessary, it would have so directed. Also, there is no legal requirement that every minor must testify through an intermediary unless the court is satisfied that one is required from their observation of the minor’s demeanour during their testimony.
49. On the ground that the child was not able to and did not at all answer questions that were posed to her by the appellant it is my considered view that it is neither here nor there for reasons that the record of proceedings has no such reflection. But that aside, the appellant filed written submissions in the lower court which submissions I have read. Nowhere in these submissions was the alleged inability of the child to properly express herself and/or answer any questions that were posed to her by the appellant was raised. I therefore find this ground of appeal to be an afterthought.
50. On the ground that the minor’s mother fabricated these allegations against the appellant for the reasons herein summarised, as I have already indicated above, the appellant did not engage any of the prosecution witnesses to any cross examination of substance. Of significance however, is that in light of the fact that his defence is totally and completely anchored on the alleged animosity that PW2 harboured towards him, the court notes that the appellant did not in any way during his cross examination of the witness suggest and/or put to this witness all the issues that he raised in his defence regarding his allegedly strained relationship and the reasons thereof with PW2. In this regard, I agree with the Hon Magistrate’s finding that this line of defence was an afterthought
51. On the invocation of the provisions on Section 124 of the Evidence act, I find the same to be very much in order for reasons that apart from the evidence of the minor, there was no eye witness account of what transpired in the maize plantation where the appellant took the minor to and defiled her. This provision of the law provides for such scenarios and in fact allows the court to convict solely on the evidence of a victim. In this case however, and as provided under the said section, the court notes that the evidence of the minor was corroborated with what is therein referred to as other material evidence which in this case was the medical evidence.
52. All in all, in light of my conclusions as herein reached, I am satisfied that the Hon Trial Magistrate properly directed herself in her finding on the guilt and subsequent conviction of the appellant being satisfied that based on her consideration of the evidence on record in its entirety, the prosecution had proved its case beyond reasonable doubt. The conviction is therefore upheld.
53. On whether the court should interfere with the sentence, the sentence prescribed in law under Section 8(2) of the Sexual Offences Act is as follows;
“A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
54. In this regard then, even without considering the appellant’s submission that the sentence of 100 years meted out upon him by the Hon Trial Magistrate is unusual, is harsh and is also excessive, the said sentence is not as provided by law. Having found the appellant guilty and convicted him, under the provisions of Section 8(2) of the Sexual Offences Act which provides for the sentence to be meted out upon conviction, the Hon Magistrate ought to have sentenced the appellant to a sentence of life imprisonment. The sentence of 100 years’ imprisonment therefore amounts to an illegal sentence.
55. But even as regards the sentence of life imprisonment as provided under the Act, the decision of the Court of Appeal in the case of Julius Kitsao Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment) is relevant. Therein, the court held thus;
“We note that the decisions of this Court relied on by the Appellant, namely Evans Wanjala Wanyonyi v Rep [2019] eKLR and Jared Koita Injiri v Republic Kisumu Crim. App No 93 of 2014 were decided before the Supreme Court clarified the application of its decision in Francis Karioko Muruatetu & another v Republic [2021] eKLR and limited its finding of unconstitutionality of mandatory sentences to mandatory death sentences imposed on murder convicts pursuant to section 204 of the Penal Code. This fact notwithstanding, we are of the view that the reasoning in Francis Karioko Muruatetu & Another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. In addition, an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under Article 28, and we are in this respect persuaded by the reasoning of the European Court of Human Rights in Vinter and others v The United Kingdom (Application nos.66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.
56. The appellant in the above case was convicted for defiling a minor aged four and a half years. The court reduced the appellant’s sentence of life imprisonment to 40 years’ imprisonment. The circumstances of this case and the herein cited case are similar and particularly as regards the age of the minor. In this regard, I find this case to be relevant in assisting the court mete out an appropriate sentence. For these reasons, I now hereby set aside the sentence of 100 years’ imprisonment meted out upon the appellant by the Hon Trial Magistrate and substitute it with a term of 40 years’ imprisonment.
57. Whether the trial court complied with Section 333(2) of the Criminal Procedure Code, the simple answer is that the record of sentencing indicates that the period that the appellant spent in pre-trial custody was not factored in the sentence. The provisions of the said section are mandatory and they are as herein reproduced;
Section 333(2) of the Criminal Procedure Code;
(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
58. The lower court proceedings show that the plea was taken on 8th November 2023 and the appellant was sentenced on 20th June 2024 bringing the period spent in custody to an aggregate of 7 months and twelve days. In this regard, the court finds merit in the applicant’s application and directs that this period be factored in the appellants sentence as hereby reduced by this court.
59. On whether the judgement violated the provisions of Section 169 of the Criminal Procedure Code, the said section provides as follows;
(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.
(2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted, and the punishment to which he is sentenced.
(3) In the case of an acquittal, the judgment shall state the offence of which the accused person is acquitted, and shall direct that he be set at liberty.
60. I have read the judgement. I am satisfied that the same is in compliance with this provision in that the Hon Magistrate clearly set out the offences with which the appellant was charged as well as the particulars thereof at the beginning of the judgement and in its conclusion clearly sated which of the charges she was satisfied had been proved by the evidence adduced. I therefore find no merit on this ground of appeal and the same is accordingly dismissed.
61. In light of the above, the Appellants Appeal against the conviction lacks merit and the same is accordingly dismissed. The Appellant’s appeal against sentence is now hereby allowed and the sentence of imprisonment for a term of 100 years is now hereby set aside and the same is substituted with a term of 40 years’ imprisonment which is to run from the date when the appellant was first arraigned in the Lower Court for plea taking. Right of Appeal 14 days.
Read Dated and Signed at ITEN on 3rd April 2025