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JudgmentERICK WEKESA JUMA VS The Republic10 min read

ERICK WEKESA JUMA VS The Republic

High Court at Nyamira High Court · · Wilfrida A. Okwany

(Being an Appeal from the Judgement and Sentence in the Chief Magistrate’s Court at Nyamira, Sexual Offences Case No. 90 of 2020, delivered by Hon. C.W. Waswa, Resident Magistrate on 3rd June 2021).


  1. The Appellant herein, Erick Wekesa Juma, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 11th day of November 2020, at Miruka Sub-location, West Mugirango location within Nyamira South Sub-County within Nyamira County, intentionally and unlawfully caused his genital organ, penis, to penetrate the genital organ, vagina, of V.K.O. (particulars withheld) a child aged 14 years old.
  2. The Appellant was also charged with the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 11th day of November 2020, at Miruka Sub-location, West Mugirango location within Nyamira South Sub-County within Nyamira County, intentionally and unlawfully touched the genital organ vagina of V.K.O. (particulars withheld) a child aged 14 years old with his genital organ penis.
  3. The Appellant pleaded guilty to both charges and a trial was conducted in which the prosecution called a total of 4 witnesses.

The Prosecution’s Case

  1. PW1 V.K.O. (particulars withheld) testified that she was at her grandmother’s home on the night of 11th November 2020 when the Appellant followed her to where she slept and defiled her. The matter was to the police Miruka Police Station and the victim referred to Nyamira County Hospital. She stated that the Appellant had been their herds boy for 2 years and this was the fourth time that he was defiling her.
  2. PW2 A. (particulars withheld) the victim’s grandmother testified that the Appellant had worked for her as a herds-man for one and a half years and on the night of 11th November 2020 she found the Appellant in the act of defiling PW1. She stated that she took a stick and hit the Appellant on the knee before he asked for her forgiveness. She later escorted the victim to Miruka Police Station and the hospital.
  3. PW3, Paul Mayaka, a Senior Clinical Officer at Nyamira County Hospital testified on behalf of his colleague Bartholomeus Mogesi who was away on study leave. He stated that the victim was examined at their facility on 13th November 2020 and a determination made that she had been sexually penetrated because of her broken hymen. He produced the P3 Form (P.Exh1), the Attendance Card (P.Exh2) and the Laboratory Results (P.Exh 3[a] and [b]).
  4. PW4 No. 253840 P.C. Sharon Akinyi was the Investigating Officer. She recorded the witness statements and issued the victim with a P3 Form. She produced the victim’s Birth Certificate (P.Exh4).
  5. At the close of the Prosecution’s case, the trial court placed the Appellant on his defence under Section 211 of the Criminal Procedure Code upon finding that the prosecution had established a prima facie case against the Appellant. The Appellant opted to tender a sworn testimony and did not call any witnesses.

The Defence Case

  1. DW1, the Appellant, testified that he knew the complainant because they lived in one compound where he worked as a herdsman. He denied the allegation that he had defiled the victim and testified that he was at his place of work on 8th November 2020 when PW2 alleged that her radio had been stolen. He asked PW2 and her children to produce the radio but she instead abused him and chased him away but that he was later asked to Miruka Police Station where he was arrested and later charged with the offence of defilement.
  2. At the conclusion of the trial, the Appellant was convicted on the main count of defilement and sentenced to serve 15 years’ imprisonment.
  3. Aggrieved by the said decision, the Appellant filed the instant appeal. He listed the following grounds of appeal in the Petition of Appeal: -
  4. THAT the trial magistrate erred in both law and facts by convicting the Appellant without observing that the offence of defilement was not proved beyond reasonable doubt.
  5. THAT the trial magistrate erred in both law and facts by convicting the Appellant without observing that the medical report tendered in court was scanty and contradicting thus making his conviction unsafe.
  6. THAT 15 years was manifestly harsh and excessive considering the circumstances of the offence.
  7. THAT this is the case when he ought to have been given the benefit of doubt as held in Aita Munyoki case authority of Elizabeth Waithegeni Atimu and Others vs. Republic (2018) eKLR. (sic)
  8. THAT I am kindly asking this Honourable Court with such powers to look (sic) the rulings of Justice Odunga on resentencing especially in sexual offences related cases in Petition No. E017 of 2021 at Machakos. 
  9. THAT the investigation conducted in this case was shoddy and scanty which would not have been to secure conviction.
  10. The Appeal was canvassed through written submissions which I have keenly read and considered.
  11. The duty of the first appellate court was explained in David Njuguna Wairimu vs. Republic [2010] eKLR, where the court of appeal stated:

“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

  1. I have considered the Record of Appeal and the parties respective submissions. I find that the main issues for determination are: -
  2. Whether the offence of defilement was proved to the required standard.
  3. Whether the sentence is legal and appropriate.
  4. Whether the offence of Defilement to the required standard.
  5. Section 8 of the Sexual Offences Act, No. 3 of 2006 (the Act) provides as follows: -

8. Defilement

(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

(2) _________

(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

  1. The Prosecution is required to prove the following ingredients in order to succeed in proving the offence of defilement: -
  2. Age of the victim
  3. Penetration
  4. Positive Identification of the perpetrator
  5. In Dominic Kibet vs. R [2013] eKLR, it was held thus:

“To prove defilement the critical elements remain to be proof of penetration, the age of the complainant and possible identification of the assailant.”

(See also Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 [2015] eKLR).

  1. On the ingredient of age PW4, the Investigating Officer produced the victim’s Certificate of Birth Serial No. (particulars withheld) as (P.Exh 4) which indicates that the victim was born on 2nd March 2006. This means that the victim was 14 years old at the time the offence was committed. It is therefore my finding that even though the Prosecution witnesses gave different testimonies on the age of the victim, there was uncontroverted and cogent evidence to prove the minority age of the victim. I am guided by the decision in Francis Omuroni vs. Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, where it was held thus:-

“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense ….”

  1. I am satisfied that the first ingredient was proved beyond reasonable doubt.
  2. The second ingredient of penetration is defined under Section 2 of the Act as follows: -

The partial or complete insertion of the genital organ of a person into the genital organs of another person.

  1. Under Section 124 of the Evidence Act penetration can be proved through the victim’s sole testimony or in other instances, the victim’s evidence may be corroborated by medical evidence. In this case, the Prosecution presented both the evidence of the victim, her grandmother PW2 and the Medical evidence from PW3 to prove penetration.
  2. The victim testified as follows: -

“ ….Erick Wekesa followed me to where I sleep. The accused asked to have sex with me. The accused slept on top of me and ‘akanifanyia’. He inserted his private parts into my private parts. Our grandmother came and found us in the bed in the act….”

  1. PW2 testified as follows: -

“….I went to check on her where she sleeps. I found her with Erick Wekesa Juma on the bed. I found them having sex. Erick was on top of Valary having sex. I took away the blanket and saw that the accused had removed his clothes. I took a nearby stick and hit the accused on the knee. The accused said that today I had found him. He asked for my forgiveness. I had a torch so I saw them very well. Valary did not have her panty on. It was on the floor….”

  1. From the above extract of the testimonies of PW1 and PW2, it is clear that the Appellant and the victim were engaged in sexual intercourse on the said night. I find that the testimony of the victim and her grandmother clear point to the act of penetration. Their evidence was further fortified by the evidence of PW3, the Clinical Officer who testified that the victim had an old broken hymen. The medical evidence supports the victim’s testimony that the Appellant had defiled her on four (4) occasions. I find that the second ingredient of penetration was also proved to the required standard.
  2. Turning to the identification of the Appellant as the perpetrator of the offence of defilement, I note that it was not controverted that the Appellant was well-known to the victim and her grandmother because he had worked for them as a herdsman for a period of over one year. I therefore find that the Appellant was positively identified as the perpetrator of the offence and that it cannot be said that he was a victim of mistaken identity.
  3. I have considered the Appellant’s defence and the claim that PW2 had confronted him over an allegation of a lost radio. I find that the said defence was not only far-fetched and irrelevant to the case, but that it amounted to mere denial that did not displace the otherwise watertight evidence that was presented by the prosecution. I find that the Appellant’s claim that he was framed up in the case because of the lost radio was an afterthought as at no point did he raise the issue of the radio during cross examination.
  4. It is therefore my finding that the Prosecution discharged its burden of proof beyond reasonable doubt and I consequently uphold the conviction by the trial court on the main charge of defilement.
  5. Whether the sentence was legal and appropriate.
  6. The offence for which the Appellant was convicted with attracts a mandatory minimum sentence of twenty years. In sentencing the Appellant, the trial court called for a Pre-Sentencing Report which informed its decision to sentence him to 15 years’ imprisonment. I note that the trial court considered the gravity of the offence, the age difference between the Appellant and victim (38 and 14 years respectively) and the Appellant’s mitigation before arriving at the said sentence.
  7. I also note that the victim fell pregnant following the defilement, which, in my considered view, was an aggravating factor that the trial court considered during sentencing. In Nelson vs. Republic [1970] E.A. 599, which followed the decision in Ogalo Son of Owuora vs. Republic (1954) 21 EACA 270, it was held as follows:-

“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established.  The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor!  To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case.  R v Shershewsity (1912) C.CA 28 T.LR 364.”

  1. Having noted that the minimum sentence for the offence of defilement under Section 8(1) as read with Section 8(3) of the Act is 20 years imprisonment, I find that the trial court did not limit itself to this mandatory minimum sentence but instead weighed all relevant factors against the law and correctly exercised its discretion in passing the sentence of 15 years imprisonment. I find no justification in interfering with the sentence.
  2. In conclusion, I find that the appeal is not merited and I therefore dismiss it.
  3. It is so ordered.


    ERICK WEKESA JUMA VS The Republic ERICK WEKESA JUMA VS The Republic