1. The Appellant EZRA KIPCHUMBA ROP 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 are that the Appellant on the 9th January,2023 at around 1440hours at Kamur Forest in Koibatek Sub- County within Baringo County intentionally and unlawfully caused his penis to penetrate the vagina of M.J a child aged 15 years.
2. The alternative charge is the offence 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 being that the Appellant on the 9th day of January,2023 at around 1440Hours at Kamur Forest in Koibatek Sub- County within Baringo intentionally and unlawfully caused his penis to come into contact with the vagina of M.J a child aged 15 years.
3. The accused denied all the charges and the matter was set down for full trial with the prosecution availing a total of 6 witnesses in support of the charges against the accused. Upon the close of the prosecution’s case, the court found the accused had a case answer and he was placed on his defence. He elected to give unsworn evidence and did not call any witness.
4. By judgment delivered on the 20th day of September, 2023, the was found guilty as charged, convicted and sentenced him to serve 20 years imprisonment.
5. Being dissatisfied and aggrieved with the conviction and the sentence of the trial court, the Appellant filed a petition of appeal on the following grounds: -
i. That the learned trial magistrate erred in law and fact by failing during the trial of this case when he failed to note that the investigation of the case was poorly done according to the trial procedure.
ii. That the learned trial magistrate erred both law and fact during the trial of this case when he failed to note that some of the witnesses including PW 1 was threatened with a knife and the knife was not produced before court to proof this allegation.
iii. That the learned trial magistrate erred in law and fact during the trial of this case when he elide on his evidence adduced by the witnesses concerning the arrest of the accused which was a mistaken identity.
iv. That the learned trial magistrate erred in law and fact when he rejected my defence without any reason.
v. That my lord, due to lack of enough experience on how to handle the case. I humbly pray this court of law to reduce the sentence imposed to me (20years) and give a lesser sentence.
vi. That my lord it is my humble prayer to this court of law and fact to consider my age during this incident and yet I know nothing about the incident.
6. The appellant prays for the total success of this appeal, the conviction be quashed, the sentence be set aside and the appellant be set at liberty.
7. The appellant sought leave of the Honourable court pursuant to section 350(iv) of the Criminal procedure Code to amend grounds of appeal with the following grounds: -
i. That the Learned Magistrate erred in law and in fact by failing to appreciate that the prosecution’s case was not proved beyond any reasonable doubt as prescribed by law.
ii. That the learned trial magistrate erred in law and in fact by relying on incredible evidence which was not corroborated.
iii. That the learned trial magistrate erred in law and in fact during the trial of this case when he elide on his evidence adduced by the witness concerning the arrest of the appellant which was mistaken identity.
8. The appeal was canvassed by way of both written and oral submissions.
SUBMISSIONS
9. The appellant submits that the legal standard of proof in criminal matters is that of beyond reasonable doubt which was meant to ensure that no one suffers in the hands of the law and the prosecution was duty bound to prove the critical ingredients that forms the offence of defilement as held in the case of Dominic Kibet Mwareg Vs. Republic [2013] eKLR.
10. The appellant submitted that pw1 failed to narrate details which would have assisted the court attest the credibility of the evidence adduced by the complainant in respect to the alleged offence and whether the evidence adduced revealed that the offence of defilement was committed and failure by the court and the prosecution to ascertain this through reexamination left the evidence adduced scanty, ambiguous and wanting in details and could not be used to convict the appellant; that other sensory details were crucial in order to ascertain the truthfulness and viability of the evidence adduced by PW 1 and relied on court of appeal decision in the case of Julius Kioko Kivuva Vs. Republic [2015]eKLR; and absence of such details and specificity in the evidence of PW 1 rendered it incredible and could not be used to secure a safe conviction.
11. Further that the evidence of PW1 although sworn lacked the element of corroboration and whereas he is alive to decision by the appellate court in the case of Johnson Muiruri Vs. Republic 1983 KLR 445 which held that a child of tender years gives sworn evidence and no corroboration is needed, he associates with the decision which in part held that the assessors must be directed that it would be unsafe to convict when there was no corroboration.
12. The appellant further submit that the prosecution’s case failed as no identification parade was done and the prosecution failed to avail crucial witnesses for example the people who alleged to have arrested the appellant and no medical examination was done to the appellant considering that the appellant was a stranger to the minor; that this is a serious case which required proper investigations.He further submitted that the medical document produced showed that the hymen was broken but it did not create a nexus between the appellant and the alleged incident.
13. That the trial court in a frail attempt to justify its findings on the penetration relied on the findings of the absence of hymen and whereas the age of the injuries was not ascertained, the court held that the broken hymen and identification was a clear indication that penetration occurred.
14. On the issue of identification, the appellant submits that the Learned trial magistrate did not consider that all the prosecution witnesses were not at the scene of the crime and the evidence was from a single identifying witness on difficult circumstance. He relies in the case of Kamau Vs. Republic (1975) EA 139.
15. That Pw1 said it was daylight but she did not describe her attacker in her first report to the police and no identification parade was conducted yet the complainant stated that the perpetrator was a stranger to her. That it is the evidence of PW3 that the fugitive crossed the farms and entered a forest and he made calls while describing the fleeing attacker but there is no number produced in court to support the allegations of PW3 that he was calling people while describing the attacker; further it is alleged that the appellant was arrested by members of public but none was availed to court to testify.
ORAL SUBMISSIONS BY STATE
16. The prosecution counsel Ms. Omari submitted orally and argued that the prosecution was required to prove 3 elements of the offence of defilement being penetration, age and identity of the perpetrator. She submitted that all the three ingredients were proved to the required standard.
17. On the issue of age, she submitted that the complainant testified as PW1 and stated that she was 15 years and a birth certificate was produced as exhibit 1. On penetration, she submitted that the complainant who testified as PW1 informed court what transpired. That at page 9 of the proceedings, she said the accused inserted his penis in her vagina and she subsequently went to hospital; and the doctor also testified as Pw4, produced treatment documents, P3 Form and confirmed in his testimony that there was penetration thus corroborating the complainant’s evidence.
18. On the issue of identification of the perpetrator, she submitted that the complainant stated that she was able to identify the person who defiled her. That it was part of her testimony that though the offence occurred in a forest, it happened during the day and there was sufficient sunlight and she was able to see the person who defiled her. She said that he had a white sweater and had dreadlocks. That she was able to identify the person who defiled her though at the time of her testimony, he did not have dreadlocks. She submitted that the complainant’s sister PW2 corroborated the complainant’s evidence by stating that the person had white sweater and dreadlocks and she identified the accused in court.
19. She further submitted that PW3 the complainant’s father who was also in the forest stated how he chased the accused and eventually led to his arrest. He corroborated the evidence of PW1 and PW2 by stating that the accused had a white sweater and dreadlocks. She submitted that the accused was arrested on the date of the incident within the forest area where the incident had taken place. That although identification parade was not done, it was not fatal to the prosecution’s case as PW 1, PW2 and PW3 identified the Appellant and the fact that the accused was arrested within the vicinity, there is no doubt that he was identified and there is no mistaken identity. That even in his defence, the accused said that he had worn a white sweater. That the accused gave unsworn evidence and did not call any witness to prove it was mistaken identity.
20. She submitted that the case was proved to the required standard and the trial court was right in convicting the Appellant.
ANALYSIS AND DETERMINATION
21. This being the first appellate court, I am required to analyze and evaluate afresh evidence adduced before the trial court. The principles governing first appellate court were set out in the case of Okeno vs. Republic [1972] EA 32 as hereunder:-
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”
22. In view of the above, I have perused and considered the evidence adduced before the trial court together with submissions filed. and find the following as issues for determination.
i. Whether ingredients of the offence of defilement were proved beyond reasonable doub.t
ii. Whether sentence imposed was harsh and excessive.
i. Whether ingredients for the offence of defilement were proved beyond reasonable doubt
23. The appellant was charged and convicted under Section 8(1) of the Sexual Offences Act which provides as follows: -
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) 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.
(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.
24. The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant (See C.W.K v Republic [2015] eKLR).
a) Proof of penetration
25. Penetration is defined under Section 2 of the Sexual Offences Act as follows:
“The partial or complete insertion of the genital organ of a person into the genital organs of another person.”
26. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.
27. The complainant testified that while walking through the forest on 9th January,2023, at around 2: 40p.m, a person armed with a knife emerged from behind and from behind on the neck. She knocked the knife off using her hand and it flew away then the person away to free herself. The person pushed her down and while down, he pulled her trouser and pant to her knees the inserted his penis into her vagina as he had already opened his belt on the trouser. She said that she tried to rise up while screaming and the person rose up and left her.
28. She stated that she woke up and went to where her sisters were. she inquired where her father was and as she went to where her father was, she saw the person who had defiled her. Her sisters called their father; the person ran along the road and her father pursued the attacker as she went back to where her sisters were. She said a cyclist arrived and she inquired whether he had seen a person wearing a white sweater and a trouser and he confirmed that he met the person moving to the opposite direction.
29. The next day at around 8:00a.m, she was taken to Eldama Ravine Sub- County Referral Hospital in company of her mother, father, step mother and aunt where she was examined on the vagina and samples of blood and urine was taken.
30. Pw 4 Dr. Timothy Auge Chesang attached to Eldama Ravine Sub- County Hospital confirmed that the complainant was taken to hospital on 10th January, 2023 on allegations of sexual assault by someone unknown to her on 9th January,2023 in a nearby forest at around 2 P.M. On examination, he found that she had normal genitalia with a tear in the perineum which was tender. That lab tests were done involving urinalysis, HIV and the result showed moderate epithelial cells. That there was no pus cells and spermatozoa seen. He formed the opinion that she was defiled and produced the P3 Form and lab test results and treatment chits in court. He said that the tears and tenderness showed there was defilement.
31. Having considered the above evidence, there is no doubt penetration was proved beyond reasonable doubt.
b) Proof of age
32. On proof of age of victim of defilement, the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows: -
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
33. The complainant testified that she was a form two student at Sacho High school and was aged 15 years. She produced in court birth certificate which showed she was born on 24th August,2007. PW 3 the father of the complainant confirmed that she was born in 2007. PW 6 No. 239232 I.P Edna Toroni, the investigations officer produced the complainant’s birth certificate in court. From the foregoing, the complainant’s age was proved beyond reasonable doubt.
c) Proof of identity
34. The complainant stated that the incident occurred during the day and she was able to see the perpetrator and even described the clothes he wore and said he had dreadlocks at the time of the incident. This was confirmed by description given by her sister pw2 and pw3.They all said he was wearing a white sweater and had dreadlocks. The complainant’s father pw3 pursued the appellant in the forest until he was arrested by members of public. The appellant was arrested within the vicinity and the incident having occurred in broad daylight and the description of the appellant by complainant having been confirmed by independent evidence, rules out mistake in identification of the appellant. From the forgoing, I find that the prosecution proved beyond reasonable doubt that it is the appellant who defiled the complainant herein.
35. From the foregoing the three ingredients for the offence of defilement were proved beyond reasonable doubt.
36. On argument that the appellant’s defence was not considered, I note from the judgment that the learned magistrate considered the accused’s defence and found that it was mere denial which did not cast any doubts on the prosecution case.
ii. Whether the sentence imposed was harsh and excessive
37. The Appellant’s other ground of appeal is that the sentence meted on him was harsh and excessive. The principles applicable in considering whether to interfere with the sentence of a trial court on appeal were enunciated in the case of Mbogo & Another vs. Shah (1968) 1 E.A. 93 thus:-
“…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”
38. The Court of Appeal in the case of Ogolla s/o Owuor vs. Republic, [1954] EACA 270, pronounced itself on this issue as follows:-
"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”
39. The other principle to be considered is whether the sentence is manifestly excessive in view of the circumstances of the case”. (R - v- Shershowsky (1912) CCA 28TLR 263) while in the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-
“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306).”
40. The Appellant argues that the sentence of 20 years imprisonment was harsh and excessive and unconstitutional in the circumstances. He was convicted for defilement contrary to section 8(1) as read with Section 8(3) of the Sexual offences Act No. 3 of 2006. Section 8(3) of the Sexual offences Act which provides as follows:-
“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’”
41. From the foregoing, the trial court imposed the minimum sentence provided by statute. As provided by the sexual offences Act, the younger the child defiled, the higher the sentence. The intention of the legislature was to protect the children who are vulnerable from beastly acts of predators who take advantage of their vulnerability. Depending on the age and the manner in which the offence was committed, the trial court has discretion to either impose the minimum sentence or a sentence higher than the minimum. In this case, the sentence imposed was the minimum. From evidence adduced, the appellant who was armed with a knife accosted the complainant and forcefully fell her down, pushed her trouser and pant to the knee and forcefully defiled her. The manner in which he committed the offence in my view deserved a higher sentence than the minimum but the trial court was lenient enough to impose the minimum sentence. In view of the above, I find that the sentence imposed by the trial court was not harsh and excessive in the circumstances and I will not interfere.From the foregoing, I see no merit in the appeal herein and hereby dismiss in its entirety.
43. FINAL ORDERS: -
Appeal on both conviction and sentence is hereby dismissed.
In the presence of:
- Ms. Omari for state
- Appellant present
- Court Assistant – Karanja
2. The alternative charge is the offence 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 being that the Appellant on the 9th day of January,2023 at around 1440Hours at Kamur Forest in Koibatek Sub- County within Baringo intentionally and unlawfully caused his penis to come into contact with the vagina of M.J a child aged 15 years.
3. The accused denied all the charges and the matter was set down for full trial with the prosecution availing a total of 6 witnesses in support of the charges against the accused. Upon the close of the prosecution’s case, the court found the accused had a case answer and he was placed on his defence. He elected to give unsworn evidence and did not call any witness.
4. By judgment delivered on the 20th day of September, 2023, the was found guilty as charged, convicted and sentenced him to serve 20 years imprisonment.
5. Being dissatisfied and aggrieved with the conviction and the sentence of the trial court, the Appellant filed a petition of appeal on the following grounds: -
i. That the learned trial magistrate erred in law and fact by failing during the trial of this case when he failed to note that the investigation of the case was poorly done according to the trial procedure.
ii. That the learned trial magistrate erred both law and fact during the trial of this case when he failed to note that some of the witnesses including PW 1 was threatened with a knife and the knife was not produced before court to proof this allegation.
iii. That the learned trial magistrate erred in law and fact during the trial of this case when he elide on his evidence adduced by the witnesses concerning the arrest of the accused which was a mistaken identity.
iv. That the learned trial magistrate erred in law and fact when he rejected my defence without any reason.
v. That my lord, due to lack of enough experience on how to handle the case. I humbly pray this court of law to reduce the sentence imposed to me (20years) and give a lesser sentence.
vi. That my lord it is my humble prayer to this court of law and fact to consider my age during this incident and yet I know nothing about the incident.
6. The appellant prays for the total success of this appeal, the conviction be quashed, the sentence be set aside and the appellant be set at liberty.
7. The appellant sought leave of the Honourable court pursuant to section 350(iv) of the Criminal procedure Code to amend grounds of appeal with the following grounds: -
i. That the Learned Magistrate erred in law and in fact by failing to appreciate that the prosecution’s case was not proved beyond any reasonable doubt as prescribed by law.
ii. That the learned trial magistrate erred in law and in fact by relying on incredible evidence which was not corroborated.
iii. That the learned trial magistrate erred in law and in fact during the trial of this case when he elide on his evidence adduced by the witness concerning the arrest of the appellant which was mistaken identity.
8. The appeal was canvassed by way of both written and oral submissions.
SUBMISSIONS
9. The appellant submits that the legal standard of proof in criminal matters is that of beyond reasonable doubt which was meant to ensure that no one suffers in the hands of the law and the prosecution was duty bound to prove the critical ingredients that forms the offence of defilement as held in the case of Dominic Kibet Mwareg Vs. Republic [2013] eKLR.
10. The appellant submitted that pw1 failed to narrate details which would have assisted the court attest the credibility of the evidence adduced by the complainant in respect to the alleged offence and whether the evidence adduced revealed that the offence of defilement was committed and failure by the court and the prosecution to ascertain this through reexamination left the evidence adduced scanty, ambiguous and wanting in details and could not be used to convict the appellant; that other sensory details were crucial in order to ascertain the truthfulness and viability of the evidence adduced by PW 1 and relied on court of appeal decision in the case of Julius Kioko Kivuva Vs. Republic [2015]eKLR; and absence of such details and specificity in the evidence of PW 1 rendered it incredible and could not be used to secure a safe conviction.
11. Further that the evidence of PW1 although sworn lacked the element of corroboration and whereas he is alive to decision by the appellate court in the case of Johnson Muiruri Vs. Republic 1983 KLR 445 which held that a child of tender years gives sworn evidence and no corroboration is needed, he associates with the decision which in part held that the assessors must be directed that it would be unsafe to convict when there was no corroboration.
12. The appellant further submit that the prosecution’s case failed as no identification parade was done and the prosecution failed to avail crucial witnesses for example the people who alleged to have arrested the appellant and no medical examination was done to the appellant considering that the appellant was a stranger to the minor; that this is a serious case which required proper investigations.He further submitted that the medical document produced showed that the hymen was broken but it did not create a nexus between the appellant and the alleged incident.
13. That the trial court in a frail attempt to justify its findings on the penetration relied on the findings of the absence of hymen and whereas the age of the injuries was not ascertained, the court held that the broken hymen and identification was a clear indication that penetration occurred.
14. On the issue of identification, the appellant submits that the Learned trial magistrate did not consider that all the prosecution witnesses were not at the scene of the crime and the evidence was from a single identifying witness on difficult circumstance. He relies in the case of Kamau Vs. Republic (1975) EA 139.
15. That Pw1 said it was daylight but she did not describe her attacker in her first report to the police and no identification parade was conducted yet the complainant stated that the perpetrator was a stranger to her. That it is the evidence of PW3 that the fugitive crossed the farms and entered a forest and he made calls while describing the fleeing attacker but there is no number produced in court to support the allegations of PW3 that he was calling people while describing the attacker; further it is alleged that the appellant was arrested by members of public but none was availed to court to testify.
ORAL SUBMISSIONS BY STATE
16. The prosecution counsel Ms. Omari submitted orally and argued that the prosecution was required to prove 3 elements of the offence of defilement being penetration, age and identity of the perpetrator. She submitted that all the three ingredients were proved to the required standard.
17. On the issue of age, she submitted that the complainant testified as PW1 and stated that she was 15 years and a birth certificate was produced as exhibit 1. On penetration, she submitted that the complainant who testified as PW1 informed court what transpired. That at page 9 of the proceedings, she said the accused inserted his penis in her vagina and she subsequently went to hospital; and the doctor also testified as Pw4, produced treatment documents, P3 Form and confirmed in his testimony that there was penetration thus corroborating the complainant’s evidence.
18. On the issue of identification of the perpetrator, she submitted that the complainant stated that she was able to identify the person who defiled her. That it was part of her testimony that though the offence occurred in a forest, it happened during the day and there was sufficient sunlight and she was able to see the person who defiled her. She said that he had a white sweater and had dreadlocks. That she was able to identify the person who defiled her though at the time of her testimony, he did not have dreadlocks. She submitted that the complainant’s sister PW2 corroborated the complainant’s evidence by stating that the person had white sweater and dreadlocks and she identified the accused in court.
19. She further submitted that PW3 the complainant’s father who was also in the forest stated how he chased the accused and eventually led to his arrest. He corroborated the evidence of PW1 and PW2 by stating that the accused had a white sweater and dreadlocks. She submitted that the accused was arrested on the date of the incident within the forest area where the incident had taken place. That although identification parade was not done, it was not fatal to the prosecution’s case as PW 1, PW2 and PW3 identified the Appellant and the fact that the accused was arrested within the vicinity, there is no doubt that he was identified and there is no mistaken identity. That even in his defence, the accused said that he had worn a white sweater. That the accused gave unsworn evidence and did not call any witness to prove it was mistaken identity.
20. She submitted that the case was proved to the required standard and the trial court was right in convicting the Appellant.
ANALYSIS AND DETERMINATION
21. This being the first appellate court, I am required to analyze and evaluate afresh evidence adduced before the trial court. The principles governing first appellate court were set out in the case of Okeno vs. Republic [1972] EA 32 as hereunder:-
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”
22. In view of the above, I have perused and considered the evidence adduced before the trial court together with submissions filed. and find the following as issues for determination.
i. Whether ingredients of the offence of defilement were proved beyond reasonable doub.t
ii. Whether sentence imposed was harsh and excessive.
i. Whether ingredients for the offence of defilement were proved beyond reasonable doubt
23. The appellant was charged and convicted under Section 8(1) of the Sexual Offences Act which provides as follows: -
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) 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.
(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.
24. The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant (See C.W.K v Republic [2015] eKLR).
a) Proof of penetration
25. Penetration is defined under Section 2 of the Sexual Offences Act as follows:
“The partial or complete insertion of the genital organ of a person into the genital organs of another person.”
26. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.
27. The complainant testified that while walking through the forest on 9th January,2023, at around 2: 40p.m, a person armed with a knife emerged from behind and from behind on the neck. She knocked the knife off using her hand and it flew away then the person away to free herself. The person pushed her down and while down, he pulled her trouser and pant to her knees the inserted his penis into her vagina as he had already opened his belt on the trouser. She said that she tried to rise up while screaming and the person rose up and left her.
28. She stated that she woke up and went to where her sisters were. she inquired where her father was and as she went to where her father was, she saw the person who had defiled her. Her sisters called their father; the person ran along the road and her father pursued the attacker as she went back to where her sisters were. She said a cyclist arrived and she inquired whether he had seen a person wearing a white sweater and a trouser and he confirmed that he met the person moving to the opposite direction.
29. The next day at around 8:00a.m, she was taken to Eldama Ravine Sub- County Referral Hospital in company of her mother, father, step mother and aunt where she was examined on the vagina and samples of blood and urine was taken.
30. Pw 4 Dr. Timothy Auge Chesang attached to Eldama Ravine Sub- County Hospital confirmed that the complainant was taken to hospital on 10th January, 2023 on allegations of sexual assault by someone unknown to her on 9th January,2023 in a nearby forest at around 2 P.M. On examination, he found that she had normal genitalia with a tear in the perineum which was tender. That lab tests were done involving urinalysis, HIV and the result showed moderate epithelial cells. That there was no pus cells and spermatozoa seen. He formed the opinion that she was defiled and produced the P3 Form and lab test results and treatment chits in court. He said that the tears and tenderness showed there was defilement.
31. Having considered the above evidence, there is no doubt penetration was proved beyond reasonable doubt.
b) Proof of age
32. On proof of age of victim of defilement, the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows: -
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
33. The complainant testified that she was a form two student at Sacho High school and was aged 15 years. She produced in court birth certificate which showed she was born on 24th August,2007. PW 3 the father of the complainant confirmed that she was born in 2007. PW 6 No. 239232 I.P Edna Toroni, the investigations officer produced the complainant’s birth certificate in court. From the foregoing, the complainant’s age was proved beyond reasonable doubt.
c) Proof of identity
34. The complainant stated that the incident occurred during the day and she was able to see the perpetrator and even described the clothes he wore and said he had dreadlocks at the time of the incident. This was confirmed by description given by her sister pw2 and pw3.They all said he was wearing a white sweater and had dreadlocks. The complainant’s father pw3 pursued the appellant in the forest until he was arrested by members of public. The appellant was arrested within the vicinity and the incident having occurred in broad daylight and the description of the appellant by complainant having been confirmed by independent evidence, rules out mistake in identification of the appellant. From the forgoing, I find that the prosecution proved beyond reasonable doubt that it is the appellant who defiled the complainant herein.
35. From the foregoing the three ingredients for the offence of defilement were proved beyond reasonable doubt.
36. On argument that the appellant’s defence was not considered, I note from the judgment that the learned magistrate considered the accused’s defence and found that it was mere denial which did not cast any doubts on the prosecution case.
ii. Whether the sentence imposed was harsh and excessive
37. The Appellant’s other ground of appeal is that the sentence meted on him was harsh and excessive. The principles applicable in considering whether to interfere with the sentence of a trial court on appeal were enunciated in the case of Mbogo & Another vs. Shah (1968) 1 E.A. 93 thus:-
“…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”
38. The Court of Appeal in the case of Ogolla s/o Owuor vs. Republic, [1954] EACA 270, pronounced itself on this issue as follows:-
"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”
39. The other principle to be considered is whether the sentence is manifestly excessive in view of the circumstances of the case”. (R - v- Shershowsky (1912) CCA 28TLR 263) while in the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-
“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306).”
40. The Appellant argues that the sentence of 20 years imprisonment was harsh and excessive and unconstitutional in the circumstances. He was convicted for defilement contrary to section 8(1) as read with Section 8(3) of the Sexual offences Act No. 3 of 2006. Section 8(3) of the Sexual offences Act which provides as follows:-
“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’”
41. From the foregoing, the trial court imposed the minimum sentence provided by statute. As provided by the sexual offences Act, the younger the child defiled, the higher the sentence. The intention of the legislature was to protect the children who are vulnerable from beastly acts of predators who take advantage of their vulnerability. Depending on the age and the manner in which the offence was committed, the trial court has discretion to either impose the minimum sentence or a sentence higher than the minimum. In this case, the sentence imposed was the minimum. From evidence adduced, the appellant who was armed with a knife accosted the complainant and forcefully fell her down, pushed her trouser and pant to the knee and forcefully defiled her. The manner in which he committed the offence in my view deserved a higher sentence than the minimum but the trial court was lenient enough to impose the minimum sentence. In view of the above, I find that the sentence imposed by the trial court was not harsh and excessive in the circumstances and I will not interfere.From the foregoing, I see no merit in the appeal herein and hereby dismiss in its entirety.
43. FINAL ORDERS: -
Appeal on both conviction and sentence is hereby dismissed.
In the presence of:
- Ms. Omari for state
- Appellant present
- Court Assistant – Karanja