- The appellant FRANCIS KIREMA was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act of 2006. Particulars of the offence are that on the 16th November 2021 at Bemzungu area in Jomvu sub-county within Mombasa, intentionally and unlawfully caused his penis to penetrate the vagina of A.N.N ,a child aged 10 years old.
- The appellant also faced the alternative charge of Committing an Indecent Act with the same child A.N.N on the same date and at the same place contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006.
- The appellant pleaded not guilty to both the main and the alternative charge and the matter proceeded for hearing.
- The trial magistrate, Hon. M. MUTUKU after hearing 5 prosecution witnesses and the testimony of the appellant, found that the prosecution had proved their case against the appellant beyond reasonable doubt and proceeded to convict and sentence the appellant to life imprisonment.
- Dissatisfied by the said judgment, conviction and sentence, the appellant filed his petition of appeal based on the following grounds of appeal:
a. That the Learned magistrate erred in both law and fact by convicting the appellant yet failed to find that the appellant’s identification was not positive.
b. That the learned magistrate erred in both law and fact by convicting the appellant yet failed to find that penetration of the victim’s genitalia was not proved.
c. That the learned trial magistrate also erred in both law and fact by convicting the appellant yet failed to appreciate that the prosecution’s case was full of inconsistencies.
d. That the sentence imposed was not only harsh and excessive since it was applied in mandatory terms as stipulated by the statute but was also declared unconstitutional by the court of appeal in Julius Kitsao vs Republic, criminal appeal no.12 of 2021 at Malindi and Ayako vs Republic (criminal appeal no. 22 of 2018 (2023) KECA 1563 (Eklr) (8 December 20230 judgment at Kisumu.
- The appeal was canvassed by way of written submissions.
I have considered and analyzed the evidence which was tendered in the trial court by both the appellant and the prosecution, the grounds of appeal and the written submissions by the parties herein and I find that the issue for determination is whether the prosecution proved its case beyond any reasonable doubt.
The burden of proof rests on the prosecution to establish every element in a criminal charge beyond any reasonable doubt. See section 107(1) of the Evidence Act, [See Miller v Minister of Pensions 2 All ER 372 – 373].
.In the case of George Opondo Olunga v Republic [2016] eKLR, it was stated that the ingredients of an offence of defilement are;
1.Identification or recognition of the offender
2.Penetration
3.Age of victim
.For the offence of defilement to be proved, the prosecution must prove each of the above ingredients beyond reasonable doubt. [See the case of John Mutua Munyoki v Republic [2017] eKLR.
In reference to the identification of the appellant as being the person who perpetrated the offence, it is trite that in sexual offences, the positive identification of the victim is what connects them to the offence. It is therefore extremely important that any evidence on identification must be thoroughly and carefully scrutinized to avoid any miscarriage of justice. In the case of Kariuki Njiru & 7 others v Republic, Criminal Appeal No 6 of 2001 (Unreported) the court held as follows:“Law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”
Further to the above, it is well settled law that recognition may be more reliable than identification of a stranger. However caution must always be taken where a witness is purporting to recognize someone that they know since even in such cases, mistakes may sometimes be made. [See R v Turnbull & others [1976] 3 All ER 549].
In this case, the appellant known and familiar with the complainant. In her testimony, she testified that the person who had defiled her was present in court and she had met him about 5 times. It was her testimony that the appellant had defiled her on multiple occasions and she could not have been wrong given that she not only saw but interacted with the appellant and got to know through her friend that he also went by the name “pastor”.
On whether the prosecution proved its case beyond any reasonable doubt, and whether penetration was proved, section 2 of the Sexual Offences Act define penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another. It is trite that the key evidence relied on by the courts in rape and/ or defilement cases in order to prove penetration is the complainant’s own testimony which is usually corroborated by the medical report presented by the medical officer. In this case, the complainant testified that she had sexual intercourse with the accused on several occasions.
PW2, a clinician also gave evidence in regard to the complainant having been sexually abused and prepared the PRC form which was produced together with the P3 form.
.Conviction on the evidence of a single witness has been subject of appeals for a long time but now it is settled that the oral evidence of a single witness is indeed sufficient to warrant a conviction. Further, the trial court that saw the complainant testify was satisfied that the complainant spoke the truth. [See Sahali Omar v Republic [2017] eKLR; Kassim ali v Republic [2006] eKLR; also Section 124 of the Evidence Act].
In reference to age, the importance of proving age in a sexual offence case cannot be gainsaid. In the case of Kaingu Kasomo v Republic, Criminal Appeal No 504 of 2010, the Court of Appeal stated as follows:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
In the present case, it is not in dispute that the victim was a minor aged between 10 years at the time of the occurrence of the alleged offence. Her age was therefore adequately proven.
The appellant also contended that the prosecution’s evidence was contradictory and inconclusive. It is trite that not every contradiction warrants rejection of evidence. In reference to the case herein, having perused the record, I am unable to agree with the appellant that the evidence adduced by the prosecution was contradictory and inconclusive as alleged by the appellant.
From the above analysis I find that the APPEAL on the conviction fails and the finding of the trial court is upheld
The appellant further submitted that the mandatory nature of the sentence provided for by Section 8(2) of the Sexual offences Act was unconstitutional. This issue has now been settled by our Apex court in the Joshua Gichuki case . The issue of what a life sentence means is still unsettled.
Having taken all factors into account, I set aside the life sentence and substitute the same with a prison term of twenty years .semtence to start running from when he was first arraigned in court.
DATED SIGNED AND DELIVERED THIS 14TH DAY OF MARCH 2025
LADY JUSTICE WENDY KAGENDO
IN THE PRESENCE OF
THE APPELLANT
MS CHEROP FOR THE STATE
BEBORA COURT ASSISTANT