(Being an appeal against the conviction and sentence delivered on the 15th day of August 2022 in the Machakos
Magistrate’s Court Sexual Offence No. 27 of 2017 by Hon. E.H Keago, Chief Magistrate)
JUDGMENT
1. The Appellant was charged with the offence of Defilement of an imbecile contrary to Section 146 of the Penal Code. The particulars of the charge were that on the 5th day of November, 2017 at around 1200hours at Mwania Mbiti village, Ngoleni sub location, Kathiani Sub County within Machakos County, the Appellant, intentionally and unlawfully caused his penis to penetrate the vagina of S.M. a child aged 14 years who to your knowledge was intellectually incapacitated.
2.In the alternative, he was charged with the offence of committing an indecent act with an adult contrary to Section 11 (A) of the Sexual Offences Act, No. 3 of 2006, the particulars of which were that on the same date and place he intentionally and unlawfully touched the vagina of S.M., a child aged 14 years with his penis.
3.At the trial, four (4) witnesses testified against the Appellant who on 26th November, 2021, was found to have a case to answer. He elected to give unsworn evidence and called one witness. After evaluating the evidence, the learned magistrate found the Appellant guilty on the main charge and sentenced him to a term of imprisonment for fifteen (15) years.
4.Being aggrieved by the entire judgement, conviction and sentence, the Appellant has preferred this appeal on grounds that;
a. The learned Trial Magistrate erred in both fact and law by convicting him on evidence that did not meet the minimum threshold upon conviction;
b. The learned Trial Magistrate erred in law by not considering his sworn defence.
5.The parties to the appeal consented to canvass it by way of written submissions. On his part, the Appellant relied on submissions dated 6th March, 2025 in which he submitted that the victim’s mother’s (PW2) evidence was hearsay and that her testimony was meant to fix him; that the ingredients of the offence were not proved; that he did not know that the complainant was an intellectually incapacitated person and that he was not taken for finger print dusting to prove that he gave the victim the Kshs.50 as alleged. He further submitted that evidence of identification was faulty and there was a possibility of another defilement, because according to the girl’s mother (PW2) she had been defiled before and had in fact given birth. He also contended that there were major contradictions in the evidence of the prosecution witnesses. To support his submissions, the Appellant relied on the cases of Juma Ngodia vs Republic (1982-88) KAR 454, Tokore vs Republic CA, Criminal Appeal No. 204 of 1987, John Mutua Munyoki vs Republic [2017] eKLR, Kinyathi Vs Republic [1984] eKLR.
6. While relying on the case of Samuel Githua Ngari & Another Vs Republic Criminal Appeal No. 34 of 2012 Abdalla Hassan Hiyesa Vs Republic [2015] 2 eKLR, Sekitoko vs Uganda (1967) EA 53, the Appellant further submitted that the proceedings were conducted in a language he did not understand contrary to Article 50 (2) (m) of the Constitution. Further, that the court dismissed his defense although it was plausible.
Analysis and Determination
7.As the first appellate court, I have carefully considered and evaluated the evidence adduced in the trial court so as to arrive at my own independent conclusion, albeit keeping in mind that unlike that court I did not see or hear the witnesses. I have also considered the submissions on record, the cases cited and the law.
8.The offence of Defilement of an imbecile is provided for under Section 146 of the Penal Code which states: -
“Any person who, knowing a person to be a person suffering from mental illness, has or attempts to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was a person suffering from mental illness, is guilty of a felony and is liable to imprisonment with hard labour for fourteen years.”
9.The elements of this offence are: -
a. The victim suffers from mental illness.
b. There was unlawful carnal connection with the victim.
c. Knowledge that the victim suffers from mental illness.
d. Identification of the accused as the perpetrator.
10.On the first issue of whether the victim has mental illness, this was proved through the evidence of her father (PW1), her mother (PW2), the doctor who examined her (PW3) and also the Investigating Officer (PW4) who all testified that the victim was intellectually challenged. Their evidence was corroborated by the mental assessment report dated 7th November, 2019 and the court below and this court are also satisfied of that fact from the manner of her conduct when she was asked to give evidence. She was incapable of answering the questions put to her. The issue was hence proved beyond reasonable doubt.
11. The second issue is that of carnal connection with the victim. Carnal knowledge was defined as follows in the case of EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) [2019] KEHC 11288 (KLR): -
“270. According to the Black’s Law Dictionary, 4th Edition ‘carnal’ means of the body; relating to the body; fleshly; sexual. ‘Carnal knowledge’ is defined as the act of a man in having sexual bodily connection with a woman. Carnal knowledge and sexual intercourse hold equivalent expressions. In Noble v State 22 Ohio St. 541 it was held that from very early times, in the law, as in common speech, the meaning of the words ‘carnal knowledge’ of a woman by a man has been sexual bodily connections; and these words, without more, have been used in that sense by writer of the highest authority in criminal law, when undertaking to give a full and precise definition of the crime of rape, the highest crime of this character, Com. v Squires, 97 Mass. 61.”
12.For this court to confirm that there was unlawful carnal connection with the accused person, it will have to interrogate the evidence adduced by the prosecution. The victim was herself unable to give evidence but from the evidence of her father (PW1) and mother (PW2), the victim was undressed and defiled on 5th November, 2017. This is what she told her parents immediately she returned home on that day. The medical evidence and the P3 form produced by the doctor (PW3) was that the victim was examined at Kathiani Sub-County hospital on 5th November 2017; that her underpants were stained with dry blood and that an HVS test was conducted and it showed the presence of blood. She was also found to be suffering from intellectual incapacity. I am satisfied that the evidence as a whole proved beyond reasonable doubt that there was carnal connection with the victim.
13.On the issue of identification of the Appellant, PW1 and PW2 stated that their daughter told them that one Kalungu defiled her and gave her Kshs 50. The victim is said to have been waylaid on the way to the Appellant’s house where she had gone to fetch firewood which according to PW2 was 200 metres from their house. According to PW2, the Appellant was the only person known as Kalungu in that area a fact which was not denied by the Appellant. The evidence of PW2 was not hearsay. This was evidence told to her by the victim who was her daughter. The fact that the money was not dusted for finger prints is not in my considered view fatal to the prosecution’s case given that money is handled by many people. As to the possibility of there having been another culprit in view of the evidence that the victim gave birth, it is worth noting that the victim’s mother (PW2), was testifying almost two years after the occurrence and that her evidence was that she did not know if the Appellant was the person responsible for that pregnancy. She did not state that her daughter had been defiled by someone else. I am therefore satisfied that the identification of the Appellant as the perpetrator of the offence was also proved beyond reasonable doubt.
14.As to whether the Appellant had knowledge that the victim was suffering from an intellectual disability, that is obvious as they were from the same village. From the way she conducted herself in court anyone could tell that she was not of good health mentally. That element was also therefore proved beyond reasonable doubt.
15.As to his submission that he did not understand the language of the court, nothing can be further from the truth. The language used was English and Kiswahili which are both official languages of the court. Moreover, from the cross examination he conducted he understood the language well. It is also the language which he used during this appeal.
16.Regarding the invocation of Section 124 of the Evidence Act, the same applies if the only evidence is that of the victim. In this case there was evidence from other witnesses to corroborate the victim’s report of defilement. I do not therefore find any error in the judgment of the learned magistrate. The appeal has no merit and in the premises it is dismissed in its entirety.
Right of appeal to the Court of Appeal is explained.
Dated, signed and delivered virtually on this 31st day of July 2025.
…………………………..….
E. N. MAINA
JUDGE
In the presence of: -
Miss Nyauncho for the State
The Appellantappearing in person virtually from Machakos Main Prison
Court Assistant/Interpreter - Miriam
Magistrate’s Court Sexual Offence No. 27 of 2017 by Hon. E.H Keago, Chief Magistrate)
JUDGMENT
1. The Appellant was charged with the offence of Defilement of an imbecile contrary to Section 146 of the Penal Code. The particulars of the charge were that on the 5th day of November, 2017 at around 1200hours at Mwania Mbiti village, Ngoleni sub location, Kathiani Sub County within Machakos County, the Appellant, intentionally and unlawfully caused his penis to penetrate the vagina of S.M. a child aged 14 years who to your knowledge was intellectually incapacitated.
2.In the alternative, he was charged with the offence of committing an indecent act with an adult contrary to Section 11 (A) of the Sexual Offences Act, No. 3 of 2006, the particulars of which were that on the same date and place he intentionally and unlawfully touched the vagina of S.M., a child aged 14 years with his penis.
3.At the trial, four (4) witnesses testified against the Appellant who on 26th November, 2021, was found to have a case to answer. He elected to give unsworn evidence and called one witness. After evaluating the evidence, the learned magistrate found the Appellant guilty on the main charge and sentenced him to a term of imprisonment for fifteen (15) years.
4.Being aggrieved by the entire judgement, conviction and sentence, the Appellant has preferred this appeal on grounds that;
a. The learned Trial Magistrate erred in both fact and law by convicting him on evidence that did not meet the minimum threshold upon conviction;
b. The learned Trial Magistrate erred in law by not considering his sworn defence.
5.The parties to the appeal consented to canvass it by way of written submissions. On his part, the Appellant relied on submissions dated 6th March, 2025 in which he submitted that the victim’s mother’s (PW2) evidence was hearsay and that her testimony was meant to fix him; that the ingredients of the offence were not proved; that he did not know that the complainant was an intellectually incapacitated person and that he was not taken for finger print dusting to prove that he gave the victim the Kshs.50 as alleged. He further submitted that evidence of identification was faulty and there was a possibility of another defilement, because according to the girl’s mother (PW2) she had been defiled before and had in fact given birth. He also contended that there were major contradictions in the evidence of the prosecution witnesses. To support his submissions, the Appellant relied on the cases of Juma Ngodia vs Republic (1982-88) KAR 454, Tokore vs Republic CA, Criminal Appeal No. 204 of 1987, John Mutua Munyoki vs Republic [2017] eKLR, Kinyathi Vs Republic [1984] eKLR.
6. While relying on the case of Samuel Githua Ngari & Another Vs Republic Criminal Appeal No. 34 of 2012 Abdalla Hassan Hiyesa Vs Republic [2015] 2 eKLR, Sekitoko vs Uganda (1967) EA 53, the Appellant further submitted that the proceedings were conducted in a language he did not understand contrary to Article 50 (2) (m) of the Constitution. Further, that the court dismissed his defense although it was plausible.
Analysis and Determination
7.As the first appellate court, I have carefully considered and evaluated the evidence adduced in the trial court so as to arrive at my own independent conclusion, albeit keeping in mind that unlike that court I did not see or hear the witnesses. I have also considered the submissions on record, the cases cited and the law.
8.The offence of Defilement of an imbecile is provided for under Section 146 of the Penal Code which states: -
“Any person who, knowing a person to be a person suffering from mental illness, has or attempts to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was a person suffering from mental illness, is guilty of a felony and is liable to imprisonment with hard labour for fourteen years.”
9.The elements of this offence are: -
a. The victim suffers from mental illness.
b. There was unlawful carnal connection with the victim.
c. Knowledge that the victim suffers from mental illness.
d. Identification of the accused as the perpetrator.
10.On the first issue of whether the victim has mental illness, this was proved through the evidence of her father (PW1), her mother (PW2), the doctor who examined her (PW3) and also the Investigating Officer (PW4) who all testified that the victim was intellectually challenged. Their evidence was corroborated by the mental assessment report dated 7th November, 2019 and the court below and this court are also satisfied of that fact from the manner of her conduct when she was asked to give evidence. She was incapable of answering the questions put to her. The issue was hence proved beyond reasonable doubt.
11. The second issue is that of carnal connection with the victim. Carnal knowledge was defined as follows in the case of EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) [2019] KEHC 11288 (KLR): -
“270. According to the Black’s Law Dictionary, 4th Edition ‘carnal’ means of the body; relating to the body; fleshly; sexual. ‘Carnal knowledge’ is defined as the act of a man in having sexual bodily connection with a woman. Carnal knowledge and sexual intercourse hold equivalent expressions. In Noble v State 22 Ohio St. 541 it was held that from very early times, in the law, as in common speech, the meaning of the words ‘carnal knowledge’ of a woman by a man has been sexual bodily connections; and these words, without more, have been used in that sense by writer of the highest authority in criminal law, when undertaking to give a full and precise definition of the crime of rape, the highest crime of this character, Com. v Squires, 97 Mass. 61.”
12.For this court to confirm that there was unlawful carnal connection with the accused person, it will have to interrogate the evidence adduced by the prosecution. The victim was herself unable to give evidence but from the evidence of her father (PW1) and mother (PW2), the victim was undressed and defiled on 5th November, 2017. This is what she told her parents immediately she returned home on that day. The medical evidence and the P3 form produced by the doctor (PW3) was that the victim was examined at Kathiani Sub-County hospital on 5th November 2017; that her underpants were stained with dry blood and that an HVS test was conducted and it showed the presence of blood. She was also found to be suffering from intellectual incapacity. I am satisfied that the evidence as a whole proved beyond reasonable doubt that there was carnal connection with the victim.
13.On the issue of identification of the Appellant, PW1 and PW2 stated that their daughter told them that one Kalungu defiled her and gave her Kshs 50. The victim is said to have been waylaid on the way to the Appellant’s house where she had gone to fetch firewood which according to PW2 was 200 metres from their house. According to PW2, the Appellant was the only person known as Kalungu in that area a fact which was not denied by the Appellant. The evidence of PW2 was not hearsay. This was evidence told to her by the victim who was her daughter. The fact that the money was not dusted for finger prints is not in my considered view fatal to the prosecution’s case given that money is handled by many people. As to the possibility of there having been another culprit in view of the evidence that the victim gave birth, it is worth noting that the victim’s mother (PW2), was testifying almost two years after the occurrence and that her evidence was that she did not know if the Appellant was the person responsible for that pregnancy. She did not state that her daughter had been defiled by someone else. I am therefore satisfied that the identification of the Appellant as the perpetrator of the offence was also proved beyond reasonable doubt.
14.As to whether the Appellant had knowledge that the victim was suffering from an intellectual disability, that is obvious as they were from the same village. From the way she conducted herself in court anyone could tell that she was not of good health mentally. That element was also therefore proved beyond reasonable doubt.
15.As to his submission that he did not understand the language of the court, nothing can be further from the truth. The language used was English and Kiswahili which are both official languages of the court. Moreover, from the cross examination he conducted he understood the language well. It is also the language which he used during this appeal.
16.Regarding the invocation of Section 124 of the Evidence Act, the same applies if the only evidence is that of the victim. In this case there was evidence from other witnesses to corroborate the victim’s report of defilement. I do not therefore find any error in the judgment of the learned magistrate. The appeal has no merit and in the premises it is dismissed in its entirety.
Right of appeal to the Court of Appeal is explained.
Dated, signed and delivered virtually on this 31st day of July 2025.
…………………………..….
E. N. MAINA
JUDGE
In the presence of: -
Miss Nyauncho for the State
The Appellantappearing in person virtually from Machakos Main Prison
Court Assistant/Interpreter - Miriam