(Being an Appeal against conviction and sentence in Mombasa Chief Magistrates Courts S.O No. E051 OF 2021 delivered on 18/11/2021 by Hon. R. AMWAYI (SRM).
The appellant 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 offence are that on diverse dates between 21 st March, 2021 and 30 th March, 2021 at Mwanaziya area in Likoni Sub-County within Mombasa County, unlawfully and intentionally caused his penis to penetrate the vagina of L.K.H a child aged 12 years.
He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006 , which particulars of the offence are that on diverse dates between 21 st March, 2021 and 30 th March, 2021 at Mwanaziya area in Likoni Sub-County within Mombasa County, unlawfully and intentionally touched the vagina of L.K.H a child aged 12 years with his penis.
The appellant was after full trial found guilty of the main count upon which the alternative count was deemed spent and thereby sentenced to thirty (30) years imprisonment.
The appellant being aggrieved by the conviction and sentence, he preferred the present appeal on grounds that the learned trial magistrate erred in law and fact by failing to appreciate that the ingredients of offence were not proven against the appellant beyond reasonable doubt. That, the conviction was based on a single witness testimony void corroborating evidence. Further, the trial magistrate failed to consider the time he spent in remand.
As at the time of making this decision, neither of the parties had complied by filing of submissions on record.
Determination
It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Whether the prosecution established its case against the defendant beyond reasonable doubt?
The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator . These ingredients are provided for under section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue. (See George Opondo Olunga vs. Republic [2016] eKLR .)
Section 8(1) of the Sexual Offences Act provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(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.
…
(5) It is a defence to a charge under this section if –
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
The first element is age . The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... 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.” (emphasis added).
The prosecution produced the complainant’s birth certificate entry no. 0891720184 as conclusive proof that she was born on 21/10/2008. Further, PW2, the complainant’s mother and PW4, the Investigating Officer, both testified in corroboration of the complainant’s age, establishing that the complainant was around 12 years during the time of the incidence.
The second issue is whether the prosecution established proof of penetration of the complainant , beyond reasonable doubt. Penetration is proved through the evidence of the victim corroborated by medical evidence. Nevertheless, what this court requires is proof of facts that the offence was committed, the medical evidence, notwithstanding. The provisions of Section 124 of the Evidence Act, informative to the end that a conviction can rest squarely on the sole testimony of the victim. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
Section 124 of the Evidence Act, Cap 80 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
According to the appellant the prosecution failed in its undertaking to prove its case beyond reasonable doubt. He argued that the testimony of the complainant was not corroborated.
PW1 in her testimony gave a cogent and vivid account of how on 21/3/2021 she fled from home following family disagreements and went to live with the appellant. She narrated that on the said day they had sexual intercourse where he penetrated his penis in her vagina. (sic). She continued to live with him for a further four (4) days, after which she went back home after being sought by her mother.
This notwithstanding, I note that the history PW1 gave during her medical examination was that she had fled home and went to cohabit with appellant as his wife, where thy severally engaged in sexual intercourse, which suggests an ongoing sexual relationship. Consensual or not, the complainant was 12 years old, a minor. Needless to add, nowhere in his defence did the appellant plead that the minor presented herself as an adult.
PW1’s testimony was corroborated with the PRC Form (Exh4) and its equal the P3 Form (Exh3) as presented by one Stephen Kalei, a Reproductive Health Specialist; PW5, exhibited that she had a broken hymen and had scarring on her vaginal wall. Further, she had foul smelling discharge which he prescribed treatment as she had contracted an STD.
It is not lost to me that a broken hymen is not an absolute certainty of penetration, but the same coupled with the testimony of the victim, leaves no room for doubt that the indeed penetration sufficed.
Simply put, I conclude therefore that the second ingredient namely penetration was adequately proven based on the victim’s evidence and the medical evidence.
On identification of the perpetrator , PW1’s evidence is that the appellant is well known to her by dint that they had been friends for a long time. She positively identified the appellant as the perpetrator to the doctor, the investigating officer and in court as the perpetrator.
Having considered the appellant’s defence, his sole contention was that he did not know the complainant. In my view, it is clear that the same fell short in dislodging the prosecutorial evidence. I have no reason to differ from the findings of the trial magistrate who had the opportunity to hear and see the complainant as she testified and weigh the same against the appellant’s defence and tested both their demeanor.
As to the 30 years custodial sentence , imposed on the appellant, it is noteworthy that he neither questioned its legality or lack thereof, nor submit on the same. In my view the trial court duly exercised it discretion and proceeded to sentence the appellant for a period of thirty (30) years, cognizant of Section 8 (1) (3) of the Sexual Offence Act, stipulates that 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.
In as much as I find that the sentence is inherently sound and guided by statute, I find that the imposition of a thirty (30) years custodial sentence was excessive in the present circumstances.
Although sentences are intended, inter alia , to punish an offender for his wrongdoing, they also aim to rehabilitate offenders to renounce their criminal tendencies and become law abiding citizens. See the Criminal Procedure Bench Book at page 116 .
Having weighed the 30-year sentence against the facts and the circumstances on the occurrence of the offence, noting that the appellant was a first offender, I find the same is seemingly harsh and disproportionate to the present facts.
I find that a sentence of 20 years would be sufficient and statutorily sound in the circumstances, being the minimum sentence prescribed under the offence. This would be not only retributive but rehabilitative.
In the entirety of the foregoing, this court makes the following orders;
The appeal on conviction fails, and the same is upheld.
The appeal against the sentence succeeds to the extent held hereinabove, and the 30-year custodial sentence is hereby set aside and substituted with a sentence of 20 years’ imprisonment, to run from the date of sentence by trial court.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…26TH…..day of…..…JUNE……2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
THE APPELLANT(S)............................
FOR THE RESPONDENT.....MR SIRIMA........................
COURT ASSISTANT.......BEBORA............................
The appellant 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 offence are that on diverse dates between 21 st March, 2021 and 30 th March, 2021 at Mwanaziya area in Likoni Sub-County within Mombasa County, unlawfully and intentionally caused his penis to penetrate the vagina of L.K.H a child aged 12 years.
He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006 , which particulars of the offence are that on diverse dates between 21 st March, 2021 and 30 th March, 2021 at Mwanaziya area in Likoni Sub-County within Mombasa County, unlawfully and intentionally touched the vagina of L.K.H a child aged 12 years with his penis.
The appellant was after full trial found guilty of the main count upon which the alternative count was deemed spent and thereby sentenced to thirty (30) years imprisonment.
The appellant being aggrieved by the conviction and sentence, he preferred the present appeal on grounds that the learned trial magistrate erred in law and fact by failing to appreciate that the ingredients of offence were not proven against the appellant beyond reasonable doubt. That, the conviction was based on a single witness testimony void corroborating evidence. Further, the trial magistrate failed to consider the time he spent in remand.
As at the time of making this decision, neither of the parties had complied by filing of submissions on record.
Determination
It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Whether the prosecution established its case against the defendant beyond reasonable doubt?
The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator . These ingredients are provided for under section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue. (See George Opondo Olunga vs. Republic [2016] eKLR .)
Section 8(1) of the Sexual Offences Act provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(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.
…
(5) It is a defence to a charge under this section if –
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
The first element is age . The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... 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.” (emphasis added).
The prosecution produced the complainant’s birth certificate entry no. 0891720184 as conclusive proof that she was born on 21/10/2008. Further, PW2, the complainant’s mother and PW4, the Investigating Officer, both testified in corroboration of the complainant’s age, establishing that the complainant was around 12 years during the time of the incidence.
The second issue is whether the prosecution established proof of penetration of the complainant , beyond reasonable doubt. Penetration is proved through the evidence of the victim corroborated by medical evidence. Nevertheless, what this court requires is proof of facts that the offence was committed, the medical evidence, notwithstanding. The provisions of Section 124 of the Evidence Act, informative to the end that a conviction can rest squarely on the sole testimony of the victim. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
Section 124 of the Evidence Act, Cap 80 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
According to the appellant the prosecution failed in its undertaking to prove its case beyond reasonable doubt. He argued that the testimony of the complainant was not corroborated.
PW1 in her testimony gave a cogent and vivid account of how on 21/3/2021 she fled from home following family disagreements and went to live with the appellant. She narrated that on the said day they had sexual intercourse where he penetrated his penis in her vagina. (sic). She continued to live with him for a further four (4) days, after which she went back home after being sought by her mother.
This notwithstanding, I note that the history PW1 gave during her medical examination was that she had fled home and went to cohabit with appellant as his wife, where thy severally engaged in sexual intercourse, which suggests an ongoing sexual relationship. Consensual or not, the complainant was 12 years old, a minor. Needless to add, nowhere in his defence did the appellant plead that the minor presented herself as an adult.
PW1’s testimony was corroborated with the PRC Form (Exh4) and its equal the P3 Form (Exh3) as presented by one Stephen Kalei, a Reproductive Health Specialist; PW5, exhibited that she had a broken hymen and had scarring on her vaginal wall. Further, she had foul smelling discharge which he prescribed treatment as she had contracted an STD.
It is not lost to me that a broken hymen is not an absolute certainty of penetration, but the same coupled with the testimony of the victim, leaves no room for doubt that the indeed penetration sufficed.
Simply put, I conclude therefore that the second ingredient namely penetration was adequately proven based on the victim’s evidence and the medical evidence.
On identification of the perpetrator , PW1’s evidence is that the appellant is well known to her by dint that they had been friends for a long time. She positively identified the appellant as the perpetrator to the doctor, the investigating officer and in court as the perpetrator.
Having considered the appellant’s defence, his sole contention was that he did not know the complainant. In my view, it is clear that the same fell short in dislodging the prosecutorial evidence. I have no reason to differ from the findings of the trial magistrate who had the opportunity to hear and see the complainant as she testified and weigh the same against the appellant’s defence and tested both their demeanor.
As to the 30 years custodial sentence , imposed on the appellant, it is noteworthy that he neither questioned its legality or lack thereof, nor submit on the same. In my view the trial court duly exercised it discretion and proceeded to sentence the appellant for a period of thirty (30) years, cognizant of Section 8 (1) (3) of the Sexual Offence Act, stipulates that 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.
In as much as I find that the sentence is inherently sound and guided by statute, I find that the imposition of a thirty (30) years custodial sentence was excessive in the present circumstances.
Although sentences are intended, inter alia , to punish an offender for his wrongdoing, they also aim to rehabilitate offenders to renounce their criminal tendencies and become law abiding citizens. See the Criminal Procedure Bench Book at page 116 .
Having weighed the 30-year sentence against the facts and the circumstances on the occurrence of the offence, noting that the appellant was a first offender, I find the same is seemingly harsh and disproportionate to the present facts.
I find that a sentence of 20 years would be sufficient and statutorily sound in the circumstances, being the minimum sentence prescribed under the offence. This would be not only retributive but rehabilitative.
In the entirety of the foregoing, this court makes the following orders;
The appeal on conviction fails, and the same is upheld.
The appeal against the sentence succeeds to the extent held hereinabove, and the 30-year custodial sentence is hereby set aside and substituted with a sentence of 20 years’ imprisonment, to run from the date of sentence by trial court.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…26TH…..day of…..…JUNE……2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
THE APPELLANT(S)............................
FOR THE RESPONDENT.....MR SIRIMA........................
COURT ASSISTANT.......BEBORA............................