The Appellant Gachaba Okaru was charged with the offence of defilement contrary to Section 8(1) and (2) of the Sexual Offences Act No. 3 of 2006.
Particulars are that on the 28th June 2022 at Kehancha Chini area in Kuria West Sub-County within Migori County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of S.B.P a child aged 2 years.
In the alternative charge, the Appellant was also charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
Based on the evidence of five (5) prosecutions witnesses and the Appellant’s sworn testimony the trial magistrate convicted him and sentenced him to serve 30 years’ imprisonment.
The Appellant was aggrieved by the conviction and sentence and he lodged his Petition of Appeal filed on 3/08/2023 on the following grounds:
a. The learned Trial Magistrate erred both in law and fact in holding that the offence of defilement was proved when there was no evidence of penetration as defined under Section 2(1) of the Sexual Offences Act.
b. The learned Trial Magistrate erred in law and fact in inferring and or presuming the age of the complainant thereby lowering the standard of proof of such offence without iota of evidence.
c. The learned Trial Magistrate contravened the constitutional rights of the Appellant as to representation by an Advocate forcing the Appellant to proceed personally and in the absence of his Counsel despite having given prosecution counsel several adjournments.
d. The Learned Trial Magistrate selectively applied the evidence adduced by the prosecution witnesses to the detriment of the Appellant.
e. The learned Trial Magistrate erred in law and fact in holding that the offence of defilement had been proved by relying on the evidence of PW.4 Josphat Marwa, Clinical Officer whose testimony was in totality hearsay.
f. The learned Trial Magistrate failed to find that the failure to call the Doctor or Clinical Officer, or even initial treatment notes from Nyarangi Hospital, where the victim was allegedly taken in the first instance was fatal to the prosecution case.
g. The learned Trial Magistrate erred in law and fact in relying on hearsay evidence to convict the Appellant.
h. The learned Trial Magistrate erred in law and fact in failing to appreciate that the charge and particulars set out in the charge sheet were inapplicable to the facts of the case as presented by the prosecution.
i. The learned Trial Magistrate erred in both law and fact in failing to appreciate that the prosecution failed to prove its case beyond reasonable doubt.
j. There was no medical evidence availed by the prosecution that could support the findings, ruling and the judgement of the trial court.
k. The learned Trial Magistrate failed to appreciate several material contradictions in the prosecution case that raised a reasonable doubt that he ought to have resolved in favor of the appellant.
l. The learned Trial Magistrate erred both in law and fact shifting the burden and incidence of proof to the Appellant.
m. The learned Trial Magistrate erred both in law and fact in failing to take into account the Appellant’s defense against the prosecution case which was weak.
n. The learned Trial Magistrate erred both in law and fact in heaping evidential value and buttressing weak prosecution as against the Appellant.
o. The decision of the Trial Magistrate is against the weight of the evidence on record.
p. The 30 years’ imprisonment in jail imposed upon the Appellant is manifestly harsh, excessive and erroneous sentence to amount to be unconstitutional.
q. The learned Trial Magistrate erred in law and fact in finding against the Appellant and thereby convicting him even before analyzing the Appellant’s defense which is a clear case on biasness against the Appellant hence a mistrial.
r. The learned Trial Magistrate erred in law and fact in sentencing the Appellant without giving him adequate time for mitigation.
Reasons wherefore the Appellant prayed that his appeal be allowed wholly, the conviction and sentence by the trial court be quashed and set aside respectively.
Prosecution’s case was supported by five (5) witnesses who testified as follows;
PW1- FATUMA NYAHIRI PAUL testified that the victim herein is her daughter. She stated that the girl was 2 years old having been born on the 3/6/2020. She stated that on the 28/06/2022, she returned home about 2.00 P.M and found the child lying under a tree. She also found her son and the accused person (Now Appellant) there. She stated that the Appellant informed her that an insect had crawled on the girl and onto her private parts. She stated that she took the girl to the house and when the girl urinated, she saw blood. She stated that she also saw nail marks on the girl’s thighs and took the child to Nyarangi hospital where the child was examined and she was informed that the girl had been defiled. PW.1 further testified that she went back home and found the Appellant whom she held and took to Kehancha Police Station and reported the matter. Thereafter, they went to Kehancha hospital where the girl was once more examined and confirmed to have been defiled. It was PW.1’s further testimony that her son by the name Ramadhan explained to her that the girl went for a long call and Appellant called her and she went into the Appellant’s house. After a short time, the said Ramadhan went to check and saw Appellant pouring water into the child’s private part. She stated that the Appellant is her neighbor and that she had lived in the house for over two (2) years.
PW2 – RAMADHAN MWEIRA is aged 12 years old. He stated that PW.1 is her mother while the complainant is his younger sister. He stated that on the 28/06/2022 at about Noontime, he went home together with the complainant for lunch. He Testified that when they arrived home they had their lunch and that the Appellant called the complainant who went into his house. He stated that after a short time, he heard the girl crying inside the Appellant’s house and he went into the Appellant’s house and found him pouring water onto the girl’s private part. He stated that the Appellant was saying that an insect had crawled onto the girl’s private parts. PW.2 further testified that after a short time his mother returned home and he reported to his mother what had happened. After that his mother took the child to the hospital. PW.2 further explained that the child did not go to any other place except the Appellant’s house.
PW3- EUNICE MARWA who is also known as Betty’s mother testified that on the 28/06/2022 at about 2.00 P.M she was at home when PW.1 went to her home while crying and carrying the complainant. She stated that PW.1 removed the complainant’s clothes and she saw nail marks on the complainant’s thighs and also blood on the vagina. She stated that she advised PW.1 to take the child to the hospital and PW.1 explained to her that she had taken the child to Nyarangi Clinic where it was confirmed that the girl had been defiled. She stated that she told PW.1 that they had to go to the District Hospital. She further testified that she Accompanied PW.1 and the girl and on the way they met with the Appellant whom they apprehended and escorted to the Police Station where he was held in custody as they proceeded to Kehancha Hospital. She stated that the girl was examined and the doctor confirmed that she had been defiled.
PW4- JOSEPHAT MARWA Clinical Officer working at Kuria West Sub-County Hospital. He testified that on 28th June 2022 he examined the Complainant S.B.P and that her genitalia revealed that the hymen was freshly broken with reddish discharge from the vagina. He stated that the P3 form was subsequently filled and he produced the P3 form and the treatment notes as exhibits. On cross-examination, PW.3 clarified that the P3 form was filled on the 29/06/2022 and not 29/04/2023 and further stated that the date could have been an error.
PW5- IP AGATHA WEKESA conducted investigation in the case of defilement herein when the same was reported at Kehancha Police Station on 28/06/2022. She said she found the Appellant had already been arrested and was in custody at the police station and that the Complainant and her mother were also at the police station. PW5 accompanied the minor and the mother to Kehancha Hospital where the minor was examined, treated and the P3 form was filled. She stated that the minor could not talk well and could only mention the name Mogaka. PW5 further testified that she recorded the statements of the witnesses including that of Ramadhan PW2 who explained to her what had transpired. She further stated that the examination of the Complainant’s genitalia at the hospital confirmed that the girl had been defiled and her investigations concluded that it was the Appellant who defiled the girl.
At the close of the Prosecution’s case The Appellant- GICHABU OKARI was placed on his defense and he stated that on 28/06/2022 he was on his way from Kehancha town to his the house when he met about six (6) ladies with a child. The six ladies started claiming that he had defiled a girl. He stated that the six ladies took him to the Police station where he told the Police Officer that he was not aware of the alleged defilement. He stated that he did not commit the offence and stated that the complainant’s mother had a grudge with him in respect of rental issues. He stated that he did not commit the offence.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 18th October 2024 and are to the effect that the offence of defilement was not proved as there no evidence of penetration as defined under Section 2(1) of the Sexual Offences Act.
The Appellant’s Counsel relied on the judicious analysis of Hon. S.M. Githiji J in the case of Langat Dinyo Domokonyang v Republic [2017] KLR where the court held that;
“…For the offence of defilement, it must be established by the prosecution beyond reasonable doubt that a male penis partially or fully penetrated the victim’s vagina and or anus.”
The Appellant’s Counsel argued that the complainant only said the Appellant did to her bad manners and touched her private parts as the place where it was done and did not give details of how he did it and with which organ. The Appellant’s Counsel also challenged the treatment notes of the Clinical Officer along with the P3 and PRC forms which were produced as exhibits due to the difference in the dates mentioned. It was also argued that a broken hymen is not a proof of penetration. The Appellant’s Counsel contended that the decision of the Trial Court on the age of the victim was absurd, outrageous and an affront on the law. It was concluded that the age of the victim which is one of the ingredients of the offense of defilement was never proved.
The Appellant’s Counsel also submitted that Trial Magistrate inferred and or presumed the age of the complainant thereby lowered the standard of proof of such offence without iota of evidence. It was submitted that the Prosecution did not produce a Certificate of Birth nor anything to prove that the age of the Complainant was 2 years.
On the identity of the perpetrator, the Appellant’s Counsel submitted that the prosecution wholly relied on circumstantial evidence of PW1 and PW2 which do not point that the Appellant was the perpetrator. That there was no cogent evidence connecting the Appellant to the offense. Appellant’s Counsel said that the evidence adduced by all the prosecution witnesses was that “dudu washa” had encroached the victim’s private parts and none of them explained whether this could have resulted to the condition that the patient was in. It was submitted that no amount of suspicion can displace the duty to prove beyond reasonable doubt which onus is on the shoulders of the prosecution.
The Appellant argued that the Trial Court shift the burden of proof to the Appellant contrary to the law in Criminal cases. The Appellant’s counsel further submitted that the Trial Magistrate did not comply with Section 169 of the Criminal Procedure Code by failing to identify the Law relating to the issue in his judgment and did not provide the reason for conviction.
On Sentencing the Appellant’s counsel submitted that the sentence imposed was manifestly harsh, excessive and erroneous and was unconstitutional. It was argued that Sentencing is a Judicial discretion depending on several circumstances and applying the minimum or mandatory statutory sentences is unconstitutional. He relied on the case of Julius N Ndung’u V Republic HC at Murang’s Criminal Appeal No. E052 of 2022 where life sentence was set aside and reduced to 10 years. The Appellant also cited the case of Maingi and 5 Others V DPP Petition No. E017 of 2021 where Odunga J as he then was held that minimum mandatory sentences did not permit the court to consider the peculiar circumstances of the case in order to arrive at an appropriate sentence informed by those circumstances as the court was deprived of the Discretion to consider whether a lesser punishment than the minimum described would be more appropriate in the circumstances.
The Appellant’s Counsel urged the court to exercise the Judicial discretion and render a reasonable sentence which resonates with the peculiar circumstances of the case before it as 30 years is extremely harsh, oppressive and unconstitutional considering there was no evidence of Age or proof of any Element of Defilement.
The Respondent’s submissions are dated 11th November 2024 and were filed on even date.
The Respondent submitted that penetration was proved by the testimony of the intermediary which was corroborated by Pw4 a clinical officer who produced the p3 form and treatment notes and indicated the hymen was freshly broken and there were bruises and blood on the outer genitalia. It was submitted the testimony on penetration was cogent.
On whether the age of the child was proved it was submitted that the intermediary who was the mother of the child of very tender age, testified that the child was born on 3/6/2020 and the child was 2 years old at the time she testified.
On positive identification of the perpetrator the Respondent submitted that PW2 testified that when he went home with his sister the appellant who is their neighbor and landlord called the minor into his house and after a short while he heard the minor crying inside the appellant's house. That when he went into the house he found the appellant pouring water onto the minor's private part and the Appellant told him that an insect had gone into Sharon's private part. It was further submitted that the Appellant told PW1 that an insect had gone into the minor's private parts. The Respondents concluded that it is the Appellant who defiled the child of tender years.
Regarding the Appellant’s submissions that the date on the P3 form was stamped before the offence was committed, it was submitted that PW4 confirmed he examined the child and filled the P3 form on 29th of June 2022 and PW4 explained that the minor had been seen on the facility on 28th June 2022 and the discrepancy on the date was an honest error that did not interfere with the clinical officer’s findings.
It was also submitted that from the particulars of the offense, the Appellant knew the offense for which he was charged and the inconsistency of the date did not prejudice the Appellant as he sufficiently made his defense.
On the submission on the ground that the trial court meted a harsh and excessive
sentence, the Respondent submitted that the Appellant herein was accorded a chance to tender his defense and the trial court noted everything as he testified. He did not object towards tendering his defence. The Respondent submitted that the Appellant was convicted for the offence of Defilement contrary to Section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006 and the sentence provided for is imprisonment for life and no other. The Appellant was sentenced to serve 30 years imprisonment and it is submitted that this was as per the discretion of the court.
The Respondent urged the court to take into consideration that the Appellant took advantage of the innocence of a child of extremely tender years called her to his house and defiled her. The Respondent prayed that the court dismisses the Appeal and uphold the conviction and sentence as the prosecution sufficiently proved the offence of defilement.
ANALYSIS AND DETERMINATION
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the often cited case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: -
a. Whether the ingredients of the offence of defilement (1) Age, (2) Penetration, and (3) Identification were proven beyond reasonable doubt?
b. Whether there were contradictions in the prosecution’s case?
c. Whether the sentence was harsh and excessive?
Section 8(1) & (2) of the Sexual Offence Act No. 3 of 2006 provides that:
(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.
In this regard, the offence of defilement is anchored on three (3) main ingredients namely; (1) The Age of the victim, (2) Penetration, and (3) The Proper Identification of the Perpetrator. In determining whether these three ingredients, this court shall have answered the first three issues herein.
The Age of the Victim
Proof of age is key in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that:
“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.”
Likewise, 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.”
Further in P.M.M vs Republic [2018] eKLR, it was held:
“… whilst the best evidence of Age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
Additionally, the Court of Appeal’s holding in Jackson Mwanzia Musembi v Republic [2017] eKLR quoted with approval its earlier decision in Evans Wamalwa Simiyu vs. R [2016] eKLR and held that: -
“Consequently, where actual age of a minor is not known, proof of his/her apparent age is sufficient under the Sexual Offences Act.”
From the prosecution, and from the particulars in charge sheet, both stated that the complainant was a minor aged about two (2) years at the time of the incident. Further, the testimony of PW.1 who is the complainant’s mother stated that the minor was aged two (2) years at the time of the incident. Moreover, according to the evidence of PW.2 who is aged 12 years, the complainant was his younger sister. Further, according to both PW.4 who is a clinical officer and PW.5, the complainant was a minor aged about two (2) years. The Trial Magistrate who had the opportunity to hear and see the witnesses in court had this to say in regard to the age of the minor:
“My considered opinion is that the evidence of PW1 and PW2 demonstrate that the Complainant was a minor aged below 11 years…I wish to point out that during the Testimony of PW1 the minor was brought to court. I was able to see the Minor. She could not talk as she was just learning to talk. Although I’m not a Doctor, I was of the impression that the Child is a Minor and a Child of Tender years.”
The above observation by the Trial Magistrate and the evidence of PW1 and PW2 was sufficient proof of the approximate Age of the Complainant which fell within the provision of Section 8 (2) of the Sexual Offense Act No. 3 of 2006. The Appellant’s allegation that the age of the Complainant was not proved beyond reasonable doubt cannot stand.
On Penetration PW2 stated that he heard the complainant crying shortly after she had entered the Appellant’s house and when he went to find out what was happening he found the Appellant pouring water onto the Complainant’s private parts and the Appellant explained that an insect had crawled onto the Complainant’s private parts. When PW1 returned home, she found the Complainant lying under a tree and she was with PW2. That the Appellant who was also around told her that an insect had crawled onto the Complainant’s private parts. When she took the child into the house and examined her, she saw nail marks on her thighs and when the child urinated she saw blood on her thighs.
PW3 also testified that she saw nail marks on the Complainant’s thighs and also blood on the vagina.
The Clinical Officer PW4 examined the Complainant who was sick looking and found there was red discharge from the vagina and the Hymen was freshly broken and the Complainant was crying due to pain and after examination he formed an opinion that the complainant had been defiled.
The Appellant’s view is that the words used by the complainant that he did to her bad manners (and touched at her private parts) to indicate where it was done left doubt as to what was inserted. The Court of Appeal in acknowledging the use of euphemisms by children when describing acts of sexual intercourse in Muganga Chilejo Saha v Republic [2017] eKLR had this to say;
“Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement. We, however, need to remind trial courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M V R Voi H.C Cr. App. No. 35 of 2014, EMM V R Mombasa H.C Cr. Case No. 110 of 2015, among several others. Trial courts should record as nearly as possible what the child says happened to him or her.”
Going by the above cases, the terms used by the complainant in this case are thus acceptable terms to mean defilement when used by child victim.
The fact that the Complainant’s hymen was broken was not assumed. The prosecution witnesses all gave evidence as to why they concluded that the Complainant had been defiled. The Complainant was taken to hospital the same day where she was examined and treated and PW4 filled P3 form to confirm that indeed there was penetration of the Complainant’s genitalia. There was no other evidence that the injuries observed in the Complainant’s genitalia were inflicted by any other thing than by penetration of a male organ. The element of penetration was therefore proved beyond reasonable doubt.
Regarding the Appellant’s submissions that the date on the P3 form was stamped before the offence was committed, PW4 confirmed that he examined the child and filled the P3 form on 29th of June 2022 and he explained that the minor had been seen on the facility on 28th June 2022 and the discrepancy on the date was an honest error that did not interfere with the clinical officer’s findings. The Appellant was arrested the same day that he defiled the child and there is no way that the matter could have been reported earlier than 28th June 2022.
Identification of the Perpetrator
The Appellant submitted that the prosecution fully relied on circumstantial evidence of PW1 and PW2 which did not point to him as the perpetrator. However, after reviewing the evidence of PW1 and PW2 I find that they point to the Appellant as the perpetrator. The Appellant was the one who called the Complainant to his house and shortly thereafter PW2 heard his sister crying and found the Appellant pouring water into the Complainant’s private parts. The Appellant quickly explained that an insect had crawled on the Complainant’s private parts even before PW2 could ask why his sister was crying. The Appellant gave the same explanation immediately after PW1 arrived and without being prompted. PW2 stated that the Complainant did not go to any other place apart from the Appellant’s house. In the words of the Complainant, the only “Dudu” that could have been in the Appellant’s house was the Appellant’s genitals as he did not describe the insect and where it came from.
The Appellant said that he was not at home at the time of the alleged incident but he did not give notice of his defense of alibi to the Investigation or during his cross-examination of Prosecution witnesses. In any case PW1 and PW2 said he was at home and he was arrested immediately thereafter. PW1 said she did not have any rent areas and the Appellant’s claim that he was arrested because of a grudge over rent between him and the Complainant’s mother was denied.
Whether the sentence was harsh and excessive?
Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides;
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.
Regarding whether the sentence meted was harsh and excessive, the Court of Appeal in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR stated as follows:
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
While this court observes that the Appellant was a first time offender, the penalty provided under Section 8(2) of the Sexual Offences Act No.3 of 2006 is a life imprisonment. The aggravating factor in this case is that the Appellant preyed on the Complainant who was just but 2 years old a child of tender years who looked up-to him as a neighbor and landlord for protection. The sentence passed against the Appellant of 30 years’ imprisonment was commensurate with the offence committed taking into account that the Act provides for imprisonment for life, and he subjected the minor to a traumatic experience which is likely to have psychological ramifications on her future.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal lacks merit and the same is dismissed. The Appellant’s Right of Appeal within 14 Days is explained.
Dated, Signed and delivered at Migori this 16th day of May, 2025.
Particulars are that on the 28th June 2022 at Kehancha Chini area in Kuria West Sub-County within Migori County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of S.B.P a child aged 2 years.
In the alternative charge, the Appellant was also charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
Based on the evidence of five (5) prosecutions witnesses and the Appellant’s sworn testimony the trial magistrate convicted him and sentenced him to serve 30 years’ imprisonment.
The Appellant was aggrieved by the conviction and sentence and he lodged his Petition of Appeal filed on 3/08/2023 on the following grounds:
a. The learned Trial Magistrate erred both in law and fact in holding that the offence of defilement was proved when there was no evidence of penetration as defined under Section 2(1) of the Sexual Offences Act.
b. The learned Trial Magistrate erred in law and fact in inferring and or presuming the age of the complainant thereby lowering the standard of proof of such offence without iota of evidence.
c. The learned Trial Magistrate contravened the constitutional rights of the Appellant as to representation by an Advocate forcing the Appellant to proceed personally and in the absence of his Counsel despite having given prosecution counsel several adjournments.
d. The Learned Trial Magistrate selectively applied the evidence adduced by the prosecution witnesses to the detriment of the Appellant.
e. The learned Trial Magistrate erred in law and fact in holding that the offence of defilement had been proved by relying on the evidence of PW.4 Josphat Marwa, Clinical Officer whose testimony was in totality hearsay.
f. The learned Trial Magistrate failed to find that the failure to call the Doctor or Clinical Officer, or even initial treatment notes from Nyarangi Hospital, where the victim was allegedly taken in the first instance was fatal to the prosecution case.
g. The learned Trial Magistrate erred in law and fact in relying on hearsay evidence to convict the Appellant.
h. The learned Trial Magistrate erred in law and fact in failing to appreciate that the charge and particulars set out in the charge sheet were inapplicable to the facts of the case as presented by the prosecution.
i. The learned Trial Magistrate erred in both law and fact in failing to appreciate that the prosecution failed to prove its case beyond reasonable doubt.
j. There was no medical evidence availed by the prosecution that could support the findings, ruling and the judgement of the trial court.
k. The learned Trial Magistrate failed to appreciate several material contradictions in the prosecution case that raised a reasonable doubt that he ought to have resolved in favor of the appellant.
l. The learned Trial Magistrate erred both in law and fact shifting the burden and incidence of proof to the Appellant.
m. The learned Trial Magistrate erred both in law and fact in failing to take into account the Appellant’s defense against the prosecution case which was weak.
n. The learned Trial Magistrate erred both in law and fact in heaping evidential value and buttressing weak prosecution as against the Appellant.
o. The decision of the Trial Magistrate is against the weight of the evidence on record.
p. The 30 years’ imprisonment in jail imposed upon the Appellant is manifestly harsh, excessive and erroneous sentence to amount to be unconstitutional.
q. The learned Trial Magistrate erred in law and fact in finding against the Appellant and thereby convicting him even before analyzing the Appellant’s defense which is a clear case on biasness against the Appellant hence a mistrial.
r. The learned Trial Magistrate erred in law and fact in sentencing the Appellant without giving him adequate time for mitigation.
Reasons wherefore the Appellant prayed that his appeal be allowed wholly, the conviction and sentence by the trial court be quashed and set aside respectively.
Prosecution’s case was supported by five (5) witnesses who testified as follows;
PW1- FATUMA NYAHIRI PAUL testified that the victim herein is her daughter. She stated that the girl was 2 years old having been born on the 3/6/2020. She stated that on the 28/06/2022, she returned home about 2.00 P.M and found the child lying under a tree. She also found her son and the accused person (Now Appellant) there. She stated that the Appellant informed her that an insect had crawled on the girl and onto her private parts. She stated that she took the girl to the house and when the girl urinated, she saw blood. She stated that she also saw nail marks on the girl’s thighs and took the child to Nyarangi hospital where the child was examined and she was informed that the girl had been defiled. PW.1 further testified that she went back home and found the Appellant whom she held and took to Kehancha Police Station and reported the matter. Thereafter, they went to Kehancha hospital where the girl was once more examined and confirmed to have been defiled. It was PW.1’s further testimony that her son by the name Ramadhan explained to her that the girl went for a long call and Appellant called her and she went into the Appellant’s house. After a short time, the said Ramadhan went to check and saw Appellant pouring water into the child’s private part. She stated that the Appellant is her neighbor and that she had lived in the house for over two (2) years.
PW2 – RAMADHAN MWEIRA is aged 12 years old. He stated that PW.1 is her mother while the complainant is his younger sister. He stated that on the 28/06/2022 at about Noontime, he went home together with the complainant for lunch. He Testified that when they arrived home they had their lunch and that the Appellant called the complainant who went into his house. He stated that after a short time, he heard the girl crying inside the Appellant’s house and he went into the Appellant’s house and found him pouring water onto the girl’s private part. He stated that the Appellant was saying that an insect had crawled onto the girl’s private parts. PW.2 further testified that after a short time his mother returned home and he reported to his mother what had happened. After that his mother took the child to the hospital. PW.2 further explained that the child did not go to any other place except the Appellant’s house.
PW3- EUNICE MARWA who is also known as Betty’s mother testified that on the 28/06/2022 at about 2.00 P.M she was at home when PW.1 went to her home while crying and carrying the complainant. She stated that PW.1 removed the complainant’s clothes and she saw nail marks on the complainant’s thighs and also blood on the vagina. She stated that she advised PW.1 to take the child to the hospital and PW.1 explained to her that she had taken the child to Nyarangi Clinic where it was confirmed that the girl had been defiled. She stated that she told PW.1 that they had to go to the District Hospital. She further testified that she Accompanied PW.1 and the girl and on the way they met with the Appellant whom they apprehended and escorted to the Police Station where he was held in custody as they proceeded to Kehancha Hospital. She stated that the girl was examined and the doctor confirmed that she had been defiled.
PW4- JOSEPHAT MARWA Clinical Officer working at Kuria West Sub-County Hospital. He testified that on 28th June 2022 he examined the Complainant S.B.P and that her genitalia revealed that the hymen was freshly broken with reddish discharge from the vagina. He stated that the P3 form was subsequently filled and he produced the P3 form and the treatment notes as exhibits. On cross-examination, PW.3 clarified that the P3 form was filled on the 29/06/2022 and not 29/04/2023 and further stated that the date could have been an error.
PW5- IP AGATHA WEKESA conducted investigation in the case of defilement herein when the same was reported at Kehancha Police Station on 28/06/2022. She said she found the Appellant had already been arrested and was in custody at the police station and that the Complainant and her mother were also at the police station. PW5 accompanied the minor and the mother to Kehancha Hospital where the minor was examined, treated and the P3 form was filled. She stated that the minor could not talk well and could only mention the name Mogaka. PW5 further testified that she recorded the statements of the witnesses including that of Ramadhan PW2 who explained to her what had transpired. She further stated that the examination of the Complainant’s genitalia at the hospital confirmed that the girl had been defiled and her investigations concluded that it was the Appellant who defiled the girl.
At the close of the Prosecution’s case The Appellant- GICHABU OKARI was placed on his defense and he stated that on 28/06/2022 he was on his way from Kehancha town to his the house when he met about six (6) ladies with a child. The six ladies started claiming that he had defiled a girl. He stated that the six ladies took him to the Police station where he told the Police Officer that he was not aware of the alleged defilement. He stated that he did not commit the offence and stated that the complainant’s mother had a grudge with him in respect of rental issues. He stated that he did not commit the offence.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 18th October 2024 and are to the effect that the offence of defilement was not proved as there no evidence of penetration as defined under Section 2(1) of the Sexual Offences Act.
The Appellant’s Counsel relied on the judicious analysis of Hon. S.M. Githiji J in the case of Langat Dinyo Domokonyang v Republic [2017] KLR where the court held that;
“…For the offence of defilement, it must be established by the prosecution beyond reasonable doubt that a male penis partially or fully penetrated the victim’s vagina and or anus.”
The Appellant’s Counsel argued that the complainant only said the Appellant did to her bad manners and touched her private parts as the place where it was done and did not give details of how he did it and with which organ. The Appellant’s Counsel also challenged the treatment notes of the Clinical Officer along with the P3 and PRC forms which were produced as exhibits due to the difference in the dates mentioned. It was also argued that a broken hymen is not a proof of penetration. The Appellant’s Counsel contended that the decision of the Trial Court on the age of the victim was absurd, outrageous and an affront on the law. It was concluded that the age of the victim which is one of the ingredients of the offense of defilement was never proved.
The Appellant’s Counsel also submitted that Trial Magistrate inferred and or presumed the age of the complainant thereby lowered the standard of proof of such offence without iota of evidence. It was submitted that the Prosecution did not produce a Certificate of Birth nor anything to prove that the age of the Complainant was 2 years.
On the identity of the perpetrator, the Appellant’s Counsel submitted that the prosecution wholly relied on circumstantial evidence of PW1 and PW2 which do not point that the Appellant was the perpetrator. That there was no cogent evidence connecting the Appellant to the offense. Appellant’s Counsel said that the evidence adduced by all the prosecution witnesses was that “dudu washa” had encroached the victim’s private parts and none of them explained whether this could have resulted to the condition that the patient was in. It was submitted that no amount of suspicion can displace the duty to prove beyond reasonable doubt which onus is on the shoulders of the prosecution.
The Appellant argued that the Trial Court shift the burden of proof to the Appellant contrary to the law in Criminal cases. The Appellant’s counsel further submitted that the Trial Magistrate did not comply with Section 169 of the Criminal Procedure Code by failing to identify the Law relating to the issue in his judgment and did not provide the reason for conviction.
On Sentencing the Appellant’s counsel submitted that the sentence imposed was manifestly harsh, excessive and erroneous and was unconstitutional. It was argued that Sentencing is a Judicial discretion depending on several circumstances and applying the minimum or mandatory statutory sentences is unconstitutional. He relied on the case of Julius N Ndung’u V Republic HC at Murang’s Criminal Appeal No. E052 of 2022 where life sentence was set aside and reduced to 10 years. The Appellant also cited the case of Maingi and 5 Others V DPP Petition No. E017 of 2021 where Odunga J as he then was held that minimum mandatory sentences did not permit the court to consider the peculiar circumstances of the case in order to arrive at an appropriate sentence informed by those circumstances as the court was deprived of the Discretion to consider whether a lesser punishment than the minimum described would be more appropriate in the circumstances.
The Appellant’s Counsel urged the court to exercise the Judicial discretion and render a reasonable sentence which resonates with the peculiar circumstances of the case before it as 30 years is extremely harsh, oppressive and unconstitutional considering there was no evidence of Age or proof of any Element of Defilement.
The Respondent’s submissions are dated 11th November 2024 and were filed on even date.
The Respondent submitted that penetration was proved by the testimony of the intermediary which was corroborated by Pw4 a clinical officer who produced the p3 form and treatment notes and indicated the hymen was freshly broken and there were bruises and blood on the outer genitalia. It was submitted the testimony on penetration was cogent.
On whether the age of the child was proved it was submitted that the intermediary who was the mother of the child of very tender age, testified that the child was born on 3/6/2020 and the child was 2 years old at the time she testified.
On positive identification of the perpetrator the Respondent submitted that PW2 testified that when he went home with his sister the appellant who is their neighbor and landlord called the minor into his house and after a short while he heard the minor crying inside the appellant's house. That when he went into the house he found the appellant pouring water onto the minor's private part and the Appellant told him that an insect had gone into Sharon's private part. It was further submitted that the Appellant told PW1 that an insect had gone into the minor's private parts. The Respondents concluded that it is the Appellant who defiled the child of tender years.
Regarding the Appellant’s submissions that the date on the P3 form was stamped before the offence was committed, it was submitted that PW4 confirmed he examined the child and filled the P3 form on 29th of June 2022 and PW4 explained that the minor had been seen on the facility on 28th June 2022 and the discrepancy on the date was an honest error that did not interfere with the clinical officer’s findings.
It was also submitted that from the particulars of the offense, the Appellant knew the offense for which he was charged and the inconsistency of the date did not prejudice the Appellant as he sufficiently made his defense.
On the submission on the ground that the trial court meted a harsh and excessive
sentence, the Respondent submitted that the Appellant herein was accorded a chance to tender his defense and the trial court noted everything as he testified. He did not object towards tendering his defence. The Respondent submitted that the Appellant was convicted for the offence of Defilement contrary to Section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006 and the sentence provided for is imprisonment for life and no other. The Appellant was sentenced to serve 30 years imprisonment and it is submitted that this was as per the discretion of the court.
The Respondent urged the court to take into consideration that the Appellant took advantage of the innocence of a child of extremely tender years called her to his house and defiled her. The Respondent prayed that the court dismisses the Appeal and uphold the conviction and sentence as the prosecution sufficiently proved the offence of defilement.
ANALYSIS AND DETERMINATION
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the often cited case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: -
a. Whether the ingredients of the offence of defilement (1) Age, (2) Penetration, and (3) Identification were proven beyond reasonable doubt?
b. Whether there were contradictions in the prosecution’s case?
c. Whether the sentence was harsh and excessive?
Section 8(1) & (2) of the Sexual Offence Act No. 3 of 2006 provides that:
(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.
In this regard, the offence of defilement is anchored on three (3) main ingredients namely; (1) The Age of the victim, (2) Penetration, and (3) The Proper Identification of the Perpetrator. In determining whether these three ingredients, this court shall have answered the first three issues herein.
The Age of the Victim
Proof of age is key in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that:
“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.”
Likewise, 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.”
Further in P.M.M vs Republic [2018] eKLR, it was held:
“… whilst the best evidence of Age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
Additionally, the Court of Appeal’s holding in Jackson Mwanzia Musembi v Republic [2017] eKLR quoted with approval its earlier decision in Evans Wamalwa Simiyu vs. R [2016] eKLR and held that: -
“Consequently, where actual age of a minor is not known, proof of his/her apparent age is sufficient under the Sexual Offences Act.”
From the prosecution, and from the particulars in charge sheet, both stated that the complainant was a minor aged about two (2) years at the time of the incident. Further, the testimony of PW.1 who is the complainant’s mother stated that the minor was aged two (2) years at the time of the incident. Moreover, according to the evidence of PW.2 who is aged 12 years, the complainant was his younger sister. Further, according to both PW.4 who is a clinical officer and PW.5, the complainant was a minor aged about two (2) years. The Trial Magistrate who had the opportunity to hear and see the witnesses in court had this to say in regard to the age of the minor:
“My considered opinion is that the evidence of PW1 and PW2 demonstrate that the Complainant was a minor aged below 11 years…I wish to point out that during the Testimony of PW1 the minor was brought to court. I was able to see the Minor. She could not talk as she was just learning to talk. Although I’m not a Doctor, I was of the impression that the Child is a Minor and a Child of Tender years.”
The above observation by the Trial Magistrate and the evidence of PW1 and PW2 was sufficient proof of the approximate Age of the Complainant which fell within the provision of Section 8 (2) of the Sexual Offense Act No. 3 of 2006. The Appellant’s allegation that the age of the Complainant was not proved beyond reasonable doubt cannot stand.
On Penetration PW2 stated that he heard the complainant crying shortly after she had entered the Appellant’s house and when he went to find out what was happening he found the Appellant pouring water onto the Complainant’s private parts and the Appellant explained that an insect had crawled onto the Complainant’s private parts. When PW1 returned home, she found the Complainant lying under a tree and she was with PW2. That the Appellant who was also around told her that an insect had crawled onto the Complainant’s private parts. When she took the child into the house and examined her, she saw nail marks on her thighs and when the child urinated she saw blood on her thighs.
PW3 also testified that she saw nail marks on the Complainant’s thighs and also blood on the vagina.
The Clinical Officer PW4 examined the Complainant who was sick looking and found there was red discharge from the vagina and the Hymen was freshly broken and the Complainant was crying due to pain and after examination he formed an opinion that the complainant had been defiled.
The Appellant’s view is that the words used by the complainant that he did to her bad manners (and touched at her private parts) to indicate where it was done left doubt as to what was inserted. The Court of Appeal in acknowledging the use of euphemisms by children when describing acts of sexual intercourse in Muganga Chilejo Saha v Republic [2017] eKLR had this to say;
“Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement. We, however, need to remind trial courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M V R Voi H.C Cr. App. No. 35 of 2014, EMM V R Mombasa H.C Cr. Case No. 110 of 2015, among several others. Trial courts should record as nearly as possible what the child says happened to him or her.”
Going by the above cases, the terms used by the complainant in this case are thus acceptable terms to mean defilement when used by child victim.
The fact that the Complainant’s hymen was broken was not assumed. The prosecution witnesses all gave evidence as to why they concluded that the Complainant had been defiled. The Complainant was taken to hospital the same day where she was examined and treated and PW4 filled P3 form to confirm that indeed there was penetration of the Complainant’s genitalia. There was no other evidence that the injuries observed in the Complainant’s genitalia were inflicted by any other thing than by penetration of a male organ. The element of penetration was therefore proved beyond reasonable doubt.
Regarding the Appellant’s submissions that the date on the P3 form was stamped before the offence was committed, PW4 confirmed that he examined the child and filled the P3 form on 29th of June 2022 and he explained that the minor had been seen on the facility on 28th June 2022 and the discrepancy on the date was an honest error that did not interfere with the clinical officer’s findings. The Appellant was arrested the same day that he defiled the child and there is no way that the matter could have been reported earlier than 28th June 2022.
Identification of the Perpetrator
The Appellant submitted that the prosecution fully relied on circumstantial evidence of PW1 and PW2 which did not point to him as the perpetrator. However, after reviewing the evidence of PW1 and PW2 I find that they point to the Appellant as the perpetrator. The Appellant was the one who called the Complainant to his house and shortly thereafter PW2 heard his sister crying and found the Appellant pouring water into the Complainant’s private parts. The Appellant quickly explained that an insect had crawled on the Complainant’s private parts even before PW2 could ask why his sister was crying. The Appellant gave the same explanation immediately after PW1 arrived and without being prompted. PW2 stated that the Complainant did not go to any other place apart from the Appellant’s house. In the words of the Complainant, the only “Dudu” that could have been in the Appellant’s house was the Appellant’s genitals as he did not describe the insect and where it came from.
The Appellant said that he was not at home at the time of the alleged incident but he did not give notice of his defense of alibi to the Investigation or during his cross-examination of Prosecution witnesses. In any case PW1 and PW2 said he was at home and he was arrested immediately thereafter. PW1 said she did not have any rent areas and the Appellant’s claim that he was arrested because of a grudge over rent between him and the Complainant’s mother was denied.
Whether the sentence was harsh and excessive?
Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides;
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.
Regarding whether the sentence meted was harsh and excessive, the Court of Appeal in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR stated as follows:
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
While this court observes that the Appellant was a first time offender, the penalty provided under Section 8(2) of the Sexual Offences Act No.3 of 2006 is a life imprisonment. The aggravating factor in this case is that the Appellant preyed on the Complainant who was just but 2 years old a child of tender years who looked up-to him as a neighbor and landlord for protection. The sentence passed against the Appellant of 30 years’ imprisonment was commensurate with the offence committed taking into account that the Act provides for imprisonment for life, and he subjected the minor to a traumatic experience which is likely to have psychological ramifications on her future.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal lacks merit and the same is dismissed. The Appellant’s Right of Appeal within 14 Days is explained.
Dated, Signed and delivered at Migori this 16th day of May, 2025.