Skip to content
JudgmentHENRY MOMANYI VS The Republic10 min read

HENRY MOMANYI VS The Republic

High Court at Nyamira High Court · · Wilfrida A. Okwany

(Being an Appeal from the original conviction and sentence in the Chief Magistrate’s Court at Nyamira, in Criminal Sexual Offence Case No. E046 of 2021 by Hon. M.C. Nyigei, Principal Magistrate delivered on 17th March 2022)

  1. The Appellant herein was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 19th day of July 2017 at Charachani Sub-location in Keera location in Nyamira South Sub-County within Nyamira County, intentionally and unlawfully caused his genital organ his penis to penetrate the genital organ, vagina of A.M, (particulars withheld)  a child aged 15 years.
  2. The Appellant also faced the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 19th day of July 2017 at Charachani Sub-location in Keera location in Nyamira South Sub-County within Nyamira County, unlawfully touched the genital organ vagina of A.M, (particulars withheld) a child aged 15 with his genital organ, penis.
  3. He denied both charges and a trial was conducted in which the prosecution called a total of 4 witnesses as follows: -

The Prosecution’s Case

  1. PW1 A.M. (particulars withheld) the victim testified that she knew the Appellant as a herdsman in their home and that she was on 19th July 2021 playing with the Appellant’s daughter one Diana, when the Appellant called her and took her to his bed where he defiled her. She stated that the Appellant then warned her not to disclose what he had done to anyone but that her aunt got to learn of what had transpired and escorted her to the hospital where she was examined and treated.
  2. PW2, Dinnah Kemuma John, the victim’s grandmother testified that she learnt about the victim’s defilement upon returning home from a funeral. She stated that she knew the Appellant as her son’s employee and explained that he lived with them and was also known as Kennedy Momanyi. She testified that the victim was mentally challenged and was on constant medication and that the Appellant was like a son to her and lived within her compound.
  3. PW3, No. 118045 P.C. Malkia Shabaan, was the Investigating Officer. She testified that the Appellant was arrested with the help of the area Chief. She produced the victim’s  Birth Certificate as (P.Exh3).
  4. PW4, Joel Ongaro, was Clinical Officer based at Nyamira County Referral Hospital. He testified that the victim was mentally challenged but in good health and that there were no injuries on her genitalia even though he concluded that she had been defiled. He produced the victim’s P3 Form (P.Exh2) and Treatment Notes (P.Exh1).
  5. At the close of the Prosecution’s case, the trial court found that the prosecution had established a prima facie case against the Appellant who was consequently placed on his defence. The Appellant elected to tender an unsworn testimony and did not call any witnesses in his defence.

The Defence/Appellant’s Case

  1. DW1, the Appellant herein, testified that he was a 40-year-old casual labourer living in Charachani Sub-Location where he was employed in the home of PW2. He stated he had gone home to check on his family and returned to work on 17th July 2021 when he found that one of the sons of PW2 had committed suicide and that he remained at their home until he was buried. He stated that he was arrested by the area chief on 20th July 2021 over the allegation of defilement which he did not commit.
  2. At the conclusion of the trial, the Appellant was found guilty of the main charge of defilement and was consequently convicted sentenced to serve twenty (20) years’ imprisonment.

The Appeal

  1. Aggrieved by the trial court’s decision on conviction and sentence, the Appellant prepared his homemade Petition of Appeal in which he listed the following grounds of appeal: -
  2. The Learned Trial Magistrate erred in law by concluding that the Prosecution case was proved and yet the whole evidence was biased in favour of the Prosecution.
  3. The Learned Trial Magistrate erred in law as he deliberately overlooked the fact that PW1 and other witnesses gave false evidence despite the fact that they were on oath to tell the truth.
  4. The Prosecution failed in court (sic) and in fact by not giving any reason why it objected the Appellant’s defence while it was remarkably comprehensive in casting doubts as far as the case was concerned.
  5. The Learned Trial Magistrate erred in law and fact in his ruling (sic) by not stating to what extent and as to which point the Prosecution had proved its case beyond any reasonable doubt.
  6. THAT the Appellant requests to be supplied with typed and certified proceedings to erect more grounds of appeal.
  7. The Appeal was canvassed by way of written submissions which I have considered.
  8. It cannot be gainsaid that the duty of the first appellate court is to re-examine and re-analyze the entire trial record and to arrive at its own independent conclusions while making an allowance for the fact that it neither heard nor saw the witnesses testify. (See Kiilu & Another vs. Republic [2005]1 KLR 174).
  9. The main issue for consideration is whether the charge of defilement was proven by the Prosecution to the required standard.

Analysis and Determination

  1. The offence of Defilement is anchored on Section 8 of the Sexual Offences Act No. 3 of 2006 ( the Act) which stipulates as follows: -

8. Defilement

(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.

  1. Thus, the Prosecution must prove the following ingredients for a charge of defilement to stand: -
  2. Age of the Victim
  3. Penetration
  4. Positive Identification of the Perpetrator

(see Charles Wamukoya Karani vs. R Criminal Appeal No. 72 of 2013).

  1. The age of a victim of defilement can be proven in several ways.  In Mwalongo Chichoro Mwajembe vs. Republic, Msa. App.No. 24 of 2015 (UR), it was held thus: -

“...the question of proof of age finally been settled decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.  It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense.  See Denis Kinywa vs. Republic, Criminal Appeal No. 19 of 2014 and Omar Uche vs. Republic, Criminal Appeal No. 11 of 2015.  We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond reasonable doubt.  This form of proof is a direct influence by the decision of the Court Appeal of Uganda in Francis Omuroni is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable……”

  1. In this case, PW3 the Investigating Officer is said to have produced the victim’s Birth Certificate to prove her age. I have however perused the entire Record of Appeal but have not set my eyes on the said birth certificate or its copy. I have perused the proceedings relating to its production and I note that the trial magistrate indicated that PW3 had the original certificate and the trial court recorded that a copy was to be produced. It is however in doubt if the same was done as there was no copy in the trial Record. This means that this Court cannot peruse the said piece of evidence in order to satisfy itself on the issue of the victim’s age.
  2. The above finding notwithstanding, I have considered other evidence before the court in this regard. The victim’s grandmother PW2 testified that she was 15 years old. The victim’s grandmother was presented as her guardian. I therefore find no reason to doubt her testimony that the victim was 15 years old. I therefore find that the first ingredient on the age of the victim was proved to the required standard.
  3. The second ingredient of penetration, Section 2 of the Act defines penetration as follows:-

\"penetration\" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

  1. It is also a principle of law that penetration can be partial or complete. In Erick Onyango Ondeng vs. Republic (2014) eKLR, the Court of Appeal held thus: -

“In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.”

  1. In this case, PW1 testified as follows:-

“…Accused called me. I went to where he was and he took me to where his bed (sic). He then took off my panty. He also removed his trouser and his boxer and did ‘bad manners’ to me. He took his penis and inserted it into my place of urinating….”

  1. It is now trite that when a minor testifies in a sexual offence case and uses euphemisms such as ‘bad manners’ they are understood as making  reference to penetration. In Daniel Arasa vs. Republic, HCCRA 1035 of 2013 [2014] eKLR, it was held thus:-

“It is common knowledge in this country and the court may thus take judicial notice that the words “Tabia Mbaya” i.e. bad manners coming from a young girl who has been a victim of sexual violence connotes nothing but sexual intercourse. Children in particular would always refer to sexual intercourse as “Tabia Mbaya” perhaps due to shyness or they may not know what description to give to such act. Suffice to hold that “Tabia Mbaya” is euphemism for sexual intercourse in sexual offences. The evidence by the complainant (PW1) and the clinical officer (PW2) was sufficient, corroborative and credible enough to establish the offence of defilement. The learned trial magistrate was therefore correct in his finding that penetration as defined by the Sexual Offences Act was proved.”

  1. I therefore find that the victim described the act of penetration in her testimony. I have considered the medical evidence presented by PW4 who testified that the victim was examined one week after the incident and that no injuries were noted in her genitalia. He further testified that the hymen had an old tear. PW4 concluded that there was evidence of penetration based on the fact that the hymen was missing.
  2. My finding is that while it may be true that a minor may have a missing hymen due to penetration, courts have held that penetration alone is not the sole cause for a missing hymen as there are other factors that may lead to the rapture of hymen. This is the position that was taken in the case of P.K.W vs. Republic [2012] eKLR where the Court of Appeal held that a hymen could be raptured due to other factors, other than penetration by sexual intercourse. The court held thus: -

“In their analysis of the evidence on record the two courts below do not seem to have direct their minds to those details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only raptured by sexual intercourse. Hymen also known as vaginal Membrane found in the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled a prove of the charge. That is however an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who have there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, musturbation, injury and medical examination can also rapture the hymen, when a girl engages in vigorous physical activities like horseback riding, bicycle riding, there can also be natural tearing of the hymen. See the Canadian case of the Queen Vs Emanuel Vincent Quintanilla ( 1999) “AB” “QB” 760.”

  1. Having regard to the above decision, I find that it is not clear if the finding that the victim had an old broken hymen meant that she was a victim of sexual assault. It is also noteworthy that the victim was examined one week after the alleged defilement yet the Clinical Officer did not give the exact age of her broken hymen or determine if its rapture was commensurate with the date of the alleged assault. It is also instructive to note that the Clinical Officer did not record any injuries on the victim’s genitalia. I therefore find that the ingredient of penetration was not proved to the required standard.
  2. Having found that proof of penetration did not meet the required threshold, I find that it will be pointless to belabour the last ingredient of the offence of defilement, to wit, the identification of the Appellant as the perpetrator of the offence suffice to say that the Appellant did not contest that the victim and her grandmother knew him well as he was employed at their home.
  3. In the final analysis, I find that the Appellant’s conviction was not safe and I consequently allow the appeal, quash the conviction, set aside the sentence and order that the Appellant be set at liberty forthwith unless he is otherwise lawfully held.
  4. It is so ordered.

Judgment dated, signed and delivered at Nyamira virtually via Microsoft Teams this 3rd day of October 2024.


    HENRY MOMANYI VS The Republic HENRY MOMANYI VS The Republic