' (Being an Appeal from the Judgement delivered at the Principal Magistrate’s Court in Keroka MCSO E067 of 2022 by Hon. C. Ombija, Senior Resident Magistrate on 7 th December 2023)
The Appellant was convicted for the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on 26 th August 2022 at Suguta Sub Location in Masaba South Sub-county within Kisii County intentionally and unlawfully caused his genital organ namely penis to penetrate the vagina of S.K.A., a child aged 17 years.
He was upon conviction sentenced to serve ten (10) years imprisonment thereby giving rise to the instant appeal in which he listed the following grounds of appeal: - THAT the Learned Trial Magistrate erred both in law and in fact by failing to notice the essential ingredients of the offence charged were insufficient to prove the offence beyond reasonable doubt.
THAT the Learned Trial Magistrate erred in law by failing to consider or subject the evidence to a fresh scrutiny, re-evaluate the same and analyse the evidence as required by law.
THAT the Learned Trial Magistrate erred in law and in fact to convict the Appellant without considering that the Prosecution relied on sic witnesses whose evidence was not collaborating and as such can be traced by the evidence of PW1, PW2 and PW3.
THAT the Learned Trial Magistrate erred in law and in fact by sentencing the Appellant to 10 years’ imprisonment on inconsistent evidence from all the witnesses presented by the Prosecution which evidence cannot even meet the minimum standards of beyond reasonable doubt.
THAT the Learned Trial Magistrate erred in law and fact by overlooking and casting a doubt on the testimony of the Appellant and yet the same was remarkably comprehensive instead of casting considerable doubts on the strength of the Prosecution case which reasonably lacked consistency.
The Appeal was canvassed by way of written submissions which I have considered. The prosecution/Respondent conceded to the appeal but I am still minded to consider the merits of the appeal with a view to arriving at my own independent findings. In the case of Odhiambo vs. Republic (2008) KLR 565 thus: -
“The court is not under any obligation to allow an appeal simply because the state is not opposed to the appeal. The court has a duty to ensure it subjects the entire evidence tendered before the trial court to a clear and fresh scrutiny and re-assess it and reach its own determination based on evidence”.
The prosecution called five (5) witnesses in support of its case.
PW1, S.K.A. (particulars withheld) , the complainant, testified that she was born in 2005 as per her birth certificate, and was therefore 17 years old at the time of the alleged incident. She stated that on 25th August 2022, following a disagreement with her mother over millet, she left home and spent the night in a bathroom within their compound. The following morning, while sitting by the roadside, she met the Appellant, who was her uncle. The Appellant engaged her in conversation and suggested that she accompany him to his house for the night. She agreed, and the Appellant led her to his brother’s house, where he locked her inside and left.
He later returned at about 3.00 a.m., told her that he wanted to do something, and thereafter had sexual intercourse with her despite her resistance. She stated that she did not scream, although she felt slight pain. Shortly thereafter, the Appellant’s wife, Zipporah, opened the door, and she left to sit by the roadside. The next day, she met the Appellant again, who offered to escort her home. Upon arrival, she narrated the events to her parents, who reported the matter to the police at Ramasha Police Station, after which she was taken to Gesusu Sub-County Hospital for medical examination. She identified the Appellant as the person who had sexual intercourse with her and stated that she bore no grudge against him.
PW2, R.A.K. (particulars withheld) , the complainant’s father, testified that the complainant was 17 years old at the time of the incident and that her birth certificate indicated that she was born in 2005, though her actual birth year was 2007. He stated that the Appellant was his cousin. On 25th August 2022, he returned home in the evening and found that his daughter was missing.
He began searching for her and informed the Appellant of her disappearance. On 27th August 2022, he was informed that the complainant had been seen at the Appellant’s home, though the Appellant was not present at the time. Later that day, the Appellant admitted to him that he had found the complainant the previous day and had taken her to his house. According to the Appellant, his wife had seen the complainant, raised an alarm, and the complainant ran away. PW2 stated that the Appellant brought the complainant home that evening at around 9.00 p.m. Upon questioning her the following morning, she revealed that the Appellant had sexual intercourse with her. He thereafter reported the matter to the police, and the complainant was taken for medical examination, which confirmed sexual activity.
PW3, T.K. (particulars withheld) , the complainant’s mother, corroborated the evidence of PW2. She testified that the complainant was her daughter and that the Appellant was her brother. She stated that on 25th August 2022, the complainant disappeared from home following a domestic quarrel. After a search, the complainant was found on 27th August 2022, when the Appellant brought her home after his wife Zipporah reported having seen the complainant in his company. Upon inquiry, the complainant informed her that the Appellant had locked her in his brother’s house and had sexual intercourse with her. She then reported the matter to the police, and the complainant was taken for medical examination, which confirmed defilement.
PW4, George Omani , a Clinical Officer at Gesusu Sub-County Hospital, testified that he examined the complainant on 28th August 2022. He noted that the complainant was generally well, with no visible injuries, bruises, or lacerations on her genitalia. There were no spermatozoa detected, and the pregnancy test was negative. He, however, observed that the complainant’s hymen was not intact and appeared to have been broken earlier. He concluded that while the complainant was not a virgin, there was no medical evidence of recent sexual intercourse. He produced the P3 Form, Treatment Notes, and PRC Form as exhibits.
PW5, No. 242042 PC Naomi Ondicho , the Investigating Officer, testified that she received a report of defilement on 28th August 2022 and was assigned to investigate. She recorded statements from witnesses, escorted the complainant for medical examination, and arrested the Appellant, who had been identified by the complainant. She stated that the Appellant coerced the complainant into having sexual intercourse with him. She produced the complainant’s birth certificate in evidence.
When placed on his defence, the Appellant opted to remain silent and did not call any witnesses.
Analysis and Determination
I have carefully considered the record of appeal and the parties’ respective submissions. I find that the main issue for determination is whether the prosecution proved the offence in question to the required standard.
Section 8 of the Sexual Offences Act as follows: -
8. Defilement
(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.
(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.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
In Dominic Kibet vs. R [2013] eKLR the court set out the ingredients of the offence thus:
“to prove defilement the critical elements remain to be proof of penetration, the age of the complainant and possible identification of the assailant.”
Age of the Complainant
I have considered the evidence of the Prosecution adduced in respect to the age of the victim in this case. the victim testified that she was born in 2008 then later stated that she was born in 2005 and that her Birth Certificate indicated that she was born on 1 st September 2005. Her father (PW2) and mother (PW3), on the other hand, stated that the victim was 17 years old at the time of the incident. The victim’s birth certificate recorded her year of birth as 2005.
In Francis Omuroni vs. Uganda , Court of Appeal Criminal Appeal No. 2 of 2000 , it was held thus:-
“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim''s parents or guardian and by observation and common sense ….”
Courts have underscored the importance of proving the victim’s age through clear and credible evidence. For instance, the Court of Appeal in Kaingu Kasomo vs. Republic Criminal Appeal No. 504 of 2010 held 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”.
In the instant case, I find that the trial court did not resolve this discrepancy or make a specific finding on the specific year that the victim was born. I find that the contradiction on the issue of age went to the very core of the charge, as the age of the victim determines both the offence and the appropriate sentence under the Sexual Offences Act. This omission created uncertainty as to whether the complainant was indeed a child within the meaning of Section 2 of the Sexual Offences Act.
In Johnson Muiruri vs. Republic [1983] KLR 445 , the Court of Appeal held that where doubt exists as to the age of the complainant, the court must resolve that doubt in favour of the accused.
In the present case, while the complainant claimed to have been born in 2005, her father (PW2) was categorical that she was actually born in 2007. The prosecution did not call the registrar of births or produce any supporting evidence to reconcile the inconsistency. This contradiction was material, as it could place the complainant outside the age bracket of Section 8(4) and even above the age of minority.
Consequently, I find that the age of the complainant was not proved beyond reasonable doubt thereby rendering the charge of defilement under Section 8(1) and (4) unsustainable.
Turning to the second ingredient of penetration I note that even though the complainant testified that sexual intercourse occurred, the medical evidence (PW4) found no physical evidence of recent penetration, no tears, bruises, or spermatozoa were detected. The hymen was found to have been previously broken, and the clinical officer expressly stated that he could not confirm that recent sexual activity had taken place.
My take is that the absence of medical evidence, while not fatal per se, assumes significance in this case because of the uncertainty surrounding the complainant’s age and the inconsistencies in the testimonies of PW1, PW2, and PW3. In Charles Wamukoya Karani vs. Republic [2010] eKLR , the Court held that:
“The burden of proof in criminal cases is always on the prosecution, and it never shifts to the accused. The prosecution must prove its case beyond reasonable doubt, and if any reasonable doubt arises, that doubt must be resolved in favour of the accused.”
Given the conflicting evidence on age and the absence of corroborative medical proof, I find that the benefit of doubt must be extended to the Appellant. This court will not belabour or the third ingredient of identification of the Appellant as the perpetrator of the offence in view of the above findings on age and penetration.
I find that the conviction in this case was anchored on evidence that was not free from internal inconsistency. The learned trial magistrate failed to resolve the contradictions on the complainant’s age and relied heavily on uncorroborated testimony of the complainant, despite medical evidence that did not support recent sexual intercourse.
In Okeno vs. Republic [1972] EA 32 , the Court of Appeal held that a first appellate court must re-evaluate and draw its own conclusions on the evidence presented. Upon such evaluation, this Court finds that the trial court’s conclusion was unsafe and cannot be sustained.
Disposition
Having regard to my above findings that the age of the complainant was not proved beyond reasonable and that the evidence on penetration was inconclusive and uncorroborated by medical evidence, I find that the conviction was unsafe.
Accordingly, I find that the appeal is merited and I therefore allow it. The conviction is quashed, and the sentence of ten (10) years imprisonment is set aside.
The Appellant, Hesbon Ogeto Kinara , shall be set at liberty forthwith unless otherwise lawfully held.
It is so ordered.
'
The Appellant was convicted for the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on 26 th August 2022 at Suguta Sub Location in Masaba South Sub-county within Kisii County intentionally and unlawfully caused his genital organ namely penis to penetrate the vagina of S.K.A., a child aged 17 years.
He was upon conviction sentenced to serve ten (10) years imprisonment thereby giving rise to the instant appeal in which he listed the following grounds of appeal: - THAT the Learned Trial Magistrate erred both in law and in fact by failing to notice the essential ingredients of the offence charged were insufficient to prove the offence beyond reasonable doubt.
THAT the Learned Trial Magistrate erred in law by failing to consider or subject the evidence to a fresh scrutiny, re-evaluate the same and analyse the evidence as required by law.
THAT the Learned Trial Magistrate erred in law and in fact to convict the Appellant without considering that the Prosecution relied on sic witnesses whose evidence was not collaborating and as such can be traced by the evidence of PW1, PW2 and PW3.
THAT the Learned Trial Magistrate erred in law and in fact by sentencing the Appellant to 10 years’ imprisonment on inconsistent evidence from all the witnesses presented by the Prosecution which evidence cannot even meet the minimum standards of beyond reasonable doubt.
THAT the Learned Trial Magistrate erred in law and fact by overlooking and casting a doubt on the testimony of the Appellant and yet the same was remarkably comprehensive instead of casting considerable doubts on the strength of the Prosecution case which reasonably lacked consistency.
The Appeal was canvassed by way of written submissions which I have considered. The prosecution/Respondent conceded to the appeal but I am still minded to consider the merits of the appeal with a view to arriving at my own independent findings. In the case of Odhiambo vs. Republic (2008) KLR 565 thus: -
“The court is not under any obligation to allow an appeal simply because the state is not opposed to the appeal. The court has a duty to ensure it subjects the entire evidence tendered before the trial court to a clear and fresh scrutiny and re-assess it and reach its own determination based on evidence”.
The prosecution called five (5) witnesses in support of its case.
PW1, S.K.A. (particulars withheld) , the complainant, testified that she was born in 2005 as per her birth certificate, and was therefore 17 years old at the time of the alleged incident. She stated that on 25th August 2022, following a disagreement with her mother over millet, she left home and spent the night in a bathroom within their compound. The following morning, while sitting by the roadside, she met the Appellant, who was her uncle. The Appellant engaged her in conversation and suggested that she accompany him to his house for the night. She agreed, and the Appellant led her to his brother’s house, where he locked her inside and left.
He later returned at about 3.00 a.m., told her that he wanted to do something, and thereafter had sexual intercourse with her despite her resistance. She stated that she did not scream, although she felt slight pain. Shortly thereafter, the Appellant’s wife, Zipporah, opened the door, and she left to sit by the roadside. The next day, she met the Appellant again, who offered to escort her home. Upon arrival, she narrated the events to her parents, who reported the matter to the police at Ramasha Police Station, after which she was taken to Gesusu Sub-County Hospital for medical examination. She identified the Appellant as the person who had sexual intercourse with her and stated that she bore no grudge against him.
PW2, R.A.K. (particulars withheld) , the complainant’s father, testified that the complainant was 17 years old at the time of the incident and that her birth certificate indicated that she was born in 2005, though her actual birth year was 2007. He stated that the Appellant was his cousin. On 25th August 2022, he returned home in the evening and found that his daughter was missing.
He began searching for her and informed the Appellant of her disappearance. On 27th August 2022, he was informed that the complainant had been seen at the Appellant’s home, though the Appellant was not present at the time. Later that day, the Appellant admitted to him that he had found the complainant the previous day and had taken her to his house. According to the Appellant, his wife had seen the complainant, raised an alarm, and the complainant ran away. PW2 stated that the Appellant brought the complainant home that evening at around 9.00 p.m. Upon questioning her the following morning, she revealed that the Appellant had sexual intercourse with her. He thereafter reported the matter to the police, and the complainant was taken for medical examination, which confirmed sexual activity.
PW3, T.K. (particulars withheld) , the complainant’s mother, corroborated the evidence of PW2. She testified that the complainant was her daughter and that the Appellant was her brother. She stated that on 25th August 2022, the complainant disappeared from home following a domestic quarrel. After a search, the complainant was found on 27th August 2022, when the Appellant brought her home after his wife Zipporah reported having seen the complainant in his company. Upon inquiry, the complainant informed her that the Appellant had locked her in his brother’s house and had sexual intercourse with her. She then reported the matter to the police, and the complainant was taken for medical examination, which confirmed defilement.
PW4, George Omani , a Clinical Officer at Gesusu Sub-County Hospital, testified that he examined the complainant on 28th August 2022. He noted that the complainant was generally well, with no visible injuries, bruises, or lacerations on her genitalia. There were no spermatozoa detected, and the pregnancy test was negative. He, however, observed that the complainant’s hymen was not intact and appeared to have been broken earlier. He concluded that while the complainant was not a virgin, there was no medical evidence of recent sexual intercourse. He produced the P3 Form, Treatment Notes, and PRC Form as exhibits.
PW5, No. 242042 PC Naomi Ondicho , the Investigating Officer, testified that she received a report of defilement on 28th August 2022 and was assigned to investigate. She recorded statements from witnesses, escorted the complainant for medical examination, and arrested the Appellant, who had been identified by the complainant. She stated that the Appellant coerced the complainant into having sexual intercourse with him. She produced the complainant’s birth certificate in evidence.
When placed on his defence, the Appellant opted to remain silent and did not call any witnesses.
Analysis and Determination
I have carefully considered the record of appeal and the parties’ respective submissions. I find that the main issue for determination is whether the prosecution proved the offence in question to the required standard.
Section 8 of the Sexual Offences Act as follows: -
8. Defilement
(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.
(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.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
In Dominic Kibet vs. R [2013] eKLR the court set out the ingredients of the offence thus:
“to prove defilement the critical elements remain to be proof of penetration, the age of the complainant and possible identification of the assailant.”
Age of the Complainant
I have considered the evidence of the Prosecution adduced in respect to the age of the victim in this case. the victim testified that she was born in 2008 then later stated that she was born in 2005 and that her Birth Certificate indicated that she was born on 1 st September 2005. Her father (PW2) and mother (PW3), on the other hand, stated that the victim was 17 years old at the time of the incident. The victim’s birth certificate recorded her year of birth as 2005.
In Francis Omuroni vs. Uganda , Court of Appeal Criminal Appeal No. 2 of 2000 , it was held thus:-
“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim''s parents or guardian and by observation and common sense ….”
Courts have underscored the importance of proving the victim’s age through clear and credible evidence. For instance, the Court of Appeal in Kaingu Kasomo vs. Republic Criminal Appeal No. 504 of 2010 held 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”.
In the instant case, I find that the trial court did not resolve this discrepancy or make a specific finding on the specific year that the victim was born. I find that the contradiction on the issue of age went to the very core of the charge, as the age of the victim determines both the offence and the appropriate sentence under the Sexual Offences Act. This omission created uncertainty as to whether the complainant was indeed a child within the meaning of Section 2 of the Sexual Offences Act.
In Johnson Muiruri vs. Republic [1983] KLR 445 , the Court of Appeal held that where doubt exists as to the age of the complainant, the court must resolve that doubt in favour of the accused.
In the present case, while the complainant claimed to have been born in 2005, her father (PW2) was categorical that she was actually born in 2007. The prosecution did not call the registrar of births or produce any supporting evidence to reconcile the inconsistency. This contradiction was material, as it could place the complainant outside the age bracket of Section 8(4) and even above the age of minority.
Consequently, I find that the age of the complainant was not proved beyond reasonable doubt thereby rendering the charge of defilement under Section 8(1) and (4) unsustainable.
Turning to the second ingredient of penetration I note that even though the complainant testified that sexual intercourse occurred, the medical evidence (PW4) found no physical evidence of recent penetration, no tears, bruises, or spermatozoa were detected. The hymen was found to have been previously broken, and the clinical officer expressly stated that he could not confirm that recent sexual activity had taken place.
My take is that the absence of medical evidence, while not fatal per se, assumes significance in this case because of the uncertainty surrounding the complainant’s age and the inconsistencies in the testimonies of PW1, PW2, and PW3. In Charles Wamukoya Karani vs. Republic [2010] eKLR , the Court held that:
“The burden of proof in criminal cases is always on the prosecution, and it never shifts to the accused. The prosecution must prove its case beyond reasonable doubt, and if any reasonable doubt arises, that doubt must be resolved in favour of the accused.”
Given the conflicting evidence on age and the absence of corroborative medical proof, I find that the benefit of doubt must be extended to the Appellant. This court will not belabour or the third ingredient of identification of the Appellant as the perpetrator of the offence in view of the above findings on age and penetration.
I find that the conviction in this case was anchored on evidence that was not free from internal inconsistency. The learned trial magistrate failed to resolve the contradictions on the complainant’s age and relied heavily on uncorroborated testimony of the complainant, despite medical evidence that did not support recent sexual intercourse.
In Okeno vs. Republic [1972] EA 32 , the Court of Appeal held that a first appellate court must re-evaluate and draw its own conclusions on the evidence presented. Upon such evaluation, this Court finds that the trial court’s conclusion was unsafe and cannot be sustained.
Disposition
Having regard to my above findings that the age of the complainant was not proved beyond reasonable and that the evidence on penetration was inconclusive and uncorroborated by medical evidence, I find that the conviction was unsafe.
Accordingly, I find that the appeal is merited and I therefore allow it. The conviction is quashed, and the sentence of ten (10) years imprisonment is set aside.
The Appellant, Hesbon Ogeto Kinara , shall be set at liberty forthwith unless otherwise lawfully held.
It is so ordered.
'