1. This appeal arises from the conviction and sentence of the Appellant in Nyamira MCSO 7 of 2022, where he was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, and in the alternative, with committing an indecent act with a child contrary to section 11(1) of the Act.
2. After a full trial, the Appellant was convicted on the main count and sentenced to thirty years’ imprisonment.
3. The Appellant challenges both conviction and sentence. He subsequently filed amended grounds of appeal.
4. The Appellant contends that:
1) The ingredients of the offence of defilement were not proved
2) The trial court failed to conduct voir dire examination on PW2
3) The sentence imposed was harsh and excessive.
Background
5. The prosecution presented five witnesses. PW1, the grandmother to the complainant, testified that on 14th January 2020 she returned home from a funeral and found the complainant crying uncontrollably. Upon inquiry, the child disclosed that the Appellant, her cousin, had defiled her. PW1 stated that members of the public accosted the Appellant and attempted to assault him but he was rescued by the chief.
6. PW2, the complainant aged approximately three years, gave unsworn evidence following an inquiry by the trial court. She pointed to her buttocks as the place the Appellant “did bad things” to her.
7. PW3, a clinical officer, examined the complainant on 16 January 2020 and noted multiple injuries including lacerations and bruises along the vaginal walls, a broken hymen, red blood cells, and spermatozoa. His conclusion was that the child had been sexually penetrated.
8. PW4 and PW5 gave evidence corroborating the sequence of events and the investigation that followed.
9. The Appellant, in his unsworn defence, denied any wrongdoing. He stated that he was arrested while walking and taken to the chief’s office. The Appellant initially claimed that he did not know the complainant, though in cross-examination he conceded that they resided in the same locality.
Submissions on Appeal
10. The Appellant, in written submissions, argued that penetration was not proved, asserting that the complainant’s indication of her “buttocks” created doubt regarding vaginal penetration. The Appellant faulted PW3 for not conducting urinalysis or DNA profiling and for failing to determine whether the rupture of the hymen was recent. The Appellant further submitted that the trial was unfair owing to alleged non-disclosure of witness statements and documentary exhibits. Finally, the Appellant contended that the sentence imposed was harsh and excessive, and that the trial court failed to comply with section 333(2) of the Criminal Procedure Code by not considering the period spent in custody.
11. The Respondent opposed the appeal and submitted that the complainant’s age was properly established through documentary evidence; that medical findings conclusively demonstrated penetration; that identification of the Appellant was by recognition; that voir dire examination was conducted; and that the sentence of thirty years was lawful and in fact lenient given that section 8(2) prescribes life imprisonment.
12. Before turning to the substantive issues, it bears restating the duty of a first appellate court. This Court is required to reconsider the evidence tendered before the trial court, evaluate it afresh, and draw its own conclusions, while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses. The Court of Appeal in Okeno v Republic [1972] EA 32 emphasised that a first appellate court must subject the entire evidence to a fresh and exhaustive examination and reach its own independent findings, though it should not interfere with findings of fact that are based on the credibility of witnesses unless such findings are plainly unjustified. This Court therefore proceeds with that mandate firmly in mind.
Issues for Determination
13. This Court is called upon to determine;
1) Whether the Appellant was supplied with witness statements and documentary evidence
2) Whether the trial court conducted voir dire on the complainant
3) Whether the prosecution proved the ingredients of the offence of defilement
4) Whether the sentence imposed was harsh or excessive.
1) Whether the Appellant was supplied with witness statements and documentary evidence
14. The court record shows that on 13th July 2020 the trial court ordered that the Appellant be supplied with witness statements. Thereafter, when the matter came up for hearing, the Appellant did not raise any complaint regarding non-compliance with that order. Had the statements not been supplied as directed, nothing would have been easier that for the Appellant to bring the issue to the attention of the trial court, which would undoubtedly have issued appropriate directions to safeguard the Appellant’s right under Article 50(2)(j) of the Constitution. In the absence of any such complaint on record, the only reasonable inference is that the witness statements were indeed supplied. This ground of appeal therefore lacks merit and is rejected.
2) Whether voir dire examination was conducted
15. The Appellant contended that the complainant’s evidence was received without proper voir dire examination. The record, however, demonstrates that the trial court questioned the child to ascertain her intelligence, capacity to understand questions, and appreciation of the duty to speak the truth. Upon satisfying itself that she did not understand the nature of an oath, it properly received her evidence unsworn. In Kinyanjui v Republic [1984] eKLR, the Court of Appeal held that the trial court must satisfy itself of the child’s intelligence and understanding before receiving such evidence. The record reflects compliance with that requirement, and this ground of appeal has no merit.
3) Whether the Ingredients of Defilement Were Proved
16. The prosecution was required to prove the age of the complainant, the fact of penetration, and the identity of the perpetrator. On age, PW1 produced the complainant’s immunisation card showing her date of birth as 24th June 2016. The incident of 14th January 2020 therefore involved a child aged approximately three and a half years. In Harrison Mwendwa v Republic [2020] eKLR, the Court of Appeal affirmed that documentary evidence such as birth certificates and immunisation cards provide reliable proof of age. I am satisfied that age was proved.
17. On penetration, the medical evidence was unequivocal. PW3 observed lacerations, bruising, a broken hymen, red blood cells, and spermatozoa. These findings are entirely consistent with recent vaginal penetration as defined in section 2 of the Sexual Offences Act. Although the complainant, being of tender years, initially pointed to her buttocks, the Court of Appeal has recognised the limitations of very young children in describing their genitalia.
18. In Mark Oiruri Mose v Republic [2013] eKLR, the Court held that medical evidence may sufficiently establish penetration despite imprecision in the child’s narration. The Appellant challenged the absence of DNA testing, but in Geoffrey Mwendwa Munyasia v Republic [2015] eKLR, the Court of Appeal held that DNA analysis, though desirable, is not mandatory where other medical and circumstantial evidence is cogent. I am satisfied that penetration was proved beyond reasonable doubt.
19. On identification, PW1 testified that the Appellant was a relative of the complainant, stating that he was her cousin, and that the child named him as the person who had assaulted her. PW2, on her part, identified the Appellant by his nickname “Bobiro” when asked what had happened. The Appellant initially denied knowing the complainant, but in cross-examination conceded that they came from the same locality.
20. Recognition evidence, as the Court of Appeal explained in Anjononi & Others v Republic [1980] eKLR, is generally more reliable than the identification of a stranger. In the circumstances, the trial court was entitled to accept that the Appellant was properly recognised and identified as the perpetrator.
21. This being a sexual offence in which the complainant was effectively the sole eyewitness, the proviso to section 124 of the Evidence Act applies. Her evidence was received unsworn following a proper voir dire examination, and the trial court was entitled to convict on her evidence alone having been satisfied that she was telling the truth.
22. Having evaluated the record, I find that the complainant gave a spontaneous and consistent account immediately after the ordeal, that she named the appellant without hesitation, and that her narration was fully corroborated by the medical findings of recent genital injury. These features give her testimony the ring of truth contemplated by section 124 and justify the trial court’s reliance on it.
23. For these reasons, I find that the prosecution proved the ingredients of the offence of defilement to the required standard.
4) Whether the Sentence Was Harsh or Excessive
24. The Appellant was convicted under section 8(1) as read with section 8(2) of the Sexual Offences Act. Section 8(2) prescribes life imprisonment where the victim is aged eleven years or below. The complainant in this case was three years old. The term of thirty years’ imprisonment imposed by the trial court was therefore substantially below the statutory minimum.
25. The Appellant nevertheless argues that the sentence was harsh. That argument cannot succeed for the reason that a sentence that is markedly below the mandatory minimum cannot, in any rational sense, be described as harsh.
26. The Appellant further argued that the trial court failed to comply with section 333(2) of the Criminal Procedure Code. That provision, however, applies to lawful sentences. A court cannot use section 333(2) to further reduce a sentence that is already below the minimum set by statute. The Appellant is, in fact, fortunate that the State did not cross-appeal seeking enhancement and that this Court cannot enhance a sentence without issuing the requisite notice under section 354(3)(ii) of the Criminal Procedure Code.
27. In the circumstances, the sentence imposed was lawful and lenient, and there is no basis for interference.
Disposition
28. For the foregoing reasons, I find no merit in the appeal and it is hereby ordered:
1) The conviction for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act is affirmed
2) The sentence of thirty (30) years’ imprisonment imposed by the trial court is upheld
3) For the avoidance of doubt, section 333(2) of the Criminal Procedure Code does not apply in the circumstances of this case, the Appellant having already benefitted from a sentence below the statutory minimum.
4) The appeal is dismissed in its entirety.
2. After a full trial, the Appellant was convicted on the main count and sentenced to thirty years’ imprisonment.
3. The Appellant challenges both conviction and sentence. He subsequently filed amended grounds of appeal.
4. The Appellant contends that:
1) The ingredients of the offence of defilement were not proved
2) The trial court failed to conduct voir dire examination on PW2
3) The sentence imposed was harsh and excessive.
Background
5. The prosecution presented five witnesses. PW1, the grandmother to the complainant, testified that on 14th January 2020 she returned home from a funeral and found the complainant crying uncontrollably. Upon inquiry, the child disclosed that the Appellant, her cousin, had defiled her. PW1 stated that members of the public accosted the Appellant and attempted to assault him but he was rescued by the chief.
6. PW2, the complainant aged approximately three years, gave unsworn evidence following an inquiry by the trial court. She pointed to her buttocks as the place the Appellant “did bad things” to her.
7. PW3, a clinical officer, examined the complainant on 16 January 2020 and noted multiple injuries including lacerations and bruises along the vaginal walls, a broken hymen, red blood cells, and spermatozoa. His conclusion was that the child had been sexually penetrated.
8. PW4 and PW5 gave evidence corroborating the sequence of events and the investigation that followed.
9. The Appellant, in his unsworn defence, denied any wrongdoing. He stated that he was arrested while walking and taken to the chief’s office. The Appellant initially claimed that he did not know the complainant, though in cross-examination he conceded that they resided in the same locality.
Submissions on Appeal
10. The Appellant, in written submissions, argued that penetration was not proved, asserting that the complainant’s indication of her “buttocks” created doubt regarding vaginal penetration. The Appellant faulted PW3 for not conducting urinalysis or DNA profiling and for failing to determine whether the rupture of the hymen was recent. The Appellant further submitted that the trial was unfair owing to alleged non-disclosure of witness statements and documentary exhibits. Finally, the Appellant contended that the sentence imposed was harsh and excessive, and that the trial court failed to comply with section 333(2) of the Criminal Procedure Code by not considering the period spent in custody.
11. The Respondent opposed the appeal and submitted that the complainant’s age was properly established through documentary evidence; that medical findings conclusively demonstrated penetration; that identification of the Appellant was by recognition; that voir dire examination was conducted; and that the sentence of thirty years was lawful and in fact lenient given that section 8(2) prescribes life imprisonment.
12. Before turning to the substantive issues, it bears restating the duty of a first appellate court. This Court is required to reconsider the evidence tendered before the trial court, evaluate it afresh, and draw its own conclusions, while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses. The Court of Appeal in Okeno v Republic [1972] EA 32 emphasised that a first appellate court must subject the entire evidence to a fresh and exhaustive examination and reach its own independent findings, though it should not interfere with findings of fact that are based on the credibility of witnesses unless such findings are plainly unjustified. This Court therefore proceeds with that mandate firmly in mind.
Issues for Determination
13. This Court is called upon to determine;
1) Whether the Appellant was supplied with witness statements and documentary evidence
2) Whether the trial court conducted voir dire on the complainant
3) Whether the prosecution proved the ingredients of the offence of defilement
4) Whether the sentence imposed was harsh or excessive.
1) Whether the Appellant was supplied with witness statements and documentary evidence
14. The court record shows that on 13th July 2020 the trial court ordered that the Appellant be supplied with witness statements. Thereafter, when the matter came up for hearing, the Appellant did not raise any complaint regarding non-compliance with that order. Had the statements not been supplied as directed, nothing would have been easier that for the Appellant to bring the issue to the attention of the trial court, which would undoubtedly have issued appropriate directions to safeguard the Appellant’s right under Article 50(2)(j) of the Constitution. In the absence of any such complaint on record, the only reasonable inference is that the witness statements were indeed supplied. This ground of appeal therefore lacks merit and is rejected.
2) Whether voir dire examination was conducted
15. The Appellant contended that the complainant’s evidence was received without proper voir dire examination. The record, however, demonstrates that the trial court questioned the child to ascertain her intelligence, capacity to understand questions, and appreciation of the duty to speak the truth. Upon satisfying itself that she did not understand the nature of an oath, it properly received her evidence unsworn. In Kinyanjui v Republic [1984] eKLR, the Court of Appeal held that the trial court must satisfy itself of the child’s intelligence and understanding before receiving such evidence. The record reflects compliance with that requirement, and this ground of appeal has no merit.
3) Whether the Ingredients of Defilement Were Proved
16. The prosecution was required to prove the age of the complainant, the fact of penetration, and the identity of the perpetrator. On age, PW1 produced the complainant’s immunisation card showing her date of birth as 24th June 2016. The incident of 14th January 2020 therefore involved a child aged approximately three and a half years. In Harrison Mwendwa v Republic [2020] eKLR, the Court of Appeal affirmed that documentary evidence such as birth certificates and immunisation cards provide reliable proof of age. I am satisfied that age was proved.
17. On penetration, the medical evidence was unequivocal. PW3 observed lacerations, bruising, a broken hymen, red blood cells, and spermatozoa. These findings are entirely consistent with recent vaginal penetration as defined in section 2 of the Sexual Offences Act. Although the complainant, being of tender years, initially pointed to her buttocks, the Court of Appeal has recognised the limitations of very young children in describing their genitalia.
18. In Mark Oiruri Mose v Republic [2013] eKLR, the Court held that medical evidence may sufficiently establish penetration despite imprecision in the child’s narration. The Appellant challenged the absence of DNA testing, but in Geoffrey Mwendwa Munyasia v Republic [2015] eKLR, the Court of Appeal held that DNA analysis, though desirable, is not mandatory where other medical and circumstantial evidence is cogent. I am satisfied that penetration was proved beyond reasonable doubt.
19. On identification, PW1 testified that the Appellant was a relative of the complainant, stating that he was her cousin, and that the child named him as the person who had assaulted her. PW2, on her part, identified the Appellant by his nickname “Bobiro” when asked what had happened. The Appellant initially denied knowing the complainant, but in cross-examination conceded that they came from the same locality.
20. Recognition evidence, as the Court of Appeal explained in Anjononi & Others v Republic [1980] eKLR, is generally more reliable than the identification of a stranger. In the circumstances, the trial court was entitled to accept that the Appellant was properly recognised and identified as the perpetrator.
21. This being a sexual offence in which the complainant was effectively the sole eyewitness, the proviso to section 124 of the Evidence Act applies. Her evidence was received unsworn following a proper voir dire examination, and the trial court was entitled to convict on her evidence alone having been satisfied that she was telling the truth.
22. Having evaluated the record, I find that the complainant gave a spontaneous and consistent account immediately after the ordeal, that she named the appellant without hesitation, and that her narration was fully corroborated by the medical findings of recent genital injury. These features give her testimony the ring of truth contemplated by section 124 and justify the trial court’s reliance on it.
23. For these reasons, I find that the prosecution proved the ingredients of the offence of defilement to the required standard.
4) Whether the Sentence Was Harsh or Excessive
24. The Appellant was convicted under section 8(1) as read with section 8(2) of the Sexual Offences Act. Section 8(2) prescribes life imprisonment where the victim is aged eleven years or below. The complainant in this case was three years old. The term of thirty years’ imprisonment imposed by the trial court was therefore substantially below the statutory minimum.
25. The Appellant nevertheless argues that the sentence was harsh. That argument cannot succeed for the reason that a sentence that is markedly below the mandatory minimum cannot, in any rational sense, be described as harsh.
26. The Appellant further argued that the trial court failed to comply with section 333(2) of the Criminal Procedure Code. That provision, however, applies to lawful sentences. A court cannot use section 333(2) to further reduce a sentence that is already below the minimum set by statute. The Appellant is, in fact, fortunate that the State did not cross-appeal seeking enhancement and that this Court cannot enhance a sentence without issuing the requisite notice under section 354(3)(ii) of the Criminal Procedure Code.
27. In the circumstances, the sentence imposed was lawful and lenient, and there is no basis for interference.
Disposition
28. For the foregoing reasons, I find no merit in the appeal and it is hereby ordered:
1) The conviction for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act is affirmed
2) The sentence of thirty (30) years’ imprisonment imposed by the trial court is upheld
3) For the avoidance of doubt, section 333(2) of the Criminal Procedure Code does not apply in the circumstances of this case, the Appellant having already benefitted from a sentence below the statutory minimum.
4) The appeal is dismissed in its entirety.