1. This appeal emanates from the judgement, conviction and sentence of Hon. S.K. Ngetich, SPM delivered/imposed on 21st September, 2023 in Nkubu Sexual Offence Case No. E043 of 2022, Republic v Jacob Kiarie.
2. The Appellant Jacob Kiarie was charged in the principal count with the offence of sexual assault contrary to Section 5(1)(a)(i) as read with 5(2) of the Sexual Offences Act Cap 63A Laws of Kenya (erstwhile Act No. 3 of 2006).
3. As is instructive from the charge sheet, the particulars of the offence were that on 12th December, 2022 at Ngirine village, Upper Kithangari Location, Iriene Sublocation, Imenti South Subcounty in Meru county, the Appellant intentionally and unlawfully caused his fingers to penetrate the vagina of BK (name withheld, hereinafter referred to as “the survivor”) a child aged nine (9) years.
4. The Appellant was in the alternative count with the offence of committing an indecent act with a child contrary to Section 11(1of the Sexual Offences Act Cap 63A Laws of Kenya.
5. The particulars of the offence in the alternative charge were that on 12th December, 2022 at Ngirine village, Upper Kithangari Location, Iriene Sublocation, Imenti South Subcounty in Meru county, the Appellant intentionally and unlawfully touched the vagina of the survivor, a child aged nine (9) years, with his fingers.
6. The Appellant pleaded not guilty and a full trial was conducted. The prosecution case was founded on the evidence of 4 witnesses. The defence evidence comprised the unsworn testimony of the Appellant.
7. There are a total of 11 cited grounds of appeal presented by the Appellant vide the undated Petition of Appeal filed on 26th September, 2023 and the “Amended Supplementary Grounds of Appeal” (as introduced in his submissions), upon which the Appellant seeks to upset the conviction and sentence. The grounds of appeal may be summarized as follows:
a. The learned trial Magistrate erred in law by reaching a finding that the prosecution proved its case beyond reasonable doubt.
b. The learned trial Magistrate erred by relying on evidence that was contradictory.
c. The learned trial Magistrate failed to properlyconsider the Appellant’s defence.
d. The sentence of the trial court was manifestly harsh.
8. This court directed that the appeal be canvassed by way of written submissions. Both the Appellant and the Respondent filed their respective sunmissions.
9. This being a first appeal, this court has a legal duty to re-analyze, re-evaluate and assess the evidence adduced in the lower court so as to come up with its own conclusions bearing in mind that it did not have the benefit of seeing the witnesses testify (See Okeno vs Republic [1972] E.A, 32 at page 36, Pandya vs Republic [1957] EA 336, Shantilal M. Ruwala vs Republic [1957] EA 570 and Peter vs Sunday Post [1958] EA 424.
10. The first prosecution witness was Timothy Mberia (PW1), a clinical officer at Kanyakine Subcounty Hospital. The witness testified and told the trial court that he examined and treated the survivor, who presented a history of having been violated earlier on the same day by a perpetrator who inserted a finger inside her vagina.
11. PW1 told the trial court that on examining the survivor, he noted that there was reddening of the labia minora and whitish watery discharge from her vagina. Her hymen was freshly broken. The witness stated that broken hymen and redness of the labia minora was indicative of penetration of the survivor’s vagina. The witness completed the survivor’s P3 and PRC forms as PEx1 and PExh2 respectively.
12. The record of the lower court indicates that on the trial Magistrate conducted voir dire examination to determine the competency of the survivor who testified as PW2, and the admissibility of her evidence.
13. The trial court observed as follows:
“Witness is competent., of sufficient intelligence and understands the duty to tell the truth. She can testify without being sworn.”
14. With that, the survivor proceeded to testify as PW2 and told the trial court that she was 10 years old and a grade 4 pupil at XY Primary School (particulars withheld).
15. The survivor stated that on 12th December, 2022, she was sent by her grandmother to one AK’s house (name withheld) to buy vegetables when while on her way the Appellant, (whom as per the record of the trial court she pointed out in the dock) called her and took her into his house. He then violated her by inserting his finger inside her vagina. The survivor narrated the ordeal to the trial court as follows:
“He inserted his finger in my “mbele”. It is the organ for urinating. He slept on top of me. There was nobody else in the house. He undressed me and told me he loved me. After that, he locked the dooe from outside and went away. After sometime, he came back and opened the door. He released me to go. When I got out I met A, Mama M, L and K (names withheld). They took me to Murungurune Police Station. I told them what the accused had done to me.”……”.
16. The Appellant cross examined the minor who told the trial court that she knew him well as he had previously been to her home to “check on cows”. She stated that the Appellant made her to lie on a couch in his house before proceeding to insert his finger inside her vagina.
17. The third prosecution witness was JM (name withheld), who testified as PW3 and told the trial court that the survivor was her granddaughter and was born on 24th November, 2013. She stated that on 12th December, 2022, she sent the latter to go and purchase vegetables that the Appellant had planted on one AK’s land. She explained that the Appellant was living on AK’s farm, where he had been given a house.
18. The witness stated that when the survivor took too long to return, she set off to look for her. She was then informed that the survivor and the Appellant had been taken to Murungurune Police Station. She followed up on the matter and was informed that the Appellant had inserted his finger inside the survivor’s vagina.
19. The fourth witness that was called by the state was IN (name withheld), who testified as PW4 and described herself to the trial court as “the area manager”. The witness narrated to the trial court the events of 12th December, 2022 and stated that she received a phone call from the nyumba kumi chairman who told her to follow up on the report that had been made to him of the survivor being violated by the Appellant.
20. PW4 proceeded to AK’s home where she met the nyumba kumi chairman in the company of other villagers. On being informed what had transpired, PW4 took the survivor into AK’s house where he interviewed her and the minor disclosed to her that the Appellant had inserted his finger inside her vagina and that that was the second time that he had done so. The matter was reported to Murungurune Police station and the Appellant taken into custody. The witness knew the Appellant well.
21. PW5 was Police Corporal Kezia Kinyua of Mrungurune Police Station. In her testimony before the trial court, the witness stated that the role she took in the matter was that of an investigator. She stated that she took both the survivor and the Appellant to kanyakine Hospital for examination on 12th December, 2022. The survivor was examined and treated and her P3 form (PExh 1) and PRC form (PExh2) completed. She was issued with treatment notes (PExh3).
22. The prosecution closed its case at that stage and in its ruling rendered on 21st August, 2023, the court reached a finding that the prosecution had made out a prima facie case against the Appellant and the he was placed on his defence.
23. In his unsworn testimony, the Appellant told the trial court that he was n unskilled works who did casual jobs at construction sites. He stated that at the time of the alleged offence, he was residing at AK’s home where he had been given a house, within the same compound and where he had planted cabbage.
24. The appellant stated that on 12th December, 2022, he took a knife and harvested a cabbage and gave it to the survivor. AK complained that the Appellant was giving out vegetables and cautioned him that the land did not belong to him. The Appellant left and when he returned, he found the survivor still there with the cabbage that he had given her. Members of nyumba kumi arrived and claimed that he had defiled the minor inside his house. They beat him up and took him to the police station. He was taken to hospital where he was examined. He was subsequently charged.
25. The Appellant denied eve committing the offence that he was charged with.
26. The defence case was closed at that stage.
27. Upon considering the evidence of the five prosecution witnesses and the Appellant’s defence, the learned trial Magistrate found that the prosecution had satisfied all the ingredients of the offence of sexual assault and thus had proved its case beyond reasonable doubt and convicted the Appellant. The Appellant was subsequently sentenced to serve ten years imprisonment. He preferred the instant appeal, being aggrieved by the conviction and sentence.
28. I have considered the grounds of appeal, the filed submissions, the evidence adduced before the trial court and the lower court’s record in its entirety, I will deduce the issues that I am now tasked to determine which culminate in the question whether the prosecution proved the offence of sexual assault beyond reasonable doubt, as follows:
a. Whether the trial Magistrate erred in law in finding that the offence of sexual assault had been proved beyond reasonable doubt.
b. Whether the sentence imposed was manifestly excessive..
29. Inevitably, this court after determining the issues stated above must satisfy itself that the ingredients of the offence of sexual assault were proved against the Appellant beyond reasonable doubt, as is the requirement in law.
30. The offence of sexual assault is provided for under Section 5 of the Sexual Offences Act, Cap 63A Laws of Kenya (formerly Act No. 3 of 2006) as follows:
5. Sexual assault
(1) Any person who unlawfully –
(a) penetrates the genital organs of another person with –
(i) any part of the body of another or that person; or
(ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;
(b) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body;
is guilty of an offence termed sexual assault.
(2) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.
31. From the provisions above, the offence of sexual assault is committed when the following ingredients are established:
a. The offender penetrates the genital organ(s) of another person with; any part of the body of another or that person; or with an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes; or
b. The offender manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ(s) into or by any part of the other person’s body.
32. The main evidence that links the appellant to the commission of the offence is that of the survivor and the clinical officer.
33. The testimony of the survivor was that she had been sent by her grandmother to buy vegetables from the AK when the Appellant called her into his house and put her on a couch before proceeding to insert and penetrate his finger inside her vagina.
34. The survivor’s grandmother (PW3) testified and corroborated the survivor’s version that she had sent the minor to buy vegetables. The only departure to that was that PW3 stated that the survivor was to purchase the vegetables from the Appellant. But considering that the survivor was a child of tender years and as confirmed both by PW3, PW4 and PW5 and even the Appellant himself that he was residing at AK’s home, I do not find any contradiction. I say so because in his defence, the Appellant confirmed that the survivor indeed went to purchase vegetables that he had planted on AK’s farm where he had been given a house and was residing.
35. PW1, the clinical officer who testified told the court that the survivor was taken to hospital on the same day after a report had been made to the police and upon being examined, was found to have a freshly broken hymen and reddening of the labia minora, which was indicative of penetration of the survivor’s vagina.
36. The Appellant in his defence, which I have considered, admitted to having met the survivor at AK’s home and confirmed that she had been sent to buy vegetables. He stated that there arose differences between him and AK when she gave the survivor a cabbage, and that as a result of those differences, he was framed.
37. The findings of the clinical officer without a doubt corroborated the survivor’s narration that she had been violated. As the survivor and the Appellant knew each other well, and considering her unshaken, corroborated evidence that she was violated by the Appellant, who confirmed that she had gone to purchase vegetables from AK’s home, I reach the findings, just like did the trial court, that the offence of sexual assault was committed upon the survivor and that it was the Appellant.
38. The Appellant was well known to the survivor and therefore properly recognized, as the one committed the offence. The findings of the clinical officer upon examining the survivor were proof that she was sexually assaulted. The prosecution thus proved the charge against the Appellant beyond reasonable doubt. His defence in an attempt to escape criminal liability, does not hold water, in the circumstances.
39. In respect of the appeal on sentence, we have seen above that under Section 5(2) of the Sexual Offences Act that a person guilty of the offence of Sexual Assault is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life. It is apparent that the minimum sentence was imposed on the Appellant for the offence and his argument that the sentence was excessive or harsh is inept.
40. In the result, for the reasons stated above, I am of the persuasion that there has not been shown any basis upon which the learned trial Magistrate can be faulted on her findings on both conviction and sentence.
41. The upshot then is that I proceed to find that the appeal on both conviction and sentence is without merit and I proceed to dismiss the same and uphold the trial court’s findings on the two fronts.
DELIVERED (virtually) DATED and SIGNED this 8th day of May, 2025.
JOE M. OMIDO
JUDGE
APPELLANT: Present.
FOR APPELLANT: N/A
FOR RESPONDENT: Ms. Kimunya, Prosecution Counsel.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.
2. The Appellant Jacob Kiarie was charged in the principal count with the offence of sexual assault contrary to Section 5(1)(a)(i) as read with 5(2) of the Sexual Offences Act Cap 63A Laws of Kenya (erstwhile Act No. 3 of 2006).
3. As is instructive from the charge sheet, the particulars of the offence were that on 12th December, 2022 at Ngirine village, Upper Kithangari Location, Iriene Sublocation, Imenti South Subcounty in Meru county, the Appellant intentionally and unlawfully caused his fingers to penetrate the vagina of BK (name withheld, hereinafter referred to as “the survivor”) a child aged nine (9) years.
4. The Appellant was in the alternative count with the offence of committing an indecent act with a child contrary to Section 11(1of the Sexual Offences Act Cap 63A Laws of Kenya.
5. The particulars of the offence in the alternative charge were that on 12th December, 2022 at Ngirine village, Upper Kithangari Location, Iriene Sublocation, Imenti South Subcounty in Meru county, the Appellant intentionally and unlawfully touched the vagina of the survivor, a child aged nine (9) years, with his fingers.
6. The Appellant pleaded not guilty and a full trial was conducted. The prosecution case was founded on the evidence of 4 witnesses. The defence evidence comprised the unsworn testimony of the Appellant.
7. There are a total of 11 cited grounds of appeal presented by the Appellant vide the undated Petition of Appeal filed on 26th September, 2023 and the “Amended Supplementary Grounds of Appeal” (as introduced in his submissions), upon which the Appellant seeks to upset the conviction and sentence. The grounds of appeal may be summarized as follows:
a. The learned trial Magistrate erred in law by reaching a finding that the prosecution proved its case beyond reasonable doubt.
b. The learned trial Magistrate erred by relying on evidence that was contradictory.
c. The learned trial Magistrate failed to properlyconsider the Appellant’s defence.
d. The sentence of the trial court was manifestly harsh.
8. This court directed that the appeal be canvassed by way of written submissions. Both the Appellant and the Respondent filed their respective sunmissions.
9. This being a first appeal, this court has a legal duty to re-analyze, re-evaluate and assess the evidence adduced in the lower court so as to come up with its own conclusions bearing in mind that it did not have the benefit of seeing the witnesses testify (See Okeno vs Republic [1972] E.A, 32 at page 36, Pandya vs Republic [1957] EA 336, Shantilal M. Ruwala vs Republic [1957] EA 570 and Peter vs Sunday Post [1958] EA 424.
10. The first prosecution witness was Timothy Mberia (PW1), a clinical officer at Kanyakine Subcounty Hospital. The witness testified and told the trial court that he examined and treated the survivor, who presented a history of having been violated earlier on the same day by a perpetrator who inserted a finger inside her vagina.
11. PW1 told the trial court that on examining the survivor, he noted that there was reddening of the labia minora and whitish watery discharge from her vagina. Her hymen was freshly broken. The witness stated that broken hymen and redness of the labia minora was indicative of penetration of the survivor’s vagina. The witness completed the survivor’s P3 and PRC forms as PEx1 and PExh2 respectively.
12. The record of the lower court indicates that on the trial Magistrate conducted voir dire examination to determine the competency of the survivor who testified as PW2, and the admissibility of her evidence.
13. The trial court observed as follows:
“Witness is competent., of sufficient intelligence and understands the duty to tell the truth. She can testify without being sworn.”
14. With that, the survivor proceeded to testify as PW2 and told the trial court that she was 10 years old and a grade 4 pupil at XY Primary School (particulars withheld).
15. The survivor stated that on 12th December, 2022, she was sent by her grandmother to one AK’s house (name withheld) to buy vegetables when while on her way the Appellant, (whom as per the record of the trial court she pointed out in the dock) called her and took her into his house. He then violated her by inserting his finger inside her vagina. The survivor narrated the ordeal to the trial court as follows:
“He inserted his finger in my “mbele”. It is the organ for urinating. He slept on top of me. There was nobody else in the house. He undressed me and told me he loved me. After that, he locked the dooe from outside and went away. After sometime, he came back and opened the door. He released me to go. When I got out I met A, Mama M, L and K (names withheld). They took me to Murungurune Police Station. I told them what the accused had done to me.”……”.
16. The Appellant cross examined the minor who told the trial court that she knew him well as he had previously been to her home to “check on cows”. She stated that the Appellant made her to lie on a couch in his house before proceeding to insert his finger inside her vagina.
17. The third prosecution witness was JM (name withheld), who testified as PW3 and told the trial court that the survivor was her granddaughter and was born on 24th November, 2013. She stated that on 12th December, 2022, she sent the latter to go and purchase vegetables that the Appellant had planted on one AK’s land. She explained that the Appellant was living on AK’s farm, where he had been given a house.
18. The witness stated that when the survivor took too long to return, she set off to look for her. She was then informed that the survivor and the Appellant had been taken to Murungurune Police Station. She followed up on the matter and was informed that the Appellant had inserted his finger inside the survivor’s vagina.
19. The fourth witness that was called by the state was IN (name withheld), who testified as PW4 and described herself to the trial court as “the area manager”. The witness narrated to the trial court the events of 12th December, 2022 and stated that she received a phone call from the nyumba kumi chairman who told her to follow up on the report that had been made to him of the survivor being violated by the Appellant.
20. PW4 proceeded to AK’s home where she met the nyumba kumi chairman in the company of other villagers. On being informed what had transpired, PW4 took the survivor into AK’s house where he interviewed her and the minor disclosed to her that the Appellant had inserted his finger inside her vagina and that that was the second time that he had done so. The matter was reported to Murungurune Police station and the Appellant taken into custody. The witness knew the Appellant well.
21. PW5 was Police Corporal Kezia Kinyua of Mrungurune Police Station. In her testimony before the trial court, the witness stated that the role she took in the matter was that of an investigator. She stated that she took both the survivor and the Appellant to kanyakine Hospital for examination on 12th December, 2022. The survivor was examined and treated and her P3 form (PExh 1) and PRC form (PExh2) completed. She was issued with treatment notes (PExh3).
22. The prosecution closed its case at that stage and in its ruling rendered on 21st August, 2023, the court reached a finding that the prosecution had made out a prima facie case against the Appellant and the he was placed on his defence.
23. In his unsworn testimony, the Appellant told the trial court that he was n unskilled works who did casual jobs at construction sites. He stated that at the time of the alleged offence, he was residing at AK’s home where he had been given a house, within the same compound and where he had planted cabbage.
24. The appellant stated that on 12th December, 2022, he took a knife and harvested a cabbage and gave it to the survivor. AK complained that the Appellant was giving out vegetables and cautioned him that the land did not belong to him. The Appellant left and when he returned, he found the survivor still there with the cabbage that he had given her. Members of nyumba kumi arrived and claimed that he had defiled the minor inside his house. They beat him up and took him to the police station. He was taken to hospital where he was examined. He was subsequently charged.
25. The Appellant denied eve committing the offence that he was charged with.
26. The defence case was closed at that stage.
27. Upon considering the evidence of the five prosecution witnesses and the Appellant’s defence, the learned trial Magistrate found that the prosecution had satisfied all the ingredients of the offence of sexual assault and thus had proved its case beyond reasonable doubt and convicted the Appellant. The Appellant was subsequently sentenced to serve ten years imprisonment. He preferred the instant appeal, being aggrieved by the conviction and sentence.
28. I have considered the grounds of appeal, the filed submissions, the evidence adduced before the trial court and the lower court’s record in its entirety, I will deduce the issues that I am now tasked to determine which culminate in the question whether the prosecution proved the offence of sexual assault beyond reasonable doubt, as follows:
a. Whether the trial Magistrate erred in law in finding that the offence of sexual assault had been proved beyond reasonable doubt.
b. Whether the sentence imposed was manifestly excessive..
29. Inevitably, this court after determining the issues stated above must satisfy itself that the ingredients of the offence of sexual assault were proved against the Appellant beyond reasonable doubt, as is the requirement in law.
30. The offence of sexual assault is provided for under Section 5 of the Sexual Offences Act, Cap 63A Laws of Kenya (formerly Act No. 3 of 2006) as follows:
5. Sexual assault
(1) Any person who unlawfully –
(a) penetrates the genital organs of another person with –
(i) any part of the body of another or that person; or
(ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;
(b) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body;
is guilty of an offence termed sexual assault.
(2) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.
31. From the provisions above, the offence of sexual assault is committed when the following ingredients are established:
a. The offender penetrates the genital organ(s) of another person with; any part of the body of another or that person; or with an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes; or
b. The offender manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ(s) into or by any part of the other person’s body.
32. The main evidence that links the appellant to the commission of the offence is that of the survivor and the clinical officer.
33. The testimony of the survivor was that she had been sent by her grandmother to buy vegetables from the AK when the Appellant called her into his house and put her on a couch before proceeding to insert and penetrate his finger inside her vagina.
34. The survivor’s grandmother (PW3) testified and corroborated the survivor’s version that she had sent the minor to buy vegetables. The only departure to that was that PW3 stated that the survivor was to purchase the vegetables from the Appellant. But considering that the survivor was a child of tender years and as confirmed both by PW3, PW4 and PW5 and even the Appellant himself that he was residing at AK’s home, I do not find any contradiction. I say so because in his defence, the Appellant confirmed that the survivor indeed went to purchase vegetables that he had planted on AK’s farm where he had been given a house and was residing.
35. PW1, the clinical officer who testified told the court that the survivor was taken to hospital on the same day after a report had been made to the police and upon being examined, was found to have a freshly broken hymen and reddening of the labia minora, which was indicative of penetration of the survivor’s vagina.
36. The Appellant in his defence, which I have considered, admitted to having met the survivor at AK’s home and confirmed that she had been sent to buy vegetables. He stated that there arose differences between him and AK when she gave the survivor a cabbage, and that as a result of those differences, he was framed.
37. The findings of the clinical officer without a doubt corroborated the survivor’s narration that she had been violated. As the survivor and the Appellant knew each other well, and considering her unshaken, corroborated evidence that she was violated by the Appellant, who confirmed that she had gone to purchase vegetables from AK’s home, I reach the findings, just like did the trial court, that the offence of sexual assault was committed upon the survivor and that it was the Appellant.
38. The Appellant was well known to the survivor and therefore properly recognized, as the one committed the offence. The findings of the clinical officer upon examining the survivor were proof that she was sexually assaulted. The prosecution thus proved the charge against the Appellant beyond reasonable doubt. His defence in an attempt to escape criminal liability, does not hold water, in the circumstances.
39. In respect of the appeal on sentence, we have seen above that under Section 5(2) of the Sexual Offences Act that a person guilty of the offence of Sexual Assault is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life. It is apparent that the minimum sentence was imposed on the Appellant for the offence and his argument that the sentence was excessive or harsh is inept.
40. In the result, for the reasons stated above, I am of the persuasion that there has not been shown any basis upon which the learned trial Magistrate can be faulted on her findings on both conviction and sentence.
41. The upshot then is that I proceed to find that the appeal on both conviction and sentence is without merit and I proceed to dismiss the same and uphold the trial court’s findings on the two fronts.
DELIVERED (virtually) DATED and SIGNED this 8th day of May, 2025.
JOE M. OMIDO
JUDGE
APPELLANT: Present.
FOR APPELLANT: N/A
FOR RESPONDENT: Ms. Kimunya, Prosecution Counsel.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.