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JudgmentJefferson Mghana Mwakili VS The Republic5 min read

Jefferson Mghana Mwakili VS The Republic

High Court at Voi High Court · · George. Dulu


(From the conviction and sentence in Sexual Offence Case No. E005 of 2022 at Voi Law Courts delivered on 13th July 2023 by Hon. T. N. Sinkiyian (PM)

  1. The appellant was convicted of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.  The particulars of offence were that on 22nd January 2022 at around 1500hours at Ghazi area in Voi Sub County of Taita Taveta County unlawfully caused his male genital organ (penis) to penetrate the female genital organ (vagina) of M.W a child aged 11 years.  As a result, he was acquitted of the alternative charge of indecent act.
  2. On conviction for defilement, he was sentenced to sixty (60) years imprisonment with effect from the date of sentencing which was 14th August 2023.
  3. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal and relied on the following amended grounds of appeal:-
  4. The learned trial Magistrate erred both in law and fact in failing to consider that the charge as laid out was incurably defective contrary to Section 214, 134 and 135 of the Criminal Procedure Code hence occasioning a serious prejudice to the appellant’s case.
  5. The learned Magistrate erred in failing to appreciate the fact that the voire dire examination allegedly done was improper contravening the explicit provisions of Section 19 of the Oaths and Statutory Declarations Act Cap. 15 Laws of Kenya.
  6. The learned Magistrate erred in not putting into consideration that the critical elements of defilement, age, penile penetration, and identity of the perpetrator were not proved as statutorily required again occasioning a prejudice.
  7. The learned Magistrate erred in failing to observe that the instant matter was replete with material contradictions and inconsistencies hence unsafe to base a conviction upon.
  8. That the sentence meted of sixty (60) years imprisonment was manifestly harsh, and excessive in the circumstances of this case.
  9. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.
  10. This being a first appeal, I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno =Versus= Republic (1972) EA 32.
  11. In determining this appeal, I have also to bear in mind that the burden was on the prosecution to prove all the ingredients of the offence of defilement as required under Section 107 of the Evidence Act (Cap.80).
  12. In proving their case, the prosecution called seven (7) witnesses.  On his part, the appellant tendered sworn defence testimony and did not call any additional evidence.
  13. The elements of the offence of defilement for which the appellant was convicted are the age of the complainant who should be below 18 years, the act of sexual penetration even if partial, and the positive identity of the culprit – see Charles Wamukoya Karani =Versus= Republic Criminal Appeal No. 72 of 2013. 

  1. From the evidence on record, I find that the prosecution proved beyond reasonable doubt that the complainant PW1 Margaret Wawuda was 11 years old.  Though PW1 did not know her age, and both her parents did not testify in court, PW4 Hellen Ontonu an Oral Health Officer at Moi Referral Hospital Voi conducted a medical age assessment test and produced her report in court as an exhibit.  It was her evidence that on dental examination, the molars of PW1 had just started growing, and thus she was of the age alleged.
  2. I thus find that the age of the complainant PW1 was established beyond reasonable doubt to be 11 years.
  3. With regard to sexual penetration, PW1 testified that she was sexually penetrated.  PW2 Dr. Joto Nyawa a Medical Officer at Moi County Hospital Voi testified that the hymen of the complainant was broken, and that there were visible lacerations noticed in the vagina.
  4. In my view therefore, the prosecution proved beyond reasonable doubt that the complainant PW1 was sexually penetrated.
  5. With regard to the identity of the culprit or perpetrator, the complainant PW1 stated in evidence that she was sexually penetrated by the appellant.  The appellant denied that allegation and stated in his defence that there was an existing land dispute between his family and the father of the complainant which was the reason for him being implicated in this allegation of defilement.
  6. In my view, the defence of the appellant was an afterthought as PW5 Samuel Mwanjala Mwandisha stated in court clearly that he saw the appellant in broad daylight lying on top of the complainant.  It is to be noted also that neither the father or mother of the complainant PW1 testified in court, so any blame on them as the appellant has tried to do is highly suspect and misplaced, and unbelievable.
  7. The fact that it took sometime from 22nd January 2022 to 25th January 2022 for the incident to be reported at Voi Police Station in my view, is explained by the fact that the appellant and the complainant were close relatives, and as such nobody would easily or readily want to be blamed for accusing another of the same family to the police.
  8. From the evidence on record therefore, I find that the prosecution proved beyond any reasonable doubt that the appellant was the culprit.  I will thus uphold the conviction.
  9. I now turn to sentence.  The statutory mandatory sentence for the offence is life imprisonment.  However the trial court relied upon recent judicial reasoning in sentencing such as the case of Dismus Wafula Kilwake =Versus= Republic (2019) eKLR in which the discretion of a trial court in its sentencing function was emphasized, and sentenced the appellant to sixty (60) years imprisonment.
  10. Being aware that the Court of Appeal has recently stated that life imprisonment be generally interpreted to mean 30 years imprisonment, and our constitutional principle under Article 50(2)(p) of the Constitution that accused persons should as much as possible be given the most favourable punishment, I set aside the prison sentence of 60 years, and substitute it with a sentence of imprisonment for 30 years from 14th August 2023.
  11. I thus dismiss the appeal on conviction and uphold the conviction of the trial court.  I however set aside the sentence of 60 years imprisonment imposed by the trial court, and instead order that the appellant will serve imprisonment for 30 years from the date of sentencing 14th August 2023.  Right of appeal 14 days explained.

Dated, signed and delivered this 15th day of April 2024 in open court at Voi.

In the presence of:-

Alfred – Court Assistant 

Appellant

Mr. Sirima for State

    Jefferson Mghana Mwakili VS The Republic Jefferson Mghana Mwakili VS The Republic