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JudgmentJEREMIAH AYILO KWEYA VS The Republic14 min read

JEREMIAH AYILO KWEYA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(From Original Conviction and Sentence of Hon. Nelly Kariuki in the Principal Magistrate’s Court at Shanzu, in Sexual Offence Case No. E065 of 2022 dated 20th April, 2023)


THE CHARGES

  1. The Appellant was charged before the Court with the offence of:-

COUNT I: Incent contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the same being that on diverse dates between the year 2021 and 16th May 2022 at Shanzu Kisumu Ndogo area, within Kisauni sub-county within Mombasa County, the accused person being a male person, intentionally caused his penis to penetrate the vagina and anus of AA, a child aged 13 years, who was to his knowledge his daughter.

ALTERNATIVE COUNT: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act no. 3 of 2006. On diverse dates between the year 2021 and 16th May 2022 at Shanzu Kisumu Ndogo area, within Kisauni sub-county within Mombasa County, the accused person unlawfully and intentionally touched the vagina and anus of AA, a child aged 13years, with his fingers.

COUNT II: Incent contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the same being that on diverse dates between the year 2021 and 16th May 2022 at Shanzu Kisumu Ndogo area, within Kisauni sub-county within Mombasa County, the accused person intentionally caused his penis to penetrate the vagina of AT, a child aged 15 years, who was to his knowledge his niece.

ALTERNATIVE COUNT: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act no. 3 of 2006. On diverse dates between the year 2021 and 16th May 2022 at Shanzu Kisumu Ndogo area, within Kisauni sub-county within Mombasa County, the accused person unlawfully and intentionally touched the vagina and anus of AT, a child aged 15 years, with his fingers.


  1. He denied the charges and the trial court put down the case for hearing. The prosecution called six (6) witnesses and at the close of the prosecution’s case, the trial court found the Appellant with a case to answer; put him to his defence, convicted and sentenced  him to serve twenty (20) years imprisonment
  2. .GROUNDS OF APPEAL
  3. Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:
  4. THAT the learned trial magistrate erred in law and fact by convicting him in absence of any cogent and tangible evidence.
  5. THAT the learned trial magistrate erred in law and fact, by forming a conviction in reliance of single witness’ testimony that was not substantiated by an independent witness.
  6. THAT the learned trial magistrate erred in law and fact by relying on contradictive, inconsistent and unsubstantiated witness' account of the allegation levelled against him.
  7. THAT the learned trial magistrate erred in law and fact by failing to put into consideration the period he spent in remand while on trial.
  8. THAT the learned trial magistrate erred in law and fact by finding his conviction and sentence by failing to take into consideration my unshaken defence.
  9. For the reasons advanced in his Petition of Appeal, the Appellant prayed the appeal be allowed, conviction quashed and sentence set aside and the appellant be set at liberty.

The Prosecution’s case

  1. The State availed six witnesses in support of its case. PBA (name withheld) (PW2) testified that in May 2022, she was in the company of her friend CA (name withheld) at her home in Shanzu. CA disclosed that her biological father had defiled her for years, and she was still coping with the trauma years later. He had also defiled many female relatives living with them over the years, including his other daughter, also called C. CA had a sibling, AA (PW4) and a cousin, AT(PW3), who were still living at home with her father. They would come swimming at PBA's place. PBA asked her if the two children were also victims, but-C was not too emotional to pursue the matter. She decided to investigate the issue. They visited her home on 14th May, 2022. After talking to AT for a while and disclosing that she was also a survivor, the child revealed that her uncle (biologically, her grandfather, had been defiling her for almost five years since she came to live with them in Mombasa. She was unsure if the same thing was happening to her cousin AA but promised to investigate it.
  2. AT testified that she had been living with her grandfather since she was nine years old when she came to live in Mombasa with him. Since then, he had been defiling her for five years. On 14th May, 2023, she went with AA to swim at PBA and revealed what he had been doing to her after she inquired about it. She promised to look into whether AA was a victim as well. On 16th May, 2023, she went to take a shower in preparation for school leaving AA in their room, which they shared with him. She went back to fetch the basin, which she had forgotten. She found him lying on top of AA, on the mattress on the floor, whose clothes had been pushed up. When they both went to the bathroom, they talked about their experiences. AT informed AA that she knew what her father was doing to her. AA admitted that her father had defiled her. She called PBA using a mobile phone her grandfather gave her and shared information she obtained from AA. While at school, her teacher asked her what was happening at home. She told them about the incidents.
  3. PBA called the children's department phone line she found online and was directed to the Mombasa officer Kennedy Maina, Nyali sub-county children officer (PW6), received the information on AT and AA from PBA. He directed her to report the matter to Bamburi Police Station. She was unsure where the girls stayed, so he decided to rescue them from school. He further obtained the assistance of the area chief-Bamburi Location, to track down the accused person where he runs a bicycle business. Together with police officers from Mtwapa Police station, he rescued AT and AA from their schools on 17th May, 2022 and placed them at a rescue Centre by co. He informed the Court that the two children had been released to their parents, i.e. AA to her mother and AT to her parent.
  4. Upon receiving the report, Corporal Esther Kombe (PW5) liaised with Mr. Maina to rescue the two children. She took them to Coast General Hospital on 19th May, 2023, where they were examined and treated. The accused person came to the station to track down the two children. He later went to the children’s office, where Corporal Kombe arranged for his arrest by fellow officers. She charged him with the offences herein.
  5. The accused person was found with a case to answer. However, he opted to keep quiet and await the court’s decision.

Analysis and Determination

  1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
  2. The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32. In this case the court stated-;

“The duty of the 1st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-

The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

The court of appeal further stated that – “ an appellant on a 1st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.

In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.

  1. In the  case of Gabriel Kamau Njoroge – Versus -  Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”

  1. Having reviewed the trial Record, the grounds of appeal, the three main issues for determination are as follows: -
  2. Whether or not the Prosecution proved its case beyond reasonable doubt;
  3. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant by the Trial Court was lawful and/ or warranted.

Issue a. Whether or not the Prosecution proved its case beyond reasonable doubt

  1. Ground of Appeal Nos (1), (2) and (3) of the Petition of Appeal will be dealt with together under this head as they are related. On the relationship between the complainant and the Appellant; the Appellant argued that the evidence was marred with contradictions and inconsistencies which created doubt that ought not to have been relied on. AT informed the court that the Appellant was her grandfather and that AA was her younger cousin. Notably, the Trial Court conducted a voire dire examination and they were found fit to give sworn evidence.
  2. Having critically analysed the evidence on record, this Court is satisfied that the relationship between the Complainants and the Appellants is that of a grand parent and grandchildren.
  3. On the identification of the perpetrator, AT testified that her grandfather had been defiling her for five years since she moved to Mombasa to stay with him, from the time she was in class 2 to class 7 at the time she testified. Her cousin AA, confirmed that she came to live with them when she was in grade 2 and was now in grade 7. She told PBA about it. She referred to the act of rape as ‘removing someone’s clothes and having sex with them in the place where one urinates. They use their penis’. Having looked at Dr Sango’s evidence, I am persuaded it corroborates AT’s evidence on the matter of penetration. Both girls confirmed living with their grandfather in Shanzu, while AA stated that her mother lived in Mtwapa. The Appellant has submitted no evidence to indicate that another person other than him lived with the girls at their Shanzu home. Each girl testified in the Trial Court that the Appellant defiled them when they were alone, i.e. at lunch hour or in the morning in AT’s case or in the morning when AT was showering in AA’s case. For this reason, I have no doubt in my mind that the Appellant committed an act of penetration with AA and AT just as the Trial Court so rightly concluded.
  4. Of particular concern was whether there was any reason which would have made the two minors falsely implicate their only guardian and I find there was non.  There were no allegations of grudges and the minor confided in her friend not even intending to take action.  It is the friend who  reported the issue through the hot line.
  5. On the age of the victims, the Court in “Francis Omuoroni – Versus -  Republic Court of Appeal Cr No 02 of 2000 (eKLR citation not given)”, held that in defilement cases medical evidence is paramount in determining the age of a victim and the doctor was the only one who could professionally determine and that in the absence of any other evidence, age could be proven by birth certificate, victim’s parents or guardians and by way of observation and common sense. The trial court at Page 43 of the Petition of Appeal observed that Corporal Kombe produced the proof of age for the two children. For AA, she produced a birth certificate which states her date of birth as 15th May, 2009. However, she produced an age assessment report for AT as she could not get her birth certificate. The report dated 26th May, 2022 stated her assessed age as 15 years. I agree with the Trial Court that under Section 2 of the Children’s Act, 2022 the complainants were children.
  6. On the issue of penetration, at page 44 of the Petition of Appeal, the Trial Court opined itself that AT testified that her grandfather had defiled her for five years since she came to Mombasa to live with him. He would grab her violently when she came home for lunch and defile her when AA was not there as she had lunch at school. She witnessed her grandfather defile her cousin on the morning of 16.5.2022. AA testified that she lived with her fatherand cousin AT in Shanzu while her mother stayed at Mtwapa. They all slept in a one-roomed house. Her father would defile her in the morning before AT woke up and told her not to tell anyone. The incidents started when they went to live in Shanzu. AT stated that she told her cousin she knew what her dad was doing to her because she witnessed it. AA admitted to her cousin what he did to her that morning as they bathed and that he had been defiling her for a long time.
  7. Dr Julius Sango (PW1), on behalf of his colleagues Nurse Saida Mwinyi and Dr Gabriel Mugola, who filled the P3 and PRC forms for AA and AT, respectively. For AA, her history indicated that her father had indecently touched her, but she denied that he committed an act of penetration. Upon examination, a broken hymen with a healed scar was observed, abrasions in the vagina, and her anal orifice was opened by a half centimeter with healing lacerations. AT's history stated that her uncle committed an act of penetration into her vagina with his penis. Her hymen was found to be broken with a healed scar upon examination.
  8. Having critically analyzed the evidence on record, this court was satisfied that the Learned Trial Magistrate did not err when she believed the evidence of PW 2 as a single witness. The consequence of whether testimony was sworn or unsworn was pertinent. Ordinarily, sworn evidence does not need corroboration. Notably, Section 124 of the Evidence Act Cap 80 (Laws of Kenya) provides:

“Provided that where in a criminal case involving a sexual offence the only evidence is that of a child of tender years who is the alleged victim of the offence, the court shall receive the evidence of the child and proceed to convict the accused person if, for reasons to be recorded in the proceedings the court is satisfied that the child is telling the truth.”

  1. Even so PW 2’s evidence was backed up by the medical report of PW 1. Section 108 of the Evidence Act Cap 80 (Laws of Kenya) states that:-

“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

  1. Further, Section 109 of the Evidence Act stipulates that:-

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

  1. The Appellant elected not to give a defence. He was obligated to call a witness or produce evidence to show that he had not outstared the offence that was evidenced in court as such the court is persuaded that the Prosecution had proved its case beyond reasonable doubt.

Issue b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant by the Trial Court was lawful and/ or warranted

  1. On ground (4) it is important to note that Section 20(1) of the Sexual Offences Act provides that:

“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years.

Provided that, it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable for imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” (emphasis court).

  1. The Trial Court sentenced the Appellant to 20 years imprisonment going by the provisions of Section 20, I find that the Trial Court did not therefore err when in its conviction and sentencing. The sentence was a lesser sentence as stipulated by law. I hold that the sentence meted out to the Appellant was proper and shall not therefore disturb it.

Conclusion and Disposition

  1. Having found that all the grounds of appeal had failed I hereby find the Appeal as filed unmerited and hereby dismiss it. The Appellant shall serve his sentence and I shall not interfere with the decision of the Trial Court.

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …13th ….…………DAY OF ………February……………….……., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Maureen Court Assistant;

……………Mr. Ngiri……………State Counsel;

APPELLANT IN PERSON.

    JEREMIAH AYILO KWEYA VS The Republic JEREMIAH AYILO KWEYA VS The Republic