(Appeal against the conviction and sentence of 10 years in Sexual Offence Case No. 110 of 2019 for the Offence of Defilement by SRM’S Court at Shanzu before Honourable Nelly W. Kariuki PM dated and delivered on 4th September, 2023)
1. The accused person was charged with defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2008.
2. The particulars are that on 04/09/2019, at Mwakirunge area, Bamburi location within Kisauni sub-county in Mombasa County, the accused person unlawfully and intentionally caused his penis to penetrate the anus of MM, a girl child aged twelve years.
3. The State availed five witnesses and The appellant gave his defence.
4. He was convicted and sentenced to serve 10 years imprisonment. Being dissatisfied he filed an appeal with the following grounds of appeal.
i. That the learned trial magistrate erred in law and fact by convicting and sentencing me the appellant on unsubstantiated evidence of the complainant.
ii. That the learned trial magistrate erred in law and fact by relying on the evidence of the victim and failed to consider that the person alleged to be in the house was never called to testify as witnesses.
iii. That the learned trial magistrate erred in law and fact by failing to consider the contradictions between the complainant’s evidence and the doctor’s evidence.
iv. That the learned trial magistrate erred in law and fact by failing to consider that the age of the victim which is the main ingredient of the offence of defilement was not proved beyond reasonable doubt.
v. That the learned trial magistrate erred in law and fact by discounting and not considering in detail my defence evidence.
5. The Appeal was argued by submissions and the appellant choose to emphasis that the trial court did not consider the time spent in custody.
6. Analysis and Determination
7. 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.
8. 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”.
9. 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.”
10. I have considered the grounds of appeal, evidence adduced in the lower court and the respective parties’ submissions. I find the following broad issues for determination: -
a. Whether or not the Prosecution proved its case beyond reasonable doubt;
b. Whether the Honourable Trial Court considered the Appellant’s defence in its final determination.
c. Whether the sentence was lawful.
Elements of offence of defilement
11. The Appellant was charged with the of the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act which provides:-
“8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(3) A person who commits an offence of defilement with a child aged between the ages ofo12 and 15 years is liable upon conviction to imprisonment for .”
12. The specific elements of the offence defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:
a) Age of the complainant;
b) Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and
c) Positive identification of the assailant
13. “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”(“Charles Wamukoya Karani – Versus - Republic, Criminal Appeal No. 72 of 2013”).
14. What does the evidence portend?
15. In a charge of defilement, the age of the victim is important for two reasons:-
i. defilement is a sexual offence against a child; and
ii. age of the child has been used as an aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence.
16. A child is defined as a person under the age of eighteen years. Is the victim herein a child? In the case of “Hillary Nyongesa – Versus - Republic (Eldoret) Criminal Appeal No. 123 of 2009” Mwilu, J. stated thus:
“Age is such a critical aspect in Sexual Offences that it has to be proved conclusively. Anything else is not good at all. It will not suffice. And it becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.”
AGE
17. PC (W) Kanze produced an age assessment form dated 13/01/2020 to prove the complainant’s age. It found MM to be 13 years old.
18. In the case of FAPPYTON MUTUKU VS REPUBLIC [2016] eKLR , it was held:
“…conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean certificate. Such formal documents might be necessary in borderline cases, but other of proof of age are available and can be used in other cases”
19. The appellant did not challenge the production of the assessment card. However, the court notes as did the trial court some inconsistences on this issue. The honorable trial court stated: ‘I note that MM stated she was ten years old when she testified and the charge sheet places her age at 12 years old. Her father MI, testified that he had not applied for her birth certificate.’
20. The trial court did not find the inconsistencies to be fatal. The judgment states ‘’ I find the age of assessment report is conclusive proof of age because of its medical accuracy. Secondly, the age gap caused by the discrepancy between the age of the charge sheet and the age assessment form does not deviate from the provisions of Section 9 of the Sexual Offences Act 2006 for sentencing purposes. I therefore, find that she was a child at the material time, as provided under the Children Act 2022.
21. In as much as this argument makes sense, these discrepancies should not to have been ignored especially in the light of the other issues that emerged. Its noted that even on the charge sheet we see an alteration from 16 which is cancelled to 13 . I therefore find that there were some doubts as to the age of the victim.
Relationship
22. MM ( PW1) referred to the accused person as her uncle, i.e. her father’s brother. This fact was corroborated by MIM, who called him his brother. His brother IM (pw5) referred to the accused person as someone they considered as their brother. He called him ‘Jay’. PW5 stated his niece MM, PW1, would stay with him and his family during the school term at Mzangatifu area in Mariakani, where she attended K primary school. Jay would bring her to Mariakani at the required time and transport her back to her.
23. Now PW 2 says the accused person is HIS brother and PW5 says he considers him to be a brother. PW5 IS PW2’S BROTHER . PW5, WHO IS PW2’S BROTHER, is not sure if the accused person is their brother. He says they consider him as their brother. Which is which ? You are either a brother or not. This was a 2nd red flag.
Penetration
LOCATION
24. MM testified that the accused person defiled her in the bushes after the accident they had on their way to Mariakani. Her father stated that MM was defiled in a shed in a church by his brother. This was another hanging issue.
ANAL OR VAGINAL
25. PW1 testified that the accused person inserted his penis into her vagina against her will. I have looked at the particulars of the charge sheet it refers to an anal penetration. Dr. Sango (PW 3) testified that there were lacerations on the vagina at the six and 12 o’clock positions, and her hymen intact as per the P3 and PRC forms. Additionally, the results of the genital examination in the PRC form note the healed lacerations on the six o’clock and 12 o’clock positions were on the history indicates anal penetration and appears to be signed against it after a cancellation.
26. The question in the Court’s mind is if this inconsistency is significant.
27. The trial court relied on the authority by The Court of Appeal in the case of TYSON GEORGE NGOWA VS REPUBLIC [2017] eKLR, dealt with the issue of inconsistencies and contradictions. The Court of appeal cited two authorities emanating from the same Court in addressing both issues. These
are;
28. “ERICK ONYANGO ONDENG VS R [2014] eKLR, wherein the Court held as follows:
“The hearing before the trial court invariably entails consideration of often contradictory , We are conscious of this Court’s position in PHILIP NZAKA WATU VS R [2016] eKLR that:-
“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infalliable, and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question”... The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence on the basis of judicial, it prefers “ E
30. Having been guided by the authorities above, the trial court said that the discrepancies pale in comparison when weighed against one consistent factor when assessed in a wholesome manner:
.
32. On the issue of whether penetration was vaginal or anal, the trial court stated that ; Section 2 of the Sexual Offences Act 2006 defines penetration as ‘the partial or complete insertion of the genital organs of a person into the genital organs of another person’. In the case of STEPHEN ODHIAMBO ONYANGO vs REPUBLIC [2018] KLR, the Hon. Mr. Justice A. Mrima, in addressing the issue of what amounts to penetration, cited the case of ERICK ONYANGO ONDENG VS REPUBLIC (2014) eKLR, where the Court of Appeal was held that: held as such on the aspect of penetration.
“In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.”
33. The trial court then found that the variance between the charge sheet and the oral evidence of MM and Dr. Sango is not material or inconsistent.
34. In the above analysis ,The Hon Trial court quoted the authority on penetration and the depth but that cannot explain the discrepancy in the evidence between the anal or vaginal penetration. Those are very different aspects.
35. The charge sheet talks of anal penetration but the PRC SHOWS INJURIES ON THE VAGINA. One may say this was an error, but this was a 13 year old child and she would know what she was saying.
36. Again , if this was the only contradiction or inconsistency, I would have agreed with the trial court and dismissed it as a minor contradiction but in this case there were too many gaps.
37. The unresolved issues are:
i.) The date the incidence happened.
Was it the 3rd,4th, or 5th or 8th of October 2019. We are not sure. Even the charge sheet does not mention the date. It says on some unknown date. Yet PW1 in her evidence said she recalled the 4/9/2019. She did not say on a date she cannot recall. Her evidence was certain.
38. Pw 5 who raised the alarm, did not mention any date. He only says PW 1 was dropped home at 7.30pm, he arrived at 8.00pm and PW 1 told him they had fallen off the motorbike. He then became suspicious and called the father, PW2 who took her to hospital the next day. That would make it the 5/09/2019 if we go by Pw 1’s date. PW 2 on the other hand says that he paid the accused person on 03/09/2019 to take PW 1 to Mariakani. So that would mean the incidence occurred on 3rd October.
39. PW 4, produced the PRC, it is dated 09/09/2019. I however note that page 1 is overwritten at 3 places and charged from what appears to be 6/9/2019 to 9/9/2019. This may be innocent but in light of the other contradiction it’s a red flag.
40. PW 5 the investigating officer on her side says the report was made on 4/9/2019. That is at page 36 of the Record of Appeal. At page 37- she changes to the 06/09/2019.
41. The PRC shows the report was made to the police on 8/09/2019 which is the date the accused person says he made a report about the accident.
42. From all this the date issue was not cleared up. Its noted that none of the witnesses said they do not know or they were not certain of the date. They just testified as to different dates
iii. The other issue is where the penetration was.
PW 1 says the vagina in court. To the Doctor she says the anus. The PRC seem does not mention any injury to the anus. There were lacerations to the vagina. Was it anal or vagina penetration. This was not clarified.
iv. Place where the offence took place.
At one point PW 1 said it was a bush, then at another point it was in a shed.
v. Relationship with the accused.
The child says the accused person was just a bodaboda guy. Her father says he was the brother, and PW 5 who would then be their brother, says the accused person is liked brother. Surely how can one not know who their brother is?
PW 5 said that PW 1 was his niece. HIS mother child. How can that be?
vi. The age of the victim
This fluctuated from 10,12,13 and in the charge sheet it changed from 16 to 12 years.
43. The above issues were too many to be ignored.
44. I note that in his defence the accused person said that PW 2 owed him some money and he in fact raised this issue when cross examining PW 2 so it was not an afterthought . He added that i the father to PW 1 wanted compensation after the motor cycle accident. This is supported by the entry in the PRC that the report was made on 8th September 2019 .
45. All these issues cannot be swept under the carpet.
Accordingly, I find that the conviction was not safe. None of the ingredients of defilement was proved beyond reasonable doubt. The age, the date and place of the offence, the penetration all had some heavy cloud of doubt hanging over them. These were not minor discrepancies and as stated in NZAKA WAKA that 'Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question”.
46. The extent of discrepancies and inconsistences in this case render the total evidence unbelievable.
47. We must also never forget that the standard of proof remains beyond reasonable doubt.
48. As for the sentence, under 333(1), of the CPC the time spent in remand custody should be deducted from the sentence not just mentioned.
49. Accordingly, the Appeal succeeds and the conviction is quashed and sentence set aside the accused person may be released from custody unless if otherwise lawfully held.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 27th day of MARCH 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
THE APPELLANT IN PERSON
MR NGIRI FOR THE STATE
MS BEBORA COURT ASISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE