(Being an Appeal against conviction and sentence in Mombasa Chief Magistrates Courts S.O No. 078 of 2021 delivered on 28/3/2024 by Hon. D.O Odhiambo (SRM).)
The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006.
The particulars of the offence are that on diverse dates between 1 st January, 2021 and 2 nd June, 2021, at Approved area in Likoni Sub County within Mombasa County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of J.N.C. a child aged 14 years.
He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006 , which particulars of the offence are that on diverse dates between 1 st January, 2021 and 2 nd June, 2021, at Approved area in Likoni Sub County within Mombasa County the appellant intentionally and unlawfully touched the vagina of J.N.C. a child aged 14 years with his penis.
The appellant was after full trial found guilty of the main count upon which the alternative count was deemed spent, and thereby sentenced to twenty (20) years imprisonment.
The appellant was aggrieved by the conviction and sentence, and he preferred the present appeal based on grounds that the learned trial magistrate erred in law and fact by failing to appreciate that the offence was not proven beyond reasonable doubt, being that the conviction was based on a single witness testimony void of medical corroborating evidence, and that the magistrate failed to take into account the period he spent in remand.
As at the time of making this decision, neither of the parties had complied by filing of submissions on record.
Determination
It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Whether the prosecution established its case against the defendant beyond reasonable doubt?
The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator . These ingredients are provided for under section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue. (See George Opondo Olunga vs. Republic [2016] eKLR .)
Section 8(1) of the Sexual Offences Act provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
…
(5) It is a defence to a charge under this section if –
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
The first element is age . The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added).
The age of the minor was established by the production a copy of the minor’s birth certificate entry no.250706987 (pexh1) which settled that the complainant was born on 29/4/2007, and therefore as at the time of the incidence was 14 years. This was corroborated by the complainant’s mother, PW2.
The second issue is whether the prosecution established proof of penetration of the complainant , beyond reasonable doubt. Penetration is proved through the evidence of the victim corroborated by medical evidence. Nevertheless, what this court requires is proof of facts that the offence was committed, the medical evidence, notwithstanding. The provisions of Section 124 of the Evidence Act, informative to the end that a conviction can rest squarely on the sole testimony of the victim. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
Section 124 of the Evidence Act, Cap 80 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
According to the appellant the prosecution failed in its undertaking to prove its case beyond reasonable doubt. He argued that the testimony of the complainant was not medically corroborated.
PW1 in her testimony gave a cogent and vivid account of how the appellant lured her through letters stating that he loved her and wished to marry her. That thereafter, the appellant picked her from their home on a motorbike and took her to his house; a one-bedroom house. He told her to remove her pants and threatened her that if she did not love him he would kill her. He ordered her to remove her pants at which point he removed ‘kidudu chake’ and put it in her ‘susu’ (pointing at her private parts).
Painstakingly, she further narrated that he severally engaged in sexual intercourse with her on Saturdays whilst promising to take her to his parents.
PW1’s testimony was corroborated with the medical analysis report as presented by one Victor Opanda, a Clinical Officer; PW4, exhibited that she had a broken hymen and she had been infected with an STD. Further, that her vagina was red, tender and swollen and her anus was abnormal with lacerations at 12.00 o’clock.
It is not lost to me that a broken hymen is not absolute certainty of penetration, but the same coupled with the testimony of the victim, leaves no room for doubt that the indeed penetration sufficed.
Simply put, I conclude therefore that the second ingredient namely penetration was adequately proven based on the victim’s evidence and the medical evidence.
On identification of the perpetrator , PW1’s evidence is that the appellant is well known to her by dint that he would drop off love letters to her. Further, she positively identified the accused person in court as the perpetrator.
Having considered the appellant’s defence, it is clear that the same fell short in dislodging the prosecutorial evidence. I have no reason to differ from the findings of the trial magistrate who had the opportunity to hear and see the complainant as she testified and weigh the same against the appellant’s defence and tested both their demeanor.
As to the 20 years custodial sentence , imposed on the appellant, it is noteworthy that he neither questioned its legality or lack thereof, nor submit on the same. In my view the trial court duly exercised it discretion and proceeded to sentence the appellant for a period of twenty (20) years, cognizant of Section 8 (1) (3) of the Sexual Offence Act, stipulates that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
I find the sentence is inherently sound and guided by statute, thereby being the minimum sentence available on the offence. Further, the trial court directed that the sentence be computed from the appellant’s time of arrest.
For the above reasons, I find and hold that the prosecution proved its case against the appellant beyond reasonable doubt and that the appellant’s defence was a sham, wanting in merit. Accordingly, I uphold the conviction and sentence, and the appeal is hereby dismissed in its entirety.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…24TH…..day of…..…JULY……2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPELLANT IN PERSON............................
FOR THE RESPONDENT......MR SIRIMA.......................
COURT ASSISTANT............BEBORA.......................
The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006.
The particulars of the offence are that on diverse dates between 1 st January, 2021 and 2 nd June, 2021, at Approved area in Likoni Sub County within Mombasa County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of J.N.C. a child aged 14 years.
He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006 , which particulars of the offence are that on diverse dates between 1 st January, 2021 and 2 nd June, 2021, at Approved area in Likoni Sub County within Mombasa County the appellant intentionally and unlawfully touched the vagina of J.N.C. a child aged 14 years with his penis.
The appellant was after full trial found guilty of the main count upon which the alternative count was deemed spent, and thereby sentenced to twenty (20) years imprisonment.
The appellant was aggrieved by the conviction and sentence, and he preferred the present appeal based on grounds that the learned trial magistrate erred in law and fact by failing to appreciate that the offence was not proven beyond reasonable doubt, being that the conviction was based on a single witness testimony void of medical corroborating evidence, and that the magistrate failed to take into account the period he spent in remand.
As at the time of making this decision, neither of the parties had complied by filing of submissions on record.
Determination
It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Whether the prosecution established its case against the defendant beyond reasonable doubt?
The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator . These ingredients are provided for under section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue. (See George Opondo Olunga vs. Republic [2016] eKLR .)
Section 8(1) of the Sexual Offences Act provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
…
(5) It is a defence to a charge under this section if –
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
The first element is age . The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added).
The age of the minor was established by the production a copy of the minor’s birth certificate entry no.250706987 (pexh1) which settled that the complainant was born on 29/4/2007, and therefore as at the time of the incidence was 14 years. This was corroborated by the complainant’s mother, PW2.
The second issue is whether the prosecution established proof of penetration of the complainant , beyond reasonable doubt. Penetration is proved through the evidence of the victim corroborated by medical evidence. Nevertheless, what this court requires is proof of facts that the offence was committed, the medical evidence, notwithstanding. The provisions of Section 124 of the Evidence Act, informative to the end that a conviction can rest squarely on the sole testimony of the victim. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
Section 124 of the Evidence Act, Cap 80 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
According to the appellant the prosecution failed in its undertaking to prove its case beyond reasonable doubt. He argued that the testimony of the complainant was not medically corroborated.
PW1 in her testimony gave a cogent and vivid account of how the appellant lured her through letters stating that he loved her and wished to marry her. That thereafter, the appellant picked her from their home on a motorbike and took her to his house; a one-bedroom house. He told her to remove her pants and threatened her that if she did not love him he would kill her. He ordered her to remove her pants at which point he removed ‘kidudu chake’ and put it in her ‘susu’ (pointing at her private parts).
Painstakingly, she further narrated that he severally engaged in sexual intercourse with her on Saturdays whilst promising to take her to his parents.
PW1’s testimony was corroborated with the medical analysis report as presented by one Victor Opanda, a Clinical Officer; PW4, exhibited that she had a broken hymen and she had been infected with an STD. Further, that her vagina was red, tender and swollen and her anus was abnormal with lacerations at 12.00 o’clock.
It is not lost to me that a broken hymen is not absolute certainty of penetration, but the same coupled with the testimony of the victim, leaves no room for doubt that the indeed penetration sufficed.
Simply put, I conclude therefore that the second ingredient namely penetration was adequately proven based on the victim’s evidence and the medical evidence.
On identification of the perpetrator , PW1’s evidence is that the appellant is well known to her by dint that he would drop off love letters to her. Further, she positively identified the accused person in court as the perpetrator.
Having considered the appellant’s defence, it is clear that the same fell short in dislodging the prosecutorial evidence. I have no reason to differ from the findings of the trial magistrate who had the opportunity to hear and see the complainant as she testified and weigh the same against the appellant’s defence and tested both their demeanor.
As to the 20 years custodial sentence , imposed on the appellant, it is noteworthy that he neither questioned its legality or lack thereof, nor submit on the same. In my view the trial court duly exercised it discretion and proceeded to sentence the appellant for a period of twenty (20) years, cognizant of Section 8 (1) (3) of the Sexual Offence Act, stipulates that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
I find the sentence is inherently sound and guided by statute, thereby being the minimum sentence available on the offence. Further, the trial court directed that the sentence be computed from the appellant’s time of arrest.
For the above reasons, I find and hold that the prosecution proved its case against the appellant beyond reasonable doubt and that the appellant’s defence was a sham, wanting in merit. Accordingly, I uphold the conviction and sentence, and the appeal is hereby dismissed in its entirety.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…24TH…..day of…..…JULY……2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPELLANT IN PERSON............................
FOR THE RESPONDENT......MR SIRIMA.......................
COURT ASSISTANT............BEBORA.......................