(Being an appeal from the judgment and sentence of Hon. D. Odhiambo in Shanzu Magistrates Court Sexual Offence (SO) Case No. E009 of 2020 delivered on 23/3/2022)
J U D G M E N T
1. The appellant, Johanna Mwadori Charo was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on 17/10/2020 at Soweto area in Nyali Sub-County within Mombasa County, intentionally and unlawfully caused his penis to penetrate the vagina of M.M. a girl aged 13 years.
2. He is also charged with what is expressed as Count II, but the same is actually an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same day, place and time as in the principal charge the appellant intentionally and unlawfully touched the vagina and breast of M.M. a girl aged 13 years with his penis.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 3 witnesses in support of its case namely PW 1, M.M. the complainant, PW 2, G.K.M., the complainant’s aunt and PW 3, Dr. Fatu Ahmed. The appellant DW 1, gave sworn evidence in defence and did not call a witness.
4. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 20 years imprisonment.
5. The appellant was aggrieved by the decision of the trial court and has set out to challenge the decision based on the following amended grounds of appeal, that the trial court erred in law and in fact:
a. by failing to see that the voire dire examination done on the complainant was equivocal.
b. by failing to see that the age of the complainant was not conclusively established.
c. by failing to see that the medical evidence did not sit in consonance with the charges levelled against him in the case.
d. by failing to consider his mitigation submissions.
6. The respondent opposed the appeal through grounds of opposition filed in court on 13/11/2024 that identification of the appellant was established, the age of the minor was proved at the trial court, the fact of penetration was proved, the trial court guaranteed the appellant’s right to a fair trial, the appellant’s defense was considered by the trial court and a finding made on the same, the prosecution proved its case beyond reasonable doubt, the period spent by the appellant in custody was considered during sentencing, the sentence meted by the trial magistrate was lawful.
7. The appeal was disposed of by way of written submissions filed by the appellant while the respondent relied on the grounds of opposition only.
8. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
9. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
10. Sections 8(1) and 8(3) of the Sexual Offences Act under which the appellant was convicted provide as follows:
S. 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.
11. From the above provisions of the law, the ingredients of the offence of defilement which the prosecution must prove beyond a reasonable doubt are age of the complainant, proof of penetration and positive identification of the assailant. (See the case of C.W.K v Republic [2015] eKLR).
12. PW 1, M.M. the complainant gave sworn evidence and said she was a pupil in class 7 in a named school in Kitui. She was in Mombasa staying with her aunt G.K.M., PW 2 at the time of the alleged incident on 17/10/2020. She said the appellant who was their neighbour at the aunt’s residence pulled her into his house against her will, removed her skirt and her panties and also removed his trousers and pair of pants and engaged in sexual intercourse with her on his bed for two hours. PW 2, while looking for the complainant and having been alerted that she was in the appellant’s house, went to the door, knocked and called her out but she did not respond. PW 2 kicked the door and the appellant opened. The complainant said she had not yet dressed and that her aunt found her on the bed.
13. PW 2 said that she found the complainant’s shoes at the door of the appellant’s house. When the appellant opened the door, he made to take off but PW 2 restrained him. PW 2 saw the complainant inside the house on the bed with her upper clothes on but without her skirt and tights. PW 2 screamed and neighbours responded and assisted her to take the appellant to the police station. After that they proceeded to Coast General hospital where the complainant was examined and given medical attention.
14. PW 3, Dr. Fatu Ahmed produced the P3 form completed for the complainant by her colleague Dr. Fatu Kassim, who was said to be away on leave at the time. She also produced the PRC form completed in respect of the complainant. The P3 form indicated that the complainant had abrasion with broken hymen with an old scar. The injury was indicated to be more than two months old and the degree was classified as harm.
15. The prosecution did not make available the investigating officer to testify.
16. The appellant gave sworn evidence in defence and said that the complainant’s mother, obviously referring to her aunt, PW 2 was his neighbour and they bore grudges arising from them having worked together and PW 2 refusing to pay him. She then decided to frame the appellant for sleeping with her daughter. He also testified that on one occasion, PW 2 had asked him to sleep with her but the appellant left and never went back. PW 2 then sent the complainant to go call the appellant. The complainant went and informed him and the appellant told her that he could come later. However, the complainant insisted that he had to come with her. The complainant then sat down and waited for him. PW 2 went over and found them in his house and set upon beating him. She took him to her house and asked the complainant whether they had used a condom. He was then arrested and taken to the police station then to Makadara (CPGH) and he was subsequently charged.
17. In cross-examination, the appellant changed his story and said that in fact they were not found inside the house but outside where he was washing his clothes. He also said that he was in a relationship with PW 2. Asked whether he had raised that issue in cross-examination of the PW 2, he said he had not.
18. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of defilement of a child aged 13 years against the appellant beyond a reasonable doubt and thus convicted and sentenced him to 20 years’ imprisonment.
19. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the appellant and the grounds of opposition by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
20. The first ground of appeal by the complainant is that the voire dire examination conducted by the trial court for the complainant was equivocal, which to my understanding means that the same was not clear or certain. The appellant submits that in the entire examination of the complainant on voir dire the trial court did not mention the oath or even swear but proceeded to receive the testimony of the victim on oath. He submits that the purported examination was improperly conducted as it did not establish the capability of the complainant to testify on oath as required under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and expounded in the case of John Muiruri v. Republic [1983]KLR, 445.
21. I have read through the trial court’s proceedings and in my view the proceedings of the trial court reveal that the complainant was examined on her competence to testify and the duty of telling the truth. The questions of the trial court and the answers given by the complainant clearly show that proper voire dire examination was conducted. The learned trial magistrate then recorded that the minor was in possession of sufficient knowledge, understood the duty of saying the truth and could be sworn.
22. However, thereafter, there is no indication that the complainant was sworn before she proceeded to testify. After the trial court’s finding on the complainant’s competence to testify under oath the complainant is recorded to have gone straight into introducing herself and giving her testimony. The failure to indicate that the complainant was actually sworn before she testified, lends credence to the appellant’s assertion that the voire dire examination was equivocal. The issue then is whether that omission was fatal to the prosecution’s case as submitted by the appellant.
23. In the case of Maripett Loonkomok v Republic [2016] eKLR, the Court of Appeal expounding on the issue of failure by a trial court to conduct a voire dire examination held that:
“It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that;
“In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.”
24. Similarly, in the case of Haji v. Republic [2018] eKLR the court expressed itself as follows: -
‘In this case, the child who was aged 11 years gave evidence on oath without voir dire examination being conducted on him… The law is that where voir dire examination is not conducted the evidence of the child cannot be used as he basis of a conviction on an accused person unless there is some other independent evidence to support the charge. (Emphasis mine).
25. From the foregoing decisions, the position is that where the court has failed to conduct a voir dire examination of a child of tender years, the court has to determine whether there is other sufficient independent evidence that a conviction can be based upon besides that of the child of tender years.
26. In the present case, I have found that there was voir dire examination of the complainant. The question that is unanswered is whether the failure by the learned trial magistrate to record that the complainant had been sworn immediately after that examination and before giving her testimony was inadvertent or whether in fact she was never sworn even after the learned magistrate finding that she could be sworn.
27. The appellant submits that the complainant testified under oath. The High Court is a court of record and so besides the fact that its proceedings are recorded and available as evidence of fact, it also goes by the record of the lower court as recorded and available for its examination. In this case, the record of the lower court has no indication that the complainant was sworn or gave unsworn testimony. In that case this court can only find that after the voir dire examination, she gave unsworn evidence.
28. I therefore, find that even if the voire dire examination of the complainant had not been proper as contended by the appellant (which is not the case), the same would not be fatal for as long as there was other sufficient independent evidence to support the conviction.
29. The second ground of appeal is that the trial court failed to see that the age of the complainant was not conclusively established. The appellant submits that the only person who testified on the age of the complainant was her aunt, PW 2 who relied on a certificate of birth that is not clear whether it was ever produced as an exhibit or not because it was not part of the documents supplied to him in the record of appeal as required under the law.
30. The position from the proceedings is that in fact the certificate of birth was marked for identification (MFI) by PW 2 but never produced as an exhibit. That explains why it was not part of the record of appeal. That omission could have been due to the fact that the investigating officer did not turn up to testify. On this issue, I have never understood why the prosecution always insists that all exhibits have to be produced by the investigating officer. The best person to have produced that certificate of birth as exhibit before the trial court was the complainant herself. But she was not even referred to the certificate of birth in her testimony.
31. It is true as pointed out by the appellant that the learned trial magistrate in his judgment referred to PW 2 as the complainant’s mother yet she was her aunt. That was an inadvertent error on the part of the trial magistrate because the evidence on record was clear that she was her aunt. But the same was not fatal to the prosecution’s case and the contention by the appellant that PW 2 could not have known the complainant’s age is not feasible. PW 2 being her aunt and staying with her would know her age and even her date of birth. In her case, she had the birth certificate of the complainant from which she could and did confirm the date of birth. I am not convinced that she was someone who was incapable of knowing the complainant’s age. From the manner she handled the case right from when she found the two together to the manner of her testimony in court, she appears to be an intelligent person who was capable of knowing the complainant’s age including her date of birth. For reasons which I cannot tell, ladies somehow are very good at remembering ages and particular dates of birth of people. It is a credit they have to be given. In this case, PW 2 had with her the certificate of birth for reference. It was not itself produced as an exhibit but it was available to PW 2 to refer. But even in its absence I would find that her evidence on the complainant’s date of birth and age was credible. There is no indication that she would have been motivated by any malice towards the appellant so as to lie over that issue.
32. On the question of proof of age, the Court of Appeal had this to say in the case of Mwalango Chichoro Mwanjembe v Republic [2016] eKLR:
“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 documentary 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 presented in proof of the victim’s age, it has to be credible and reliable.
33. From the above decision, what the court needs to be satisfied on proof of age is that the evidence is credible and reliable. In the present case, the learned trial magistrate relied on the evidence of the complainant and certificate of birth as proof of the complainant’s age. That was an error for not properly considering the evidence on record because the certificate of birth was not produced as an exhibit and the complainant only stated her age as 13 years during the voir dire examination which was not evidence. She was not asked about her age after she was found competent to testify. However, I have found that PW 2 was a credible witness and that her evidence on that issue was reliable. I therefore find that from her evidence, the complainant was born on 24/8/2008 and therefore was 12 years, 2 months and 3 weeks as at 17/10/2020 when the defilement is alleged to have occurred. I am satisfied that there was evidence to prove that she was not only a child under section 8(1) but also between the age of 12 and 15 years under section 8(3) of the Sexual Offences Act.
34. The next ground of appeal is that the medical evidence did not sit in consonance with the charges levelled against the appellant. In other words that there was no medical evidence to corroborate the complainant’s evidence that she had been defiled.
35. The complainant was the only witness to testify that the appellant engaged in sexual intercourse with her for two hours. She was thus the only eye witness on the issue of penetration. The manner in which the court should proceed to consider the unsworn evidence of a child victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 19(1). Oaths and Statutory Declarations Act:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”
S. 124. Evidence Act:
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material 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 offence, 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.”
36. I have found that the trial court complied with the requirements of section 19 of the Oaths and Statutory Declarations Act and that the complainant gave unsworn evidence.
37. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
38. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
39. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
40. In this case, the evidence of the complainant that the appellant was in a compromising situation with her was corroborated by PW 2. The evidence of PW 2 supports that of the complainant was that the appellant was locked in his house with the complainant, he hesitated to open the door when PW 2 knocked at the door and called out for the complainant. PW 2 had to kick the door for the appellant to open it. Furthermore, PW 2 found the complainant half naked and on the bed.
41. However, the complainant’s evidence that the appellant had sexual intercourse with her for two hours is not supported by the evidence of her aunt PW 2 or the medical examination. In other words, there was no corroboration of the complainant’s evidence on the element of penetration in which case the trial court was enjoined to make it expressly clear in the proceedings that the complainant was telling the truth and if so in the judgment to warn itself of the danger of relying upon uncorroborated evidence of the complainant. Unfortunately, upon considering the proceedings and the judgment of the learned trial magistrate, they do not show that these requirements were complied with.
42. Upon a fresh examination of the evidence on record, I find that in spite of PW 2 finding the complainant with the appellant in his house, with the door locked from inside and the complainant without her lower clothes and on the bed, there is no indication that PW 2 examined the complainant’s genitalia either immediately or later to determine whether the complainant had been defiled. It is understandable that under those shocking circumstances and at the same time trying to restrain the appellant as she screamed to call for assistance, that would not have been possible immediately. Unfortunately, the opportunity to find corroborating evidence of penetration was also lost.
43. But more profoundly, the evidence contained in the P3 form showed that the complainant had abrasions with broken hymen with old scar that was more than 2 months old. PW 3, the witness who produced the P3 form was not the one who completed them. Since she was not the author of the P3 form, PW 3 could not explain the import of this sentence. She said that one part of the P3 form was not filled, meaning that it was incomplete. I have looked at the P3 form produced and indeed, Part C was blank yet it is the one that relates to sexual offences. Although PW 3 also produced the PRC form as exhibit, she never said that it was also completed by the same doctor who completed and signed the P3 form. PW 3 said in re-examination that “doctor is able to look at the PRC form to see the injuries.” That means the doctor who fills the P3 from may not be the one who filled the PRC form.
44. I have looked at the two documents and I see the PRC form bears the name and signature of the examining officer as Loise M. Njiru dated 19/10/2020 while the P3 form bears a date and different signature and is dated 8/2/2021. PW 3 could therefore only give evidence of the P3 form completed by her colleague with whose handwriting and signature she was conversant and not the PRC form. That means, the learned trial magistrate erred in admitting the PRC form as an exhibit without first ascertaining that it had been filled by Dr. Kassim on whose behalf PW 3 testified and produced the P3 form. Therefore, crucial evidence gathered in the PRC form was left out yet it was the primary document completed upon examining the complainant. The evidence found therein would have been helpful for purposes of supporting the complainant’s evidence. This situation was made worse by the failure of the investigating officer to testify as she would have testified on who the maker of the PRC form was and probably had that person called as a witness to testify.
45. The consequence of it was that there was no corroborating evidence of recent sexual intercourse as alleged by the complainant. Her evidence of penetration, that the appellant had sexual intercourse with her for two hours, being without corroboration and the learned trial magistrate not having expressly stated in the proceedings that he believed she was a witness of truth is therefore, unreliable. The learned trial magistrate was therefore in error to find that the fact of penetration had been proved beyond a reasonable doubt. I find doubt in the prosecution evidence on that issue which doubt must be exercised in favour of the appellant.
46. The evidence herein shows that the appellant was found locked in his house in a compromising situation with the complainant, a child, who was half naked and on his bed. That evidence irresistibly points to the fact that he had conceived the idea of defiling the complainant and set out to put that intention into effect and took definite steps towards achieving his objective save that the same was disrupted by PW 2.
47. I am satisfied that these circumstances fit the definition of attempt to commit an offence under section 388 of the Penal Code (Cap. 63) Laws of Kenya which is in the following terms:
“S. 388(1). When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
(2). It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.”
48. The Court of Appeal considering the definition of attempt in the case of Isaack Ali Issack v Republic [2020] KECA 699 (KLR) held that the above section brings out two main ingredients of an attempted offence; the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention.
49. In the case of Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR) the Court of Appeal, considering a case of attempted defilement held that the main ingredient of this offence is committing an act which would cause penetration and this is the actus reus of the offence. The Court of Appeal further endorsed the High Court approach on the proof of an attempt where it had said that:
“The question that calls for determination is whether or not the conduct of the appellant constituted an overt act sufficiently proximate to constitute an attempt to defile the complainant”
50. And in the case of Francis Mutuku Nzangi v Republic [2013] KECA 112 (KLR) the Court of Appeal expounds on this provision thus:
“Our understanding of this provisions is that if a person conceives an idea or plan to commit an offence and sets out to effectuate the intention by taking definite steps or puts in motion a chain of events or state of things calculated to attain that objective as manifested by some open and discernible act or acts but fails to achieve his objective, he will be guilty only of an attempt to commit the offence. The attempt is proved whether or not that person did all the acts necessary to perfect the offence and quite irrespective of what intervening act or change of heart may have aborted the fulfillment. It also matters not that circumstances did in fact exist, unbeknown to the person, that would have rendered his success impossible.”
51. In this case, I am satisfied that the evidence adduced proved the case of attempted defilement as the acts of the appellant upon the complainant went beyond mere preparation towards the immediate act of penetration. Had the complainant’s aunt not interrupted, the appellant would have had sexual intercourse with the complainant thus completing the act of penetration. A clear intention to commit the offence was established and the overt acts sufficiently proximate to constitute an attempt to defile the complainant.
52. The appellant’s evidence that he was framed by the complainant's aunt PW 2 was unbelievable and the learned trial magistrate correctly rejected it. There was nothing in that evidence to challenge the strong evidence tendered by the prosecution witnesses. The failure to prove penetration was due to errors of prosecution to make available requisite and credible medical evidence to support the complainant’s evidence and the failure by the learned trial magistrate to adhere to the correct procedure in taking the evidence of the complainant. It was not because the appellant mounted a strong challenge to the case by the prosecution in the trial court.
53. Consequently, I set aside the judgment of the trial court convicting the appellant of defilement and substitute it with a conviction for attempted defilement contrary to section 9(1) and (2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya.
54. The final ground raised by the appellant was on sentence, that his mitigation was not considered by the trial court and that he ought to have been given a lesser sentence in view of decisions from the Court of Appeal that minimum mandatory sentences under the Sexual Offences Act were unconstitutional.
55. The learned trial magistrate correctly imposed the minimum sentence for defilement under section 8(3) of the Sexual Offences Act. The appellant’s submission that minimum sentences have been declared unconstitutional by the Court of Appeal has been overtaken by events in view of the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that minimum sentences under the Sexual Offences Act are not unconstitutional.
56. In the result, in view of the conviction for attempted defilement the appellant’s sentence for defilement is set aside and substituted with a sentence of ten (10) years imprisonment which will run from 19/10/2020 the date he was taken into custody after plea taking.
57. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 6th day of January 2025 in the presence of:
The appellant in person from Shimo La Tewa prison.
Ms Vallerie h/b for Mr. Ngiri for the respondent
Johnson: Court assistant.
J U D G M E N T
1. The appellant, Johanna Mwadori Charo was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on 17/10/2020 at Soweto area in Nyali Sub-County within Mombasa County, intentionally and unlawfully caused his penis to penetrate the vagina of M.M. a girl aged 13 years.
2. He is also charged with what is expressed as Count II, but the same is actually an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same day, place and time as in the principal charge the appellant intentionally and unlawfully touched the vagina and breast of M.M. a girl aged 13 years with his penis.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 3 witnesses in support of its case namely PW 1, M.M. the complainant, PW 2, G.K.M., the complainant’s aunt and PW 3, Dr. Fatu Ahmed. The appellant DW 1, gave sworn evidence in defence and did not call a witness.
4. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 20 years imprisonment.
5. The appellant was aggrieved by the decision of the trial court and has set out to challenge the decision based on the following amended grounds of appeal, that the trial court erred in law and in fact:
a. by failing to see that the voire dire examination done on the complainant was equivocal.
b. by failing to see that the age of the complainant was not conclusively established.
c. by failing to see that the medical evidence did not sit in consonance with the charges levelled against him in the case.
d. by failing to consider his mitigation submissions.
6. The respondent opposed the appeal through grounds of opposition filed in court on 13/11/2024 that identification of the appellant was established, the age of the minor was proved at the trial court, the fact of penetration was proved, the trial court guaranteed the appellant’s right to a fair trial, the appellant’s defense was considered by the trial court and a finding made on the same, the prosecution proved its case beyond reasonable doubt, the period spent by the appellant in custody was considered during sentencing, the sentence meted by the trial magistrate was lawful.
7. The appeal was disposed of by way of written submissions filed by the appellant while the respondent relied on the grounds of opposition only.
8. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
9. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
10. Sections 8(1) and 8(3) of the Sexual Offences Act under which the appellant was convicted provide as follows:
S. 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.
11. From the above provisions of the law, the ingredients of the offence of defilement which the prosecution must prove beyond a reasonable doubt are age of the complainant, proof of penetration and positive identification of the assailant. (See the case of C.W.K v Republic [2015] eKLR).
12. PW 1, M.M. the complainant gave sworn evidence and said she was a pupil in class 7 in a named school in Kitui. She was in Mombasa staying with her aunt G.K.M., PW 2 at the time of the alleged incident on 17/10/2020. She said the appellant who was their neighbour at the aunt’s residence pulled her into his house against her will, removed her skirt and her panties and also removed his trousers and pair of pants and engaged in sexual intercourse with her on his bed for two hours. PW 2, while looking for the complainant and having been alerted that she was in the appellant’s house, went to the door, knocked and called her out but she did not respond. PW 2 kicked the door and the appellant opened. The complainant said she had not yet dressed and that her aunt found her on the bed.
13. PW 2 said that she found the complainant’s shoes at the door of the appellant’s house. When the appellant opened the door, he made to take off but PW 2 restrained him. PW 2 saw the complainant inside the house on the bed with her upper clothes on but without her skirt and tights. PW 2 screamed and neighbours responded and assisted her to take the appellant to the police station. After that they proceeded to Coast General hospital where the complainant was examined and given medical attention.
14. PW 3, Dr. Fatu Ahmed produced the P3 form completed for the complainant by her colleague Dr. Fatu Kassim, who was said to be away on leave at the time. She also produced the PRC form completed in respect of the complainant. The P3 form indicated that the complainant had abrasion with broken hymen with an old scar. The injury was indicated to be more than two months old and the degree was classified as harm.
15. The prosecution did not make available the investigating officer to testify.
16. The appellant gave sworn evidence in defence and said that the complainant’s mother, obviously referring to her aunt, PW 2 was his neighbour and they bore grudges arising from them having worked together and PW 2 refusing to pay him. She then decided to frame the appellant for sleeping with her daughter. He also testified that on one occasion, PW 2 had asked him to sleep with her but the appellant left and never went back. PW 2 then sent the complainant to go call the appellant. The complainant went and informed him and the appellant told her that he could come later. However, the complainant insisted that he had to come with her. The complainant then sat down and waited for him. PW 2 went over and found them in his house and set upon beating him. She took him to her house and asked the complainant whether they had used a condom. He was then arrested and taken to the police station then to Makadara (CPGH) and he was subsequently charged.
17. In cross-examination, the appellant changed his story and said that in fact they were not found inside the house but outside where he was washing his clothes. He also said that he was in a relationship with PW 2. Asked whether he had raised that issue in cross-examination of the PW 2, he said he had not.
18. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of defilement of a child aged 13 years against the appellant beyond a reasonable doubt and thus convicted and sentenced him to 20 years’ imprisonment.
19. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the appellant and the grounds of opposition by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
20. The first ground of appeal by the complainant is that the voire dire examination conducted by the trial court for the complainant was equivocal, which to my understanding means that the same was not clear or certain. The appellant submits that in the entire examination of the complainant on voir dire the trial court did not mention the oath or even swear but proceeded to receive the testimony of the victim on oath. He submits that the purported examination was improperly conducted as it did not establish the capability of the complainant to testify on oath as required under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and expounded in the case of John Muiruri v. Republic [1983]KLR, 445.
21. I have read through the trial court’s proceedings and in my view the proceedings of the trial court reveal that the complainant was examined on her competence to testify and the duty of telling the truth. The questions of the trial court and the answers given by the complainant clearly show that proper voire dire examination was conducted. The learned trial magistrate then recorded that the minor was in possession of sufficient knowledge, understood the duty of saying the truth and could be sworn.
22. However, thereafter, there is no indication that the complainant was sworn before she proceeded to testify. After the trial court’s finding on the complainant’s competence to testify under oath the complainant is recorded to have gone straight into introducing herself and giving her testimony. The failure to indicate that the complainant was actually sworn before she testified, lends credence to the appellant’s assertion that the voire dire examination was equivocal. The issue then is whether that omission was fatal to the prosecution’s case as submitted by the appellant.
23. In the case of Maripett Loonkomok v Republic [2016] eKLR, the Court of Appeal expounding on the issue of failure by a trial court to conduct a voire dire examination held that:
“It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that;
“In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.”
24. Similarly, in the case of Haji v. Republic [2018] eKLR the court expressed itself as follows: -
‘In this case, the child who was aged 11 years gave evidence on oath without voir dire examination being conducted on him… The law is that where voir dire examination is not conducted the evidence of the child cannot be used as he basis of a conviction on an accused person unless there is some other independent evidence to support the charge. (Emphasis mine).
25. From the foregoing decisions, the position is that where the court has failed to conduct a voir dire examination of a child of tender years, the court has to determine whether there is other sufficient independent evidence that a conviction can be based upon besides that of the child of tender years.
26. In the present case, I have found that there was voir dire examination of the complainant. The question that is unanswered is whether the failure by the learned trial magistrate to record that the complainant had been sworn immediately after that examination and before giving her testimony was inadvertent or whether in fact she was never sworn even after the learned magistrate finding that she could be sworn.
27. The appellant submits that the complainant testified under oath. The High Court is a court of record and so besides the fact that its proceedings are recorded and available as evidence of fact, it also goes by the record of the lower court as recorded and available for its examination. In this case, the record of the lower court has no indication that the complainant was sworn or gave unsworn testimony. In that case this court can only find that after the voir dire examination, she gave unsworn evidence.
28. I therefore, find that even if the voire dire examination of the complainant had not been proper as contended by the appellant (which is not the case), the same would not be fatal for as long as there was other sufficient independent evidence to support the conviction.
29. The second ground of appeal is that the trial court failed to see that the age of the complainant was not conclusively established. The appellant submits that the only person who testified on the age of the complainant was her aunt, PW 2 who relied on a certificate of birth that is not clear whether it was ever produced as an exhibit or not because it was not part of the documents supplied to him in the record of appeal as required under the law.
30. The position from the proceedings is that in fact the certificate of birth was marked for identification (MFI) by PW 2 but never produced as an exhibit. That explains why it was not part of the record of appeal. That omission could have been due to the fact that the investigating officer did not turn up to testify. On this issue, I have never understood why the prosecution always insists that all exhibits have to be produced by the investigating officer. The best person to have produced that certificate of birth as exhibit before the trial court was the complainant herself. But she was not even referred to the certificate of birth in her testimony.
31. It is true as pointed out by the appellant that the learned trial magistrate in his judgment referred to PW 2 as the complainant’s mother yet she was her aunt. That was an inadvertent error on the part of the trial magistrate because the evidence on record was clear that she was her aunt. But the same was not fatal to the prosecution’s case and the contention by the appellant that PW 2 could not have known the complainant’s age is not feasible. PW 2 being her aunt and staying with her would know her age and even her date of birth. In her case, she had the birth certificate of the complainant from which she could and did confirm the date of birth. I am not convinced that she was someone who was incapable of knowing the complainant’s age. From the manner she handled the case right from when she found the two together to the manner of her testimony in court, she appears to be an intelligent person who was capable of knowing the complainant’s age including her date of birth. For reasons which I cannot tell, ladies somehow are very good at remembering ages and particular dates of birth of people. It is a credit they have to be given. In this case, PW 2 had with her the certificate of birth for reference. It was not itself produced as an exhibit but it was available to PW 2 to refer. But even in its absence I would find that her evidence on the complainant’s date of birth and age was credible. There is no indication that she would have been motivated by any malice towards the appellant so as to lie over that issue.
32. On the question of proof of age, the Court of Appeal had this to say in the case of Mwalango Chichoro Mwanjembe v Republic [2016] eKLR:
“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 documentary 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 presented in proof of the victim’s age, it has to be credible and reliable.
33. From the above decision, what the court needs to be satisfied on proof of age is that the evidence is credible and reliable. In the present case, the learned trial magistrate relied on the evidence of the complainant and certificate of birth as proof of the complainant’s age. That was an error for not properly considering the evidence on record because the certificate of birth was not produced as an exhibit and the complainant only stated her age as 13 years during the voir dire examination which was not evidence. She was not asked about her age after she was found competent to testify. However, I have found that PW 2 was a credible witness and that her evidence on that issue was reliable. I therefore find that from her evidence, the complainant was born on 24/8/2008 and therefore was 12 years, 2 months and 3 weeks as at 17/10/2020 when the defilement is alleged to have occurred. I am satisfied that there was evidence to prove that she was not only a child under section 8(1) but also between the age of 12 and 15 years under section 8(3) of the Sexual Offences Act.
34. The next ground of appeal is that the medical evidence did not sit in consonance with the charges levelled against the appellant. In other words that there was no medical evidence to corroborate the complainant’s evidence that she had been defiled.
35. The complainant was the only witness to testify that the appellant engaged in sexual intercourse with her for two hours. She was thus the only eye witness on the issue of penetration. The manner in which the court should proceed to consider the unsworn evidence of a child victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 19(1). Oaths and Statutory Declarations Act:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”
S. 124. Evidence Act:
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material 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 offence, 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.”
36. I have found that the trial court complied with the requirements of section 19 of the Oaths and Statutory Declarations Act and that the complainant gave unsworn evidence.
37. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
38. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
39. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
40. In this case, the evidence of the complainant that the appellant was in a compromising situation with her was corroborated by PW 2. The evidence of PW 2 supports that of the complainant was that the appellant was locked in his house with the complainant, he hesitated to open the door when PW 2 knocked at the door and called out for the complainant. PW 2 had to kick the door for the appellant to open it. Furthermore, PW 2 found the complainant half naked and on the bed.
41. However, the complainant’s evidence that the appellant had sexual intercourse with her for two hours is not supported by the evidence of her aunt PW 2 or the medical examination. In other words, there was no corroboration of the complainant’s evidence on the element of penetration in which case the trial court was enjoined to make it expressly clear in the proceedings that the complainant was telling the truth and if so in the judgment to warn itself of the danger of relying upon uncorroborated evidence of the complainant. Unfortunately, upon considering the proceedings and the judgment of the learned trial magistrate, they do not show that these requirements were complied with.
42. Upon a fresh examination of the evidence on record, I find that in spite of PW 2 finding the complainant with the appellant in his house, with the door locked from inside and the complainant without her lower clothes and on the bed, there is no indication that PW 2 examined the complainant’s genitalia either immediately or later to determine whether the complainant had been defiled. It is understandable that under those shocking circumstances and at the same time trying to restrain the appellant as she screamed to call for assistance, that would not have been possible immediately. Unfortunately, the opportunity to find corroborating evidence of penetration was also lost.
43. But more profoundly, the evidence contained in the P3 form showed that the complainant had abrasions with broken hymen with old scar that was more than 2 months old. PW 3, the witness who produced the P3 form was not the one who completed them. Since she was not the author of the P3 form, PW 3 could not explain the import of this sentence. She said that one part of the P3 form was not filled, meaning that it was incomplete. I have looked at the P3 form produced and indeed, Part C was blank yet it is the one that relates to sexual offences. Although PW 3 also produced the PRC form as exhibit, she never said that it was also completed by the same doctor who completed and signed the P3 form. PW 3 said in re-examination that “doctor is able to look at the PRC form to see the injuries.” That means the doctor who fills the P3 from may not be the one who filled the PRC form.
44. I have looked at the two documents and I see the PRC form bears the name and signature of the examining officer as Loise M. Njiru dated 19/10/2020 while the P3 form bears a date and different signature and is dated 8/2/2021. PW 3 could therefore only give evidence of the P3 form completed by her colleague with whose handwriting and signature she was conversant and not the PRC form. That means, the learned trial magistrate erred in admitting the PRC form as an exhibit without first ascertaining that it had been filled by Dr. Kassim on whose behalf PW 3 testified and produced the P3 form. Therefore, crucial evidence gathered in the PRC form was left out yet it was the primary document completed upon examining the complainant. The evidence found therein would have been helpful for purposes of supporting the complainant’s evidence. This situation was made worse by the failure of the investigating officer to testify as she would have testified on who the maker of the PRC form was and probably had that person called as a witness to testify.
45. The consequence of it was that there was no corroborating evidence of recent sexual intercourse as alleged by the complainant. Her evidence of penetration, that the appellant had sexual intercourse with her for two hours, being without corroboration and the learned trial magistrate not having expressly stated in the proceedings that he believed she was a witness of truth is therefore, unreliable. The learned trial magistrate was therefore in error to find that the fact of penetration had been proved beyond a reasonable doubt. I find doubt in the prosecution evidence on that issue which doubt must be exercised in favour of the appellant.
46. The evidence herein shows that the appellant was found locked in his house in a compromising situation with the complainant, a child, who was half naked and on his bed. That evidence irresistibly points to the fact that he had conceived the idea of defiling the complainant and set out to put that intention into effect and took definite steps towards achieving his objective save that the same was disrupted by PW 2.
47. I am satisfied that these circumstances fit the definition of attempt to commit an offence under section 388 of the Penal Code (Cap. 63) Laws of Kenya which is in the following terms:
“S. 388(1). When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
(2). It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.”
48. The Court of Appeal considering the definition of attempt in the case of Isaack Ali Issack v Republic [2020] KECA 699 (KLR) held that the above section brings out two main ingredients of an attempted offence; the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention.
49. In the case of Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR) the Court of Appeal, considering a case of attempted defilement held that the main ingredient of this offence is committing an act which would cause penetration and this is the actus reus of the offence. The Court of Appeal further endorsed the High Court approach on the proof of an attempt where it had said that:
“The question that calls for determination is whether or not the conduct of the appellant constituted an overt act sufficiently proximate to constitute an attempt to defile the complainant”
50. And in the case of Francis Mutuku Nzangi v Republic [2013] KECA 112 (KLR) the Court of Appeal expounds on this provision thus:
“Our understanding of this provisions is that if a person conceives an idea or plan to commit an offence and sets out to effectuate the intention by taking definite steps or puts in motion a chain of events or state of things calculated to attain that objective as manifested by some open and discernible act or acts but fails to achieve his objective, he will be guilty only of an attempt to commit the offence. The attempt is proved whether or not that person did all the acts necessary to perfect the offence and quite irrespective of what intervening act or change of heart may have aborted the fulfillment. It also matters not that circumstances did in fact exist, unbeknown to the person, that would have rendered his success impossible.”
51. In this case, I am satisfied that the evidence adduced proved the case of attempted defilement as the acts of the appellant upon the complainant went beyond mere preparation towards the immediate act of penetration. Had the complainant’s aunt not interrupted, the appellant would have had sexual intercourse with the complainant thus completing the act of penetration. A clear intention to commit the offence was established and the overt acts sufficiently proximate to constitute an attempt to defile the complainant.
52. The appellant’s evidence that he was framed by the complainant's aunt PW 2 was unbelievable and the learned trial magistrate correctly rejected it. There was nothing in that evidence to challenge the strong evidence tendered by the prosecution witnesses. The failure to prove penetration was due to errors of prosecution to make available requisite and credible medical evidence to support the complainant’s evidence and the failure by the learned trial magistrate to adhere to the correct procedure in taking the evidence of the complainant. It was not because the appellant mounted a strong challenge to the case by the prosecution in the trial court.
53. Consequently, I set aside the judgment of the trial court convicting the appellant of defilement and substitute it with a conviction for attempted defilement contrary to section 9(1) and (2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya.
54. The final ground raised by the appellant was on sentence, that his mitigation was not considered by the trial court and that he ought to have been given a lesser sentence in view of decisions from the Court of Appeal that minimum mandatory sentences under the Sexual Offences Act were unconstitutional.
55. The learned trial magistrate correctly imposed the minimum sentence for defilement under section 8(3) of the Sexual Offences Act. The appellant’s submission that minimum sentences have been declared unconstitutional by the Court of Appeal has been overtaken by events in view of the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that minimum sentences under the Sexual Offences Act are not unconstitutional.
56. In the result, in view of the conviction for attempted defilement the appellant’s sentence for defilement is set aside and substituted with a sentence of ten (10) years imprisonment which will run from 19/10/2020 the date he was taken into custody after plea taking.
57. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 6th day of January 2025 in the presence of:
The appellant in person from Shimo La Tewa prison.
Ms Vallerie h/b for Mr. Ngiri for the respondent
Johnson: Court assistant.