1. The appellant, J.A.O was charged before the Chief Magistrate's Court at Keroka with the offense of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the charge were that on 27th September 2021 at Ikuruma village, Rioga sub-location in Masaba North sub-county within Nyamira County, he intentionally caused his penis to penetrate the vagina of G.K.A. a child aged 6 years.
3. The appellant pleaded not guilty and the matter proceeded to full trial. After hearing evidence from four prosecution witnesses and three defense witnesses, the learned trial magistrate delivered judgment on 09th March 2023, convicting the appellant and sentencing him to 30 years imprisonment.
4. Being aggrieved by both the conviction and sentence, the appellant has filed this appeal raising four grounds which I have distilled into four main issues for determination.
1) Whether the prosecution proved the case against the appellant beyond reasonable doubt.
2) Whether the Appellant received a fair trial
3) Whether the trial magistrate properly evaluated the credibility of prosecution witnesses and considered the defense of being framed
4) Whether the sentence of 30 years imprisonment was manifestly excessive
Analysis and Determination
1) Whether the prosecution proved the case beyond reasonable doubt
5. It is trite law that in criminal cases, the burden of proof lies on the prosecution throughout the trial and the standard of proof is beyond reasonable doubt. This principle was articulated in the case of Woolmington v DPP [1935] AC 462 and has been consistently applied in Kenyan jurisprudence.
6. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The standard requires that the prosecution's case, taken as a whole, must be of such a quality that a reasonable person would not hesitate to act upon it.
7. In defilement cases, the prosecution must prove the age of the complainant, penetration however and the identity of the perpetrator.
8. PW2 (A.M.), testified that G.K.A. is her daughter. A birth certificate serial number 00987427 was produced showing that PW1 was born on 01st February 2015. At the time of the alleged offense on 27th September 2021, PW1 was therefore 6 years old. The trial court correctly found that age of the complainant was proved beyond doubt.
9. The evidence of penetration came from three sources:
PW1 (G.K.A.) testified that the Appellant removed her dress and panties, also removed his clothes, and inserted his "dudu" into her genitalia. She stated she felt pain in her genitalia.
PW2 (A.M.) testified that her daughter informed her of the incident and complained of pain in her genitalia. She took her daughter to hospital. PW3 (E.O.), a clinical officer at Keroka Hospital, examined PW1 on 28th September 2021 and found spermatozoa in her vagina, pulse cells, bruises on labia majora, and that the hymen was freshly torn. She concluded there was evidence of penetration.
10. The medical evidence corroborated the testimony of PW1. The freshly torn hymen, bruises on labia majora, and presence of spermatozoa are compelling evidence of recent sexual penetration.
11. PW1 testified that she knew the Appellant as Okero, a person who normally paints tables and whom she had seen passing near their home. On the material date, while playing with her friend called "mum," the Appellant called her to assist him carry timber. She went to where he was and he told her the timber was inside the house. Once inside, he committed the offense. PW1 was consistent in her identification of the Appellant throughout her testimony and cross-examination.
12. The Appellant raised the defense of alibi, claiming he was at H.M.'s (Henry Matara) place doing carpentry work on 27th September 2021. He called two witnesses:
13. DW2 (H.M.) testified that the Appellant was doing carpentry work at his house on the material date. However, under cross-examination, he admitted he was in his shamba about 1KM away and that his compound was open. He was therefore not with the Appellant at all material times.
14. DW3 (O.O.) testified he was at his home in Mosobeti on 27th September 2021, about 2KM from DW2's place. He could not tell what happened at DW2's place and only heard of the Appellant's arrest on 28th September 2021.
15. The law on alibi is well settled. The Court of Appeal in the case of Kiarie v Republic [1984] KLR held that: -
“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.”
16. I have weighed the corroborated alibi by Accused persons vis a vis the prosecution case. The trial magistrate correctly noted that DW2 and DW3 were not present with the Appellant at the material time when the offense allegedly occurred. Their evidence was therefore of little probative value in establishing the alibi. The appellant's own testimony that he was "alone" at DW2's homestead contradicted his defense that he was with DW2.
17. Having reviewed the evidence on record, I find that the prosecution established all the essential elements of the offense of defilement beyond reasonable doubt. The evidence of PW1 was credible, consistent, and corroborated by medical evidence. The Appellant's alibi was properly rejected by the trial court as lacking credibility. The trial magistrate cannot be faulted for convicting the Appellant on this evidence.
2) Whether the Appellant received a fair trial
18. Article 50(1) of the Constitution of Kenya, 2010 guarantees every accused person the right to a fair trial. This includes the right to be presumed innocent until proven guilty, the right to be informed of the charges, the right to adequate time and facilities to prepare a defense, the right to defend oneself or be represented by an advocate, and the right to adduce and challenge evidence.
19. A fair trial is constitutionally guaranteed under Article 50(1) of the Constitution of Kenya, 2010, which provides that every accused person has the right to have any dispute resolved in a fair and public hearing before a court established under the Constitution. This right encompasses the entitlement to be accorded a full opportunity to state one’s case, to call witnesses, and to cross-examine prosecution witnesses. In Juma v Republic [2003] KLR 671, the Court of Appeal affirmed that a trial is fair only if the accused is given a real and meaningful opportunity to present his defence, challenge the prosecution evidence, and place his version of events before the court.
20. The record shows that the Appellant was properly charged and the charge was read and explained to him in a language that he understands, he pleaded not guilty, he was given the opportunity to cross-examine all prosecution witnesses, he testified in his own defence, and he called two defense witnesses.
21. The Appellant has not pointed to any specific procedural irregularity or denial of his rights during the trial. The mere fact that he was convicted does not mean the trial was unfair. A fair trial does not guarantee an acquittal; it guarantees that proper procedures are followed and that the Accused is given a full opportunity to present his defense.
22. From the evidence on record, I find that the trial court properly evaluated the evidence from both sides and gave cogent reasons for accepting the prosecution’s case and rejecting the defence. This is the hallmark of a fair trial under Article 50(1) of the Constitution.
3) Whether the trial magistrate properly evaluated witness credibility and considered the defense of being framed
23. The assessment of witness credibility is primarily the function of the trial court which has the advantage of observing the demeanor of witnesses. An Appellate court will not interfere with such findings unless they are based on no evidence, or are based on a misapprehension of the evidence, or the trial court is shown demonstrably to have acted on wrong principles in reaching its findings. This principle was stated in Okeno v Republic [1972] EA 32.
24. An appellate court should be slow to reverse findings of fact made by a trial court unless there are clear and cogent reasons for doing so.
25. On the question of witnesses having a motive to falsely implicate an accused, the law is that mere assertions of enmity or being framed are not sufficient. There must be evidence to support such claims. In Sawe v Republic [2003] KLR 364, the Court held that where an accused alleges that witnesses are lying or have fabricated evidence against him, he must provide credible evidence of the motive for such fabrication.
26. The trial magistrate carefully evaluated the credibility of all witnesses. Regarding PW1, the learned magistrate found her to be "a credible witness thus honest" and noted that "even with rigorous cross-examination she stuck to her evidence in chief." The magistrate believed her testimony.
27. The assessment of PW1's credibility was based on the fact that her testimony was straightforward and not embellished, her ability to maintain her account despite rigorous cross-examination and corroboration from the medical evidence.
28. Regarding the allegation that witnesses had malice or ill will, the Appellant testified that he had been "framed" and that he once worked for PW1's family. It is worth noting that Appellant did not cross-examine the complainant and her mother concerning the said allegation. The allegation was only raised at the time Accused gave his defence thereby denying complainant and her mother the opportunity to confirm or deny the allegation that they framed him.
29. The trial court's finding that the prosecution witnesses were credible and that there was no evidence of fabrication or malice was properly arrived at and is supported by the evidence on record.
4) Whether the sentence of 30 years imprisonment was manifestly excessive
5) Section 8(2) of the Sexual Offences Act provides that a person who commits an offense of defilement with a child of eleven years or less is liable upon conviction to imprisonment for life.
6) In determining sentence in defilement cases, the court must balance the gravity of the offense with any mitigating factors. The court noted that defilement is a serious offense that violates the dignity and rights of children.
7) The offence was committed against a child aged six years. This age squarely falls within the category contemplated under section 8(2) of the Sexual Offences Act, which prescribes a mandatory sentence of life imprisonment for defilement of a child below the age of eleven years.
8) The trial court nonetheless erroneously exercised its discretion in the Appellant’s favour by imposing a determinate sentence of thirty (30) years’ imprisonment instead of the mandatory life sentence. As clarified by the Supreme Court in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KE SC 31 (KLR), the holding in Muruatetu is confined to the offence of murder under section 204 of the Penal Code and does not invalidate mandatory or minimum sentences prescribed in other statutes, including the Sexual Offences Act. The sentence imposed was therefore below the mandatory statutory penalty and fell outside the prescribed statutory sentencing framework.
9) When viewed against sentences imposed in comparable cases, a term of thirty (30) years’ imprisonment for the defilement of a six-year-old child by a first offender cannot be described as manifestly excessive. If anything, the Appellant benefited from a sentence that was markedly lenient when measured against the statutory prescription of life imprisonment, and he is fortunate that the Respondent did not seek enhancement of the sentence.
10) From the foregoing analysis, I find that this appeal has no merit and it is hereby ordered:
1) The appeal against conviction is dismissed.
2) The appeal against sentence is equally dismissed
2. The particulars of the charge were that on 27th September 2021 at Ikuruma village, Rioga sub-location in Masaba North sub-county within Nyamira County, he intentionally caused his penis to penetrate the vagina of G.K.A. a child aged 6 years.
3. The appellant pleaded not guilty and the matter proceeded to full trial. After hearing evidence from four prosecution witnesses and three defense witnesses, the learned trial magistrate delivered judgment on 09th March 2023, convicting the appellant and sentencing him to 30 years imprisonment.
4. Being aggrieved by both the conviction and sentence, the appellant has filed this appeal raising four grounds which I have distilled into four main issues for determination.
1) Whether the prosecution proved the case against the appellant beyond reasonable doubt.
2) Whether the Appellant received a fair trial
3) Whether the trial magistrate properly evaluated the credibility of prosecution witnesses and considered the defense of being framed
4) Whether the sentence of 30 years imprisonment was manifestly excessive
Analysis and Determination
1) Whether the prosecution proved the case beyond reasonable doubt
5. It is trite law that in criminal cases, the burden of proof lies on the prosecution throughout the trial and the standard of proof is beyond reasonable doubt. This principle was articulated in the case of Woolmington v DPP [1935] AC 462 and has been consistently applied in Kenyan jurisprudence.
6. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The standard requires that the prosecution's case, taken as a whole, must be of such a quality that a reasonable person would not hesitate to act upon it.
7. In defilement cases, the prosecution must prove the age of the complainant, penetration however and the identity of the perpetrator.
8. PW2 (A.M.), testified that G.K.A. is her daughter. A birth certificate serial number 00987427 was produced showing that PW1 was born on 01st February 2015. At the time of the alleged offense on 27th September 2021, PW1 was therefore 6 years old. The trial court correctly found that age of the complainant was proved beyond doubt.
9. The evidence of penetration came from three sources:
PW1 (G.K.A.) testified that the Appellant removed her dress and panties, also removed his clothes, and inserted his "dudu" into her genitalia. She stated she felt pain in her genitalia.
PW2 (A.M.) testified that her daughter informed her of the incident and complained of pain in her genitalia. She took her daughter to hospital. PW3 (E.O.), a clinical officer at Keroka Hospital, examined PW1 on 28th September 2021 and found spermatozoa in her vagina, pulse cells, bruises on labia majora, and that the hymen was freshly torn. She concluded there was evidence of penetration.
10. The medical evidence corroborated the testimony of PW1. The freshly torn hymen, bruises on labia majora, and presence of spermatozoa are compelling evidence of recent sexual penetration.
11. PW1 testified that she knew the Appellant as Okero, a person who normally paints tables and whom she had seen passing near their home. On the material date, while playing with her friend called "mum," the Appellant called her to assist him carry timber. She went to where he was and he told her the timber was inside the house. Once inside, he committed the offense. PW1 was consistent in her identification of the Appellant throughout her testimony and cross-examination.
12. The Appellant raised the defense of alibi, claiming he was at H.M.'s (Henry Matara) place doing carpentry work on 27th September 2021. He called two witnesses:
13. DW2 (H.M.) testified that the Appellant was doing carpentry work at his house on the material date. However, under cross-examination, he admitted he was in his shamba about 1KM away and that his compound was open. He was therefore not with the Appellant at all material times.
14. DW3 (O.O.) testified he was at his home in Mosobeti on 27th September 2021, about 2KM from DW2's place. He could not tell what happened at DW2's place and only heard of the Appellant's arrest on 28th September 2021.
15. The law on alibi is well settled. The Court of Appeal in the case of Kiarie v Republic [1984] KLR held that: -
“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.”
16. I have weighed the corroborated alibi by Accused persons vis a vis the prosecution case. The trial magistrate correctly noted that DW2 and DW3 were not present with the Appellant at the material time when the offense allegedly occurred. Their evidence was therefore of little probative value in establishing the alibi. The appellant's own testimony that he was "alone" at DW2's homestead contradicted his defense that he was with DW2.
17. Having reviewed the evidence on record, I find that the prosecution established all the essential elements of the offense of defilement beyond reasonable doubt. The evidence of PW1 was credible, consistent, and corroborated by medical evidence. The Appellant's alibi was properly rejected by the trial court as lacking credibility. The trial magistrate cannot be faulted for convicting the Appellant on this evidence.
2) Whether the Appellant received a fair trial
18. Article 50(1) of the Constitution of Kenya, 2010 guarantees every accused person the right to a fair trial. This includes the right to be presumed innocent until proven guilty, the right to be informed of the charges, the right to adequate time and facilities to prepare a defense, the right to defend oneself or be represented by an advocate, and the right to adduce and challenge evidence.
19. A fair trial is constitutionally guaranteed under Article 50(1) of the Constitution of Kenya, 2010, which provides that every accused person has the right to have any dispute resolved in a fair and public hearing before a court established under the Constitution. This right encompasses the entitlement to be accorded a full opportunity to state one’s case, to call witnesses, and to cross-examine prosecution witnesses. In Juma v Republic [2003] KLR 671, the Court of Appeal affirmed that a trial is fair only if the accused is given a real and meaningful opportunity to present his defence, challenge the prosecution evidence, and place his version of events before the court.
20. The record shows that the Appellant was properly charged and the charge was read and explained to him in a language that he understands, he pleaded not guilty, he was given the opportunity to cross-examine all prosecution witnesses, he testified in his own defence, and he called two defense witnesses.
21. The Appellant has not pointed to any specific procedural irregularity or denial of his rights during the trial. The mere fact that he was convicted does not mean the trial was unfair. A fair trial does not guarantee an acquittal; it guarantees that proper procedures are followed and that the Accused is given a full opportunity to present his defense.
22. From the evidence on record, I find that the trial court properly evaluated the evidence from both sides and gave cogent reasons for accepting the prosecution’s case and rejecting the defence. This is the hallmark of a fair trial under Article 50(1) of the Constitution.
3) Whether the trial magistrate properly evaluated witness credibility and considered the defense of being framed
23. The assessment of witness credibility is primarily the function of the trial court which has the advantage of observing the demeanor of witnesses. An Appellate court will not interfere with such findings unless they are based on no evidence, or are based on a misapprehension of the evidence, or the trial court is shown demonstrably to have acted on wrong principles in reaching its findings. This principle was stated in Okeno v Republic [1972] EA 32.
24. An appellate court should be slow to reverse findings of fact made by a trial court unless there are clear and cogent reasons for doing so.
25. On the question of witnesses having a motive to falsely implicate an accused, the law is that mere assertions of enmity or being framed are not sufficient. There must be evidence to support such claims. In Sawe v Republic [2003] KLR 364, the Court held that where an accused alleges that witnesses are lying or have fabricated evidence against him, he must provide credible evidence of the motive for such fabrication.
26. The trial magistrate carefully evaluated the credibility of all witnesses. Regarding PW1, the learned magistrate found her to be "a credible witness thus honest" and noted that "even with rigorous cross-examination she stuck to her evidence in chief." The magistrate believed her testimony.
27. The assessment of PW1's credibility was based on the fact that her testimony was straightforward and not embellished, her ability to maintain her account despite rigorous cross-examination and corroboration from the medical evidence.
28. Regarding the allegation that witnesses had malice or ill will, the Appellant testified that he had been "framed" and that he once worked for PW1's family. It is worth noting that Appellant did not cross-examine the complainant and her mother concerning the said allegation. The allegation was only raised at the time Accused gave his defence thereby denying complainant and her mother the opportunity to confirm or deny the allegation that they framed him.
29. The trial court's finding that the prosecution witnesses were credible and that there was no evidence of fabrication or malice was properly arrived at and is supported by the evidence on record.
4) Whether the sentence of 30 years imprisonment was manifestly excessive
5) Section 8(2) of the Sexual Offences Act provides that a person who commits an offense of defilement with a child of eleven years or less is liable upon conviction to imprisonment for life.
6) In determining sentence in defilement cases, the court must balance the gravity of the offense with any mitigating factors. The court noted that defilement is a serious offense that violates the dignity and rights of children.
7) The offence was committed against a child aged six years. This age squarely falls within the category contemplated under section 8(2) of the Sexual Offences Act, which prescribes a mandatory sentence of life imprisonment for defilement of a child below the age of eleven years.
8) The trial court nonetheless erroneously exercised its discretion in the Appellant’s favour by imposing a determinate sentence of thirty (30) years’ imprisonment instead of the mandatory life sentence. As clarified by the Supreme Court in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KE SC 31 (KLR), the holding in Muruatetu is confined to the offence of murder under section 204 of the Penal Code and does not invalidate mandatory or minimum sentences prescribed in other statutes, including the Sexual Offences Act. The sentence imposed was therefore below the mandatory statutory penalty and fell outside the prescribed statutory sentencing framework.
9) When viewed against sentences imposed in comparable cases, a term of thirty (30) years’ imprisonment for the defilement of a six-year-old child by a first offender cannot be described as manifestly excessive. If anything, the Appellant benefited from a sentence that was markedly lenient when measured against the statutory prescription of life imprisonment, and he is fortunate that the Respondent did not seek enhancement of the sentence.
10) From the foregoing analysis, I find that this appeal has no merit and it is hereby ordered:
1) The appeal against conviction is dismissed.
2) The appeal against sentence is equally dismissed