[1] This appeal arises from the conviction and sentence passed by the Senior Principal Magistrate’s Court at Oyugis in Criminal Case No. 26 of 2019: Republic v Joshua Masika. The appellant was therein charged with the offence of defilement, contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the charge were that on 2 nd day of July 2019 at Kawino Sublocation in Rachuonyo South Sub-County within Homa Bay County, he intentionally and unlawfully caused his penis to penetrate the vagina of L A O, a child aged 10 years.
[2] In the alternative, the appellant was charged with indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on 2 nd day of July 2019 at Kawino Sublocation in Rachuonyo South Sub-County within Homa Bay County, he intentionally and unlawfully rubbed his penis against the vagina of L A O, a child aged 10 years.
[3] The appellant denied those allegations and after trial, was found guilty of the substantive count of defilement. He was consequently convicted thereof and sentenced to life imprisonment on the 6 th December 2019.
[4] Being dissatisfied with that decision, the appellant filed this appeal on the following grounds:
[a] That the trial failed to observe that the sentence it imposed was manifestly harsh and disproportionate.
[b] That the ingredients forming the offence were not proved beyond reasonable doubt.
[c] That the investigation tendered was shoddy.
[d] That the trial court failed to consider that the P3 Form was contradictory in nature in terms of the date the complainant was taken to hospital.
[e] That the trial court ignored the fact that neither the Certificate of Birth nor Age Assessment Report was produced.
[f] That the trial court failed to consider the appellant’s defence which was cogent and reasonable.
[5] It was, accordingly, the appellant’s prayer that his appeal be allowed, his conviction quashed and the sentence imposed on him set aside.
[6] The appellant urged his appeal by way of written submissions, filed herein on 30 th January 2025. Under the broad ground of poor investigations and insufficient evidence, the appellant submitted that some of the key witnesses, such as Pauline, Nancy Achieng and Esther , were never called to testify yet they played a crucial role in his arrest. He faulted the lower court for disregarding his contention that he was framed by Pauline on account of an unpaid debt. He submitted that Nancy and Esther ought to have been called to state clearly the circumstances that led to his arrest.
[7] The appellant relied on Article 47 of the Constitution contending that his right to fair administrative action was violated. He also cited the case of Bernard Okoth Kisero v Republic MCSO No. E0215 of 2021, a decision of the subordinate court, to support his submission that the allegations by the complainant ought to have been subjected to thorough investigations. He further submitted that there was need for an eye witness who saw him with the child to be called. He also urged the Court to note that the boda boda riders who raised alarm were never called as witnesses.
[8] The appellant also made reference to the evidence presented to the lower court to the effect that the complainant suffers from mental disorder and wondered why such a traumatic experience did not trigger an epileptic seizure, if indeed the alleged offence took place. He cited Kiilu & another v Republic [2005] eKLR among others in urging the Court to find that the evidence fell below the requisite standard.
[9] The appellant also alleged violation of his fair trial rights when the father of the complainant was allowed to testify on her behalf, yet his approved role in the proceedings was as an intermediary. He complained that he was denied the opportunity to cross-examine the complainant. In his submission, the trial court treated him with partiality and therefore violated Article 27(4) of the Constitution. He also complained that, although he made an application for a de novo hearing, his application was declined by the trial magistrate without being given an opportunity to explain the grounds for the application.
[10] Regarding the sentence of life imprisonment, the appellant relied on the case of Jackie Maribe & another v Republic contending that the trial judge in that case refrained from imposing an indeterminate life sentence on the ground that it was unconstitutional. He therefore prayed that his appeal be allowed, the conviction quashed and the sentence set aside.
[11] The appeal was resisted by the respondent. Counsel for the respondent relied on her written submissions dated 20 th January 2025. In respect of Grounds 1 and 2, the respondent submitted that the sentence imposed on the appellant by the lower court is provided for under the law, considering that the minor was aged 10 years at the time of the offence.
[12] The respondent further submitted that the key ingredients of the offence of defilement were established for purposes of Section 8(1) and 8(2) of the Sexual Offences Act; namely, age of the complainant, penetration and identification of the offender. Counsel relied on John Mutua Munyoki v Republic [2017] eKLR and Mark Oiruri Mose v Republic [2013] eKLR, among other authorities.
[13] On Grounds 3, 4 and 5, counsel for the respondent submitted that the Prosecution called a total of 5 witnesses, all of whom tendered evidence that was consistent and corroborative. She also pointed out that the evidence included a P3 Form to back up the evidence of the Clinical Officer that the complainant was examined and treated immediately after the incident. In respect of Ground 6 the respondent relied on the Certificate of Birth produced before the lower court as the Prosecution’s Exhibit 1 and urged the Court to find that, in those circumstances there was no need for age assessment.
[14] I have given careful consideration to the appeal. I have also taken into account the written submissions filed herein by the appellant as well as by the learned counsel for the State. This being a first appeal, I am mindful of the court’s obligation to reconsider afresh the evidence adduced before the lower court and the need for this Court to come to its own conclusions on the basis of that evidence. (see Okeno v Republic [1972] EA 32)
[15] The brief summary of the Prosecution case is that although the complainant was placed in the witness stand and taken through voir dire, it became apparent that she was too frightened to testify on her own. The Prosecution Counsel made an application for the father to be allowed to give evidence on her behalf. Therefore, the complainant’s father, Kennedy Omondi Oyugi , testified as PW3 and stated that, on 2 nd July 2019, he was working as a guard at Joshua Village Orphan School when his sister in law, one Nancy Achieng , called and informed him that the complainant had been defiled.
[16] He rushed to the scene and found the accused and the complainant had already been taken to the chief’s camp. He proceeded to the chief’s camp talked to the complainant and she told him how the appellant had lured her into his house on the promise that he would buy for her chapatis at Nyangiela area; and that instead the appellant took her to his house and told her to undress before inserting his penis into her vagina. PW3 explained that the minor is epileptic and that the sickness makes her disoriented and mentally unstable. He produced the complainant’s treatment book as the Prosecution’s Exhibit 2 before the lower court.
[17] After the complainant was declared unfit to testify at the instance of the Prosecution on the basis of a medical report dated 22 nd August 2019 Malaki Ouko Odundo , the chairman of the Community Policing Committee in Kokech Location was called as PW1. He testified that on the 2 nd July 2019 at about 5.00 p.m., he was at Nyangiela Center when he saw some boda boda riders rushing to the back of a particular shop at the center. Before long, a lady called Esther approached him and told him that something was happening behind that shop.
[18] PW1 further testified that, upon going to the corridor behind the shop in question, he found members of the public who were mainly b oda boda riders. They had arrested the appellant on an allegation that he had defiled a child. He added that he re-arrested the appellant and escorted him to the police post at the center with the child. He mentioned that the child looked scared and kept on running away from people.
[19] Cpl Benard Langat (PW2) was on duty at Nyangiela Police Post. He confirmed that on 2 nd July 2019 at 5.20 p.m. he was at the post when members of the public brought in the appellant on allegations that he had defiled a child. He stated that the allegation was that the appellant had locked himself inside his house with the child. He re-arrested him and escorted him to Oyugis Police Station for further investigations by the Police.
[20] The Clinical Officer attached to Rachuonyo South Sub-County , Mr. Mboni Philip , testified as PW4. He confirmed that the minor, L A O was presented at their hospital for treatment on the 2 nd July 2019 following allegations that she had been defiled. He confirmed that he examined the minor and filled the P3 Form as well as the PRC Form. In his estimation, the minor was aged 9 years. He noted bruises on the minor’s vaginal opening. He also observed that her hymen was broken and there was blood on her vaginal opening.
[21] PW4 formed the opinion that the minor had been defiled. She was treated by his colleague, Immaculate Ajwang , who put the minor on PEP medicine, among others. PW4 produced the P3 Form, PRC Form and the treatment card in respect of the complainant as the Prosecution’s Exhibits 5, 4 and 3, respectively.
[22] The last prosecution witness was PC George Odawa (PW5), the investigating officer in the matter. He was at Oyugis Police Station when the appellant was presented by two police officers from Nyangiela AP post. The complainant was also taken to the station by the father. He placed the appellant in the cells pending investigations. He therefore caused the complainant to be taken for medical examination by PW4 at Rachuonyo South Sub County Hospital and thereafter received back the P3 Form which indicated that the minor had been defiled. He recorded statements and preferred appropriate charges against the appellant upon receiving the Certificate of Birth for the minor. The Certificate of Birth was produced as the Prosecution’s Exhibit 1 herein.
[23] In defence, the appellant opted to give an unsworn statement. He denied the allegations against him and blamed one Pauline for framing him on account of a debt owed to her. He explained that the said Pauline, who was his lover, was also bitter with him after he declined to marry her. The appellant denied any prior knowledge of the complainant but conceded that he knew her father as he used to see him in the area in which he resided. According to him, Pauline went to his house for a visit at about 2.00 p.m. on 2 nd July 2019 and that was the time she raised alarm when he refused to pay her.
[24] The Main Count, which the appellant was convicted of, was laid pursuant to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, which provision stipulates that:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to life imprisonment.
[25] In the premises, having given due consideration to the appellant’s Grounds of Appeal and the submissions made herein in respect thereof by both the appellant and counsel for the respondent, the issues for my consideration and determination are:
[a] Whether the complainant was, at the material time, a child for purposes of Section 8(2) of the Sexual Offences Act ;
[b] Whether there was penetration of the complainant's genital organ;
[c] Whether the penetration was perpetrated by the appellant.
[d] Whether the appellant’s constitutional right under Article 50(2) of the Constitution was violated; and if so, whether that violation vitiates the lower court proceedings.
[e] Whether the sentence imposed by the lower court is unconstitutional.
A. On the age of the Complainant:
[26] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was made by the Court of Appeal in Kaingu Kasomo v Republic Criminal Appeal No. 504 of 2010 thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[27] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules recognizes that:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[28] It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Moreover, in P.M.M. vs. Republic [2018] eKLR, it was held that:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[29] Hence, in addition to the Certificate of Birth produced before the lower court as the Prosecution’s Exhibit 1, the complainant’s father testified before the lower court and stated that she was 10 years old at the material time. It is plain therefore that the Prosecution adduced credible and uncontroverted evidence that proved beyond reasonable doubt that the complainant was aged 10 years when the offence of defilement is said to have taken place. Accordingly, the complainant herein was within the age bracket envisaged by Section 8(2) of the Sexual Offences Act.
B. On Penetration of the Complainant:
[30] The lower court relied on the evidence presented by the complainant’s father on her behalf. He stated that the complainant told him how the appellant lured him to his house and defiled her. Although that evidence was not firsthand evidence, it was corroborated by the fact that the appellant was arrested at the scene, and in his company at the time was the complainant.
[31] The minor was examined on the same day and found to have been defiled. In this regard, PW4 testified that the girl’s vaginal opening was bruised and tender and she was still bleeding from what he observed to be forced vaginal penetration. Her urine was also found to be bloodstained. PW4’s findings were put down in the P3 Form and the PRC Form. I have no reason to fault the lower court for coming to the conclusion that penetration of the complainant’s genital organ was proved beyond reasonable doubt.
C. On whether the penetration of the complainant was perpetrated by the appellant :
[32] In this case, the incident took place in broad daylight at about 5.00 p.m. As has been stated, the appellant was found with the minor in his room by members of the public. I note that he impugned the evidence of identification contending that the people who raised the alarm, such as Pauline and Esther were not called as witnesses. As a general rule the Prosecution is not under obligation to call all witnesses. In Sahali Omar v Republic [2017] eKLR the Court of Appeal held that:
“The principle used to determine the consequences of failure to call witnesses was succinctly stated in Bukenya & Others v Uganda (1972 E.A; where the court held that: -
i. “The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
ii. That court has the right and duty to call witnesses whose evidence appears essential to the just decision of the case.
iii. Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
The prosecution reserves the right to decide which witness to call. Should it fail to call witnesses otherwise crucial to the case, then the court has the mandate to summon those witnesses. But should the said witnesses fail to testify and the hitherto adduced evidence turn out to be insufficient, only then shall the court draw an adverse inference against the prosecution. This is because the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”
[33] In this case, PW1, the chairman of the Community Policing Committee of the area, testified that he found the accused at the scene with the minor, having been alerted that something was going on behind a certain shop at Nyang’iela Center. It is not manifest how the evidence of Esther would have been different from that of PW1. Moreover, the appellant himself conceded that it was Pauline who raised the alarm. On the other hand, the role of Nancy Achieng , the sister in law of PW3 was limited to conveying the report of the occurrence to PW3.
[34] In connection with Pauline, the appellant contended that his defence to the effect that he was framed on account of a grudge between him was not taken into account by the learned trial magistrate. A perusal of the record however shows that this was not the case. It is manifest at pages 28 of the Record of Appeal that those assertions were duly considered and found untenable. Indeed, the evidence adduced by the prosecution placed the appellant right at the scene of crime, and I so find.
D. Whether the appellant’s constitutional right under Article 50(2) of
the Constitution was violated; and if so, whether that violation
vitiates the lower court proceedings:
[35] Regarding the appellant’s contention that his right to fair trial for purposes of Article 50(2), of the Constitution was violated by the trial court, his main complaint was that his request for a de novo hearing was rejected for no reason at all. The record of the proceedings of the lower court shows that, indeed, the applicant requested for a de novo hearing. The application was made on the 16 th October 2019 after four of the five prosecution witnesses had testified. The only witness left at that point in time was the investigating officer. The appellant simply stated:
“I am not ready to proceed, I wish to start afresh I want to do my case well.”
[36] The lower court considered his request, which was opposed by the Prosecution Counsel, and ruled that no justification had been made for a de novo hearing. She pointed out that there no change in terms of the presiding judicial officer to warrant a de novo hearing. She may have had in mind Section 200(3) and (4) of the Criminal Procedure Code, which states:
“(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.
(4) Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”
[37] It is manifest therefore that the above provision was inapplicable to the appellant’s circumstances. In fact, the rules of criminal procedure do not provide for the sort of circumstances in which the accused sought for a de novo hearing, and therefore the trial court was justified in rejecting his application. I note that he did not seek to appeal that decision. Clearly then, the appellant has no reason to complain of violation of his fair trial right Article 50(2) of the Constitution.
E. On the life sentence imposed by the trial court:
[38] First and foremost, it must be acknowledged that sentence is a matter within the discretion of the trial court, and therefore an appellate court ought not to interfere simply because it would have meted a lesser or stiffer sentence. Hence, in Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[39] Accordingly, in Dismas Wafula Kilwake v Republic [2018] eKLR the Court of Appeal held that:
“…the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand…”
[40] Similarly, in Jared Koita Injiri v Republic [2018] KECA 78 (KLR)
“28. It therefore goes without say that the mandatory life sentence imposed by Section 8(2) of the Sexual Offences Act cannot stand. However, that is not to say that a court cannot render a life sentence upon convicting an accused person where the victim is of the age of 11 years old and below. A court must always reserve its discretion to consider the circumstances of each case independently and set an appropriate sentence. What the Constitution contemplates is that the sentence of life imprisonment cannot be the only sentence as currently proclaimed by Section 8(2) of the Sexual Offences Act. A court has discretion to render a life sentence as one of the lawful sentences upon consideration of mitigations and properly directing its legal mind on the factors for consideration in sentencing.”
[41] It is plain therefore that the sentence imposed by the lower court on the appellant is lawful. While I agree that there may be need for certainty as to what amounts to life sentence, that certainty can only be furnished through legislative intervention and not by this Court. Indeed, in the Muruatetu Case , the Supreme Court made this clear as follows:
[87] In the United Kingdom, the Criminal Justice Act, 2003 provides for guidelines for sentencing those serving different categories of life imprisonment. It is noteworthy that the Act has not scrapped the whole life sentence and it is only handed down to those who have committed heinous crimes.
[88] Unlike some of the cases mentioned above, the life imprisonment sentence has not been defined under Kenyan law (see the Kenya Judiciary Sentencing Guidelines, 2016 at paragraph 23.10, page 51). It is assumed that the life sentence means the number of years of the prisoner’s natural life, in that it ceases upon his or her death.
[89] In order to determine whether this Court can fix a definite number of years to constitute a life sentence, we first turn to the provisions on the rights of detained persons as enshrined under Article 51 of the Constitution, which reads:.
“51. (1) A person who is detained, held in custody or imprisoned under the law, retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned.
(3) Parliament shall enact legislation that—
(a) provides for the humane treatment of persons detained, held in custody or imprisoned; and
(b) takes into account the relevant international human rights instruments .”
[90] It is clear from this provision that it is the Legislature, and not the Judiciary, that is tasked with providing a legal framework for the rights and treatment of convicted persons. This premise was also attested to by the High Court in the case of Jackson Maina Wangui & Another v. Republic Criminal No. 35 of 2012; [2014] eKLR (Jackson Wangui), where the Court held at paragraph 72 and 76 that—
“As submitted by the petitioner, however, what amounts to life imprisonment is unclear in our circumstances. It is not, however, for the court to determine what should amount to a life sentence; whether one’s natural life or a term of years. In our view, that is also the province of the legislature.
76. …. As to what amounts to life imprisonment, that is a matter for the legislative branch of government. It is not for the courts to determine for the people what should be a sufficient term of years for a person who has committed an offence that society finds reprehensible to serve.”
[42] In the light of the foregoing, it cannot be argued that life imprisonment per se amounts to a violation of the appellant’s constitutional rights as was herein urged by him. It is therefore my finding that the sentence imposed on the applicant is not in any way inimical to the constitutional provisions that the applicant relied on herein.
[43] The upshot is that I find no merit in the appeal. It is hereby dismissed in its entirety.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 29 TH DAY OF MAY 2025
[2] In the alternative, the appellant was charged with indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on 2 nd day of July 2019 at Kawino Sublocation in Rachuonyo South Sub-County within Homa Bay County, he intentionally and unlawfully rubbed his penis against the vagina of L A O, a child aged 10 years.
[3] The appellant denied those allegations and after trial, was found guilty of the substantive count of defilement. He was consequently convicted thereof and sentenced to life imprisonment on the 6 th December 2019.
[4] Being dissatisfied with that decision, the appellant filed this appeal on the following grounds:
[a] That the trial failed to observe that the sentence it imposed was manifestly harsh and disproportionate.
[b] That the ingredients forming the offence were not proved beyond reasonable doubt.
[c] That the investigation tendered was shoddy.
[d] That the trial court failed to consider that the P3 Form was contradictory in nature in terms of the date the complainant was taken to hospital.
[e] That the trial court ignored the fact that neither the Certificate of Birth nor Age Assessment Report was produced.
[f] That the trial court failed to consider the appellant’s defence which was cogent and reasonable.
[5] It was, accordingly, the appellant’s prayer that his appeal be allowed, his conviction quashed and the sentence imposed on him set aside.
[6] The appellant urged his appeal by way of written submissions, filed herein on 30 th January 2025. Under the broad ground of poor investigations and insufficient evidence, the appellant submitted that some of the key witnesses, such as Pauline, Nancy Achieng and Esther , were never called to testify yet they played a crucial role in his arrest. He faulted the lower court for disregarding his contention that he was framed by Pauline on account of an unpaid debt. He submitted that Nancy and Esther ought to have been called to state clearly the circumstances that led to his arrest.
[7] The appellant relied on Article 47 of the Constitution contending that his right to fair administrative action was violated. He also cited the case of Bernard Okoth Kisero v Republic MCSO No. E0215 of 2021, a decision of the subordinate court, to support his submission that the allegations by the complainant ought to have been subjected to thorough investigations. He further submitted that there was need for an eye witness who saw him with the child to be called. He also urged the Court to note that the boda boda riders who raised alarm were never called as witnesses.
[8] The appellant also made reference to the evidence presented to the lower court to the effect that the complainant suffers from mental disorder and wondered why such a traumatic experience did not trigger an epileptic seizure, if indeed the alleged offence took place. He cited Kiilu & another v Republic [2005] eKLR among others in urging the Court to find that the evidence fell below the requisite standard.
[9] The appellant also alleged violation of his fair trial rights when the father of the complainant was allowed to testify on her behalf, yet his approved role in the proceedings was as an intermediary. He complained that he was denied the opportunity to cross-examine the complainant. In his submission, the trial court treated him with partiality and therefore violated Article 27(4) of the Constitution. He also complained that, although he made an application for a de novo hearing, his application was declined by the trial magistrate without being given an opportunity to explain the grounds for the application.
[10] Regarding the sentence of life imprisonment, the appellant relied on the case of Jackie Maribe & another v Republic contending that the trial judge in that case refrained from imposing an indeterminate life sentence on the ground that it was unconstitutional. He therefore prayed that his appeal be allowed, the conviction quashed and the sentence set aside.
[11] The appeal was resisted by the respondent. Counsel for the respondent relied on her written submissions dated 20 th January 2025. In respect of Grounds 1 and 2, the respondent submitted that the sentence imposed on the appellant by the lower court is provided for under the law, considering that the minor was aged 10 years at the time of the offence.
[12] The respondent further submitted that the key ingredients of the offence of defilement were established for purposes of Section 8(1) and 8(2) of the Sexual Offences Act; namely, age of the complainant, penetration and identification of the offender. Counsel relied on John Mutua Munyoki v Republic [2017] eKLR and Mark Oiruri Mose v Republic [2013] eKLR, among other authorities.
[13] On Grounds 3, 4 and 5, counsel for the respondent submitted that the Prosecution called a total of 5 witnesses, all of whom tendered evidence that was consistent and corroborative. She also pointed out that the evidence included a P3 Form to back up the evidence of the Clinical Officer that the complainant was examined and treated immediately after the incident. In respect of Ground 6 the respondent relied on the Certificate of Birth produced before the lower court as the Prosecution’s Exhibit 1 and urged the Court to find that, in those circumstances there was no need for age assessment.
[14] I have given careful consideration to the appeal. I have also taken into account the written submissions filed herein by the appellant as well as by the learned counsel for the State. This being a first appeal, I am mindful of the court’s obligation to reconsider afresh the evidence adduced before the lower court and the need for this Court to come to its own conclusions on the basis of that evidence. (see Okeno v Republic [1972] EA 32)
[15] The brief summary of the Prosecution case is that although the complainant was placed in the witness stand and taken through voir dire, it became apparent that she was too frightened to testify on her own. The Prosecution Counsel made an application for the father to be allowed to give evidence on her behalf. Therefore, the complainant’s father, Kennedy Omondi Oyugi , testified as PW3 and stated that, on 2 nd July 2019, he was working as a guard at Joshua Village Orphan School when his sister in law, one Nancy Achieng , called and informed him that the complainant had been defiled.
[16] He rushed to the scene and found the accused and the complainant had already been taken to the chief’s camp. He proceeded to the chief’s camp talked to the complainant and she told him how the appellant had lured her into his house on the promise that he would buy for her chapatis at Nyangiela area; and that instead the appellant took her to his house and told her to undress before inserting his penis into her vagina. PW3 explained that the minor is epileptic and that the sickness makes her disoriented and mentally unstable. He produced the complainant’s treatment book as the Prosecution’s Exhibit 2 before the lower court.
[17] After the complainant was declared unfit to testify at the instance of the Prosecution on the basis of a medical report dated 22 nd August 2019 Malaki Ouko Odundo , the chairman of the Community Policing Committee in Kokech Location was called as PW1. He testified that on the 2 nd July 2019 at about 5.00 p.m., he was at Nyangiela Center when he saw some boda boda riders rushing to the back of a particular shop at the center. Before long, a lady called Esther approached him and told him that something was happening behind that shop.
[18] PW1 further testified that, upon going to the corridor behind the shop in question, he found members of the public who were mainly b oda boda riders. They had arrested the appellant on an allegation that he had defiled a child. He added that he re-arrested the appellant and escorted him to the police post at the center with the child. He mentioned that the child looked scared and kept on running away from people.
[19] Cpl Benard Langat (PW2) was on duty at Nyangiela Police Post. He confirmed that on 2 nd July 2019 at 5.20 p.m. he was at the post when members of the public brought in the appellant on allegations that he had defiled a child. He stated that the allegation was that the appellant had locked himself inside his house with the child. He re-arrested him and escorted him to Oyugis Police Station for further investigations by the Police.
[20] The Clinical Officer attached to Rachuonyo South Sub-County , Mr. Mboni Philip , testified as PW4. He confirmed that the minor, L A O was presented at their hospital for treatment on the 2 nd July 2019 following allegations that she had been defiled. He confirmed that he examined the minor and filled the P3 Form as well as the PRC Form. In his estimation, the minor was aged 9 years. He noted bruises on the minor’s vaginal opening. He also observed that her hymen was broken and there was blood on her vaginal opening.
[21] PW4 formed the opinion that the minor had been defiled. She was treated by his colleague, Immaculate Ajwang , who put the minor on PEP medicine, among others. PW4 produced the P3 Form, PRC Form and the treatment card in respect of the complainant as the Prosecution’s Exhibits 5, 4 and 3, respectively.
[22] The last prosecution witness was PC George Odawa (PW5), the investigating officer in the matter. He was at Oyugis Police Station when the appellant was presented by two police officers from Nyangiela AP post. The complainant was also taken to the station by the father. He placed the appellant in the cells pending investigations. He therefore caused the complainant to be taken for medical examination by PW4 at Rachuonyo South Sub County Hospital and thereafter received back the P3 Form which indicated that the minor had been defiled. He recorded statements and preferred appropriate charges against the appellant upon receiving the Certificate of Birth for the minor. The Certificate of Birth was produced as the Prosecution’s Exhibit 1 herein.
[23] In defence, the appellant opted to give an unsworn statement. He denied the allegations against him and blamed one Pauline for framing him on account of a debt owed to her. He explained that the said Pauline, who was his lover, was also bitter with him after he declined to marry her. The appellant denied any prior knowledge of the complainant but conceded that he knew her father as he used to see him in the area in which he resided. According to him, Pauline went to his house for a visit at about 2.00 p.m. on 2 nd July 2019 and that was the time she raised alarm when he refused to pay her.
[24] The Main Count, which the appellant was convicted of, was laid pursuant to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, which provision stipulates that:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to life imprisonment.
[25] In the premises, having given due consideration to the appellant’s Grounds of Appeal and the submissions made herein in respect thereof by both the appellant and counsel for the respondent, the issues for my consideration and determination are:
[a] Whether the complainant was, at the material time, a child for purposes of Section 8(2) of the Sexual Offences Act ;
[b] Whether there was penetration of the complainant's genital organ;
[c] Whether the penetration was perpetrated by the appellant.
[d] Whether the appellant’s constitutional right under Article 50(2) of the Constitution was violated; and if so, whether that violation vitiates the lower court proceedings.
[e] Whether the sentence imposed by the lower court is unconstitutional.
A. On the age of the Complainant:
[26] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was made by the Court of Appeal in Kaingu Kasomo v Republic Criminal Appeal No. 504 of 2010 thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[27] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules recognizes that:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[28] It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Moreover, in P.M.M. vs. Republic [2018] eKLR, it was held that:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[29] Hence, in addition to the Certificate of Birth produced before the lower court as the Prosecution’s Exhibit 1, the complainant’s father testified before the lower court and stated that she was 10 years old at the material time. It is plain therefore that the Prosecution adduced credible and uncontroverted evidence that proved beyond reasonable doubt that the complainant was aged 10 years when the offence of defilement is said to have taken place. Accordingly, the complainant herein was within the age bracket envisaged by Section 8(2) of the Sexual Offences Act.
B. On Penetration of the Complainant:
[30] The lower court relied on the evidence presented by the complainant’s father on her behalf. He stated that the complainant told him how the appellant lured him to his house and defiled her. Although that evidence was not firsthand evidence, it was corroborated by the fact that the appellant was arrested at the scene, and in his company at the time was the complainant.
[31] The minor was examined on the same day and found to have been defiled. In this regard, PW4 testified that the girl’s vaginal opening was bruised and tender and she was still bleeding from what he observed to be forced vaginal penetration. Her urine was also found to be bloodstained. PW4’s findings were put down in the P3 Form and the PRC Form. I have no reason to fault the lower court for coming to the conclusion that penetration of the complainant’s genital organ was proved beyond reasonable doubt.
C. On whether the penetration of the complainant was perpetrated by the appellant :
[32] In this case, the incident took place in broad daylight at about 5.00 p.m. As has been stated, the appellant was found with the minor in his room by members of the public. I note that he impugned the evidence of identification contending that the people who raised the alarm, such as Pauline and Esther were not called as witnesses. As a general rule the Prosecution is not under obligation to call all witnesses. In Sahali Omar v Republic [2017] eKLR the Court of Appeal held that:
“The principle used to determine the consequences of failure to call witnesses was succinctly stated in Bukenya & Others v Uganda (1972 E.A; where the court held that: -
i. “The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
ii. That court has the right and duty to call witnesses whose evidence appears essential to the just decision of the case.
iii. Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
The prosecution reserves the right to decide which witness to call. Should it fail to call witnesses otherwise crucial to the case, then the court has the mandate to summon those witnesses. But should the said witnesses fail to testify and the hitherto adduced evidence turn out to be insufficient, only then shall the court draw an adverse inference against the prosecution. This is because the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”
[33] In this case, PW1, the chairman of the Community Policing Committee of the area, testified that he found the accused at the scene with the minor, having been alerted that something was going on behind a certain shop at Nyang’iela Center. It is not manifest how the evidence of Esther would have been different from that of PW1. Moreover, the appellant himself conceded that it was Pauline who raised the alarm. On the other hand, the role of Nancy Achieng , the sister in law of PW3 was limited to conveying the report of the occurrence to PW3.
[34] In connection with Pauline, the appellant contended that his defence to the effect that he was framed on account of a grudge between him was not taken into account by the learned trial magistrate. A perusal of the record however shows that this was not the case. It is manifest at pages 28 of the Record of Appeal that those assertions were duly considered and found untenable. Indeed, the evidence adduced by the prosecution placed the appellant right at the scene of crime, and I so find.
D. Whether the appellant’s constitutional right under Article 50(2) of
the Constitution was violated; and if so, whether that violation
vitiates the lower court proceedings:
[35] Regarding the appellant’s contention that his right to fair trial for purposes of Article 50(2), of the Constitution was violated by the trial court, his main complaint was that his request for a de novo hearing was rejected for no reason at all. The record of the proceedings of the lower court shows that, indeed, the applicant requested for a de novo hearing. The application was made on the 16 th October 2019 after four of the five prosecution witnesses had testified. The only witness left at that point in time was the investigating officer. The appellant simply stated:
“I am not ready to proceed, I wish to start afresh I want to do my case well.”
[36] The lower court considered his request, which was opposed by the Prosecution Counsel, and ruled that no justification had been made for a de novo hearing. She pointed out that there no change in terms of the presiding judicial officer to warrant a de novo hearing. She may have had in mind Section 200(3) and (4) of the Criminal Procedure Code, which states:
“(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.
(4) Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”
[37] It is manifest therefore that the above provision was inapplicable to the appellant’s circumstances. In fact, the rules of criminal procedure do not provide for the sort of circumstances in which the accused sought for a de novo hearing, and therefore the trial court was justified in rejecting his application. I note that he did not seek to appeal that decision. Clearly then, the appellant has no reason to complain of violation of his fair trial right Article 50(2) of the Constitution.
E. On the life sentence imposed by the trial court:
[38] First and foremost, it must be acknowledged that sentence is a matter within the discretion of the trial court, and therefore an appellate court ought not to interfere simply because it would have meted a lesser or stiffer sentence. Hence, in Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[39] Accordingly, in Dismas Wafula Kilwake v Republic [2018] eKLR the Court of Appeal held that:
“…the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand…”
[40] Similarly, in Jared Koita Injiri v Republic [2018] KECA 78 (KLR)
“28. It therefore goes without say that the mandatory life sentence imposed by Section 8(2) of the Sexual Offences Act cannot stand. However, that is not to say that a court cannot render a life sentence upon convicting an accused person where the victim is of the age of 11 years old and below. A court must always reserve its discretion to consider the circumstances of each case independently and set an appropriate sentence. What the Constitution contemplates is that the sentence of life imprisonment cannot be the only sentence as currently proclaimed by Section 8(2) of the Sexual Offences Act. A court has discretion to render a life sentence as one of the lawful sentences upon consideration of mitigations and properly directing its legal mind on the factors for consideration in sentencing.”
[41] It is plain therefore that the sentence imposed by the lower court on the appellant is lawful. While I agree that there may be need for certainty as to what amounts to life sentence, that certainty can only be furnished through legislative intervention and not by this Court. Indeed, in the Muruatetu Case , the Supreme Court made this clear as follows:
[87] In the United Kingdom, the Criminal Justice Act, 2003 provides for guidelines for sentencing those serving different categories of life imprisonment. It is noteworthy that the Act has not scrapped the whole life sentence and it is only handed down to those who have committed heinous crimes.
[88] Unlike some of the cases mentioned above, the life imprisonment sentence has not been defined under Kenyan law (see the Kenya Judiciary Sentencing Guidelines, 2016 at paragraph 23.10, page 51). It is assumed that the life sentence means the number of years of the prisoner’s natural life, in that it ceases upon his or her death.
[89] In order to determine whether this Court can fix a definite number of years to constitute a life sentence, we first turn to the provisions on the rights of detained persons as enshrined under Article 51 of the Constitution, which reads:.
“51. (1) A person who is detained, held in custody or imprisoned under the law, retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned.
(3) Parliament shall enact legislation that—
(a) provides for the humane treatment of persons detained, held in custody or imprisoned; and
(b) takes into account the relevant international human rights instruments .”
[90] It is clear from this provision that it is the Legislature, and not the Judiciary, that is tasked with providing a legal framework for the rights and treatment of convicted persons. This premise was also attested to by the High Court in the case of Jackson Maina Wangui & Another v. Republic Criminal No. 35 of 2012; [2014] eKLR (Jackson Wangui), where the Court held at paragraph 72 and 76 that—
“As submitted by the petitioner, however, what amounts to life imprisonment is unclear in our circumstances. It is not, however, for the court to determine what should amount to a life sentence; whether one’s natural life or a term of years. In our view, that is also the province of the legislature.
76. …. As to what amounts to life imprisonment, that is a matter for the legislative branch of government. It is not for the courts to determine for the people what should be a sufficient term of years for a person who has committed an offence that society finds reprehensible to serve.”
[42] In the light of the foregoing, it cannot be argued that life imprisonment per se amounts to a violation of the appellant’s constitutional rights as was herein urged by him. It is therefore my finding that the sentence imposed on the applicant is not in any way inimical to the constitutional provisions that the applicant relied on herein.
[43] The upshot is that I find no merit in the appeal. It is hereby dismissed in its entirety.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 29 TH DAY OF MAY 2025