The Appellant was convicted and sentenced to serve 10 years imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual Offences Act.
The particulars of the offence were that the Appellant on the 5th day of March 2022 at Nyagisai Sub-Location, Nyanguru Location Kitutu Central Sub-County within Kisii County intentionally and unlawfully caused his penis to penetrate into the vagina of D.B a girl aged 17 years.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Petition of Appeal filed on 25th January 2024 on the following grounds :-
- That the trial magistrate erred in both law and facts by convicting the Appellant without observing that the offence of defilement was not proved beyond reasonable doubt thus making his conviction unsafe.
- That for sure the investigations conducted in this case was scanty and shady which could not have been used to secure conviction,
- That the trial court further erred in both law and in facts by convicting the Appellant without observing that the medical report tendered by the prosecution side had already exonerated the appellant from the said offence.
- That the trial magistrate failed in both law and facts by invoking Section 124 of the evidence act warning herself of the consequences of invoking such section bearing in mind that some of the KEY witnesses were not called to buttress on this matter thus making his conviction unsafe.
- That the trial magistrate further erred in both law and in facts by convicting the Appellant without considering the general circumstances of the offence, the Appellant’s health status (epileptic) and his age (22) years by then thus asking this Hon. with such powers to kindly review the sentence of ten years meted against the Appellant.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
The Prosecution’s case was that the Complainant PW1 had escorted her girlfriend Domtilla Kerubo and when she went back home late her father quarreled and caned her on the buttocks and she felt pain and jumped over the fence to the road. That she told people on the road not to tell her father where she was and she hid in nappier grass but because she was feeling a lot of pain she continued crying and people went to where she was including her aunt Lorna Moraa who told her they should go to her place but she refused she could have called her father. That her grandmother also told her that she should go and sleep at her place and again she refused.
The Complainant said she went back to the home of her girlfriend Domitilla and Domittillas mother asked her who she was and she introduced herself. She said she met the Appellant at 10.00pm and he asked her where she was going and she said she was going to her aunty’s place in Marani as her father had beaten her at home and he offered to take her as he had a motorbike. PW1 said she did not know the Appellant as she was meeting him for the 1st time. That the Appellant told her they would go to Nyatieko 1st before going to Marani and when they got to Iranda he stopped and alighted from the motorbike and the Complainant also alighted.
That the Appellant told the Complainant he would rape her first before taking her to her aunt’s place. That she told him that was not fair but he made her bend over the motor cycle and raped her after pulling down her pant. She said there were no houses in the vicinity. That he raped her she told him to take her to her aunt’s place and on their way they met many boys on the road side and the Appellant told PW1 that if he dropped her there the boys would disturb her.
That when the Appellant rode past the boys 4 of them started to follow and the Appellant rode into a petrol station and they alighted. That the 4 boys said they followed because they knew her and they were given her father’s number and he was called and he went to the petrol station and took the Complainant to Iranda Hospital and he was examined and treated. They then called the Chief and they proceeded to the petrol station and found the Appellant had been tied with a rope and was inside a room. That the incident was reported at Nyakoe Police Station and PW1 recorded her statement. PW1 said she knew the Appellant physically as she used to see him pass their road.
In cross examination the Complainant said that she met the Appellant at 10.00pm when he was coming from a place where people take alcohol and he offered to take her to her aunt’s place in Marani. That she hoped onto the Appellant’s motor cycle willingly. She said that the Appellant pulled down her clothes and they had sex while she was bending over the motor cycle and she did not raise alarm. That when they came across some boys along the road who knew her they called the Appellant and asked where he was taking a student and the boys followed them upto the petrol station and attacked the Appellant tied him with a rope and kept him there. That Nyakundi and 3 boys went to their home and returned with her father and she was taken to hospital at 12.45am. She said when they came from the hospital they went back to the petrol station in company of the Chief who beat the Appellant and then made them to sit down together and took their photos. That they were then taken to police station and kept in cells until the following day when she went to the hospital the 3rd time and she was examined and she went to record her statement.
PW2 Erick Nyabage Ombayo the Assistant Chief Nyagisai Sub-Location testified that on 6.3.2022 at 4.00am he went to shell petrol station at Nyakoe where he was called and informed that PW3’schild had been defiled and that the suspect had been arrested when he went to fuel motor cycle. He said the suspect was a boda boda rider who had been chased the whole night by other boys. PW2 interrogated the suspect and he said he committed the offence but that the Complainant had consented. PW2 took the suspect to Nyakoe Police Station.
In cross examination PW2 said he found the suspect in a room at the petrol station where he had been put for his safety. He said he did not beat the suspect but only interrogated him and the girl. He said the boys who were chasing the suspect were criminals like him and one of them had been arrested by the time PW2 was testifying.
PW3 Evans Onsongo Mose testified that the Complainant was his daughter and that she was 16 years old. He said that on 5.3.2022 at 4.00pm he was at home and his daughter’s friend visited and he left them at home with his wife. That when he returned home at 7.45 pm the Complainant was not at home and her mother said she had gone to the river. PW3 said he stayed outside and his son bed came with the jerrycan and said the Complainant had let it at the shop. That he instructed his son to lock the gate as it was late for a girl to be walking outside. That the Complainant returned at 8.00pm and called Obed the brother to open the gate for her. That when the gate was opened and the Complainant entered PW3 asked where she had come from and she said she had escorted her friend to their home. That he told the Complainant that she had made a mistake and he took a stick and beat her on the legs and she screamed and people came and told him to leave her alone and he left her. That the Complainant jumped over the fence and he thought she could sleep at his brother’s home but at 12.15am 2 boys (Dennis and Justus) went to his home and asked where his daughter was and when he told them he thought he was at his brother’s home they told him that there was a boy who was with his daughter and he had been detained at the petrol station at Nyakoe. That on arrival at the petrol station he found a guard who brought out the Complainant and the suspect who was known to him and when the suspect denied having defiled the Complainant he took her to Iranda Sub-County Hospital but they were referred to Kisii Teaching ad Referral Hospital. PW3 reported the matter to Assistant Chief at 3.00am and they went together to the petrol station where Assistant Chief interrogated the suspect and he admitted having defiled the Complainant. That the Assistant Chief then escorted the suspect to Nyakoe Police Station where statements were recoded.
PW4 Jerida Nyaboke Otieno the Clinical Officer at Iranda Sub-County Hospital testified that on 6.3.2022 he examined the Complainant who had history of defilement by a person known to her. That on examination of her genitalia there was no tear, bruises, or bleeding. Laboratory tests on urine tested negative for pregnancy, HIV, and VDRL. The hymen was however torn because the Complainant had had consensual sex 5 months to the date of examination. The Clinical Officer concluded that the girl was defiled. He produced P3, PRC and Treatment Notes as exhibits.
PW5 P. C. Lydia Mose testified that she was at Nyakoe Police on 6.3.2022 at 6.00am when Sgt Ngetich the in charge informed her a school child and a suspect had been taken to the post and that she should take them to hospital for examination. That she escorted the girl to Manga Sub-County Hospital and she was treated and P3 duly filled. PW5 recorded statements and preferred charge against suspect. She produced the Complainant’s Certificate of Birth as exhibit P1. In cross examination PW5 said that the Appellant had been beaten and when he was taken to the Post at 4.00am he was taken to hospital by another officer. She said 5 witnesses recorded statements but some of them could not be found.
When placed on defense the Appellant gave sworn statement said that he was from work at 11.00pm when he met the Complainant herein and she requested to be taken to her aunt’s place. That on the way they met some 3 boys who followed them behind on 2 motor cycles and he decided to go into the petrol station where people were. That the 3 boys followed them into the petrol station and started beating him and the guards there restrained them and put him in the guard house and told the boys to go and bring the girl’s father after she said she did not know them. The Appellant further stated that he requested the soldier accommodate him for the night because the boys were going to him, and one of the soldier’s told him they share their guard room. Later the boys came back and he was called outside and saw them with girl’s father who asked me why I spoiling his kid the Appellant replied that he was not the one. That the father refused to listen to him and informed him he would take steps even if it means losing his money.
That the after a while the Chief came and they took the Complainant to the hospital and he was left there. The Appellant was left sleeping and when he was woken up by the soldier as the Chief handcuffed him and wanted to take photos of the Appellant but the soldiers deny him. He further stated that the Chief and others started beating him and asking him to state the truth. The appellant informed the Chief that he didn’t know the Complainant and he found her on the way and informed him she was beaten and requested that I take her to her aunt’s place.
After being threatened by the Chief to say the truth or he would be beaten the appellant decided to say he knew the girl to enable him be taken to the police station. That later the Appellant was left with the girl and around 7:00a.m the Appellant recorded his statement while the father to the Complainant came later at 8:00a.m with the 3 boys and they recorded their statements. The Appellant was arraigned in court with the 3 boys but they were discharged after being given money, alcohol they went away and promised never to come back to court. That the 3 boys after that attacked another man in his shop and they fled to Mombasa. The Appellant further stated that he was arrested and taken to prison.
On cross examination the Appellant stated that he met the Complainant who told him to take her to her aunt’s place. He went further to state that he asked the Complainant why she was walking at night and the Complainant told him that she was beaten by the father and that was the reason why she fled her home. The Appellant said that on their way to her aunt’s place they met with three boys whom knew him very well as they worked together and they chased him to the petrol station claiming that he was snatching their girl from them.
The Appellant also stated that while in prison the girl’s father went and changed the statement and further informed him that he will use money to tame the Appellant. The Appellant went on to say that the boys also stated that the girl’s father paid them money and bought alcohol and that they had a dispute because they shared a girlfriend with the Complainant’s father.
This Appeal was canvassed by way of written submissions.
In the Appellant’s written submissions are undated and he submitted that he was detained beyond 24 hours without being informed of the reason for his detention contrary to Article 49(1)(f) and (g) of the Constitution.
The Appellant also submitted that PW1 and PW2’s evidence was contradictory as to the scene of the defilement and the contradiction went to the root of the prosecution case. The Appellant relied on the holding in John Musyoka Vs REPUBLIC (2017) Eklr , CA 11 2016 where the court stated that the High Court failed to evaluate the veracity of all the contradictions and inconsistencies submitted by the Respondent.
The Appellant also submitted that the Complainant’s evidence was not truthful as she did not scream or raise any alarm at the alleged time she was defiled but went ahead to say that she accepted to be the Appellant’s girlfriend and even gave him her mobile phone number.
The Appellant further submitted that the investigating officer’s failure to visit the scene showed he did not take the matter seriously.
On sentence the Appellant faulted the trial court for failing to meet the objective of sentencing and that there was no reasonable proportionality between the sentence and the offence. He urged the court to exercise discretion and give a different finding.
The Respondent’s on the other hand filed written submissions dated 19th November 2024 and submitted that the Appellant had not demonstrated that he was not supplied with the prosecution’s evidence as he never raised any concern to the court that he was not supplied with the witness statements. That the Appellant fully participated in the proceedings and cross examined the witnesses and that his claim was an afterthought. The Respondent relied on the holding in Hadson Ali Mwachongo v Republic Criminal Appeal No 65 of 2015 [2016] KECA where the court while dismissing an appeal on similar grounds stated that:-
“We are equally satisfied that the appellant’s constitutional right to a fair trial was not violated. The record does not indicate the appellant raising any issue pertaining to access to witness statements. On the contrary, he is recorded informing the court that he was ready for the hearing of the case. When he was put on his defence 18th April 2011, he informed the Court that he was ready for his defence but later stated that he needed to be provided with “the charge”. The trial court adjourned the proceedings and directed that the proceedings be typed and supplied to the appellant. On 3rd June 2011 the record shows that the court noted that the typed proceedings were ready and directed that the appellant be supplied with copies in readiness for hearing of his defence on 8th July 2011. On the latter date the appellant indicated that he was ready for the hearing of his defence. In short, the appellant’s complaint regarding denial of access to witness statements is simply not borne out by the record.”
The Respondent further relied on the holding in Francis Macharia Gichungi & 3 Others V Republic Cr. App. No 11 of 2004 where the court stated that it is to be reasonably expected that an accused person who claims that his or her rights have been violated will at the very least raise the issue with the trial court.
All the ingredients of the offence of defilement namely penetration, age of the complainant and identity of the assailant were proved by the Prosecution beyond reasonable doubt.
The prosecution also submitted that the elements constituting the offence of defilement were proved beyond all reasonable doubt by production of the Complainant’s birth certificate to confirm the Complainant was 17 years at the time she was defiled. It was also submitted penetration was proved by the evidence of the victim which was corroborated by the evidence of PW3 who produced P3 form which confirmed the Complainant was defiled and her hymen was broken.
On identification of the perpetrator it was submitted that the Complainant knew the Appellant before and recognized him at the time of the incident.
Regarding the Appellants contention that he was not assigned legal representation the Respondent argued that Article 50(2) (h) of the Constitution mandates the court to appoint an advocate for an accused person at state expense whenever the court is of the opinion that substantial injustice would otherwise result if the accused is not represented by an advocate at the trial. The Respondent cited the holding of the Supreme Court in R v Chengo & 2 Others (Petition No 3 of 2015) where it was held :-
“…We must however emphasize the fact that in accordance with the language of the Constitution this particular right is not open ended. It only becomes available if substantial injustice would otherwise result.”
It was further submitted that from the proceedings it is evident that no substantial injustice was occasioned since the Appellant fully participated in the prosecution hearing, cross examined the witnesses and conducted his defense. That the Appellant did not raise the issue of legal representation before the trial court and cannot claim that the court erred. The Respondent further placed reliance on the case of Manyeso V Republic (Criminal Appeal No 12 of 2021[2023] KECA 827 where the court in dealing with the issue of legal representation stated that:-
“…However, in the present appeal, the Appellant did not raise the issue of legal representation either in the trial court or in the High Court, and the record of the trial court shows that the appellant participated in the trial and cross examined witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to fair trial under Article 50(2) (g) and (h) of the Constitution were violated.’’
The court was urged to dismiss the appeal.
Analysis and Determination
In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are whether the ingredients of the offence of defilement were proved beyond reasonable doubt.
Section 8 (1) as read with 8(4) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
From the evidence of PW1 she said she was 17 years and was a form one student at Nyasore Secondary School. The Investigating officer PW5 produced Certificate of Birth as Exhibit P1 showing that the Complainant was born on 19.6.2005 and was three months shy of attaining the age of majority. According to Section 2 of the Children’s Act defines a child to mean an individual who has not attained the age of eighteen years. The Complainant was therefore a child in accordance with provisions of the Children’s Act.
In the Court of Appeal case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR it was stated as follows on proof of age.
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
On the issue of penetration, when PW4 the Clinical officer examined the Complainant within 1600hours of the allege defilement it was found that her hymen was broken and according to PW4 the hymen was broken 5 months prior to the incident herein when the complainant had consensual sex. The Complainant had no tear, bruises or bleeding when her external genital was examined and all the lab tests were negative and therefore the only evidence remaining to prove that the Complainant was defiled was the oral evidence of the complainant herself. She said that the Appellant made her to bend over his motorcycle and defiled her while she was standing on the hand the Appellant denied having defiled the Complainant. This court is aware that it can rely on oral uncorroborated evidence of the Complainant to convict in a sexual offence case pursuant to the proviso to Section 124 of the Evidence Act provides as follows:-
“Notwithstanding the provision of Section 19 of Oaths and Statutory Declaration 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 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 eth alleged victim and proceed to convict the accused person if, for reason to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth..”
Having seen that the medical evidence did not make any findings that the complainant was defiled the trial court ought to have given reason why it believed the evidence of the Complainant as against the evidence of the Appellant who denied having defiled the Complainant. The Complainant had consensual sex five months prior to this incident and when the father attempted to discipline her for returning home late and she jumped over the fence and ran away in darkness. In her evidence, she said that her aunt Lorna told her to go and sleep at her place but she refused her grandmother also told her to go sleep at her place but she refused she went to her friends place at Domtila place and she does not explain how she left her friends’ Domtila to go and meet the Appellant at 10:00 p.m. when the Appellant alleged defiled her she did not raise alarm and when the boys who reported to her father her whereabouts caught up with them at the petrol station she lied that she did not know them and yet she knew them and the 4 boys went to call the father and returned with him at 12:30a.m It is not in dispute that the Appellant was found in company of the Complainant herein but in consideration of the complainants conduct and doubtful evidence and in consideration of the Appellant’s evidence that he did not defile the Complainant and that he was only rescuing her from the bad boys this court finds that it was unsafe for the trial court to rely on the uncorroborated evidence of Complainant to convict the Appellant without giving reason that she believed her evidence.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal has merit and the same is allowed. The conviction is quashed and sentence set aside. The Appellant to be set at liberty forthwith unless lawfully detained.
Right of Appeal 14 days.
Dated, signed and delivered this 6th day of March, 2025