The Appellant herein Josia Marwa Matinde alias Billy Blacks was charged with two (2) counts of the offense of Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. He also faced two (2) alternative charges of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
Particulars of Count 1 were that on diverse dates between the year 2022 and 17th February 2023, at Isebania Township, in Kuria West Sub-County within Migori county, willfully and unlawfully cause his penis to penetrate the Vagina of H.K a child aged 7 years old.
In the alternative the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars were that on diverse dates between the year 2022 and 17th February 2023, at Isebania Township, in Kuria West Sub-County within Migori county, willfully and unlawfully committed an indecent act by touching the vagina of H.K a child aged 7 years old with his penis.
The particulars to Count 2 were that that on diverse dates between the year 2022 and 17th February 2023, at Isebania Township, in Kuria West Sub-County within Migori county, the Appellant willfully and unlawfully caused his penis to penetrate the vagina of C.M a child aged 11 years old.
The particulars to the alternative count were that on diverse dates between the year 2022 and 17th February 2023, at Isebania Township, in Kuria West Sub-County within Migori county, the Appellant willfully and unlawfully committed an indecent act by touching the vagina of C.M a child aged 11 years old with his penis.
The Appellant pleaded not guilty to the charges and the matter went for full trial where the prosecution availed a total of six (6) witnesses to prove the offense beyond reasonable doubt. He was then placed on defense and he testified that he did not commit the offense. After considering the evidence on record, the trial court found him guilty on the main count on both counts and he was convicted to serve 30 years’ imprisonment for each count to run concurrently.
He was aggrieved by the whole judgement of the trial court and preferred this appeal dated 18th April 2024 on the following grounds;
1. That the plea taken was not unequivocal
2. That his rights under article 50 (2) (g) (h) were disregarded and violated.
3. That the learned trial magistrate disregarded his right to mitigation and pre-sentence report thus against the tenets of fair trial.
4. That the learned trial magistrate disregarded all the open discrepancies in the particulars of the offence as captured by the prosecution.
5. That the sentence meted out was overly harsh, excessive and inordinate in spite of him being a first offender.
6. That he begs to add more grounds once supplied with the lower court records.
Reasons wherefore he prayed that this appeal be allowed, conviction quashed and sentence set aside or any other order deemed fit to grant.
Prosecution Case
PW1- Edwin Omahe Clinical Officer at Isebania Sub-county hospital testified that he examined the Complaint C. M. B. who had history of having pain when passing stool and had vaginal discharge. He stated that she was treated on 21.2.2023 after having been referred from school and was escorted by the mother. That the child was 11 years old and had a history of having been defiled from May, 2021 by the step-father who also defiled the younger sister. PW1 testified that the Complainant reported having been beaten by the said step-father and she was anxious but became calm after counseling.
It was PW1’s testimony that C.M.B had scars approximately 2cm on the knee, chin and right index finger. That she had tender left knee and hip and a swelling on the left side of the forehead. That on examination of her genitalia there was laceration on the vagina and the hymen was broken with no discharge. He further stated that on the anus, there was laceration due to defilement and soft tissue injuries. Laboratory investigation conducted from specimens taken from the Complainant showed that she had yeast infection which was treated and she was given drugs to prevent any other infection. PW1 produced the P3 form with similar notes to those in the treatment notes stating that the injuries were about 9 months old and the probable type of weapon was blunt and the degree of injury was assessed as harm.PW1 also produced the PRC form which had the same information. He stated that they also did Age Assessment and approximated the age of the minor to be 11 years. He then produced the Treatment Notes for C.M.B, P3 Form, PRC Form and Age Assessment as Exhibits 1-4 respectively.
PW1 also examined and treated H.K.M who had a history of genital pains and reported that the Appellant who was her step-father had been defiling her and her sister. He testified that she reported that the step-father was playing them pornographic movies and used to lick her vagina and beat her. PW1 noted that she was calm but traumatized and that there was pain on the abdomen. He stated that she did not have physical injuries on the body but there was laceration and bruises on the genitalia, and laceration on the anus. It was PW1’s testimony that they diagnosed defilement and soft tissue injuries and that the other tests were negative and she was placed on treatment. He stated that the age of the injuries was about nine months and that the weapon was a blunt object, the degree of injury was assessed as harm. He produced the Treatment notes for H.K.M, P3 Form, PRC Form and Age Assessment Report as Exhibits 5-8 respectively.
PW2- Jackline Osebe Testified that the complainants were her nieces and that on the 11.2.2023 at 2.00 p.m. while at home H.K. the complainant in count 1 went to her crying and told her that their father used to have sex with them. She said that she went to school and came back with C.M.B who also said that the father used to have sex with her. That on the following day she took H.K to her grandmother's home at Nyabohanse and remained with C.M.B.
It was her testimony that on 18.2.2023, she realized that there was discharge from C.M. B’s private parts. That she informed the teacher who interrogated the girl and told her to look for the children's mother. She stated that she took the mother to school and after questioning her, the Head Teacher gave them a letter and they took the children to the hospital for treatment. That thereafter, they reported the matter at the Police Station and the father was arrested.
When cross-examined by the Appellant PW2 stated that she did not see the Appellant defiling the girls and that it was the children who told her. It was her further testimony that the girls informed her that the Appellant threatened them and thus they could not tell their mother. That the Appellant did the act when the mother was away, and she never told the Appellant that she would fix him in a case. She stated that the Appellant was very hostile to the children and that he did not ask her to have the matter settled at home.
PW3 - Mercy Kemunto testified that the complainants herein were her Children and that PW2 was her sister and the Appellant her husband. She stated that on 21.2.2023 she was at home and at about 10.00a.m. PW2 arrived and asked her whether she knew that her children had been defiled. That she informed her she had no knowledge of the same and she accompanied PW2 to school where they found the Head Teacher. That the Head Teacher interrogated the children who said that their father used to have sex with them when she was not at home. She stated that the Head Teacher wrote a letter and they took the two children to the hospital for treatment.
It was her further testimony that from the hospital they went to Isebania Police Station and reported the matter and on the following day, the Accused person was arrested. She stated that she did not know that the children were being defiled by their father. When cross-examined by the Appellant she said that the children did not tell her that he used to defile them and she only came to know when they went to PW2's home.
The court conducted a voir dire examination and established that PW4 and PW5 did not understand the nature and purpose of the oath thus they testified without being sworn.
PW4- H.K Testified that she was in Grade 1 and lived with her grandmother at the time of the hearing. She stated that she knew the Appellant who wasn’t their biological father but lived with them in the same house with her mother and her siblings. It was her testimony that when living with him, he would tell her to go get him his clothes in the bedroom then follow her and ask her to go to bed where he would remove her clothes and do to her "tabia mbaya". That he would then tell her that when she grew up, the same thing would be done to her, and that during the act he would also remove his clothes.
It was PW4’s testimony that the Appellant used to apply saliva to her private part after which he would put his thing into her thing. She stated that he used to do it when their mother had gone to work and at night he would go to their bed where they slept and remove her clothes and do to her "tabia mbaya". It was her further testimony that the Appellant also did the same to PW5 who was older than her and that he would take PW5 to the chair in the darkness.
It was her further testimony that there was a day her mother had gone to take a shower and the Appellant called her to the bedroom. That before he could remove her clothes he heard the mother coming back and left her after threatening her not to reveal anything. She stated that the Appellant had a panga which he used to hit her to find out whether she had informed anyone of his actions. That after sometime, she went to PW2’s (Aunty Jackline) place one day from school and informed her of what the Appellant was doing to her, and they went to the Police Station and reported the matter. She stated that she led the Police Officers to their house and the Appellant was arrested. That PW5 also told Aunty Jackline that the Accused did to her tabia mbaya. She stated that she was taken to the Hospital where she was examined and treated. She then added that before the Appellant was arrested, they had lived with him for one (1) year.
When cross-examined by the Appellant she stated that she did not inform her mother that he was doing to her "tabia mbaya". She stated that there were times the Appellant went to work at night and other times he stayed home. That she did not inform the Appellant’s mother who was her grandmother or her mother because she feared the Appellant would have beaten her as he beat her mother and broke her leg. She stated that the Appellant had a flash disc which he used to show them pornographic movies using the TV.
PW5- C.M.B Testified that she was Grade 2 and PW4 was her sister, and the Appellant herein her step-father. She stated that in 2022, the Appellant used to send her to get him clothes from the bedroom. That he would then follow and tell her to climb on the bed then apply saliva to her thing and put his thing in her thing. She testified that the Appellant told her that he would slaughter her if she informed her mother. She stated that there was a day they met with Aunt Mary who took them to Aunt Jackline and they explained to her what was happening. That PW4 started crying and refused to go back home.
It was her further testimony that Police Officers came to their home led by PW4 and arrested the Appellant. She stated that she went to live with Aunt Jackline and had discharge from her private parts. That when she went to school, a teacher by the name Madam Florence came and called her and she told her that her father had done to her tabia mbaya. She stated that after that Aunt Jackline came to school and took them to the hospital where they were examined and treated.
PW6 – No. 247994 Pc (W) Jecinta Ndiema testified that she was attached to Isebania Police Station in the investigations unit. That she took over the matter from PC Anyango and perused the file where she discovered that there were two children namely H.K. and C.M. B. who were aged 8 and 11 years respectively and were allegedly being defiled by their father one Josiah Marwa the Appellant herein. She stated that their statements were to the effect that they were defiled by their father on various days both during the day and at night.
It was her testimony that PC Anyango received information from the Doctor when the two children went for treatment. That the defilement was discovered by the Chairman of the School who was informed by the Children’s aunt. She stated that PC Anyango went to the hospital and took the two girls to the Police Station where she issued them with P3 forms which were filled by the doctor.
It was her further testimony that on 22.2.2023 the Appellant was arrested and charged after H.K. identified him and A disc was recovered. She stated that the children alleged that it contained pornographic videos and that the two girls were taken for age assessment. She then produced before Court Age Assessment Reports for the 2 minors H.K. as Exhibit 4 and C.M. B. as Exhibit 8.
When cross-examined by the Appellant she stated that they relied on the evidence of the two girls and that the flash disc was recovered from his house. She also stated that the Investigating Officer recorded the statement of the witnesses and there was sufficient evidence against him.
Defense Case
DW1 - Josiah Marwa Matinde testified in his defense stated that on 20.3.2023, he disagreed with his sister in law and she told him that He would know her. That he also disagreed with his wife who went and informed the sister-in-law who then came and took the children. It was his testimony that the sister-in-law hid the children for a week and told him that he was defiling the children. That after a short time Police Officers went and arrested him and he was taken to the Police Station where he was told that he defiled the children. He stated that he was later charged with the offence and he did not commit the offence as the evidence of the witnesses was false.
In cross-examination he stated that he knew H.K. and C.M.B. who were his step-children. He stated that he knew Mary Kemunto who was his sister in law and knew Jackline who was also his sister-in-law. It was his testimony that all the witnesses gave false evidence and Jackline was not his wife. He further stated that Jackline had two children who he punished in January, 2022. It was his testimony that he lived with the children in the same house and used to go to work at night while his wife was always at home. That he would go back home at 5.00a.m. and used to work as a guard at night. That he did not defile the children and his wife was always at home as she never used to go to work.
The appeal was canvassed by way of written submissions.
The Appellant’s submissions are undated and were filed on 5th November 2024
The same is to the effect that there was no direct evidence linking him to the offence of defilement as there was no Independent witness to corroborate the evidence of PW4 & 5. That the evidence of the Prosecution witnesses was mere hearsay which cannot be admitted.
He also submitted that there were material contradictions in the evidence in Chief and Cross examination that weakened and destroyed the inference of guilt and the same should be disregarded. He said that the P3 form produced by PW1 does not show the date and time of the alleged offense.
He questioned why it took so long for PW4 & 5 to report to their mother and teachers what the Appellant did if it was not a case of frame up. He also questioned why Madam Florence and the Head Teacher were not called to testify. He said that that the letter written by the Head Teacher was not produced in Court and submitted that doubt had been raised in the prosecution’s case which should benefit him by the court quashing the conviction and setting aside the sentence.
The Appellant submitted that the evidence of PW1 the Clinical Officer who treated the girls was not convincing that the girls had been defiled as there was no evidence to prove penetration of the complainants. He said that the prosecution relied on circumstantial evidence which cannot sustain a conviction as the same evidence was incompatible with the guilt of the appellant.
The Appellant also submitted that the prosecution failed to submit Certificate of Birth of the Complainants and therefore failed to prove their exact age. To support this position, he relied on the case of Stephen Ouma Opiyo v Republic Criminal case No. 46 of 2009 of Kisumu and Bungoma High Court Criminal Appeal No. 89 of 2016 Kelvin Kiprotich Amos alias Rotich V Republic that in the absence of proof that the complainants were below the age of 18 years at the material time, his conviction was not safe.
The Appellant further said that the age assessment of the victim was done without scientific method by a Clinical officer who unqualified in the dental discipline or pediatric science.
The Appellant submitted that the idea of defilement was only concocted, the same was misleading had no basis and was not proved or supported at all.
The Appellant urged the court to accord him the benefit of the loopholes that he has exposed in the prosecution’s case, quash the conviction and set the sentence aside.
The Respondents opposed the appeal and filed their submissions dated 17th December 2024 as follows:
It was submitted that the duty of the Appellate court of first instance is to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. That an Appellant on a first appeal is entitled to expect the evidence to be submitted afresh. The appellant court is expected to exhaustively examine the evidence and make its own decision as in Pandya vs. Republic (1957) EA 336.
(i) On Whether the trial court erred in court and law by not complying with article 50 (2) (g) (h) of the Kenyan constitution 2010.
The respondents submitted that Article 50 (2) (g) (h) of the Kenyan constitution 2010, provides for the right to representation of the accused person by an advocate of the high court of Kenya. That in the case of Mokaya v Republic (Criminal Appeal E020 of 2023) [2024] KEHC 4607 (KLR) W.A okwany, J stated that
"In the instant case, I note that even though the trial court did not inform the Appellant of his right to legal representation, such failure was not fatal or prejudicial to the Appellant's case as the record shows that he understood the charges brought against him and that he competently cross examined all the prosecution witnesses. It is also noteworthy that the Appellant was not charged with a capital offence whose penalty is death so as to necessitate the mandatory requirement for legal representation. I find that the trial court conducted a fair trial and that the Appellant did not suffer any injustice due to lack of legal representation."
It was submitted that the right to free legal representation by the state is not an absolute right and was only mandatory if the accused person is charged with an offence whose penalty is death, and substantial injustice will arise if such person is unable to afford legal representation.
That in this particular matter the appellant was not charged with a capital offence and at the time of trial, he demonstrated that he clearly understood the charges laid against him and was also able to cross examine the prosecution witnesses as well as mount his defense. Therefore, the trial court did not infringe Article 50 (2) (g) (h) of the Kenyan constitution 2010 during its conduct of the trial.
(ii) On Whether the offence of defilement was proven to the required standard thereby warranting a conviction
It was submitted that the offence of defilement is rooted on three main elements, the first being the age of the victim (must be a minor), the second penetration and lastly the proper identification of the perpetrator. That These ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue as was in George Opondo Olunga vs. Republic [2016] eKLR.
On the first element of age, they submitted that the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
"... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable."
That in the present case, PW1, the clinical officer produced the age assessment report for the first minor H.K as exhibit 8 which indicated that the most probable age was 7 years. That he also produced an age assessment for the second minor C.M as exhibit 4 which indicated that the most probable age was 11 years. Thus from the age assessment reports produced in court it is clear that at the time of the offence both victims were minors.
On the second element of defilement which is penetration, it was submitted that Penetration is defined under Section 2 of the Sexual Offences Act as:
"The partial or complete insertion of the genital organ of a person into the genital organs of another person."
It was submitted that PW1, the clinical officer testified that he examined H.K and observed that she had bruises and lacerations on her genitalia as well as on the anus and it was his medical opinion that defilement had occurred. The said PW1 produced treatment notes as exhibit 5, P3 form as exhibit 6 and a PRC form as exhibit 7. It was further submitted that the medical documents corroborated the physical medical examination that had been conducted indicating that penetration had occurred.
It was also submitted that PW1 did examine the second minor C.M and he observed that she had been defiled as she had lacerations on the vagina and anus, and the hymen was also broken. He produced treatment notes as exhibit 1, P3 form as exhibit 2 and PRC form as exhibit 3. The respondents submitted that the medical documents corroborated the physical examination that was conducted which indicated that penetration had occurred.
On the third element of positive identification It was submitted that the two minors knew the Appellant well as he used to live with them as their step-father and that they able to positively identify him in the dock during their testimony.
(iii) On Whether or not the sentence meted on him by the trial court was harsh.
The Respondents relied on the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR where the court stated 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 states is shown to exist."
And submitted that the sentence meted by the trial court in this matter was sufficient given the circumstances of the case.
In conclusion, the Respondents submitted that the appeal lacks merit and prayed that the same be dismissed.
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:
a) Whether the plea taken was not unequivocal?
b) Whether the trial court erred in court and law by not complying with article 50 (2) (g) (h) of the Kenyan constitution 2010?
c) Whether the offence of defilement was proven to the required standard thereby warranting a conviction?
d) Whether the learned trial magistrate disregarded all the open discrepancies in the particulars of the offence as captured by the prosecution.
e) Whether or not the sentence meted on him by the trial court was harsh?
On whether the plea taken was not unequivocal, the Appellant pleaded Not Guilty to the charges against him and the matter proceeded to full trial. Section 207(1) & (2) of the CPC and the holding in Adan Vs Republic [1973] EA445 explains what an unequivocal plea of guilty means and Section 348 of the Criminal Procedure Code provides that no appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted except as to the extent and legality of the sentence. The Appellant herein did not plead guilty and the issue of his plea of not guilty being equivocal does not arise.
On Whether the trial court erred in law by not complying with article 50 (2) (g) & (h) of the Constitution the case of Republic v Karissa Chengo and 2 others [2015] eKLR is relevant in this instant Appeal where the Supreme Court of Kenya stated that:
“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This Court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result’ and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arise in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.”
In the Trial Court’s typed proceedings dated 24/2/2023 the provisions and rights under Article 50 (2) (g) and (h) were explained to the Appellant and he elected to proceed without a counsel. I Therefore, find that his right to legal representation under Article 50 was not breached.
On Whether the offence of defilement was proven to the required standard Section 8 (1) as read with 8(3) 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…….
….. (2) A person who commits an offence of defilement with a child aged eleven years or less is liable upon conviction to be sentenced to imprisonment for life.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
On the element of Age, the Court of Appeal in the case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR stated as follows;
“... 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.”
From the evidence of PW1 who did the Age Assessment of the complainants and availed the Age Assessment reports of PW5 & PW4 as PEX 4 and PEX 8, the complainants herein were approximately 11 and 7 years respectively. Further, both PW4 and PW5 testified and confirmed their ages as assessed by the Clinical Officer. PW6 who escorted the 2 minors to the hospital for Age assessment corroborated the evidence of PW1 that the minors were 11 and 7 years respectively. The Appellant did not challenge the evidence as to the Complainants’ ages during trial and he has not brought evidence that they are older or younger than the ages indicated in the charge sheet and his submission that scientific method was not used to assess the minors’ age is not valid as age can be proved by oral evidence of the child, or the evidence of the parents or guardian or medical evidence among other forms of proof provided the same is credible. This court therefore finds that the ages of the Complainants fell within the bracket under Section 8(2) of the Act and the 1st ingredient of the offence of defilement w
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Particulars of Count 1 were that on diverse dates between the year 2022 and 17th February 2023, at Isebania Township, in Kuria West Sub-County within Migori county, willfully and unlawfully cause his penis to penetrate the Vagina of H.K a child aged 7 years old.
In the alternative the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars were that on diverse dates between the year 2022 and 17th February 2023, at Isebania Township, in Kuria West Sub-County within Migori county, willfully and unlawfully committed an indecent act by touching the vagina of H.K a child aged 7 years old with his penis.
The particulars to Count 2 were that that on diverse dates between the year 2022 and 17th February 2023, at Isebania Township, in Kuria West Sub-County within Migori county, the Appellant willfully and unlawfully caused his penis to penetrate the vagina of C.M a child aged 11 years old.
The particulars to the alternative count were that on diverse dates between the year 2022 and 17th February 2023, at Isebania Township, in Kuria West Sub-County within Migori county, the Appellant willfully and unlawfully committed an indecent act by touching the vagina of C.M a child aged 11 years old with his penis.
The Appellant pleaded not guilty to the charges and the matter went for full trial where the prosecution availed a total of six (6) witnesses to prove the offense beyond reasonable doubt. He was then placed on defense and he testified that he did not commit the offense. After considering the evidence on record, the trial court found him guilty on the main count on both counts and he was convicted to serve 30 years’ imprisonment for each count to run concurrently.
He was aggrieved by the whole judgement of the trial court and preferred this appeal dated 18th April 2024 on the following grounds;
1. That the plea taken was not unequivocal
2. That his rights under article 50 (2) (g) (h) were disregarded and violated.
3. That the learned trial magistrate disregarded his right to mitigation and pre-sentence report thus against the tenets of fair trial.
4. That the learned trial magistrate disregarded all the open discrepancies in the particulars of the offence as captured by the prosecution.
5. That the sentence meted out was overly harsh, excessive and inordinate in spite of him being a first offender.
6. That he begs to add more grounds once supplied with the lower court records.
Reasons wherefore he prayed that this appeal be allowed, conviction quashed and sentence set aside or any other order deemed fit to grant.
Prosecution Case
PW1- Edwin Omahe Clinical Officer at Isebania Sub-county hospital testified that he examined the Complaint C. M. B. who had history of having pain when passing stool and had vaginal discharge. He stated that she was treated on 21.2.2023 after having been referred from school and was escorted by the mother. That the child was 11 years old and had a history of having been defiled from May, 2021 by the step-father who also defiled the younger sister. PW1 testified that the Complainant reported having been beaten by the said step-father and she was anxious but became calm after counseling.
It was PW1’s testimony that C.M.B had scars approximately 2cm on the knee, chin and right index finger. That she had tender left knee and hip and a swelling on the left side of the forehead. That on examination of her genitalia there was laceration on the vagina and the hymen was broken with no discharge. He further stated that on the anus, there was laceration due to defilement and soft tissue injuries. Laboratory investigation conducted from specimens taken from the Complainant showed that she had yeast infection which was treated and she was given drugs to prevent any other infection. PW1 produced the P3 form with similar notes to those in the treatment notes stating that the injuries were about 9 months old and the probable type of weapon was blunt and the degree of injury was assessed as harm.PW1 also produced the PRC form which had the same information. He stated that they also did Age Assessment and approximated the age of the minor to be 11 years. He then produced the Treatment Notes for C.M.B, P3 Form, PRC Form and Age Assessment as Exhibits 1-4 respectively.
PW1 also examined and treated H.K.M who had a history of genital pains and reported that the Appellant who was her step-father had been defiling her and her sister. He testified that she reported that the step-father was playing them pornographic movies and used to lick her vagina and beat her. PW1 noted that she was calm but traumatized and that there was pain on the abdomen. He stated that she did not have physical injuries on the body but there was laceration and bruises on the genitalia, and laceration on the anus. It was PW1’s testimony that they diagnosed defilement and soft tissue injuries and that the other tests were negative and she was placed on treatment. He stated that the age of the injuries was about nine months and that the weapon was a blunt object, the degree of injury was assessed as harm. He produced the Treatment notes for H.K.M, P3 Form, PRC Form and Age Assessment Report as Exhibits 5-8 respectively.
PW2- Jackline Osebe Testified that the complainants were her nieces and that on the 11.2.2023 at 2.00 p.m. while at home H.K. the complainant in count 1 went to her crying and told her that their father used to have sex with them. She said that she went to school and came back with C.M.B who also said that the father used to have sex with her. That on the following day she took H.K to her grandmother's home at Nyabohanse and remained with C.M.B.
It was her testimony that on 18.2.2023, she realized that there was discharge from C.M. B’s private parts. That she informed the teacher who interrogated the girl and told her to look for the children's mother. She stated that she took the mother to school and after questioning her, the Head Teacher gave them a letter and they took the children to the hospital for treatment. That thereafter, they reported the matter at the Police Station and the father was arrested.
When cross-examined by the Appellant PW2 stated that she did not see the Appellant defiling the girls and that it was the children who told her. It was her further testimony that the girls informed her that the Appellant threatened them and thus they could not tell their mother. That the Appellant did the act when the mother was away, and she never told the Appellant that she would fix him in a case. She stated that the Appellant was very hostile to the children and that he did not ask her to have the matter settled at home.
PW3 - Mercy Kemunto testified that the complainants herein were her Children and that PW2 was her sister and the Appellant her husband. She stated that on 21.2.2023 she was at home and at about 10.00a.m. PW2 arrived and asked her whether she knew that her children had been defiled. That she informed her she had no knowledge of the same and she accompanied PW2 to school where they found the Head Teacher. That the Head Teacher interrogated the children who said that their father used to have sex with them when she was not at home. She stated that the Head Teacher wrote a letter and they took the two children to the hospital for treatment.
It was her further testimony that from the hospital they went to Isebania Police Station and reported the matter and on the following day, the Accused person was arrested. She stated that she did not know that the children were being defiled by their father. When cross-examined by the Appellant she said that the children did not tell her that he used to defile them and she only came to know when they went to PW2's home.
The court conducted a voir dire examination and established that PW4 and PW5 did not understand the nature and purpose of the oath thus they testified without being sworn.
PW4- H.K Testified that she was in Grade 1 and lived with her grandmother at the time of the hearing. She stated that she knew the Appellant who wasn’t their biological father but lived with them in the same house with her mother and her siblings. It was her testimony that when living with him, he would tell her to go get him his clothes in the bedroom then follow her and ask her to go to bed where he would remove her clothes and do to her "tabia mbaya". That he would then tell her that when she grew up, the same thing would be done to her, and that during the act he would also remove his clothes.
It was PW4’s testimony that the Appellant used to apply saliva to her private part after which he would put his thing into her thing. She stated that he used to do it when their mother had gone to work and at night he would go to their bed where they slept and remove her clothes and do to her "tabia mbaya". It was her further testimony that the Appellant also did the same to PW5 who was older than her and that he would take PW5 to the chair in the darkness.
It was her further testimony that there was a day her mother had gone to take a shower and the Appellant called her to the bedroom. That before he could remove her clothes he heard the mother coming back and left her after threatening her not to reveal anything. She stated that the Appellant had a panga which he used to hit her to find out whether she had informed anyone of his actions. That after sometime, she went to PW2’s (Aunty Jackline) place one day from school and informed her of what the Appellant was doing to her, and they went to the Police Station and reported the matter. She stated that she led the Police Officers to their house and the Appellant was arrested. That PW5 also told Aunty Jackline that the Accused did to her tabia mbaya. She stated that she was taken to the Hospital where she was examined and treated. She then added that before the Appellant was arrested, they had lived with him for one (1) year.
When cross-examined by the Appellant she stated that she did not inform her mother that he was doing to her "tabia mbaya". She stated that there were times the Appellant went to work at night and other times he stayed home. That she did not inform the Appellant’s mother who was her grandmother or her mother because she feared the Appellant would have beaten her as he beat her mother and broke her leg. She stated that the Appellant had a flash disc which he used to show them pornographic movies using the TV.
PW5- C.M.B Testified that she was Grade 2 and PW4 was her sister, and the Appellant herein her step-father. She stated that in 2022, the Appellant used to send her to get him clothes from the bedroom. That he would then follow and tell her to climb on the bed then apply saliva to her thing and put his thing in her thing. She testified that the Appellant told her that he would slaughter her if she informed her mother. She stated that there was a day they met with Aunt Mary who took them to Aunt Jackline and they explained to her what was happening. That PW4 started crying and refused to go back home.
It was her further testimony that Police Officers came to their home led by PW4 and arrested the Appellant. She stated that she went to live with Aunt Jackline and had discharge from her private parts. That when she went to school, a teacher by the name Madam Florence came and called her and she told her that her father had done to her tabia mbaya. She stated that after that Aunt Jackline came to school and took them to the hospital where they were examined and treated.
PW6 – No. 247994 Pc (W) Jecinta Ndiema testified that she was attached to Isebania Police Station in the investigations unit. That she took over the matter from PC Anyango and perused the file where she discovered that there were two children namely H.K. and C.M. B. who were aged 8 and 11 years respectively and were allegedly being defiled by their father one Josiah Marwa the Appellant herein. She stated that their statements were to the effect that they were defiled by their father on various days both during the day and at night.
It was her testimony that PC Anyango received information from the Doctor when the two children went for treatment. That the defilement was discovered by the Chairman of the School who was informed by the Children’s aunt. She stated that PC Anyango went to the hospital and took the two girls to the Police Station where she issued them with P3 forms which were filled by the doctor.
It was her further testimony that on 22.2.2023 the Appellant was arrested and charged after H.K. identified him and A disc was recovered. She stated that the children alleged that it contained pornographic videos and that the two girls were taken for age assessment. She then produced before Court Age Assessment Reports for the 2 minors H.K. as Exhibit 4 and C.M. B. as Exhibit 8.
When cross-examined by the Appellant she stated that they relied on the evidence of the two girls and that the flash disc was recovered from his house. She also stated that the Investigating Officer recorded the statement of the witnesses and there was sufficient evidence against him.
Defense Case
DW1 - Josiah Marwa Matinde testified in his defense stated that on 20.3.2023, he disagreed with his sister in law and she told him that He would know her. That he also disagreed with his wife who went and informed the sister-in-law who then came and took the children. It was his testimony that the sister-in-law hid the children for a week and told him that he was defiling the children. That after a short time Police Officers went and arrested him and he was taken to the Police Station where he was told that he defiled the children. He stated that he was later charged with the offence and he did not commit the offence as the evidence of the witnesses was false.
In cross-examination he stated that he knew H.K. and C.M.B. who were his step-children. He stated that he knew Mary Kemunto who was his sister in law and knew Jackline who was also his sister-in-law. It was his testimony that all the witnesses gave false evidence and Jackline was not his wife. He further stated that Jackline had two children who he punished in January, 2022. It was his testimony that he lived with the children in the same house and used to go to work at night while his wife was always at home. That he would go back home at 5.00a.m. and used to work as a guard at night. That he did not defile the children and his wife was always at home as she never used to go to work.
The appeal was canvassed by way of written submissions.
The Appellant’s submissions are undated and were filed on 5th November 2024
The same is to the effect that there was no direct evidence linking him to the offence of defilement as there was no Independent witness to corroborate the evidence of PW4 & 5. That the evidence of the Prosecution witnesses was mere hearsay which cannot be admitted.
He also submitted that there were material contradictions in the evidence in Chief and Cross examination that weakened and destroyed the inference of guilt and the same should be disregarded. He said that the P3 form produced by PW1 does not show the date and time of the alleged offense.
He questioned why it took so long for PW4 & 5 to report to their mother and teachers what the Appellant did if it was not a case of frame up. He also questioned why Madam Florence and the Head Teacher were not called to testify. He said that that the letter written by the Head Teacher was not produced in Court and submitted that doubt had been raised in the prosecution’s case which should benefit him by the court quashing the conviction and setting aside the sentence.
The Appellant submitted that the evidence of PW1 the Clinical Officer who treated the girls was not convincing that the girls had been defiled as there was no evidence to prove penetration of the complainants. He said that the prosecution relied on circumstantial evidence which cannot sustain a conviction as the same evidence was incompatible with the guilt of the appellant.
The Appellant also submitted that the prosecution failed to submit Certificate of Birth of the Complainants and therefore failed to prove their exact age. To support this position, he relied on the case of Stephen Ouma Opiyo v Republic Criminal case No. 46 of 2009 of Kisumu and Bungoma High Court Criminal Appeal No. 89 of 2016 Kelvin Kiprotich Amos alias Rotich V Republic that in the absence of proof that the complainants were below the age of 18 years at the material time, his conviction was not safe.
The Appellant further said that the age assessment of the victim was done without scientific method by a Clinical officer who unqualified in the dental discipline or pediatric science.
The Appellant submitted that the idea of defilement was only concocted, the same was misleading had no basis and was not proved or supported at all.
The Appellant urged the court to accord him the benefit of the loopholes that he has exposed in the prosecution’s case, quash the conviction and set the sentence aside.
The Respondents opposed the appeal and filed their submissions dated 17th December 2024 as follows:
It was submitted that the duty of the Appellate court of first instance is to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. That an Appellant on a first appeal is entitled to expect the evidence to be submitted afresh. The appellant court is expected to exhaustively examine the evidence and make its own decision as in Pandya vs. Republic (1957) EA 336.
(i) On Whether the trial court erred in court and law by not complying with article 50 (2) (g) (h) of the Kenyan constitution 2010.
The respondents submitted that Article 50 (2) (g) (h) of the Kenyan constitution 2010, provides for the right to representation of the accused person by an advocate of the high court of Kenya. That in the case of Mokaya v Republic (Criminal Appeal E020 of 2023) [2024] KEHC 4607 (KLR) W.A okwany, J stated that
"In the instant case, I note that even though the trial court did not inform the Appellant of his right to legal representation, such failure was not fatal or prejudicial to the Appellant's case as the record shows that he understood the charges brought against him and that he competently cross examined all the prosecution witnesses. It is also noteworthy that the Appellant was not charged with a capital offence whose penalty is death so as to necessitate the mandatory requirement for legal representation. I find that the trial court conducted a fair trial and that the Appellant did not suffer any injustice due to lack of legal representation."
It was submitted that the right to free legal representation by the state is not an absolute right and was only mandatory if the accused person is charged with an offence whose penalty is death, and substantial injustice will arise if such person is unable to afford legal representation.
That in this particular matter the appellant was not charged with a capital offence and at the time of trial, he demonstrated that he clearly understood the charges laid against him and was also able to cross examine the prosecution witnesses as well as mount his defense. Therefore, the trial court did not infringe Article 50 (2) (g) (h) of the Kenyan constitution 2010 during its conduct of the trial.
(ii) On Whether the offence of defilement was proven to the required standard thereby warranting a conviction
It was submitted that the offence of defilement is rooted on three main elements, the first being the age of the victim (must be a minor), the second penetration and lastly the proper identification of the perpetrator. That These ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue as was in George Opondo Olunga vs. Republic [2016] eKLR.
On the first element of age, they submitted that the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
"... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable."
That in the present case, PW1, the clinical officer produced the age assessment report for the first minor H.K as exhibit 8 which indicated that the most probable age was 7 years. That he also produced an age assessment for the second minor C.M as exhibit 4 which indicated that the most probable age was 11 years. Thus from the age assessment reports produced in court it is clear that at the time of the offence both victims were minors.
On the second element of defilement which is penetration, it was submitted that Penetration is defined under Section 2 of the Sexual Offences Act as:
"The partial or complete insertion of the genital organ of a person into the genital organs of another person."
It was submitted that PW1, the clinical officer testified that he examined H.K and observed that she had bruises and lacerations on her genitalia as well as on the anus and it was his medical opinion that defilement had occurred. The said PW1 produced treatment notes as exhibit 5, P3 form as exhibit 6 and a PRC form as exhibit 7. It was further submitted that the medical documents corroborated the physical medical examination that had been conducted indicating that penetration had occurred.
It was also submitted that PW1 did examine the second minor C.M and he observed that she had been defiled as she had lacerations on the vagina and anus, and the hymen was also broken. He produced treatment notes as exhibit 1, P3 form as exhibit 2 and PRC form as exhibit 3. The respondents submitted that the medical documents corroborated the physical examination that was conducted which indicated that penetration had occurred.
On the third element of positive identification It was submitted that the two minors knew the Appellant well as he used to live with them as their step-father and that they able to positively identify him in the dock during their testimony.
(iii) On Whether or not the sentence meted on him by the trial court was harsh.
The Respondents relied on the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR where the court stated 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 states is shown to exist."
And submitted that the sentence meted by the trial court in this matter was sufficient given the circumstances of the case.
In conclusion, the Respondents submitted that the appeal lacks merit and prayed that the same be dismissed.
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:
a) Whether the plea taken was not unequivocal?
b) Whether the trial court erred in court and law by not complying with article 50 (2) (g) (h) of the Kenyan constitution 2010?
c) Whether the offence of defilement was proven to the required standard thereby warranting a conviction?
d) Whether the learned trial magistrate disregarded all the open discrepancies in the particulars of the offence as captured by the prosecution.
e) Whether or not the sentence meted on him by the trial court was harsh?
On whether the plea taken was not unequivocal, the Appellant pleaded Not Guilty to the charges against him and the matter proceeded to full trial. Section 207(1) & (2) of the CPC and the holding in Adan Vs Republic [1973] EA445 explains what an unequivocal plea of guilty means and Section 348 of the Criminal Procedure Code provides that no appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted except as to the extent and legality of the sentence. The Appellant herein did not plead guilty and the issue of his plea of not guilty being equivocal does not arise.
On Whether the trial court erred in law by not complying with article 50 (2) (g) & (h) of the Constitution the case of Republic v Karissa Chengo and 2 others [2015] eKLR is relevant in this instant Appeal where the Supreme Court of Kenya stated that:
“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This Court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result’ and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arise in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.”
In the Trial Court’s typed proceedings dated 24/2/2023 the provisions and rights under Article 50 (2) (g) and (h) were explained to the Appellant and he elected to proceed without a counsel. I Therefore, find that his right to legal representation under Article 50 was not breached.
On Whether the offence of defilement was proven to the required standard Section 8 (1) as read with 8(3) 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…….
….. (2) A person who commits an offence of defilement with a child aged eleven years or less is liable upon conviction to be sentenced to imprisonment for life.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
On the element of Age, the Court of Appeal in the case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR stated as follows;
“... 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.”
From the evidence of PW1 who did the Age Assessment of the complainants and availed the Age Assessment reports of PW5 & PW4 as PEX 4 and PEX 8, the complainants herein were approximately 11 and 7 years respectively. Further, both PW4 and PW5 testified and confirmed their ages as assessed by the Clinical Officer. PW6 who escorted the 2 minors to the hospital for Age assessment corroborated the evidence of PW1 that the minors were 11 and 7 years respectively. The Appellant did not challenge the evidence as to the Complainants’ ages during trial and he has not brought evidence that they are older or younger than the ages indicated in the charge sheet and his submission that scientific method was not used to assess the minors’ age is not valid as age can be proved by oral evidence of the child, or the evidence of the parents or guardian or medical evidence among other forms of proof provided the same is credible. This court therefore finds that the ages of the Complainants fell within the bracket under Section 8(2) of the Act and the 1st ingredient of the offence of defilement w
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