JUDGMENT
1. The appellant was charged with the defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offences Act 2006. He was tried, convicted and sentenced to serve a prison term of 20 years prompting this appeal.
2. The appellant has appealed on the following grounds: -
a) THAT, the Learned trial Magistrate erred in law and fact by failing to find that the prosecution case was not proved beyond reasonable doubt as the whole evidence was not corroborative.
b) THAT, the Learned trial Magistrate erred in law and fact by failing to observe that the trial court was unfair in contravention of Article 25 (c) of the constitution since the ingredients of the offence were not established.
c) THAT, the Learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant without observing that the entire prosecution case was impeachable under section 163(1) of the Evidence Act, the witness PW1 and PW2 were not credible.
d) THAT, the Learned trial Magistrate erred in law and fact by convicting the Appellant on insufficient and contradictory evidence.
e) THAT, further grounds will be adduced at the hearing of this Appeal upon receipt of a copy of trial records.
3. The appellant filed written submissions as well as the respondent. The court has duly considered the submissions of both parties.
ANALYSIS AND DETERMINATION
DUTY OF THE FIRST APPELLATE COURT
4. The duty of the 1 st appellate court is enunciated in the case of Okeno Vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”
5. The High court in exercising its powers under Section 354 of the Criminal Procedure Code is expected to analyze the evidence thoroughly and draw its own conclusions from the evidence since it is not bound by the findings of fact by the trial court.
6. The High court must at the end of the analysis of the evidence be satisfied that the three in ingredients of offence of defilement are adequately proved in order to uphold the conviction.
7. The failure to establish any of the ingredients must result in an acquittal since any doubt created in the mind of the court must be resolved in favor of the appellant.
8. The appellant has contended that the prosecution did not adequately prove the ingredients of the offence and that his conviction was therefore unsafe and ought to be quashed.
9. The prosecution in a case of defilement must establish the following ingredients of the offence:-
a) Age of the victim
b) Identity of the offender
c) Penetration.
10. The elements must be established beyond a reasonable doubt. The court in Woolmington Vs. DPP Woolmington Vs DPP {1935} AC 462 UKHL1 the court reaffirmed the presumption of innocence as a fundamental principle in criminal law. It emphasized the need for the state to prove the guilt of an individual beyond a reasonable doubt in order to avoid arbitrarily depriving individuals of their liberty or the imposition of criminal sanctions without proving beyond a reasonable doubt the guilty of an individual.
11. Viscount Sankey L.C . enshrined what would become the foundational principle of criminal justice, declaring that: “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
12. To date this remains the position of the law and the prosecution must strive in all cases to meet the threshold of prove beyond a reasonable doubt.
13. The prosecution called PW1 who testified on behalf of Penina Agwenyi who was the doctor who attended to the victim on 2/9/2018.
14. According to the witness the victim complained of sexual assault by a neighbor. Upon examination, the hymen had fresh tears and the vagina was moist with a whitish discharge. The doctor also indicated that there was presence of spermatozoa.
15. The doctor filed a PRC form which was produced as Exhibit 1, a Medical report form P Exhibit 2 and a P3 form P Exhibit 3.
16. The witness upon cross examination stated that the underwear of the victim was given to the investigator for forwarding to the government chemist for analysis.
17. The evidence of the witness established that there was penetration of the victim’s vagina thus one of the ingredients of the offense of defilement was adequately proved through PW1. The evidence of penetration was corroborated by the victim herself.
18. The P3 form at Page 3 clearly captured the fresh multiple tears of the hymen. However, though PW 1 had alluded to the presence of spermatozoa the P3 form indicated there was no presence of spermatozoa. The contradiction in my view was not material since it is not a legal requirement that there must be presence of spermatozoa in the vagina of the victim of defilement or rape for the element of penetration. It has been proved through medical evidence that many a times sexual intercourse can happen without ejaculation and too, this court is alive to the use of protective methods during sexual intercourse that have gained notoriety because of the increased awareness on the need to prevent Sexually Transimitted diseases and the HIV prevalence that has seen the upsurge in the use of protective gear.
19. It follows therefore, in order to establish that there was no penetration one does not need to prove that there were spermatozoa deposited in the vagina of the victim. The evidence of torn hymen coupled with the oral evidence of the victim would be sufficient proof of penetration.
20. PW2 testified that she was 16 years old at the time of the trial. The victim stated that she was born on 30/7/2005 and that in the year 2018 she was aged 13 years.
21. The victim’s oral statement on age taken together with the birth certificate which was produced as P Exhibit 4 proved that she was indeed 13 years old at the time of the offense thus the ingredient of age was also adequately proved. The birth certificate was produced by PW3 PC Richard Retemo of Kariobangi police station and upon a close scrutiny of the same the date of birth for the victim is indicated as 30/7/2005 thus corroborating the evidence of the victim on age.
22. The victim explained how the appellant undressed her and inserted his penis into her vagina and pushed it inside. She testified that she bled and started crying. The evidence was direct on the issue of penetration
23. The victim further testified that she had known the appellant before although not for a long time and the incident happened in the appellant’s house.
24. It is the view of this court that the evidence of PW1, PW2, and PW3 established all the key ingredients of the offence of defilement.
25. The witnesses were consistent in their evidence and that there was no doubt the appellant committed the offence.
26. The contention by the appellant that there was no evidence to connect him with the offence cannot be sustained.
27. The evidence against him was consistent and established beyond a reasonable doubt that he committed the offence. The appellant was known to the victim thus his identity as the perpetrator of the act was not in doubt. All the ingredients of the offence of defilement were established in line with the decision in Charles Wamukoya Karani Vs Rep Criminal Appeal No 72 of 2013 where the critical ingredients forming the offence of defilement were identified as age of the victim, penetration and identification.
28. On the issue of sentence, the appellant argued that the sentence of 20 years was harsh and excessive.
29. I do not think so. The age of the victim is a key factor for consideration by the court in sentencing offences of this nature. The victim was aged 13 years at the time thus the court in sentencing the appellant to 20 years imprisonment was within the law.
30. The appellant has complained about the mandatory nature of the sentence of 20 years and in answer to his complaint this court finds that the sentence is legal and proper. See Joshua Gichuki Mwangi Vs Republic Petition No. E018 of 2023 where the Supreme Court held that the accused person ought to have served the mandatory sentence of 20 years is provided for in law.
31. The court agrees with the binding decision of the Supreme Court and observes that unless and until the mandatory sentences under the Sexual Offences Act are varied by the legislature, the sentences remain legal and valid.
32. Having said that this court has analyzed the evidence in the file and the conclusion that the court has come to is that the appellant’s appeal has no merit. In his defense the appellant simply denied the offence and the denial could not in any way displace the victim’s and medical evidence adduced against him.
33. The appeal is therefore unmerited and it’s hereby dismissed on both conviction and sentence.
34. Before I pen off it is important for me to highlight something here regarding the sentencing regime in our Sexual Offences Act. It is time our legislature revisited the provisions of the Sexual Offenses Act and introduced some much-needed reforms to it in order to address the numerous challenges identified by the courts in enforcing the Act where Child offenders are involved.
35. As it is today, the Sexual Offences Act places the boy child at a great disadvantage and the legislature needs to urgently intervene in order to address issues such as sexual interactions between teenagers which has become a common thing in society yet the boy child is more often than not the victim and ends up in our correctional facilities out of a relationship that the two minors were active participants. Something clearly needs to be done urgently and I have taken the liberty to check what our brothers in South Africa have done about this issue of Child Justice.
36. The Child Justice Act No.75 of 2008 has very interesting provisions for Diversion and holding preliminary inquiry under Sections 41 and 43 of the Act respectively which we can benefit from as a country if such reforms were introduced. The Director of Public Prosecutions may take up the initiative of reform as required of him under Section 5 of the Office of the Director of Public Prosecutions Act and assist this country. I shall say no more.
37. This appeal is dismissed and the sentence of 20 years is upheld to be computed from the date of arrest and only for the period spent in remand..
38. It is so ordered.
1. The appellant was charged with the defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offences Act 2006. He was tried, convicted and sentenced to serve a prison term of 20 years prompting this appeal.
2. The appellant has appealed on the following grounds: -
a) THAT, the Learned trial Magistrate erred in law and fact by failing to find that the prosecution case was not proved beyond reasonable doubt as the whole evidence was not corroborative.
b) THAT, the Learned trial Magistrate erred in law and fact by failing to observe that the trial court was unfair in contravention of Article 25 (c) of the constitution since the ingredients of the offence were not established.
c) THAT, the Learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant without observing that the entire prosecution case was impeachable under section 163(1) of the Evidence Act, the witness PW1 and PW2 were not credible.
d) THAT, the Learned trial Magistrate erred in law and fact by convicting the Appellant on insufficient and contradictory evidence.
e) THAT, further grounds will be adduced at the hearing of this Appeal upon receipt of a copy of trial records.
3. The appellant filed written submissions as well as the respondent. The court has duly considered the submissions of both parties.
ANALYSIS AND DETERMINATION
DUTY OF THE FIRST APPELLATE COURT
4. The duty of the 1 st appellate court is enunciated in the case of Okeno Vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”
5. The High court in exercising its powers under Section 354 of the Criminal Procedure Code is expected to analyze the evidence thoroughly and draw its own conclusions from the evidence since it is not bound by the findings of fact by the trial court.
6. The High court must at the end of the analysis of the evidence be satisfied that the three in ingredients of offence of defilement are adequately proved in order to uphold the conviction.
7. The failure to establish any of the ingredients must result in an acquittal since any doubt created in the mind of the court must be resolved in favor of the appellant.
8. The appellant has contended that the prosecution did not adequately prove the ingredients of the offence and that his conviction was therefore unsafe and ought to be quashed.
9. The prosecution in a case of defilement must establish the following ingredients of the offence:-
a) Age of the victim
b) Identity of the offender
c) Penetration.
10. The elements must be established beyond a reasonable doubt. The court in Woolmington Vs. DPP Woolmington Vs DPP {1935} AC 462 UKHL1 the court reaffirmed the presumption of innocence as a fundamental principle in criminal law. It emphasized the need for the state to prove the guilt of an individual beyond a reasonable doubt in order to avoid arbitrarily depriving individuals of their liberty or the imposition of criminal sanctions without proving beyond a reasonable doubt the guilty of an individual.
11. Viscount Sankey L.C . enshrined what would become the foundational principle of criminal justice, declaring that: “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
12. To date this remains the position of the law and the prosecution must strive in all cases to meet the threshold of prove beyond a reasonable doubt.
13. The prosecution called PW1 who testified on behalf of Penina Agwenyi who was the doctor who attended to the victim on 2/9/2018.
14. According to the witness the victim complained of sexual assault by a neighbor. Upon examination, the hymen had fresh tears and the vagina was moist with a whitish discharge. The doctor also indicated that there was presence of spermatozoa.
15. The doctor filed a PRC form which was produced as Exhibit 1, a Medical report form P Exhibit 2 and a P3 form P Exhibit 3.
16. The witness upon cross examination stated that the underwear of the victim was given to the investigator for forwarding to the government chemist for analysis.
17. The evidence of the witness established that there was penetration of the victim’s vagina thus one of the ingredients of the offense of defilement was adequately proved through PW1. The evidence of penetration was corroborated by the victim herself.
18. The P3 form at Page 3 clearly captured the fresh multiple tears of the hymen. However, though PW 1 had alluded to the presence of spermatozoa the P3 form indicated there was no presence of spermatozoa. The contradiction in my view was not material since it is not a legal requirement that there must be presence of spermatozoa in the vagina of the victim of defilement or rape for the element of penetration. It has been proved through medical evidence that many a times sexual intercourse can happen without ejaculation and too, this court is alive to the use of protective methods during sexual intercourse that have gained notoriety because of the increased awareness on the need to prevent Sexually Transimitted diseases and the HIV prevalence that has seen the upsurge in the use of protective gear.
19. It follows therefore, in order to establish that there was no penetration one does not need to prove that there were spermatozoa deposited in the vagina of the victim. The evidence of torn hymen coupled with the oral evidence of the victim would be sufficient proof of penetration.
20. PW2 testified that she was 16 years old at the time of the trial. The victim stated that she was born on 30/7/2005 and that in the year 2018 she was aged 13 years.
21. The victim’s oral statement on age taken together with the birth certificate which was produced as P Exhibit 4 proved that she was indeed 13 years old at the time of the offense thus the ingredient of age was also adequately proved. The birth certificate was produced by PW3 PC Richard Retemo of Kariobangi police station and upon a close scrutiny of the same the date of birth for the victim is indicated as 30/7/2005 thus corroborating the evidence of the victim on age.
22. The victim explained how the appellant undressed her and inserted his penis into her vagina and pushed it inside. She testified that she bled and started crying. The evidence was direct on the issue of penetration
23. The victim further testified that she had known the appellant before although not for a long time and the incident happened in the appellant’s house.
24. It is the view of this court that the evidence of PW1, PW2, and PW3 established all the key ingredients of the offence of defilement.
25. The witnesses were consistent in their evidence and that there was no doubt the appellant committed the offence.
26. The contention by the appellant that there was no evidence to connect him with the offence cannot be sustained.
27. The evidence against him was consistent and established beyond a reasonable doubt that he committed the offence. The appellant was known to the victim thus his identity as the perpetrator of the act was not in doubt. All the ingredients of the offence of defilement were established in line with the decision in Charles Wamukoya Karani Vs Rep Criminal Appeal No 72 of 2013 where the critical ingredients forming the offence of defilement were identified as age of the victim, penetration and identification.
28. On the issue of sentence, the appellant argued that the sentence of 20 years was harsh and excessive.
29. I do not think so. The age of the victim is a key factor for consideration by the court in sentencing offences of this nature. The victim was aged 13 years at the time thus the court in sentencing the appellant to 20 years imprisonment was within the law.
30. The appellant has complained about the mandatory nature of the sentence of 20 years and in answer to his complaint this court finds that the sentence is legal and proper. See Joshua Gichuki Mwangi Vs Republic Petition No. E018 of 2023 where the Supreme Court held that the accused person ought to have served the mandatory sentence of 20 years is provided for in law.
31. The court agrees with the binding decision of the Supreme Court and observes that unless and until the mandatory sentences under the Sexual Offences Act are varied by the legislature, the sentences remain legal and valid.
32. Having said that this court has analyzed the evidence in the file and the conclusion that the court has come to is that the appellant’s appeal has no merit. In his defense the appellant simply denied the offence and the denial could not in any way displace the victim’s and medical evidence adduced against him.
33. The appeal is therefore unmerited and it’s hereby dismissed on both conviction and sentence.
34. Before I pen off it is important for me to highlight something here regarding the sentencing regime in our Sexual Offences Act. It is time our legislature revisited the provisions of the Sexual Offenses Act and introduced some much-needed reforms to it in order to address the numerous challenges identified by the courts in enforcing the Act where Child offenders are involved.
35. As it is today, the Sexual Offences Act places the boy child at a great disadvantage and the legislature needs to urgently intervene in order to address issues such as sexual interactions between teenagers which has become a common thing in society yet the boy child is more often than not the victim and ends up in our correctional facilities out of a relationship that the two minors were active participants. Something clearly needs to be done urgently and I have taken the liberty to check what our brothers in South Africa have done about this issue of Child Justice.
36. The Child Justice Act No.75 of 2008 has very interesting provisions for Diversion and holding preliminary inquiry under Sections 41 and 43 of the Act respectively which we can benefit from as a country if such reforms were introduced. The Director of Public Prosecutions may take up the initiative of reform as required of him under Section 5 of the Office of the Director of Public Prosecutions Act and assist this country. I shall say no more.
37. This appeal is dismissed and the sentence of 20 years is upheld to be computed from the date of arrest and only for the period spent in remand..
38. It is so ordered.