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JudgmentListon Mwarigha VS The Republic7 min read

Liston Mwarigha VS The Republic

High Court at Voi High Court · · Asenath Ongeri

(Being an appeal from the judgment and conviction by Hon. C. K. Kithinji (PM) in Voi Sexual Offence Case No. 006 of 2020 delivered on 27th January 2022)

  1. The Appellant was convicted with the offence of sexual assault contrary to Section 5(1)(a)(1)(2) of the Sexual Offences Act No. 3 of 2006.
  2. The particulars of the charge were that on 27th October 2019 at around 8a.m at Mwakingali in Voi Sub County within Taita Taveta County, the Appellant unlawfully used his fingers to penetrate the vagina of E.M, a girl aged 8 years old.
  3. The prosecution evidence in brief was that on the material day PW1 QUEEN WAKESHO was at home at 8a.m cooking breakfast and the complainant was playing outside.
  4. The Appellant went to the house of PW1 with chewing gum.
  5. PW1 said that when she went to look for the complainant to take her breakfast, she did not find her.
  6. PW1 heard some noises in the pit latrine.  She went there and found the Appellant had given the complainant gum and he was busy inserting his fingers into her vagina.  The complainant’s pant was on the floor inside the pit latrine.
  7. PW1 ran to the police station and reported the matter.  The complainant was taken to Moi Referral Hospital.  The Appellant ran away but he was subsequently arrested.
  8. PW2 said she was told by PW1 that the Appellant was in the bathroom with complainant.  She called the complainant’s mother and the mother communicated with the complainant in sign language since the complainant is deaf and dumb.
  9. The complainant was taken to hospital and it was established that the hymen was not broken.
  10. PW4 ELPHINA HAWA who examined the complainant said the complainant’s vagina had redness along the vagina wall.  The hymen was intact.  The child complained of pain in the vagina.
  11. In his defence, the Appellant said he works on night shift and goes home in the morning at 6a.m.  He denied having committed the offence and said he was falsely accused.
  12. The Appellant called a witness DW2 Keke Hamaton who said the case is made up.  He said the complainant is his grandchild and he asked why the neighbours did not see it.
  13. The trial court found the Appellant guilty as charged and sentenced him to 15 years imprisonment.
  14. The Appellant has appealed to this court on the following grounds:-
    1. That the learned trial Magistrate grossly erred in both law and facts and by failing to consider that the offence of sexual assault was not proved beyond reasonable doubt as required by the law given that there was no evidence of penetration.
    2. That the learned trial Magistrate erred in both law and facts by failing to consider that the Appellant was denied his right to legal representation at the State expense in violation of Article 50(2)(g)(h) of the Constitution.
    3. That the learned trial magistrate grossly erred both law and facts by failing to consider that the sentence imposed to the Appellant was manifestly harsh and excessive in all the circumstances in contravention of Section 5(1)(a)(1)(2) of the SOA and Article 50(2) (p) of the Constitution of Kenya 2010.
  15. The parties filed submissions as follows:- the appellant denied having committed the offences and submitted that the evidence produced was insufficient to prove the aforementioned offences. It was his argument that the prosecution failed to prove the relevant ingredients.
  16. That the medical reports provided did not support the offence of sexual assault rather they just revealed that the complainant was experiencing pain and redness. PW1’s testimony was thus not supported by the medical evidence that was provided.
  17. The appellant further submitted that he was denied his right to legal representation as the same was not explained to him at the start of the trial. He argued that this therefore breached his constitutional rights and thus culminated in miscarriage of justice.
  18. The appellant argued further that the sentence that was imposed on him was harsh and excessive in the circumstances. In light of this the appellant urged the court to set aside the sentence that was imposed on him.
  19. The prosecution alternatively submitted that the failure of the trial magistrate to inform the appellant of the right to legal representation was not fatal to the case. As evidenced by the proceeding before the trial court the appellant understood the charges he was facing and asked questions during hearing and even gave a long testimony supported by a witness.
  20. The prosecution contended that it proved its case beyond reasonable doubt. It proved penetration by producing the medical documents where upon examination of the complainant there was evidence of pain, tenderness and redness along the vagina wall but the hymen was intact.
  21. That the appellant was positively identified as the perpetrator as evidence by the testimony of PW1 Queen Wakesho and supported by the testimony of PW2 Jemma Kambi. The age of the complainant was proved by the production of her immunization card that showed she was 7 years at the time of the offence.
  22. On the sentence the prosecution submitted that the sentence that was imposed on the appellant before the trial court was reasonable in light of the circumstances of the case.
  23. That Section 5 (2) of the Sexual Offences Act provides for a sentence of not less than 10 years which may be enhanced to life imprisonment.
  24. The first appellate court acts as the last court of facts and must ensure a proper re-evaluation of the evidence while correcting any errors in the trial court’s judgment. The first appellate court must re-examine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law. It cannot simply rely on the trial court’s findings but must apply its own mind.
  25. The Court of Appeal in Okeno vs Republic [1972] EA 32 held that:

“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 v 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] EA 424.”

  1. The issues for determination are as follows:-
    1. Whether the prosecution proved the elements of the offence of sexual assault.
    2. Whether the conviction is secure and the sentence safe.
  2. The elements of the charge of sexual assault were set out in the case of John Irungu vs Republic (2016) eKLR where the Court of Appeal expressed itself as hereunder:

“Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose.”

  1. Having carefully evaluated the evidence on record and considered the submissions by both parties, I find that the prosecution proved beyond reasonable doubt that the Appellant unlawfully used his fingers to penetrate the vagina of the 8-year-old complainant.
  2. The evidence of PW1, who caught the Appellant in the act inside the pit latrine, was consistent and credible. Her testimony was corroborated by PW2 and the medical evidence from PW4, which confirmed redness and tenderness along the vaginal wall, consistent with digital penetration.
  3. The intact hymen does not negate penetration, as established in John Irungu vs Republic (2016) (supra), where the Court of Appeal clarified that penetration under the Sexual Offences Act includes intrusion by any body part or object, however slight.
  4. I find that the complainant’s age was also conclusively proved via her immunization card, confirming she was a minor.
  5. On the Appellant’s claim of having been denied legal representation, I note that while the trial court did not explicitly record informing him of this right under Article 50(2)(g)(h) of the Constitution, the proceedings reveal he actively participated in his defense, cross-examined witnesses, and called his own witness.
  6. In the case of David Njoroge Macharia vs Republic (2011) eKLR, the Court of Appeal held that the absence of legal representation does not automatically vitiate a trial unless prejudice is shown. Here, the Appellant demonstrated no prejudice, as he competently conducted his defense, and the evidence against him was overwhelming.
  7. Regarding the sentence, the 15-year term was within the statutory range under Section 5(2) of the Sexual Offences Act, which prescribes a minimum of 10 years, extendable to life. The sentence was neither harsh nor excessive, given the gravity of the offense and the vulnerability of the child victim.
  8. Courts have consistently upheld such sentences for sexual offenses against minors to emphasize deterrence and societal condemnation, as seen in the case of Martin Charo vs Republic (2016) eKLR.
  9. In conclusion, the conviction was soundly based on cogent evidence, and no miscarriage of justice  occurred.
  10. The appeal is accordingly dismissed in its entirety, and the trial court’s judgment is upheld.

Dated, signed and delivered on 2nd May 2025  virtually via MT at Voi High Court.

ASENATH ONGERI

JUDGE

In the presence of:-

Court Assistants: Maina/Millicent

    Liston Mwarigha VS The Republic Liston Mwarigha VS The Republic