1. The Appellant was charged with the offence of Defilement contrary to Section 8(1)(3) of the Sexual Offenses Act No. 3 of 2006 in the main count.
2. The particulars are on diverse dates between 20h June 2020 and 24th June 2020 at Mugeka village in Mugeka Sub-location in Murang'a District in Muranga County, the accused intentionally and unlawfully caused his penis to penetrate the vagina of M.W.N a child aged 15 years.
3. In the alternative, he was charged with Committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.The particulars are on diverse dates between 20h June 2020 and 24th June 2020 at Mugeka village in Mugeka Sub-location in Mutrang’a District in Muranga County, the accused intentionally touched the vagina of M.W.N a child aged 15 years with his penis.
4. Trial commenced and the prosecution called a total of six (6) witnesses in support of the said charges. At the close of the prosecution case, the court found that a prima facie case had been established and thus placed the Appellant on his defence. The Appellant gave sworn evidence and called 2 witnesses.
5. In the end, the court found that the main charge of defilement had been proved beyond reasonable doubt and sentenced the Appellant to 10 years imprisonment. The alternative charge hanged abeyance.
6. The Appellant was aggrieved by the conviction and sentence, has lodged this appeal through a Petition of Appeal.
7. He challenges the conviction and the sentence on the amended grounds namely: -
a) THAT, the learned trial magistrate erred in law and facts by basing my conviction an offence that did not prove the ingredients of the offence and violated the unlimited right to fair trial.
b) THAT, the learned trial magistrate erred on both law and facts by convicting I the Appellant even after the DNA results exonerated I the Appellant.
c) THAT, the learned trial magistrate erred on both law and facts by basing my conviction on uncorroborated evidence.
d) THAT, the learned trial magistrate erred on both law and facts by failing to find that the prosecution evidence was marred with inconsistences and discrepancies.
e) THAT, the learned trial magistrate erred on both law and facts by meting a minimum mandatory sentence without considering my plausible mitigation.
f) More grounds to be adduced on the hearing of this appeal.
g) In opposing the appeal, the Respondent lodged a Notice of intention to enhance the sentence and to ask the High Court to exercise its powers under Section 352 of the Criminal Procedure Code and enhance your sentence to 20 years imprisonment from 10 years imprisonment.
Analysis and Determination;
8. The issue for determination is whether the appeal has merit.
9. In the case of Ajode –vs- Republic Criminal Appeal No. 87 of 2004 the Court of Appeal sitting in Kisumu held inter alia that:-
“In law it is the duty of the first appellate court to weigh the same conflicting evidence and make its own inferences and conclusions but bearing in mind always that it has neither seen nor heard the witness and make allowance for that”.
10. The court notes that the Appellant is challenging the conviction on the ground that the trial Magistrate fell into era in convicting him on the basis of inconsistent evidence, but the sentence was severe, and that the prosecution did not prove its case beyond reasonable doubt.
11. He argues that his right to fair trial hearing was violated and He argues that the conviction was illegal given that it was predicated
on unincorporated evidence.
12. In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, it was held that: -
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
13. In determining whether the Respondent proved the victim's age I am guided by the case of Alfayo Hombe Okello vs Republic where it was held that age is a crucial element in proving the offence of defilement.
14. In the case of Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that: -
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. "
15. Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue. This was restated in George Opondo Olunga vs. Republic [2016] eKLR. It is the Respondent's submission that these ingredients were sufficiently proved, beyond reasonable doubt as illustrated below.
Identification of the Perpetrator
16. PW1 - victim stated that on 22nd June 2020, the accused person called Maxwwell went to the house where Dan had left her at and had sex with her and left the next day.
17. They had sex for the next 3 days. Maxwell would leave her at the said house in the morning and come back in the evening. She stated that Maxwell would issue threats to kill her if she screamed. During arrest, police officers found both the accused and the victim and the said house at 3am. She also stated that the accused was forcing her to marry him. He used to tell her to stay in the house. The victim also identified the accused in court.
18. The identification of the Appellant was that of recognition. He was known to the victim having stayed with her for 3 days in the house
Proof of Penetration or Indecent Act
19. PW1 who was the victim, stated that on 26th June 2029, she met a man called Dan who forced her into a house at Mugeka town and had sex with her. She stated that Dan Gathoni had a house in Mugeka town. The house was at the back of the town. He then locked her inside and left.
20. At night on the same day, the accused person called Maxwell went to the said house and had sex with her again on her vagina and anus. He then left the following day.
21. When he returned in the evening, he had sex with her again. He removed her trouser and innerwear and removed his trouser and innerwear and sex with her again on her vagina. He put his penis inside her vagina. He then left in the morning and came back in the evening and had sex with her 3 times.
22. PW6 - Doctor stated that the victim was treated at Murang'a Level 5 Hospital on 24th June 2020 having explained that she had been defiled on 23rd June 2020 about 4times. On examination of the private parts/genitalia, it was noted that the hymen was perforated and there was vagina discharge. Lab test results revealed epithelial pus cells and yeast cells which meant that she had an infection. HIV results were negative.
23. During cross-examination, the doctor stated that there was vaginal sex and the doctor did not capture information about the anal sex. As per the documents, there was an indication that the offence occurred a day before she was examined at the hospital. He also stated that the victim was not pregnant at the time of examination. He also stated that a doctor cannot determine pregnancy after one day of sexual intercourse. The doctor produced the P3 form and outpatient car as exhibits.
Age of the Victim
24. During examination in chief, PW1 - Victim stated she was born on 30th May 2006 and she identified her birth certificate in court.
25. PW2 who is the victim's mother stated that the victim was 15years old.
26. PW4 who was an Investigating Officer produced her birth certificate for the as exhibit 1. It indicated that she was born on 2nd May 2006.
27. The court is satisfied with the age of the child as advanced by the prosecution.
28. The court will now answer the question whether there was penetration. Under Section 2 of the Sexual Offences Act penetration is the partial or complete insertion of the genital organs of a person into the genital organ of another person.
29. The prosecution proved that there was penetration.
30. On the issue of identification the Appellants. The law does not require DNA evidence in every prosecution for defilement. Penetration and identity may be proved through credible oral, medical and circumstantial evidence.
31. Thus, the Court of Appeal reiterated its stance in Mbogo Raphael Chengo v Republic (supra): “...the ground that no DNA was conducted on the complainant has no substance. The Appellant was identified by way of recognition as the person who committed the offence as alleged.”
32. The argument that the court fell into error in convicting him notwithstanding the fact that the DNA results exonerated him from the offence cannot stand any ground fails.
33. The issue of lack of consideration of mitigation, the accused stated that he had told the court the truth during mitigation. This statement was not mitigation at all and hence the said ground of appeal is baseless. The only mitigating factor which came from prosecution was that the accused was a first-time offender.
34. The learned magistrate sentenced the Appellant to 10 years imprisonment. Section 8(3) of the Sexual Offence Act states the punishment for defilement of a 12 to 15 -year-old minor is a term of not less than 20 years imprisonment.
35. Notably, the court was bound by the law to give the mandatory sentence of 20 years for the offence involving a minor aged 15 years such as the victim but it erred on the same.
36. The court has looked at the notice to enhance the sentence Section 352 of the Criminal Procedure Code and enhance your sentence to 20 years imprisonment from 10 years imprisonment.
37. The appeal lacks merit.
38. The Respondent has not tendered any evidence to justify the enhancement of the sentence as sought in the notice to enhance the sentence Section 352 of the Criminal Procedure Code.
Order
The appeal is dismissed.
2. The particulars are on diverse dates between 20h June 2020 and 24th June 2020 at Mugeka village in Mugeka Sub-location in Murang'a District in Muranga County, the accused intentionally and unlawfully caused his penis to penetrate the vagina of M.W.N a child aged 15 years.
3. In the alternative, he was charged with Committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.The particulars are on diverse dates between 20h June 2020 and 24th June 2020 at Mugeka village in Mugeka Sub-location in Mutrang’a District in Muranga County, the accused intentionally touched the vagina of M.W.N a child aged 15 years with his penis.
4. Trial commenced and the prosecution called a total of six (6) witnesses in support of the said charges. At the close of the prosecution case, the court found that a prima facie case had been established and thus placed the Appellant on his defence. The Appellant gave sworn evidence and called 2 witnesses.
5. In the end, the court found that the main charge of defilement had been proved beyond reasonable doubt and sentenced the Appellant to 10 years imprisonment. The alternative charge hanged abeyance.
6. The Appellant was aggrieved by the conviction and sentence, has lodged this appeal through a Petition of Appeal.
7. He challenges the conviction and the sentence on the amended grounds namely: -
a) THAT, the learned trial magistrate erred in law and facts by basing my conviction an offence that did not prove the ingredients of the offence and violated the unlimited right to fair trial.
b) THAT, the learned trial magistrate erred on both law and facts by convicting I the Appellant even after the DNA results exonerated I the Appellant.
c) THAT, the learned trial magistrate erred on both law and facts by basing my conviction on uncorroborated evidence.
d) THAT, the learned trial magistrate erred on both law and facts by failing to find that the prosecution evidence was marred with inconsistences and discrepancies.
e) THAT, the learned trial magistrate erred on both law and facts by meting a minimum mandatory sentence without considering my plausible mitigation.
f) More grounds to be adduced on the hearing of this appeal.
g) In opposing the appeal, the Respondent lodged a Notice of intention to enhance the sentence and to ask the High Court to exercise its powers under Section 352 of the Criminal Procedure Code and enhance your sentence to 20 years imprisonment from 10 years imprisonment.
Analysis and Determination;
8. The issue for determination is whether the appeal has merit.
9. In the case of Ajode –vs- Republic Criminal Appeal No. 87 of 2004 the Court of Appeal sitting in Kisumu held inter alia that:-
“In law it is the duty of the first appellate court to weigh the same conflicting evidence and make its own inferences and conclusions but bearing in mind always that it has neither seen nor heard the witness and make allowance for that”.
10. The court notes that the Appellant is challenging the conviction on the ground that the trial Magistrate fell into era in convicting him on the basis of inconsistent evidence, but the sentence was severe, and that the prosecution did not prove its case beyond reasonable doubt.
11. He argues that his right to fair trial hearing was violated and He argues that the conviction was illegal given that it was predicated
on unincorporated evidence.
12. In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, it was held that: -
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
13. In determining whether the Respondent proved the victim's age I am guided by the case of Alfayo Hombe Okello vs Republic where it was held that age is a crucial element in proving the offence of defilement.
14. In the case of Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that: -
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. "
15. Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue. This was restated in George Opondo Olunga vs. Republic [2016] eKLR. It is the Respondent's submission that these ingredients were sufficiently proved, beyond reasonable doubt as illustrated below.
Identification of the Perpetrator
16. PW1 - victim stated that on 22nd June 2020, the accused person called Maxwwell went to the house where Dan had left her at and had sex with her and left the next day.
17. They had sex for the next 3 days. Maxwell would leave her at the said house in the morning and come back in the evening. She stated that Maxwell would issue threats to kill her if she screamed. During arrest, police officers found both the accused and the victim and the said house at 3am. She also stated that the accused was forcing her to marry him. He used to tell her to stay in the house. The victim also identified the accused in court.
18. The identification of the Appellant was that of recognition. He was known to the victim having stayed with her for 3 days in the house
Proof of Penetration or Indecent Act
19. PW1 who was the victim, stated that on 26th June 2029, she met a man called Dan who forced her into a house at Mugeka town and had sex with her. She stated that Dan Gathoni had a house in Mugeka town. The house was at the back of the town. He then locked her inside and left.
20. At night on the same day, the accused person called Maxwell went to the said house and had sex with her again on her vagina and anus. He then left the following day.
21. When he returned in the evening, he had sex with her again. He removed her trouser and innerwear and removed his trouser and innerwear and sex with her again on her vagina. He put his penis inside her vagina. He then left in the morning and came back in the evening and had sex with her 3 times.
22. PW6 - Doctor stated that the victim was treated at Murang'a Level 5 Hospital on 24th June 2020 having explained that she had been defiled on 23rd June 2020 about 4times. On examination of the private parts/genitalia, it was noted that the hymen was perforated and there was vagina discharge. Lab test results revealed epithelial pus cells and yeast cells which meant that she had an infection. HIV results were negative.
23. During cross-examination, the doctor stated that there was vaginal sex and the doctor did not capture information about the anal sex. As per the documents, there was an indication that the offence occurred a day before she was examined at the hospital. He also stated that the victim was not pregnant at the time of examination. He also stated that a doctor cannot determine pregnancy after one day of sexual intercourse. The doctor produced the P3 form and outpatient car as exhibits.
Age of the Victim
24. During examination in chief, PW1 - Victim stated she was born on 30th May 2006 and she identified her birth certificate in court.
25. PW2 who is the victim's mother stated that the victim was 15years old.
26. PW4 who was an Investigating Officer produced her birth certificate for the as exhibit 1. It indicated that she was born on 2nd May 2006.
27. The court is satisfied with the age of the child as advanced by the prosecution.
28. The court will now answer the question whether there was penetration. Under Section 2 of the Sexual Offences Act penetration is the partial or complete insertion of the genital organs of a person into the genital organ of another person.
29. The prosecution proved that there was penetration.
30. On the issue of identification the Appellants. The law does not require DNA evidence in every prosecution for defilement. Penetration and identity may be proved through credible oral, medical and circumstantial evidence.
31. Thus, the Court of Appeal reiterated its stance in Mbogo Raphael Chengo v Republic (supra): “...the ground that no DNA was conducted on the complainant has no substance. The Appellant was identified by way of recognition as the person who committed the offence as alleged.”
32. The argument that the court fell into error in convicting him notwithstanding the fact that the DNA results exonerated him from the offence cannot stand any ground fails.
33. The issue of lack of consideration of mitigation, the accused stated that he had told the court the truth during mitigation. This statement was not mitigation at all and hence the said ground of appeal is baseless. The only mitigating factor which came from prosecution was that the accused was a first-time offender.
34. The learned magistrate sentenced the Appellant to 10 years imprisonment. Section 8(3) of the Sexual Offence Act states the punishment for defilement of a 12 to 15 -year-old minor is a term of not less than 20 years imprisonment.
35. Notably, the court was bound by the law to give the mandatory sentence of 20 years for the offence involving a minor aged 15 years such as the victim but it erred on the same.
36. The court has looked at the notice to enhance the sentence Section 352 of the Criminal Procedure Code and enhance your sentence to 20 years imprisonment from 10 years imprisonment.
37. The appeal lacks merit.
38. The Respondent has not tendered any evidence to justify the enhancement of the sentence as sought in the notice to enhance the sentence Section 352 of the Criminal Procedure Code.
Order
The appeal is dismissed.