(Being an appeal from original conviction and sentence in SOA case at Shanzu CMCC (SO) no E144 of 2022 delivered on 18/9/2024 by Hon L.N. JUMA (PM)
1. The Appellant, Moses Andrea, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act of 2006. The particulars of the offence are that on diverse dates between 1/9/2022 and 23/10/2022 within kwa Rasta area in Nyali sub-county within Mombasa county intentionally and unlawfully caused his penis to penetrate the vagina of G.N a girl aged 17 years.
2. The appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars were that on diverse dates between 1/9/2022 and 23/10/2022 within kwa Rasta area in Nyali sub-county within Mombasa county ,he intentionally and unlawfully touched the buttocks, vagina of G.N a girl child aged 17 years using your fingers.
3. The appellant was convicted on the main count and sentenced to serve 15 years’ imprisonment.
4. The appellant was not satisfied with the judgement of the trial court and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
i. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant on unsubstantiated evidence of the minor.
ii. That the learned trial magistrate court erred in law and fact by failing to consider the contradictions between the minor’s evidence and the doctor’s evidence.
iii. That the learned trial magistrate court erred in law and fact by relying on just one piece of the law that is Section 124 of the evidence act without taking into consideration that corroboration is still needful in such circumstances.
iv. That the learned trial magistrate court erred in law and fact by discounting and not considering in details the defence evidence.
v. That the learned trial magistrate court erred in law and fact by not considering the appellant mitigation.
vi. That the learned trial magistrate court erred in law and fact by giving harsh sentence.
Prosecution’s case
6. PW1 GM (minor) the complainant herein testified that she is 18 years. She stated that in 2022 she was in form one. She knows the appellant as he was her boyfriend from July 2022 and they used to stay in the same plot. She said that on 23/10/2022 she had sex with the appellant at his house during the day. It was not the first time they were having sex. She went to Bungoni to see his grandmother and when they came back her mother asked her where was and she told her she was with Moses. Her mother then took her to the police then to Coast General. PW1 said that the appellant knew that she was a school girl as he would see her going to school. The appellant told her he was 10 years older than her.
7. PW2 Mbeyu Kagala Rimba the mother to the minor stated that PW1 was born on 6/2/2005. On the material day she came home and her daughter was not there. PW1 came back at around 5.00pm. PW2 said that PW1 told her that she had gone to Moses Andrea’s house and that he was her boyfriend and they had sex. PW2 went to Bungoni Police station where she was sent to Coast General Hospital.
8. PW3 Dr Gabriel Ogola stated that he works at Coast General Teaching and referral Hopsital since 2008. He produced a P3 as PEX-2 and PRC form as PEX-3. He stated that the documents show that the minor aged 17 years was defiled. Prc form shows no injuries or physical examination. On the vaginal environment, there was abrasions noted at 6 o’oclock. Hymen was broken with an old scar.
9. PW4 Emmanuel Shake a police officer attached at Kadzandani Police Station. He stated that on 24/10/2022 he met PW2 with PW1 at the station and the complaint was that the minor aged 17 had been defiled. He sent them to Coast Genaral for examination and had the P3 form filled. On 28/10/2022 he arrested the accused person and he recorded his statement where he agreed that he had sexual relationship with the minor. PW4 produced the birth certificate as PEX-1.
Defence case
10. DWI Patrick Musa Kanani the accused person testified under oath that he used to work at Mr Green Company as the supervisor. Mother to the accused came and asked for job which she did not get. Her sister who used to work in the same company with the appellant was angry with him and this made them to fabricate the instant charges against the appellant.
11. In light of the above, the issues for determination before this court are; -
i. Whether the prosecution proved their case beyond reasonable doubt
ii. Whether the sentence was excessive in the circumstances.
Analysis and Determination
12. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court 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 v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding 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 witnesses, See Peters v Sunday [1958] E.A 424 .”
i. Whether the prosecution proved their case beyond reasonable doubt
13. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;
“8. Defilement
(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 shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the
age of twelve and fifteen years is liable upon conviction to imprisonment for a
term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the
age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
14. Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms;
“11. Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of the
offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
Penetration
15. Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case the minor stated that the appellant was her boyfriend and they had sex on several occasions. The PRC form on record shows that the incident occurred on 23/10/2022 and the minor was examined on 24/10/2022 and it was established that the minor’s hymen was broken with an old scar and on the vaginal environment there was abrasions noted at 6.00 o’oclock. This clearly indicate that there was penetration.
16. In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995 , the court held: -
“the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
17. In the above foregoing, I find that the evidence of the victim and that of the Doctor was consistent and sufficient to prove the element of penetration thus there is no reason to disturb the finding of the trial court. I affirm that penetration was proved beyond reasonable doubt.
Age of the victim
18. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR) , the Court of Appeal stated that: -
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
19. The birth certificate on record shows that the minor was born on 6/2/2005. The same date is captured in the PRC form. I find that the minor was aged 17 years old at the time of the incident.
Positive identification of the assailant
20. PW1 stated that the appellant was her boyfriend and they had sex at his house.The issue became a problem when they visited hhis grandmother and her absence from home was noted.The appellant did not dispute this fact. The appellant in his defense only statetd that the charges are fabricated and arise out of a dispute between him and PW2’s sister. All prosecution witnesses positively identified the accused person in court. I therefore find that the victim knew the accused person hence he was positively identified as the assailant beyond reasonable doubt. The trial court believed the victim and I find no need to disturb the same.
21. The upshot is that the prosecution proved their case beyond reasonable doubt. the appellant did not prove any of the grounds of appeal as the medical evidence corroborated the minoes evidence that there was penetration and the identification was proper. His defence was also considered.
iii. Whether the sentence was excessive in the circumstances
22. The appellant was sentenced to 15 years’ imprisonment. The minimum sentence that can be imposed upon conviction for the offence of defilement under Section 8(1) as read with Section 8 (4) is 15 years. I find that the trial court took into account all the circumstances of the case and proceeded within the required principles in arriving at its sentence hence I do not find reasons to interfere with the sentence.
23. The appeal lacks merit and the same is dismissed.
24. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 31 st DAY OF MARCH 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE
THE APPELLANT in person
MR SIRIMA FOR THE STATE
MAUREEN -COURT ASSISTANT
1. The Appellant, Moses Andrea, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act of 2006. The particulars of the offence are that on diverse dates between 1/9/2022 and 23/10/2022 within kwa Rasta area in Nyali sub-county within Mombasa county intentionally and unlawfully caused his penis to penetrate the vagina of G.N a girl aged 17 years.
2. The appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars were that on diverse dates between 1/9/2022 and 23/10/2022 within kwa Rasta area in Nyali sub-county within Mombasa county ,he intentionally and unlawfully touched the buttocks, vagina of G.N a girl child aged 17 years using your fingers.
3. The appellant was convicted on the main count and sentenced to serve 15 years’ imprisonment.
4. The appellant was not satisfied with the judgement of the trial court and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
i. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant on unsubstantiated evidence of the minor.
ii. That the learned trial magistrate court erred in law and fact by failing to consider the contradictions between the minor’s evidence and the doctor’s evidence.
iii. That the learned trial magistrate court erred in law and fact by relying on just one piece of the law that is Section 124 of the evidence act without taking into consideration that corroboration is still needful in such circumstances.
iv. That the learned trial magistrate court erred in law and fact by discounting and not considering in details the defence evidence.
v. That the learned trial magistrate court erred in law and fact by not considering the appellant mitigation.
vi. That the learned trial magistrate court erred in law and fact by giving harsh sentence.
Prosecution’s case
6. PW1 GM (minor) the complainant herein testified that she is 18 years. She stated that in 2022 she was in form one. She knows the appellant as he was her boyfriend from July 2022 and they used to stay in the same plot. She said that on 23/10/2022 she had sex with the appellant at his house during the day. It was not the first time they were having sex. She went to Bungoni to see his grandmother and when they came back her mother asked her where was and she told her she was with Moses. Her mother then took her to the police then to Coast General. PW1 said that the appellant knew that she was a school girl as he would see her going to school. The appellant told her he was 10 years older than her.
7. PW2 Mbeyu Kagala Rimba the mother to the minor stated that PW1 was born on 6/2/2005. On the material day she came home and her daughter was not there. PW1 came back at around 5.00pm. PW2 said that PW1 told her that she had gone to Moses Andrea’s house and that he was her boyfriend and they had sex. PW2 went to Bungoni Police station where she was sent to Coast General Hospital.
8. PW3 Dr Gabriel Ogola stated that he works at Coast General Teaching and referral Hopsital since 2008. He produced a P3 as PEX-2 and PRC form as PEX-3. He stated that the documents show that the minor aged 17 years was defiled. Prc form shows no injuries or physical examination. On the vaginal environment, there was abrasions noted at 6 o’oclock. Hymen was broken with an old scar.
9. PW4 Emmanuel Shake a police officer attached at Kadzandani Police Station. He stated that on 24/10/2022 he met PW2 with PW1 at the station and the complaint was that the minor aged 17 had been defiled. He sent them to Coast Genaral for examination and had the P3 form filled. On 28/10/2022 he arrested the accused person and he recorded his statement where he agreed that he had sexual relationship with the minor. PW4 produced the birth certificate as PEX-1.
Defence case
10. DWI Patrick Musa Kanani the accused person testified under oath that he used to work at Mr Green Company as the supervisor. Mother to the accused came and asked for job which she did not get. Her sister who used to work in the same company with the appellant was angry with him and this made them to fabricate the instant charges against the appellant.
11. In light of the above, the issues for determination before this court are; -
i. Whether the prosecution proved their case beyond reasonable doubt
ii. Whether the sentence was excessive in the circumstances.
Analysis and Determination
12. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court 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 v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding 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 witnesses, See Peters v Sunday [1958] E.A 424 .”
i. Whether the prosecution proved their case beyond reasonable doubt
13. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;
“8. Defilement
(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 shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the
age of twelve and fifteen years is liable upon conviction to imprisonment for a
term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the
age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
14. Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms;
“11. Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of the
offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
Penetration
15. Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case the minor stated that the appellant was her boyfriend and they had sex on several occasions. The PRC form on record shows that the incident occurred on 23/10/2022 and the minor was examined on 24/10/2022 and it was established that the minor’s hymen was broken with an old scar and on the vaginal environment there was abrasions noted at 6.00 o’oclock. This clearly indicate that there was penetration.
16. In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995 , the court held: -
“the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
17. In the above foregoing, I find that the evidence of the victim and that of the Doctor was consistent and sufficient to prove the element of penetration thus there is no reason to disturb the finding of the trial court. I affirm that penetration was proved beyond reasonable doubt.
Age of the victim
18. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR) , the Court of Appeal stated that: -
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
19. The birth certificate on record shows that the minor was born on 6/2/2005. The same date is captured in the PRC form. I find that the minor was aged 17 years old at the time of the incident.
Positive identification of the assailant
20. PW1 stated that the appellant was her boyfriend and they had sex at his house.The issue became a problem when they visited hhis grandmother and her absence from home was noted.The appellant did not dispute this fact. The appellant in his defense only statetd that the charges are fabricated and arise out of a dispute between him and PW2’s sister. All prosecution witnesses positively identified the accused person in court. I therefore find that the victim knew the accused person hence he was positively identified as the assailant beyond reasonable doubt. The trial court believed the victim and I find no need to disturb the same.
21. The upshot is that the prosecution proved their case beyond reasonable doubt. the appellant did not prove any of the grounds of appeal as the medical evidence corroborated the minoes evidence that there was penetration and the identification was proper. His defence was also considered.
iii. Whether the sentence was excessive in the circumstances
22. The appellant was sentenced to 15 years’ imprisonment. The minimum sentence that can be imposed upon conviction for the offence of defilement under Section 8(1) as read with Section 8 (4) is 15 years. I find that the trial court took into account all the circumstances of the case and proceeded within the required principles in arriving at its sentence hence I do not find reasons to interfere with the sentence.
23. The appeal lacks merit and the same is dismissed.
24. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 31 st DAY OF MARCH 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE
THE APPELLANT in person
MR SIRIMA FOR THE STATE
MAUREEN -COURT ASSISTANT