(APPEAL FROM JUDGMENT OF Hon P.C Biwott SPM in SPM in Sexual Offences case no. 8 of 2020 dated 17.4.23)
NEMWEL NYANGWENCHE OYUMA the appellant herein was charged with the offence of defilement contrary to section 8(1) as read with Section 8 (3) of the Sexual offences Act in the lower court. The particulars s of the charge are that on the 24th day of January 2020 at Kineni sub-location in Gucha Sub county within Kisiis County he intentionally caused his penis to penetrate the vagina of JBT a child aged 13 years .
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 of the alternative charge are that the 24 th day of January 2020 at Kineni sub-location in Gucha Sub county within Kisiis County he intentionally touched the vagina of J.B.T a child aged 13 years with his penis .
The appellant pleaded guilty and the case went to full trial and he was convicted of the main charge and sentenced to served 12 years imprisonment.
The appellant filed the instant appeal on the following grounds : That the learned trial magistrate failed in both law and facts by convicting the appellant without observing that the offence of defilement was not proved beyond reasonable doubt.
That the trial magistrate erred in both law and facts by convicting the appellant despite the glaring contradictions inconsistencies thus making his conviction unsafe.
That the trial magistrate further erred in both law and facts by convicting the appellant using a scanty and fabricated medical report.
That the learned magistrate further failed in both matters of law and facts by convicting the appellant using a shoddy investigation tendered by the prosecution side.
That the appellant wishes to be served with the certified copies of the trial court proceedings to enable him erect more grounds under section 350 (V) of the C.P.C.
This is an appellate court who duty is to reevaluate the entire evidence on record bearing in mind that it neither saw nor heard the witnesses during their testimony in court. In the case of Kiilu & Another vs. Republic (2005)1 KLR 174, the Court of Appeal 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 and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
I have carefully re-evaluated the entire evidence on record the submissions and notice of enhancement of sentence . The ingredients of the charge of defilement are :
Age of the victim
Identification
Penetration .
Issues for determination
. The issues arising for determination are:
Whether the age of the victim was proved .
Whether the appellant was properly identified.
Whether there was penetration into the vagina of the victim .
Whether the act was unlawful .
Analysis and Determinatio
8. On the age of the victim, PW1 was she was 13 years old as at 15.6.20 . No birth certificate or age assessment report was produced to support this . The trial Magistrate found that pw1 was 13 years old based on the medical documents produced herein which placed her age at 133. Age assessment report is important in sexual offence to determine the issue of consent and sentence . sentences under the Sexual offence are based on the age of the victim . The trial magistrate saw the witness during her testimony and believed the word of pw1 that she was 13 years old as supported by the medical documents . 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.”. In any event section 124 CPC
9. . On the issue of identification, PW1 said that the appellant , picked her from her parents home in Keneni on 24.1.20 at about 6.00pm to take her to the home of her sister in Itumbe but he instead diverted her to a lonely place in Gucha and had sexual intercourse with her. This was denied by the appellant who said that this case was fabricated against him . he admitted that the picked PW1 on the material day and while taking her to Nyamaiya pw1 stopped him on reaching Nyamasenge market and she deposited ksh. 50,000/= in her Mpesa account and she dropped her to her said destination and on his way back he met a man who accused him and complainant of stealing his money but he denied they met a man on the way who accused pw1 of taking his money. He denied the alleged stealing and the man took him to Nyamasenge police station from where he was moved to Ogembo police station where he was booked for defilement . On c ross examination pw1 said that she was certain that accused is the one who defiled her and he did not depart from her sister’s home till his arrest . Also that he was wearing a black pair of trousers and a brown jacket.Pw1 was firm and consistent in her cross examination that appellant is the one who sexually abused her . Though the appellant denied defiling pw1 there is overwhelming evidence that he was properly placed at the scene and thus his defence is a mere denial .
10. On penetration PW1 said accused penetrated into her vagina while accused denied this. The P3 form and Post Rape care forms of Pw1 produced herein confirmed that she had a broken hymen , bruises on her genitalia and fracture of the left wrist. This was clear evidence of forceful sexual intercourse . I have no doubt that pw1 put up a fight with the perpetrator on the material day but he overpowered her and managed to penetrate her vagina. It was proved that appellant had sexual intercourse with pw1.
11. On whether the act was unlawful. PW1 said that the appellant forcefully had sexual intercourse with her and even fractured her left wrist in the process. It is clear that the act was unlawful
13. The conviction of the appellant by the learned trail magistrate was thus safe and I uphold it.
14. On whether the sentence was harsh . Appellant alleged that his sentence was excessive .However section 8 (3) of the sexual offences Act provides that Section 8(3) of the Sexual Offences Act provides that 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. In Supreme Court Petition No. E018 of 2023; Republic vs Joshua Gichuki Mwangi and reiterated that section 8 was still valid. The Honourable Justices of the Apex court observed as follows;
[66] We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.
[67] This is why, even in the Muruatetu case, this Court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows:
“Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.”
We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case.
[68] Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.
15. Iam well guided by the aforesaid decision of the Supreme Court on the Minimum Sentences in the Sexual offences Act which is binding on this court . The intention of the Legislature was clear in enacting the minimum sentences in sexual offences; i.e to curb the upsurge of the sexual offences in Kenya. The victim herein was proved to be 13 years old and thus the statutory sentence is 20 years . The sentence of 12 years imposed by the trial magistrate was thus illegal and I thus proceed to substitute the same with 20 years imprisonment . The sentence to be computed from 27.1.20 when appellant was first remanded till completion.
T.A ODERA
JUDGE
23.7.25
Delivered virtually on this 24th day of July 2025 in the presence of :
The applicant, Mr Koima for the State and CA- Kipchirchir
NEMWEL NYANGWENCHE OYUMA the appellant herein was charged with the offence of defilement contrary to section 8(1) as read with Section 8 (3) of the Sexual offences Act in the lower court. The particulars s of the charge are that on the 24th day of January 2020 at Kineni sub-location in Gucha Sub county within Kisiis County he intentionally caused his penis to penetrate the vagina of JBT a child aged 13 years .
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 of the alternative charge are that the 24 th day of January 2020 at Kineni sub-location in Gucha Sub county within Kisiis County he intentionally touched the vagina of J.B.T a child aged 13 years with his penis .
The appellant pleaded guilty and the case went to full trial and he was convicted of the main charge and sentenced to served 12 years imprisonment.
The appellant filed the instant appeal on the following grounds : That the learned trial magistrate failed in both law and facts by convicting the appellant without observing that the offence of defilement was not proved beyond reasonable doubt.
That the trial magistrate erred in both law and facts by convicting the appellant despite the glaring contradictions inconsistencies thus making his conviction unsafe.
That the trial magistrate further erred in both law and facts by convicting the appellant using a scanty and fabricated medical report.
That the learned magistrate further failed in both matters of law and facts by convicting the appellant using a shoddy investigation tendered by the prosecution side.
That the appellant wishes to be served with the certified copies of the trial court proceedings to enable him erect more grounds under section 350 (V) of the C.P.C.
This is an appellate court who duty is to reevaluate the entire evidence on record bearing in mind that it neither saw nor heard the witnesses during their testimony in court. In the case of Kiilu & Another vs. Republic (2005)1 KLR 174, the Court of Appeal 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 and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
I have carefully re-evaluated the entire evidence on record the submissions and notice of enhancement of sentence . The ingredients of the charge of defilement are :
Age of the victim
Identification
Penetration .
Issues for determination
. The issues arising for determination are:
Whether the age of the victim was proved .
Whether the appellant was properly identified.
Whether there was penetration into the vagina of the victim .
Whether the act was unlawful .
Analysis and Determinatio
8. On the age of the victim, PW1 was she was 13 years old as at 15.6.20 . No birth certificate or age assessment report was produced to support this . The trial Magistrate found that pw1 was 13 years old based on the medical documents produced herein which placed her age at 133. Age assessment report is important in sexual offence to determine the issue of consent and sentence . sentences under the Sexual offence are based on the age of the victim . The trial magistrate saw the witness during her testimony and believed the word of pw1 that she was 13 years old as supported by the medical documents . 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.”. In any event section 124 CPC
9. . On the issue of identification, PW1 said that the appellant , picked her from her parents home in Keneni on 24.1.20 at about 6.00pm to take her to the home of her sister in Itumbe but he instead diverted her to a lonely place in Gucha and had sexual intercourse with her. This was denied by the appellant who said that this case was fabricated against him . he admitted that the picked PW1 on the material day and while taking her to Nyamaiya pw1 stopped him on reaching Nyamasenge market and she deposited ksh. 50,000/= in her Mpesa account and she dropped her to her said destination and on his way back he met a man who accused him and complainant of stealing his money but he denied they met a man on the way who accused pw1 of taking his money. He denied the alleged stealing and the man took him to Nyamasenge police station from where he was moved to Ogembo police station where he was booked for defilement . On c ross examination pw1 said that she was certain that accused is the one who defiled her and he did not depart from her sister’s home till his arrest . Also that he was wearing a black pair of trousers and a brown jacket.Pw1 was firm and consistent in her cross examination that appellant is the one who sexually abused her . Though the appellant denied defiling pw1 there is overwhelming evidence that he was properly placed at the scene and thus his defence is a mere denial .
10. On penetration PW1 said accused penetrated into her vagina while accused denied this. The P3 form and Post Rape care forms of Pw1 produced herein confirmed that she had a broken hymen , bruises on her genitalia and fracture of the left wrist. This was clear evidence of forceful sexual intercourse . I have no doubt that pw1 put up a fight with the perpetrator on the material day but he overpowered her and managed to penetrate her vagina. It was proved that appellant had sexual intercourse with pw1.
11. On whether the act was unlawful. PW1 said that the appellant forcefully had sexual intercourse with her and even fractured her left wrist in the process. It is clear that the act was unlawful
13. The conviction of the appellant by the learned trail magistrate was thus safe and I uphold it.
14. On whether the sentence was harsh . Appellant alleged that his sentence was excessive .However section 8 (3) of the sexual offences Act provides that Section 8(3) of the Sexual Offences Act provides that 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. In Supreme Court Petition No. E018 of 2023; Republic vs Joshua Gichuki Mwangi and reiterated that section 8 was still valid. The Honourable Justices of the Apex court observed as follows;
[66] We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.
[67] This is why, even in the Muruatetu case, this Court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows:
“Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.”
We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case.
[68] Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.
15. Iam well guided by the aforesaid decision of the Supreme Court on the Minimum Sentences in the Sexual offences Act which is binding on this court . The intention of the Legislature was clear in enacting the minimum sentences in sexual offences; i.e to curb the upsurge of the sexual offences in Kenya. The victim herein was proved to be 13 years old and thus the statutory sentence is 20 years . The sentence of 12 years imposed by the trial magistrate was thus illegal and I thus proceed to substitute the same with 20 years imprisonment . The sentence to be computed from 27.1.20 when appellant was first remanded till completion.
T.A ODERA
JUDGE
23.7.25
Delivered virtually on this 24th day of July 2025 in the presence of :
The applicant, Mr Koima for the State and CA- Kipchirchir