(Being an Appeal against the Judgment by Hon J.A. Agonda (P.M.) in Senior Principal Magistrate Court at Ruiru Case No. E50/2021, Delivered on 2nd October, 2023).
1. Many are the decisions on the burden and standard of proof in any criminal case. In respect I find the decision of Woolmington Vs DPP (1935) AC 462, apposite, where it was remarked that in 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 the defense 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 by either the prosecution or the prisoner, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
2. This being a first appeal, the appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal is to be well deliberated and resolutely expressed. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.
3. G.W.M.(PW1) told court that she had been hired as a house help by the appellant family between March-September 2021. In the house were the appellant, his wife and four of the appellant’s children. However, at one time, the appellant attempted to defile her but was not successful. Come 21st April 2021, the appellant locked her in their bedroom and inserted his penis into her vagina. She did not disclose to the appellant’s wife and a month later, the appellant gave her a sum of Kshs5000/= and warned her not to disclose. There was a time the wife and the appellant separated and she used to defile her four times a week. She disclosed to his wife and the matter was reported at Ruiru Police Station. The witness marked Sexual Recovery Report as MFI 1, PRC as MFI 2 and P3 Form as MFI 3. Under cross examination, the witness she was employed as a housewife in February, 2021 and the matter was reported to the police in August, 2021.
4. Lewis Mwendwa(PW2) told court that his colleague one Peninah Angwenyi examined the victim on the 6th September, 2021.Upon examination, the outer genetalia was normal and the vagina was pink and no injuries seen. There was no discharge and the hymen was distant margin with no injuries. The witness produced the Sexual Violence Report as exhibit 1 and the PRC as Exhibit 2. Under cross examination, the witness said that the victim was defiled in March 2021 and examined in June 2021.
5. Dr Dennis Odhiambo Omondi (PW3) examined the victim on 8th August 2021 and filed a P3 Form and the history given by the victim was that the appellant had defiled her by inserting his penis into her vagina. Upon examination, the external genetalia was normal but the hymen was broken. The witness produced the P3 Form as Exhibit 3. Under cross examination, the witness said that there was no sperm at the time of the examination but the hymen was broken. He did not examine the appellant as he was not availed.
6. PC Stephen Paul Okero (PW4) is an Investigation Officer and said that on 4th September 2021 in process of investigating of assault incident the wife had occasioned to the appellant, it came to the fore that the appellant had defiled the victim for three weeks. The officer arrested the appellant and sought the victim to be brought to the station and she narrated her story. The victim was referred to the hospital and later taken to rescue home. The Age Assessment Report confirmed that the child was 15 years old. Under cross examination, the witness said that indeed the victim was taken to the hospital and the doctor confirmed that she had been assaulted.
7. Being satisfied with evidence at hand, the Investigation Officer charged the Appellant in the Main Count with the offence of defilement contrary to section 8(1)(2) of the Sexual Offence Act, No. 3 of 2006. Particulars of the offence were that on diverse dates between 21st April 2021 and 31st August 2021 at Mwihoko area in Ruiru Sub County within Kiambu County, you intentionally and unlawfully caused your penis to penetrate the Vagina of G.W.M. a child aged fifteen (15) years old.
8. In the alternative count, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of the Sexual Offence Act No. 3/2006 and particulars of the offence were that on diverse dates between 21st April 2021 and 31st August 2021 at Mwihoko area in Ruiru Sub-County within Kiambu County, you intentionally and unlawfully committed an act with a child namely GWM aged 15 years by touching her private parts namely vagina.
9. In his defence, the appellant Patrick Mureria Wangombe told court that his wife implicated her in this offence that he had slept with the victim. The appellant said that he did not defile the victim. His wife is never at home and as such, he has been left to take care the children single handedly.
10. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;
a. That the Learned Trial Magistrate erred in law and fact by convicting the appellant on evidence that did not meet the threshold required occasioning miscarriage of Justice.
b. That the Learned Trial Magistrate erred in law and fact in failing to interrogate the issues of impregnation of the minor complainant that featured in the proceedings herein and the nexus if any with the offence the appellant had been charged with.
c. That the Learned Trial Magistrate erred in law and fact by failing to appreciate the circumstances surrounding the subsequent charging of the appellant at the trial court.
d. That the Learned Trial Magistrate erred in law and fact by failing to consider the defence that was advanced by the appellant.
e. That the Learned Trial Magistrate erred in law and fact by convicting the appellant in shifting the burden of proof from the prosecution to the appellant.
11. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
I have carefully considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent. I find it extremely apposite to drop anchor, in respect to the basic elements in an offence of defilement. In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the Court stated that the critical ingredients forming the offence of defilement are: age of the complainant, proof of penetration and positive identification of the assailant.
Age of the Victim:
The law on proof of age is now settled. In 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 that 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. Whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.
In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000 , it was observed that in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense.
In Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu) , the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).
It is in evidence that the police produced age assessment report as exhibit 5 which show that the victim’s age was 15 years. There was no rebuttal by the appellant on this aspect. It is not disputed therefore, that indeed, at the time of the commission of the offence, the victim was 15 years old and therefore, a child in terms of section 2 of the Children’s Act, 2022.
Penetration
In respect to penetration, it has been defined by Section 2 of the Sexual Offences Act No.3 of 2006 to mean, either partial or complete insertion of the genital organ of a person into the genital organ of another person. Additionally, the term penetration has been distilled by various superior court decisions and we stand to benefit from;
D.S. Vs Republic [2022] eKLR, where it was stated that; “Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case, coupled with a medical examination, must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh, with thorough scrutiny and utmost caution, the evidence of the child in order to determine whether there was penetration”
In Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6 Ugandan Court of Appeal said that in sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.
It was the evidence of the victim that on 21st April 2021, the appellant defiled her and thereafter repeatedly defiled her four times weekly between April 2021 and August 2021. This happened especially when the appellant’s wife was absent. PW3 confirmed upon examination that the hymen had been broken. Additionally, the doctor produced a P3 Form and remarked; “I noted she had been involved in sexual intercourse and I sent her for counselling.” This is evidence enough that penetration took.
Positive Identification of the Assailant:
Undoubtedly, the victim was a house help to the appellant from February, 2021 to September 2021. On several occasions, the appellant defiled her and even promised to have a child with her. The victim was categorical that the appellant used to have sex with her four times in a week till the time the beans were spilt. To my mind therefore, the appellant was not a stranger to her. Instead, the appellant had made her, his “wife”
Defence Case:
It is alleged that the trial court did not take into consideration the appellant’s defence. I have perused the Judgement of the trial court and at page number 4 of 10, it is recorded; “on the other hand the accused gave sworn evidence without calling any witness. He testified as DW1 that he had quarreled with his wife who had depression and he reported the matter at the police station. He stated that his wife called the station and fabricated the offence herein that he was having sex with the house help. He averred that they had lost a child and later his wife gave birth to a child with leg and hand problems. He stated that PW1 was asked why she did not report the offence of defilement. He stated that he never committed that offence and that he is taking care of their two children. He averred that his wife is never at home and he takes care of the children single handedly… those were the evidence by the prosecution and the accused herein. I have carefully evaluated the evidence on record…” So, it is not true that the trial magistrate did not consider the defence case. Instead, the trial magistrate did indicate that he has carefully evaluated the evidence on record.
In conclusion, the court make a finding that;
a. The Appeal lacks merit and is hereby, dismissed.
b. This court upholds the conviction and sentence of the trial Court.
Delivered virtually this 10th September, 2026 in the presence of the Appellant, Ms Tolosi for ODPP Mr Muhoho for the appellant and Mr Sagasi, Court Assistant.
1. Many are the decisions on the burden and standard of proof in any criminal case. In respect I find the decision of Woolmington Vs DPP (1935) AC 462, apposite, where it was remarked that in 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 the defense 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 by either the prosecution or the prisoner, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
2. This being a first appeal, the appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal is to be well deliberated and resolutely expressed. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.
3. G.W.M.(PW1) told court that she had been hired as a house help by the appellant family between March-September 2021. In the house were the appellant, his wife and four of the appellant’s children. However, at one time, the appellant attempted to defile her but was not successful. Come 21st April 2021, the appellant locked her in their bedroom and inserted his penis into her vagina. She did not disclose to the appellant’s wife and a month later, the appellant gave her a sum of Kshs5000/= and warned her not to disclose. There was a time the wife and the appellant separated and she used to defile her four times a week. She disclosed to his wife and the matter was reported at Ruiru Police Station. The witness marked Sexual Recovery Report as MFI 1, PRC as MFI 2 and P3 Form as MFI 3. Under cross examination, the witness she was employed as a housewife in February, 2021 and the matter was reported to the police in August, 2021.
4. Lewis Mwendwa(PW2) told court that his colleague one Peninah Angwenyi examined the victim on the 6th September, 2021.Upon examination, the outer genetalia was normal and the vagina was pink and no injuries seen. There was no discharge and the hymen was distant margin with no injuries. The witness produced the Sexual Violence Report as exhibit 1 and the PRC as Exhibit 2. Under cross examination, the witness said that the victim was defiled in March 2021 and examined in June 2021.
5. Dr Dennis Odhiambo Omondi (PW3) examined the victim on 8th August 2021 and filed a P3 Form and the history given by the victim was that the appellant had defiled her by inserting his penis into her vagina. Upon examination, the external genetalia was normal but the hymen was broken. The witness produced the P3 Form as Exhibit 3. Under cross examination, the witness said that there was no sperm at the time of the examination but the hymen was broken. He did not examine the appellant as he was not availed.
6. PC Stephen Paul Okero (PW4) is an Investigation Officer and said that on 4th September 2021 in process of investigating of assault incident the wife had occasioned to the appellant, it came to the fore that the appellant had defiled the victim for three weeks. The officer arrested the appellant and sought the victim to be brought to the station and she narrated her story. The victim was referred to the hospital and later taken to rescue home. The Age Assessment Report confirmed that the child was 15 years old. Under cross examination, the witness said that indeed the victim was taken to the hospital and the doctor confirmed that she had been assaulted.
7. Being satisfied with evidence at hand, the Investigation Officer charged the Appellant in the Main Count with the offence of defilement contrary to section 8(1)(2) of the Sexual Offence Act, No. 3 of 2006. Particulars of the offence were that on diverse dates between 21st April 2021 and 31st August 2021 at Mwihoko area in Ruiru Sub County within Kiambu County, you intentionally and unlawfully caused your penis to penetrate the Vagina of G.W.M. a child aged fifteen (15) years old.
8. In the alternative count, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of the Sexual Offence Act No. 3/2006 and particulars of the offence were that on diverse dates between 21st April 2021 and 31st August 2021 at Mwihoko area in Ruiru Sub-County within Kiambu County, you intentionally and unlawfully committed an act with a child namely GWM aged 15 years by touching her private parts namely vagina.
9. In his defence, the appellant Patrick Mureria Wangombe told court that his wife implicated her in this offence that he had slept with the victim. The appellant said that he did not defile the victim. His wife is never at home and as such, he has been left to take care the children single handedly.
10. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;
a. That the Learned Trial Magistrate erred in law and fact by convicting the appellant on evidence that did not meet the threshold required occasioning miscarriage of Justice.
b. That the Learned Trial Magistrate erred in law and fact in failing to interrogate the issues of impregnation of the minor complainant that featured in the proceedings herein and the nexus if any with the offence the appellant had been charged with.
c. That the Learned Trial Magistrate erred in law and fact by failing to appreciate the circumstances surrounding the subsequent charging of the appellant at the trial court.
d. That the Learned Trial Magistrate erred in law and fact by failing to consider the defence that was advanced by the appellant.
e. That the Learned Trial Magistrate erred in law and fact by convicting the appellant in shifting the burden of proof from the prosecution to the appellant.
11. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
I have carefully considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent. I find it extremely apposite to drop anchor, in respect to the basic elements in an offence of defilement. In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the Court stated that the critical ingredients forming the offence of defilement are: age of the complainant, proof of penetration and positive identification of the assailant.
Age of the Victim:
The law on proof of age is now settled. In 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 that 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. Whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.
In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000 , it was observed that in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense.
In Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu) , the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).
It is in evidence that the police produced age assessment report as exhibit 5 which show that the victim’s age was 15 years. There was no rebuttal by the appellant on this aspect. It is not disputed therefore, that indeed, at the time of the commission of the offence, the victim was 15 years old and therefore, a child in terms of section 2 of the Children’s Act, 2022.
Penetration
In respect to penetration, it has been defined by Section 2 of the Sexual Offences Act No.3 of 2006 to mean, either partial or complete insertion of the genital organ of a person into the genital organ of another person. Additionally, the term penetration has been distilled by various superior court decisions and we stand to benefit from;
D.S. Vs Republic [2022] eKLR, where it was stated that; “Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case, coupled with a medical examination, must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh, with thorough scrutiny and utmost caution, the evidence of the child in order to determine whether there was penetration”
In Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6 Ugandan Court of Appeal said that in sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.
It was the evidence of the victim that on 21st April 2021, the appellant defiled her and thereafter repeatedly defiled her four times weekly between April 2021 and August 2021. This happened especially when the appellant’s wife was absent. PW3 confirmed upon examination that the hymen had been broken. Additionally, the doctor produced a P3 Form and remarked; “I noted she had been involved in sexual intercourse and I sent her for counselling.” This is evidence enough that penetration took.
Positive Identification of the Assailant:
Undoubtedly, the victim was a house help to the appellant from February, 2021 to September 2021. On several occasions, the appellant defiled her and even promised to have a child with her. The victim was categorical that the appellant used to have sex with her four times in a week till the time the beans were spilt. To my mind therefore, the appellant was not a stranger to her. Instead, the appellant had made her, his “wife”
Defence Case:
It is alleged that the trial court did not take into consideration the appellant’s defence. I have perused the Judgement of the trial court and at page number 4 of 10, it is recorded; “on the other hand the accused gave sworn evidence without calling any witness. He testified as DW1 that he had quarreled with his wife who had depression and he reported the matter at the police station. He stated that his wife called the station and fabricated the offence herein that he was having sex with the house help. He averred that they had lost a child and later his wife gave birth to a child with leg and hand problems. He stated that PW1 was asked why she did not report the offence of defilement. He stated that he never committed that offence and that he is taking care of their two children. He averred that his wife is never at home and he takes care of the children single handedly… those were the evidence by the prosecution and the accused herein. I have carefully evaluated the evidence on record…” So, it is not true that the trial magistrate did not consider the defence case. Instead, the trial magistrate did indicate that he has carefully evaluated the evidence on record.
In conclusion, the court make a finding that;
a. The Appeal lacks merit and is hereby, dismissed.
b. This court upholds the conviction and sentence of the trial Court.
Delivered virtually this 10th September, 2026 in the presence of the Appellant, Ms Tolosi for ODPP Mr Muhoho for the appellant and Mr Sagasi, Court Assistant.