(Being an appeal from original conviction and sentence in SOA case at Mombasa CMCR (SO) no E097 of 2021 delivered on 8/2/2021 by Hon R.Orora)
1. The Appellant, Peter Asunda Andati, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act of 2006. The particulars of the offence are that on the 6/6/2021 at Roromo Guest House in Mikindani area of Jomvu sub-county within Mombasa County he intentionally and unlawfully caused his genital organ namely penis to penetrate the vagina of MKM a child aged 10 years.
2. The apellant 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 on the 6/6/2021 at unknown time at Roromo Guest House in Mikindani area of Jomvu sub-county within Mombasa county he intentionally and unlawfully touched the vagina of MKM a child aged 10 years with his genital organ namely penis.
3. The appellant was convicted on the main count and sentenced to serve 30 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 for not realizing that the aspects surrounded the issue of identification were anchored on a mistaken identity.
ii. That the learned trial magistrate erred in law and fact for not observing that the production of the expertise evidence was not submitted on a legal procedure required by the rule of law.
iii. That the learned trial magistrate failed to consider the production of the receipts issue by the receptionist had great truth as it revealed I occupied a different room contrary to the controversial one.
iv. That the learned trial magistrate failed to note that the prosecution investigations were flimsy due to the fact that, the CCTV was not produced to be part of the evidence.
v. That the learned trial magistrate failed to consider that the prosecution case was not proved beyond reasonable doubt.
vi. That the learned trial magistrate erred in law and fact for not ordering PW3 Mwanaisha to be taken accountable for what happened to the victim, Michelle.
vii. That the learned trial magistrate failed to consider my defense evidence on no apparent reason thereby occasioned a miscarriage of justice.
Prosecution’s case
6. PW1 MK (minor) the complainant herein testified that she is 9 years and on 6/5/2021 she was playing at her mother’s hotel. It was around 6 pm. She went to pee and she met Mwanaisha who sent her potatoes. They ate the potatoes and she requested pw1 to take her to the stage. She held her hand and they got onto a boda boda and went to a lodging. The accused was on his bike and they were on another bike with Mwanaisha. The accused told them to get into a lodging. He got in a room where there were 2 beds. PW1 said that she showered and slept. Mwanaisha also slept. She said that the appellant came to her bed and started calling her name, he removed her clothes and slept on top of her, he did “tabia mbaya” to her.
7. PW1 said that she cried but he continued and he did not have his clothes on. Then he went to Mwanaisha’s bed. PW1 continued sleeping. In the morning he left them in the room where she was in pain. She showered and Mwanaisha left her at her mother’s hotel. Her mother had gone to the police. She was called and informed that pw1 had resurfaced. She explained the ordeal to her mother. They went to Portreitz Hospital and she was examined.
8. PW2 Mwanaisha Rashid stated that she knew the accused he was a counselor. Pw2 said that the appellant bought for her viazi karai. He asked her to go to Mikindani in a hotel. They went to eat chips and soda. Then they went to the guest house. Pw2 said that the accused person is the one who paid. The guest room was a 1-bedroom house with 2 beds, washroom and she entered to shower. She said that they were together with the neighbor’s child called Michelle.
9. PW2 said that she slept with the accused on the bed and the child slept on the other bed. She said that she left with the child in the morning. They have never met the accused from that day.
10. PW3 Elizabeth Mwongeli the complainant’s mother said that the minor was born on 7/3/2011. She produced her birth certificate as PEX-1. She stated that on 6/6/2021 she was at her shop when the minor requested to go to the toilet but she did not return. She searched for her but couldn’t find her. The next morning, she while she had gone to the village elder pw1 was phoned and informed that the minor had been found. PW1 informed her that she has been brought by Mwanaisha. She was crying and was not sitting nicely. The minor informed pw3 that Mwanaisha had sent her viazi karai, they got onto a boda boda with another man and Mwanaisha. The minor told pw3 that they went to a lodging and the accused defiled her.
11. PW4 Dr Sultan Abdul Barani a medical officer from Portreitz Hospital. He said that he had p3 for the minor aged 9 years. P3 was filed on 14/6/2021 and was produced as PEX-2. On examination the child was defiled without a condom by a person known to her. the age of injury is 1 week the probate type of weapon is a penis. On her vagina was hyperemic shown that there is an inflammation and her hymen was broken. The redness shows that the penetration was forceful. Pw4 also produced the PRC form for the victim as PEX-3. He said it was filed on 13/6/2021. It shows that the child was defiled. He produced treatment notes filed on 7/6/2021 as PEX-4. He said that the vagina wall was red and tender. Lab test results was produced as PEX-5.
12. PW5 Davidson Kamaka said that he is a security guard at guest house. On 6/6/2021 it was at 8pm. He was at work where he saw a man, a woman and a child. The child looked 8 years old. They asked for a room at the guest house. PW5 said that he knew the man as he was their regular customer. He is called Peter (he pointed at the accused). PW5 said that he did not know the lady. They took a room and went to sleep.
13. PW6 Regina Mueli said that on 7/6/2021 he was called by Joseph Mutisya his brother in law who told him that his daughter (the victim) had gotten lost. He went to Bangalaa and found that the minor had been traced. She inquired and the minor informed him that Mwanaisha had taken her to Mikindani to a guest house and a man joined them in the guest house. She took the minor to portreitz hospital and it was confirmed that the minor had been defiled.
14. PW7 Sgt Mariam Mohamed attached Mikindani police station said that on 7/6/2021 she found a case minutes to her. she called the complainant mother who came with the minor. They took the minor to the hospital and recorded her statement. She produced PEX-6 (a-c) photos she took at the scene. Certificate of the photos produced as PEX-8. Forwarding letter of the photos as PEX-8. Receipt from the guest house as PEX-9.
Defence case
15. DWI Peter Asumba Andati the accused person testified under oath that he is 41 years old. He said that on 17/8/2021 he was at work when people came and took him into a motor vehicle and went to Mikindani police station. They took him to Roromo guest house and watched the guest house’s cctv and got nothing that linked him to the offence.
16. In light of the above, the issues for determination before this court are; -
i. Whether the prosecution proved their case beyond reasonable doubt.
Analysis and Determination
17. 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
18. 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.”
19. 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
20. 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 Mwanaisha and the appellant took her to a guest house on 6/6/2021. She was examined on 7/6/2021 and it was established that the hymen was not intact and there were bruises in the internal vagina (all around). This clearly indicates that the minor had sexual intercourse.
21. 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.”
22. 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
23. 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.”
24. The birth certificate on record shows that the minor was born on 7/3/2011. I find that the minor was aged 10 years old at the time of the incident.
Positive identification of the assailant
25. PW1 stated that Mwanaisha and the appellant took her to a guest house where they spent the night together and she was defile by the appellant. She identified the appellant as a person known to her as he used to drink alcohol near her mother’s hotel. Pw2 corroborated Pw1’s testimony that they went with the accused person to the lodging together with the victim and they slept in the same room the three of them. PW5 the security guard at Roromo guest house confirmed that the appellant is their customer at the guest house and he saw him together with a lady and a child on 6/6/2021 getting into the guest house. The appellant was positively identified by the prosecution witnesses.
26. The investigating officer produced a receipt from Roromo guest house bearing the names of the appellant. The same is showing that he booked room number 104 on 6/6/2021 and paid ksh. 600/- This is clear evidence that the appellant visited the said guest house on 6/6/2021 together with Mwanaisha and the minor as narrated by PW1 and PW2. He defiled the minor as per the evidence on record. This court is convinced that the prosecution proved their case beyond reasonable doubt.
27. In his defense the appellant did not dispute the fact that he visited the guest house on 6/6/2021. His contention was that the receipt produced does not capture the exact room number that he occupied. However, the receipt produced indicates that the appellant visited the guest house on 6/6/2021, he paid ksh. 600/- shillings and he occupied room 104. I therefore find that the appellant’s defense is a mere denial of the truth thus the same does not hold water.
28. The upshot is that the prosecution proved their case beyond reasonable doubt. the medical records confirmed the penetration and corroborated the evidence of PW1 and PW2. The guard at the guest house also positively identified the appellant and the identification was by recognition . This was not a case of mistaken identity and defilement was proved.
29. The appeal lacks merit and the same is dismissed.
30. 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
MAUREENCOURT ASSISTANT
1. The Appellant, Peter Asunda Andati, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act of 2006. The particulars of the offence are that on the 6/6/2021 at Roromo Guest House in Mikindani area of Jomvu sub-county within Mombasa County he intentionally and unlawfully caused his genital organ namely penis to penetrate the vagina of MKM a child aged 10 years.
2. The apellant 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 on the 6/6/2021 at unknown time at Roromo Guest House in Mikindani area of Jomvu sub-county within Mombasa county he intentionally and unlawfully touched the vagina of MKM a child aged 10 years with his genital organ namely penis.
3. The appellant was convicted on the main count and sentenced to serve 30 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 for not realizing that the aspects surrounded the issue of identification were anchored on a mistaken identity.
ii. That the learned trial magistrate erred in law and fact for not observing that the production of the expertise evidence was not submitted on a legal procedure required by the rule of law.
iii. That the learned trial magistrate failed to consider the production of the receipts issue by the receptionist had great truth as it revealed I occupied a different room contrary to the controversial one.
iv. That the learned trial magistrate failed to note that the prosecution investigations were flimsy due to the fact that, the CCTV was not produced to be part of the evidence.
v. That the learned trial magistrate failed to consider that the prosecution case was not proved beyond reasonable doubt.
vi. That the learned trial magistrate erred in law and fact for not ordering PW3 Mwanaisha to be taken accountable for what happened to the victim, Michelle.
vii. That the learned trial magistrate failed to consider my defense evidence on no apparent reason thereby occasioned a miscarriage of justice.
Prosecution’s case
6. PW1 MK (minor) the complainant herein testified that she is 9 years and on 6/5/2021 she was playing at her mother’s hotel. It was around 6 pm. She went to pee and she met Mwanaisha who sent her potatoes. They ate the potatoes and she requested pw1 to take her to the stage. She held her hand and they got onto a boda boda and went to a lodging. The accused was on his bike and they were on another bike with Mwanaisha. The accused told them to get into a lodging. He got in a room where there were 2 beds. PW1 said that she showered and slept. Mwanaisha also slept. She said that the appellant came to her bed and started calling her name, he removed her clothes and slept on top of her, he did “tabia mbaya” to her.
7. PW1 said that she cried but he continued and he did not have his clothes on. Then he went to Mwanaisha’s bed. PW1 continued sleeping. In the morning he left them in the room where she was in pain. She showered and Mwanaisha left her at her mother’s hotel. Her mother had gone to the police. She was called and informed that pw1 had resurfaced. She explained the ordeal to her mother. They went to Portreitz Hospital and she was examined.
8. PW2 Mwanaisha Rashid stated that she knew the accused he was a counselor. Pw2 said that the appellant bought for her viazi karai. He asked her to go to Mikindani in a hotel. They went to eat chips and soda. Then they went to the guest house. Pw2 said that the accused person is the one who paid. The guest room was a 1-bedroom house with 2 beds, washroom and she entered to shower. She said that they were together with the neighbor’s child called Michelle.
9. PW2 said that she slept with the accused on the bed and the child slept on the other bed. She said that she left with the child in the morning. They have never met the accused from that day.
10. PW3 Elizabeth Mwongeli the complainant’s mother said that the minor was born on 7/3/2011. She produced her birth certificate as PEX-1. She stated that on 6/6/2021 she was at her shop when the minor requested to go to the toilet but she did not return. She searched for her but couldn’t find her. The next morning, she while she had gone to the village elder pw1 was phoned and informed that the minor had been found. PW1 informed her that she has been brought by Mwanaisha. She was crying and was not sitting nicely. The minor informed pw3 that Mwanaisha had sent her viazi karai, they got onto a boda boda with another man and Mwanaisha. The minor told pw3 that they went to a lodging and the accused defiled her.
11. PW4 Dr Sultan Abdul Barani a medical officer from Portreitz Hospital. He said that he had p3 for the minor aged 9 years. P3 was filed on 14/6/2021 and was produced as PEX-2. On examination the child was defiled without a condom by a person known to her. the age of injury is 1 week the probate type of weapon is a penis. On her vagina was hyperemic shown that there is an inflammation and her hymen was broken. The redness shows that the penetration was forceful. Pw4 also produced the PRC form for the victim as PEX-3. He said it was filed on 13/6/2021. It shows that the child was defiled. He produced treatment notes filed on 7/6/2021 as PEX-4. He said that the vagina wall was red and tender. Lab test results was produced as PEX-5.
12. PW5 Davidson Kamaka said that he is a security guard at guest house. On 6/6/2021 it was at 8pm. He was at work where he saw a man, a woman and a child. The child looked 8 years old. They asked for a room at the guest house. PW5 said that he knew the man as he was their regular customer. He is called Peter (he pointed at the accused). PW5 said that he did not know the lady. They took a room and went to sleep.
13. PW6 Regina Mueli said that on 7/6/2021 he was called by Joseph Mutisya his brother in law who told him that his daughter (the victim) had gotten lost. He went to Bangalaa and found that the minor had been traced. She inquired and the minor informed him that Mwanaisha had taken her to Mikindani to a guest house and a man joined them in the guest house. She took the minor to portreitz hospital and it was confirmed that the minor had been defiled.
14. PW7 Sgt Mariam Mohamed attached Mikindani police station said that on 7/6/2021 she found a case minutes to her. she called the complainant mother who came with the minor. They took the minor to the hospital and recorded her statement. She produced PEX-6 (a-c) photos she took at the scene. Certificate of the photos produced as PEX-8. Forwarding letter of the photos as PEX-8. Receipt from the guest house as PEX-9.
Defence case
15. DWI Peter Asumba Andati the accused person testified under oath that he is 41 years old. He said that on 17/8/2021 he was at work when people came and took him into a motor vehicle and went to Mikindani police station. They took him to Roromo guest house and watched the guest house’s cctv and got nothing that linked him to the offence.
16. In light of the above, the issues for determination before this court are; -
i. Whether the prosecution proved their case beyond reasonable doubt.
Analysis and Determination
17. 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
18. 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.”
19. 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
20. 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 Mwanaisha and the appellant took her to a guest house on 6/6/2021. She was examined on 7/6/2021 and it was established that the hymen was not intact and there were bruises in the internal vagina (all around). This clearly indicates that the minor had sexual intercourse.
21. 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.”
22. 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
23. 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.”
24. The birth certificate on record shows that the minor was born on 7/3/2011. I find that the minor was aged 10 years old at the time of the incident.
Positive identification of the assailant
25. PW1 stated that Mwanaisha and the appellant took her to a guest house where they spent the night together and she was defile by the appellant. She identified the appellant as a person known to her as he used to drink alcohol near her mother’s hotel. Pw2 corroborated Pw1’s testimony that they went with the accused person to the lodging together with the victim and they slept in the same room the three of them. PW5 the security guard at Roromo guest house confirmed that the appellant is their customer at the guest house and he saw him together with a lady and a child on 6/6/2021 getting into the guest house. The appellant was positively identified by the prosecution witnesses.
26. The investigating officer produced a receipt from Roromo guest house bearing the names of the appellant. The same is showing that he booked room number 104 on 6/6/2021 and paid ksh. 600/- This is clear evidence that the appellant visited the said guest house on 6/6/2021 together with Mwanaisha and the minor as narrated by PW1 and PW2. He defiled the minor as per the evidence on record. This court is convinced that the prosecution proved their case beyond reasonable doubt.
27. In his defense the appellant did not dispute the fact that he visited the guest house on 6/6/2021. His contention was that the receipt produced does not capture the exact room number that he occupied. However, the receipt produced indicates that the appellant visited the guest house on 6/6/2021, he paid ksh. 600/- shillings and he occupied room 104. I therefore find that the appellant’s defense is a mere denial of the truth thus the same does not hold water.
28. The upshot is that the prosecution proved their case beyond reasonable doubt. the medical records confirmed the penetration and corroborated the evidence of PW1 and PW2. The guard at the guest house also positively identified the appellant and the identification was by recognition . This was not a case of mistaken identity and defilement was proved.
29. The appeal lacks merit and the same is dismissed.
30. 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
MAUREENCOURT ASSISTANT