The Appellant, Reuben Mogoa Mongeri was charged in Ogembo Magistrates Court S. O. C No. E020 of 2022 with the offence of defilement contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.
The particulars to the principal count are that the Appellant on the 1st day of January 2022 at Igorera Sub Location in Kenyenya Sub County within Kisii County Internally and unlawfully caused his penis to penetrate the vagina of DKM a child aged 15 years.
In the alternative he was charged with the offence of indecent act contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006.
Upon consideration of the prosecution evidence the trial magistrate defence by the Appellant and his 2 witnesses returned a verdict of guilty and sentence the Appellant to serve 10 years jail term.
The Appellant was dissatisfied with the conviction and sentence and he preferred the appeal herein vide undated Petition of Appeal filed on 14.5.2024 on the following grounds: -
- That the offence of defilement was not proved to the required standard.
- That the trial magistrate erred in both law and fact by convicting the Appellant to 10 years without withstanding that the Appellant never committed the alleged offence.
- That the sentence was harsh and excessive given that the Appellant never committed the said crime.
- That the learned trial magistrate erred in both law and fact by convicting the Appellant to 10 years without analyzing the evidence that was out of family issued whereby the case originated from his wife.
- That the trial magistrate erred in law and fact by depending on evidence which was based on theory and conspiracy and that the said offence was not proven beyond reasonable doubt by the prosecution witnesses.
- That the Appellant prayed to be present during the hearing of his appeal.
The Appellant prayed that his appeal be allowed, conviction quashed and sentence set aside and in the alternative the sentence be reviewed.
This Appeal was heard by way of written submissions.
The Appellant submissions dated 25.11.2024 by Ms. Ogutu and Co Advocates for the Appellant was to the effect that the age of the complainant was never proved beyond all reasonable doubt as there was no age assessment report, there was no certificate of birth and no evidence was adduced from Registrar of Births and Deaths.
It was also submitted that the prosecution didn’t call the complainants siblings who were in the house on the alleged material night to corroborate her evidence that they witness the complainant being defiled and that evidence of PW3 the Clinical officers who examined the complainant just concluded that there was penetration without carrying out any tests on the Appellant to confirm if any semen was recovered in the complainants’ genitalia.
The Appellants counsel argued that this was a case of settling scores between the Appellant and his wife the mother of the complainant who had stolen his motorbike as DW2 the son to Appellant and PW2 testified and said he was in the house and nothing happened.
In respect to the 3rd ingredient, it was argued that it was easy for PW1 to be manipulated by PW2 to settle scores with the Appellant due to personal reasons and there was therefore motive to teach the Appellant a lesson.
The Appellants counsel argued that the offence of defilement was not proved beyond all reasonable doubt.
On Sentence the Appellants counsel relied on the case of Mbogo & Another vs. Shah (1968) EA 93 where it was held
“…. a Court of Appeal should not interfere with the exercise of discretion of a judge unless it is satisfied that the judge in exercising the discretion has misdirected himself in some matter and as a result has arrived at a wrong decision or unless it is manifest from the case as a whole that the judge has been clearly wrong on the exercise of his discretion and that as a result there has been injustice.”
In the Court of Appeal in the holding of Shadrack Kipkoech Kogo vs. Republic Eldoret Criminal Appeal No. 253 of 2003 was also cited in regard to exercise of trial magistrates discretion in passing sentence.
The Appellants counsel urged the court to allow the appeal.
The Respondents counsel Mr. Koima in submissions dated 24.9.24 opposed the appeal and said a certificate of Birth was produced to prove the complainant was 15 years old. That the child, her mother and the investigating officer all said the complainant was 15 years old and the Appellant did not controvert the said evidence of age.
On the 2nd issue the Respondent counsel contended that the child narrated in details how the Appellant defiled her leaving her with injuries on the genitalia as observed by PW3 the Clinical Officer. PW3 found the complainants hymen was broken and her vaginal walls were bruised. The complainant also had bloody P. V. discharged on the virginal orifice. P3 form, PRC form and the treatment notes were produced to that effect.
The Respondent counsel also submitted that the defilement took place inside the house where the Appellant lived with the complainant and that he was properly identified, on the issue of investigation of the charge by PW3 on her relationship of a motorcycle it was submitted that it was not put to PW1 and PW2 and is clearly an afterthought. As such the defence was properly dismissed.
In regard to the sentence being harsh and excessive it was submitted that the sentence of 10 years was illegal as Section 8 (3) of the Sexual Offences Act does not prescribe the same. The court was urged to enhance the sentence as per the Notice dated 24.9.2024 as there was no mitigating circumstances to warrant the very lenient sentence.
ANALYSIS AND DETERMINATION
Mandate of the Court as a first Appellate court, is to re-evaluate the evidence and judgment of the trial court and make an independent decision whether to allow the appeal. The court must examine issues of law and all the evidence and make conclusions about it even though it did not have the opportunity to hear or see the witnesses testify.
In Mark Oururi Mose vs. Republic (2013) eKLR this mandated was restated thus:-
“……the court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analysed it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of appeal, the evidence in the trial courts record, the judgment of the trial magistrate and the written submissions the issues for determination are: -
- Whether the ingredients of the offence of defilement were proved beyond all reasonable doubt.
- Whether the Appellant was fabricated to settle a score with his estranged wife PW2.
- Whether the sentence was harsh and excessive.
It is trite law that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The said ingredients are whether there was penetration of the complainant’s genitalia whether the complainant was a child, and whether the penetration was by the Appellant.
This was the holding in Charles Wamukoya Karani vs. Republic in Criminal Appeal No. 72 of 2013 where it was stated that:-
“The critical ingredients forming the offence of defilement are age of the complainant, proof of penetration and positive identification of the assault.”
Section 8 (1) as read with Section 8 (3) under which the Appellant was charged and convicted provides as follows:-
Section8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
Section 8(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 20 years.
The Appellant argued that the complainants age was not proved. In Kaungu Elias Kasomo vs. Republic the Court of Appeal in Malindi Criminal Appeal No. 504 of 2010 held that age of the victim of sexual assault is critical component as it forms his part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential to be proved by credible evidence fro the sentence to be imposed will depend on the age of the victim. In Alfayo Gombe Okello vs. Republic (2010)EKLR it was held:-
“:…. 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 …’
When the complainant testified she did not give her age but she said she was in form III at Sukuta Girls. PW2 the mother of the complainant produced a birth certificate Exhibit 1 which showed that the complainant D. K. was born on 17.4.2006.
Being the Appellant is indicated as the father of the complainant it would be presumed that he knew her age and if it was not the one in the birth certificate he would have said so. This court therefore finds that the ground that age was not proved cannot stand.
On whether the ingredients of penetration and identification were proved, the complainant said that her father the Appellant herein called her to the sitting room at 1:00a.m where he sat watching TV and defiled her on the sofa set after he closed the door to the room where her 2 siblings were sleeping. That after he had defiled her he ordered her to take a bath under his watch before releasing her to go back to the room where they were sleeping. The following day she left while carrying her school bag and was escorted by her brother and she went to her grandmother’s place where she reported and her mother PW2 and her uncle took her to hospital and the matter was reported to police.
PW2 the complainant’s mother testified that the complainant arrived at 8:00a.m carrying a school bag and was crying. That upon calming her down the complainant reported that her father had defiled.
At Nyamache Sub County Hospital PW3 examined the complainant and he observed bruises on the genitalia with broken hymen and the complainant still had blood discharge with bruised vaginal wall. PW3 confirmed the complainant was defiled.
The Appellants claimed he was arrested and charged to settle scores between him and his wife PW2 over motorcycle. PW2 however, said that she left home because the Appellant threatened to cut her when she demanded to know where he took the motorbike. PW1 said her brother DW3 who testified as defence witness and another sibling were sleeping when the Appellant defiled her. He therefore did not see or hear the complainant being defiled. It is Apparent the Appellant and PW2 were estranged but there is independent evidence that from PW3 that the complainant was defiled. There is evidence from DW3 that the complainant was in the house on the material night and therefore placed PW1 and Appellant at the scene of the alleged defilement.
This court finds that the prosecution proved all the ingredients of the offence of defilement and the trial magistrate verdict cannot therefore be dislodged.
On the issue of sentence the Appellant defiled his daughter and as earlier indicated, 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 12 and 15 years is liable to imprisonment for a term of not less than 20 years. Ideally when an offence such as this is committed it is known as incest and one is liable where the victim is less than 18 years to life imprisonment. In this case the Appellant was sentence to serve 10 years imprisonment instead of the mandatory 20 years . I do agree with the Respondent’s counsel that the sentence passed against the Appellant was illegal and the same should be enhanced.
In the circumstances the sentence of 10 years is set aside and substituted thereof with a sentence of 20 years to take effect from the date of sentence in the trial court. The Appeal lacks merit and is dismissed. Right Appeal 14 days explained to the Appellant
DELIVERED, DATED and SIGNED at MIGORI this 10th day of January, 2025.