The Appellant Richard Ochieng alias Okumbo was charged with the offence of causing defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006.
The particulars were that on 25 th day of November 2021 at Ongita village, Komenya Sub-Location, West Kanyamkago Location in Migori County within the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of M. A. K. a girl aged 6 years.
In the alternative the Appellant was charged with the offence of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
Particulars are that on 25 th day of November 2021 at Ongita village, Komenya Sub-Location, West Kanyamkago Location in Migori County within the Republic of Kenya wilfully and unlawfully caused his penis to contact the vagina of M. A. K. a girl aged 6 years.
The Trial Magistrate considered the evidence of 7 prosecution witnesses and the Appellant’s sworn statement on defence and found that the prosecution had established beyond reasonable doubt that the Appellant had committed the offence of defilement and he was convicted and sentenced to serve 30 years imprisonment.
Being aggrieved by the conviction and sentence the Appellant lodged the appeal herein vide undated Petition of Appeal on the following grounds:-
1. That I pleaded not guilty to the charge herein.
2. That the trial court erred in both law and facts by not complying with Article 50(2) (g) and (h) of the Constitution 2010.
3. That the trial court erred in both law and facts not observing that the ingredients of the offence were not proved to the required standard in law.
REASONS WHEREFORE
i. Conviction should be quashed and sentence set aside
ii. Leave of the court to amend or supplement more grounds after receiving the lower court proceedings
iii. Any other order the court may deem fit to grant.
The brief background of the matter herein was that on 5 th November 2021 PW3 the mother of the complainant was informed by Von Velop that her daughter had been defiled by the Appellant. She said the Appellant was caught in the act by members of public who apprehended him. PW3 said she reported to her husband who went to the school and they went to where their daughter was. She said the daughter was disturbed and her eyes were red. She said the Appellant had given the Complainant 20/= so that she does not say what happened to her.
PW3 said that when they found the Complainant, she did not have the panty she had worn in the morning when going to school. The Complainant was taken to the dispensary and later to Uriri Sub-County Hospital where she was examined and treated after it was established that she had been defiled.
PW3 said that the Appellant was their neighbour. That the Chief called police and handed the Appellant to them and he was taken to Uriri Police Station where he was charged.
In cross examination PW3 said her daughter was bleeding after she had been defiled by the Appellant. She said the Appellant remained with the pant the Complainant was wearing.
PW1 Dola Komule Clinical Officer at Uriri Sub-County hospital testified that on 25 th Nvember 2021, he received 7 year old girl who went with history of having been defiled. That he examined the girl and found her clothes were dusty. That she had struggled and sustained bruises on the head, right cheek, frontal borne bruises and some marks on the neck. He also examined her genitalia and observed bruises in her vagina with broken hymen. That the girl had active bleeding in the vagina. On conducting lab tests the high vaginal swab revealed presence of sperms. He said that HrT had blood which was not menstrual. PW1 produced treatment notes as ExP1; P3 for as Ex P2 and PRC form as Ex P3.
PW2 the Complainant was examined by the court to establish her level of intelligence and whether she understood the meaning of oath and the court found that she was too young but confident and it was ordered that she gives unsworn statement.
PW2 said that she was a grade 1 learner at Ongito Primary School. She said that she came to tell the court that while she was on her way from school the Appellant put his genital in her vagina and Vana caught him defiling her under he mango tree. That later she told her mother what the Appellant had done and her mother reported to her teacher Mr. Ouma. Then the matter was reported to area chief. PW2 said the Appellant was their neighbour at home. She said it was the first time the Appellant defiled her. She said the Appellant gave her 20/= in coins of 10/= each. She said she was given the money after she had been defiled. She said that she gave the money to a certain woman whom she told she had been defiled. She said the money was given to her so that she does not tell anyone the Appellant had defiled her.
PW2 also confirmed that her mother took her to hospital where she was examined and given medicine.
She said that she lay on her back looking up and the Appellant lay on top of her while defiling her. She said that she was defiled during the day morning hours. She said that she felt pain when the Appellant defiled her. She said that the Appellant left her on seeing Vanci.
PW4 Evans Ochieng Otieno testified that he was on 25 th November 2021 at 9.00am he was from tobacco farm when he found the Appellant on top of the Complainant under a mango tree belonging to the Appellant’s father. That the Appellant stood with trouser on his knees and the Complainant also stood to go to school.
PW4 asked for permission from the Appellant to pick mangoes from the tree and he allowed him. PW4 said he saw the Appellant’s genitals which were exposed as the trouser was on his knees. That the Appellant returned his genitals into the trouser and zipped up.PW4 said that the Appellant is older than him and that is why he did not ask him what he was doing.
PW4 said he told the police what he found the Appellant doing. That he also old the step-mother of the Appellant what he found him doing. That the Appellant’s step mother reported to the Complainant’s father who in turn looked for him and he recorded a statement.
PW5 P. C. Emanuel Osiaju of Uriri Sub-County Rapogi Police Post testified that on 25 th November 2021 at about he was at the office when the Chief called the Officer In Charge and reported that someone had been found defiling a child and was arrested by members of the public and detained at he Chief’s office. That in company of a colleague they proceeded to the chief’s office and found the suspect whom they re-arrested and escorted to the hospital and later to Uriri Police Station. He identified the Appellant in court as the suspect they collected from the chief’s office.He said that the suspect had dreadlocks at the time of arrest but had since shaved.
In cross examination, PW5 said that the child was at the hospital by the time they arrived at the chief’s office and they took her to the Police Station to record a her statement.
PW6 Silvance Owiti, Chief North Kanyamkago Location testified that on 25 th November 2021 he received a call from village elder from Komenya Sub-Location informing him that th Appellant had been caught defiling a minor and members of public were about to kill him.
PW6 advised the village elder village to escort the suspect to the Assistant Chief’s office at Ongeto to save his life. That PW6 then called police from Rapogi Police Post and in company of two officers they proceeded to the Assistant Chief’s office where they found the suspect and some elders. That they rescued the Appellant and escorted him to Uriri Police Station for further action. PW6 said he saw the girl who was taken to Otuoro Sub-Location Hospital. PW6 identified the Appellant in the dock as the suspect they re-arrested and escorted to the police station.
In cross examination, PW6 said that clan elders told him they rescued the Appellant from members of the public who were lyncing him for defiling a child. He said that the child who was defiled was in school uniform but hre did not examine her to confirm she was indeed defiled and he did not also see any blood stains on her uniform.
PW7 P. C. Luciana Akoth Moses testified that she took over investigations from P. C. Emily who went on transfer. She said that she took part in investigations of the defilement case which took place on 25 th November 2021 together with P. C. Emily. She said that on the material day at 14.00hrs a woman called Ruth went to the station in company of her daughter and reported that her daughter had been defiled by a person known to her.
That on interrogation of the child she said that some learners had been sent home for school fees at 10.00am and she also went home. That on her way she met Ochieng who was standing under a mango tree. That the said Ochieng went to her and led her under the mango tree and laid her on the ground and, pushed her dress up, removed her inner wear and took his ‘dudu’ and put it in her ’dudu’. That the child said she felt pain and cried but Ochieng told her not to cry. That when the Appellant saw Evans he stood and wore his trouser and the minor started walking back to school. That the child was taken to Uriri Sub-County Hospital where he was treated and P3 form was duly filled. PW7 said that the suspect was rescued from members of the public who wanted to lynch him and he was taken to the Police Station where he was charged. That at the Police Station, the minor identified the Appellant as the one who defiled her.
PW7 produced the birth certificate for the minor showing she was born on 13 th January 2015.PW7 also said that the Appellant was taken to hospital because he was seriously injured. She said the child was taken to the station at 2.00pm but she did nor t see any blood stains on her uniform. She said she did not witness the defilement but P.C. Emily visited the scene. She said that an eye witness saw the Appellant in the act.
When the Appellant was placed on defence he gave sworn statement and said that he was arrested by a mob and taken to motor cycle stage where a village elder called Oweka took him from the mob and took him to the chief’s office where he stayed until 1.00pm. That at around 2.00pm the Sub-Chief came with police and he was taken to Uriri and on Friday he was taken to court.
That after charges were read to him he was taken to remand. He said he was aso taken to hospital and treated. He said he was not tested for any disease. The Appellant said he did not commit the offence and the charge was fictitious.
In cross examination, the Appellant said that between 9.30 to 10.00am on 25 th November 2021, he had taken his grand mother to Ayego on a motorcycle where they had gone to pick relief food. He said that he was with the village elder known as David Abuka in the field where he was grazing after going to pick relief food. He said that his grandmother died in March 2022 when he was in remand custody. He said that the Complainants family are their neighbours and they have a grudge with them as they have a land dispute. He said the land dispute is not in court.
1. The appeal was canvassed by way of written submissions. The Appellant subsequently indicated in his submissions that he was not contesting the conviction but sought reduction of the sentence. He nevertheless challenged the medical evidence, contending that the high vaginal swab did not establish defilement and that a broken hymen was not, by itself, evidence of defilement. He also pleaded remorse and his status as a first offender. The Respondent urged the Court to dismiss the appeal and uphold the sentence.
ANALYSIS AND DETERMINATION
This being a first appeal, the Court is required to reconsider and re-evaluate the evidence tendered before the trial court and reach its own independent conclusion. It must, however, bear in mind that it neither saw nor heard the witnesses and should therefore give due allowance for that fact. The principles were settled in Okeno v Republic [1972] EA 32 and have consistently been applied by the appellate courts.
This court has accordingly subjected the entire evidence to a fresh and exhaustive evaluation and has considered the Appellant's defence, the grounds of appeal and the respective submissions. The issues that arise for determination are:-
i. Whether the trial court complied with the constitutional and statutory requirements governing the reception of the complainant's evidence;
ii. Whether the prosecution proved the essential ingredients of the offence of defilement beyond reasonable doubt;
v. Whether the Appellant's rights under Article 50(2)(g) and (h) of the Constitution were violated;
v. Whether the Appellant's defence raised a reasonable doubt; and
vi. Whether the sentence of thirty (30) years imprisonment ought to be interfered with.
On the 1 st issue as to whether the ingredients of the offence of defilement were proved beyond reasonable doubt, Section 8(1) of the Sexual Offences Act provides that a person who commits an act which causes penetration with a child is guilty of defilement.
Section 2 of the Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
It is settled that the prosecution in a charge of defilement must establish three essential elements: the age of the complainant, penetration and the identity of the perpetrator .
In the case of George Opondo Olunga v Republic [2016] eKLR the Court of Appeal held:-
“the ingredients of the offence of defilement as provided for under Section 8(1) one of the Sexual Offences Act , which must be established are the age of the victim, penetration, and proper identification of the perpetrator.”
The complainant's age was an important ingredient, particularly because the charge was brought under section 8(2), which applies where the child is eleven years or less.
PW7 produced the Complainant's birth certificate showing that she was born on 13th January 2015. The offence was alleged to have occurred on 25th November 2021. The complainant was therefore six years old at the material time.
The birth certificate constituted cogent documentary evidence of age. In Edwin Nyambogo Onsongo v Republic [2016] eKLR it was held that the law does not require age in a defilement case to be proved by one particular type of evidence. It may be proved by a birth certificate, baptismal card, medical evidence, evidence of a parent or guardian, or credible oral evidence. What is required is reliable evidence establishing the age.
This court therefore finds that the prosecution proved beyond reasonable doubt that the Complainant was a child aged six years at the time of the offence.
The second ingredient is penetration. The Complainant testified that the Appellant put his genital organ into her vagina while they were under a mango tree. She stated that she was lying on her back, the Appellant was on top of her and that she felt pain. She further stated that the Appellant stopped when he saw PW4.
That testimony was materially corroborated by PW4, Evans Ochieng Otieno, who testified that at about 9.00 a.m. he found the Appellant on top of the Complainant under a mango tree. He observed the Appellant's trousers at his knees and saw his exposed genitalia before the Appellant returned his genital organ into his trousers and zipped up.
There was further medical evidence. PW1, the Clinical Officer, examined the complainant and observed bruises in her vagina, a broken hymen and active bleeding. He further testified that laboratory analysis of the high vaginal swab revealed the presence of sperm. He produced the treatment notes, P3 form and PRC form as exhibits.
The Appellant submitted that there was no proof of defilement because, according to him, the high vaginal swab did not reveal spermatozoa and a broken hymen is not necessarily proof of defilement. That submission does not accord with the evidence as recorded. PW1 expressly testified that the high vaginal swab revealed the presence of sperms. In any event, the prosecution was not required to prove penetration exclusively through medical evidence.
In Wamukoya Karani v Republic , the Court of Appeal recognised penetration as one of the critical ingredients of defilement and held:-
“On the aspect of penetration , the two courts relied on the evidence of PW1 and PW 4 to conclude that the same was proved in line with section 2 of the Sexual Offences Act . Furthermore, from the pregnancy test results, there was nothing to suggest that the pregnancy was artificially implanted other than through penetration .”
The Court of Appeal further held:-
“ In Williamson Sowa Mbwanga v Republi c (2016) eKLR this Court stated that;“...it is patently clear to us that whilst paternity of PM's child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence, does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM's child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See Twehangane Alfred v Uganda, Cr. App. No. 139 of 2001)."Clearly then, the absence of a DNA test does not negate the prosecution’s case. See also IMA v Republic [2019] eKLR.”
Similarly, in Ambrose Mwawindo Ngwatu v Republic [2016] KECA 157 (KLR), the Court of Appeal emphasised that penetration may be established from the evidence of the complainant, with medical evidence providing corroboration where available.
In the present case, the evidence went beyond the complainant's testimony. There was the eyewitness evidence of PW4 and the medical findings of bruising, broken hymen and bleeding. Taken together, that evidence provided compelling proof that penetration occurred.
This court therefore finds that the second ingredient was proved beyond reasonable doubt.
The third ingredient is proof that it was the Appellant who committed the act. This was not a case of identification of a stranger under difficult circumstances. The Complainant testified that the Appellant was their neighbour and identified him by name. The incident occurred during daylight hours. PW4 independently placed the Appellant on top of the Complainant under the mango tree and observed his exposed genitalia. The Appellant was subsequently arrested by members of the public and handed over to the Administration Police and thereafter to the police. PW5 and PW6 both identified him in court as the person who had been rescued and taken into police custody following the report that he had been caught defiling a child.
The circumstances were therefore highly favourable to recognition. The incident occurred in daylight and the Complainant knew the Appellant as a neighbour. PW4 also had an opportunity to observe the Appellant at close range. There was consequently no realistic possibility of mistaken identity.
The Court of Appeal in Mwendwa v Republic [2022] KECA 588 (KLR) reaffirmed that in defilement cases the prosecution must prove positive identification of the offender and noted that where the Complainant knew the Appellant and the incident occurred in broad daylight, the possibility of mistaken identity may be effectively excluded.
Similarly, in Joseph Mwangi v Republic [2015] KEHC 2177 (KLR), the High Court held that where the circumstances of identification are favourable and the Complainant knows the perpetrator, an identification parade may not be necessary.
This court is satisfied that the Appellant was positively identified and that his identity as the perpetrator was established beyond reasonable doubt.
On the evidence of the child and voire dire examination, the record shows that the trial court examined the complainant to establish her intelligence and whether she understood the nature of an oath. The court found that she was too young to understand the oath but was confident and directed that she gives an unsworn statement.
Section 19 of the Oaths and Statutory Declarations Act permits the evidence of a child of tender years to be received without oath where the court is satisfied that the child possesses sufficient intelligence to justify reception of the evidence and understands the duty of speaking the truth.
The purpose of the preliminary examination is therefore not merely to establish the age of the witness. The court must satisfy itself concerning the child's capacity to understand the nature of an oath and, where the child does not understand the oath, whether the child nevertheless possesses sufficient intelligence and understands the duty to speak the truth.
In the present case, the record indicates that the trial court conducted the requisite inquiry before receiving the child's evidence. The court's conclusion was that she was too young to give sworn evidence but sufficiently competent to give an unsworn statement. There is nothing on the material before this court demonstrating that the procedure adopted was defective. It is therefore this court finding that the complainant's evidence was properly received
The Appellant's submissions suggest that the Complainant's evidence required corroboration. The position under section 124 of the Evidence Act must, however, be properly understood.
Section 124 contains a proviso applicable to sexual offences. Where the only evidence is that of the alleged victim, the court may convict on that evidence if, for reasons to be recorded, it is satisfied that the victim is telling the truth. Thus, corroboration is not an absolute statutory requirement in a sexual offence. The court must nevertheless carefully scrutinize the evidence and be satisfied as to its truthfulness. The proviso was enacted to remove the former rigid requirement that the evidence of a child victim in a sexual offence could not sustain a conviction unless corroborated.
In Robert Kabwere Kiti v Republic [2012] eKLR it was held:-
“ Turning to corroboration as a requirement for the minor’s evidence as complained by the appellant, in the Mohamed versus Republic case (Supra) this Court made the following observations :-
“By legal notice NO.5 of 2005 which introduced the provisoto Section 124 of the Evidence Act, Parliament drastically qualified Section 124 of the Evidence Act to enable a court in a sexual offence case to convict on the sole evidence of a child of tender years if satisfied that the child was telling the truth so that corroboration was no longer required as a matter of law making it now settled that the courts shall no longer be humstrung by requirements of corroboration where the witness of a sexual offence is a child of tender years if it is satisfied that the child is truthful.”
In line with the aforesaid reasoning in the two cited cases above, we find that no corroboration was required for the testimony of “H”“K”, the complaint herein. We note that the trial magistrate was satisfied she was a truthful witness but all the same sought other supporting evidence and found it in the evidence of PW2 who noticed the child walking with difficulty and upon interrogation of the child and being told of what the child had undergone and going further to examine the child, observed injuries on the child’s private parts. PW2’s observations were confirmed by medical evidence adduced through PW5 and the production of the P3. On this challenge we observe that the two courts below having made concurrent findings of fact, no legal basis was established for our intervention at all.”
In this case, however, the issue is even less difficult because the Complainant's evidence was not standing alone. PW4 gave direct eyewitness evidence placing the Appellant on top of the child, while PW1 provided medical evidence consistent with penetration. PW3 also testified concerning the immediate report and condition of the child.
The totality of that evidence materially corroborated the complainant's account. This court therefore finds no basis upon which the trial court's acceptance of the Complainant's evidence can properly be faulted.
The Appellant also complained that his right to a fair trial under Article 50(2)(g) and (h) of the Constitution was violated.
Article 50(2)(g) guarantees an accused person the right to choose and be represented by an advocate and to be informed of that right promptly. Article 50(2)(h) provides for an advocate to be assigned by the State and at State expense where substantial injustice would otherwise result.
The courts have emphasized that the trial court has a duty to inform an accused person of these rights, particularly at the earliest stage of the proceedings. The question on appeal, however, is not simply whether an abstract constitutional right exists. The Court must examine the trial record and determine whether the Appellant was denied a fair trial and whether any failure occasioned substantial injustice or prejudice.
In KO v Republic [2023] KEHC 18310 (KLR), the High Court considered the right to legal representation in a sexual offence carrying a severe sentence and emphasised the obligations imposed upon trial courts under Article 50(2)(g) and (h) and section 43 of the Legal Aid Act.
This court has carefully considered the material placed before this Court. The Appellant has not identified from the record the particular stage at which he was denied an opportunity to obtain counsel, nor has he demonstrated that he requested legal representation and that the request was declined. Neither has he demonstrated what aspect of his defence was compromised by the alleged violation. More importantly, the record shows that when placed on his defence the Appellant gave sworn evidence and was cross-examined. He was therefore afforded an opportunity to challenge the prosecution evidence and present his defence.
In the absence of evidence demonstrating actual prejudice or substantial injustice, this court is unable to conclude that the trial was rendered a nullity on the basis of the bare assertion contained in the ground of appeal. This ground has not been established.
In his defence the Appellant denied committing the offence. He stated that on the material morning he had taken his grandmother to Ayego on a motorcycle to collect relief food and thereafter was in a field grazing with a village elder. He also alleged that the Complainant's family had a land dispute with his family.
The defence has been duly considered alongside the prosecution evidence. The alleged alibi was not supported by the village elder whom the Appellant named. More importantly, it did not satisfactorily account for the evidence of PW4, who placed the Appellant at the scene at about 9.00 a.m.
The alleged land dispute was also not demonstrated to be of such nature as would reasonably explain why the Complainant, an exceptionally young child, would falsely implicate the Appellant, particularly in circumstances where her evidence was materially corroborated by an eyewitness and medical evidence.
This court therefore finds that the Appellant's defence did not raise a reasonable doubt in the prosecution case.
Having reconsidered the entire evidence, this court finds that the prosecution established beyond reasonable doubt:
a. that the complainant was a child aged six years;
b. that penetration occurred; and
c. that the person who caused the penetration was the Appellant.
The evidence of the complainant was cogent and materially consistent. It was corroborated by PW4's eyewitness account and the medical findings. The identification was one of recognition in broad daylight of a person known to the complainant. In the circumstances the conviction was safe and properly entered.
The Appellant was sentenced to thirty (30) years imprisonment under section 8(2) of the Sexual Offences Act. The Appellant seeks leniency on the basis that he is a first offender, has been remorseful and has learnt his lesson. Section 8(2) provides that a person who commits defilement with a child aged eleven years or less shall, upon conviction, be sentenced to imprisonment for life.
The sentencing question must now be considered in light of the authoritative decision of the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) , Petition E018 of 2023, [2024] KESC 34 (KLR), delivered on 12th July 2024. The Supreme Court held that the statutory sentencing provisions under the Sexual Offences Act remain valid and that courts cannot simply substitute a lesser sentence on the basis that a statutory sentence is harsh or disproportionate.
The Supreme Court further clarified the distinction between a mandatory sentence and a minimum sentence. A mandatory sentence leaves no discretion as to the sentence prescribed, whereas a minimum sentence establishes the floor below which a court cannot go, while allowing a harsher sentence where the statute permits it. In the present case, the complainant was six years old. The applicable statutory provision was therefore Section 8(2), which prescribes life imprisonment.
The trial court nevertheless imposed a term of thirty years imprisonment. The prosecution has not filed a cross-appeal challenging the sentence or asking this Court
[...truncated]
The particulars were that on 25 th day of November 2021 at Ongita village, Komenya Sub-Location, West Kanyamkago Location in Migori County within the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of M. A. K. a girl aged 6 years.
In the alternative the Appellant was charged with the offence of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
Particulars are that on 25 th day of November 2021 at Ongita village, Komenya Sub-Location, West Kanyamkago Location in Migori County within the Republic of Kenya wilfully and unlawfully caused his penis to contact the vagina of M. A. K. a girl aged 6 years.
The Trial Magistrate considered the evidence of 7 prosecution witnesses and the Appellant’s sworn statement on defence and found that the prosecution had established beyond reasonable doubt that the Appellant had committed the offence of defilement and he was convicted and sentenced to serve 30 years imprisonment.
Being aggrieved by the conviction and sentence the Appellant lodged the appeal herein vide undated Petition of Appeal on the following grounds:-
1. That I pleaded not guilty to the charge herein.
2. That the trial court erred in both law and facts by not complying with Article 50(2) (g) and (h) of the Constitution 2010.
3. That the trial court erred in both law and facts not observing that the ingredients of the offence were not proved to the required standard in law.
REASONS WHEREFORE
i. Conviction should be quashed and sentence set aside
ii. Leave of the court to amend or supplement more grounds after receiving the lower court proceedings
iii. Any other order the court may deem fit to grant.
The brief background of the matter herein was that on 5 th November 2021 PW3 the mother of the complainant was informed by Von Velop that her daughter had been defiled by the Appellant. She said the Appellant was caught in the act by members of public who apprehended him. PW3 said she reported to her husband who went to the school and they went to where their daughter was. She said the daughter was disturbed and her eyes were red. She said the Appellant had given the Complainant 20/= so that she does not say what happened to her.
PW3 said that when they found the Complainant, she did not have the panty she had worn in the morning when going to school. The Complainant was taken to the dispensary and later to Uriri Sub-County Hospital where she was examined and treated after it was established that she had been defiled.
PW3 said that the Appellant was their neighbour. That the Chief called police and handed the Appellant to them and he was taken to Uriri Police Station where he was charged.
In cross examination PW3 said her daughter was bleeding after she had been defiled by the Appellant. She said the Appellant remained with the pant the Complainant was wearing.
PW1 Dola Komule Clinical Officer at Uriri Sub-County hospital testified that on 25 th Nvember 2021, he received 7 year old girl who went with history of having been defiled. That he examined the girl and found her clothes were dusty. That she had struggled and sustained bruises on the head, right cheek, frontal borne bruises and some marks on the neck. He also examined her genitalia and observed bruises in her vagina with broken hymen. That the girl had active bleeding in the vagina. On conducting lab tests the high vaginal swab revealed presence of sperms. He said that HrT had blood which was not menstrual. PW1 produced treatment notes as ExP1; P3 for as Ex P2 and PRC form as Ex P3.
PW2 the Complainant was examined by the court to establish her level of intelligence and whether she understood the meaning of oath and the court found that she was too young but confident and it was ordered that she gives unsworn statement.
PW2 said that she was a grade 1 learner at Ongito Primary School. She said that she came to tell the court that while she was on her way from school the Appellant put his genital in her vagina and Vana caught him defiling her under he mango tree. That later she told her mother what the Appellant had done and her mother reported to her teacher Mr. Ouma. Then the matter was reported to area chief. PW2 said the Appellant was their neighbour at home. She said it was the first time the Appellant defiled her. She said the Appellant gave her 20/= in coins of 10/= each. She said she was given the money after she had been defiled. She said that she gave the money to a certain woman whom she told she had been defiled. She said the money was given to her so that she does not tell anyone the Appellant had defiled her.
PW2 also confirmed that her mother took her to hospital where she was examined and given medicine.
She said that she lay on her back looking up and the Appellant lay on top of her while defiling her. She said that she was defiled during the day morning hours. She said that she felt pain when the Appellant defiled her. She said that the Appellant left her on seeing Vanci.
PW4 Evans Ochieng Otieno testified that he was on 25 th November 2021 at 9.00am he was from tobacco farm when he found the Appellant on top of the Complainant under a mango tree belonging to the Appellant’s father. That the Appellant stood with trouser on his knees and the Complainant also stood to go to school.
PW4 asked for permission from the Appellant to pick mangoes from the tree and he allowed him. PW4 said he saw the Appellant’s genitals which were exposed as the trouser was on his knees. That the Appellant returned his genitals into the trouser and zipped up.PW4 said that the Appellant is older than him and that is why he did not ask him what he was doing.
PW4 said he told the police what he found the Appellant doing. That he also old the step-mother of the Appellant what he found him doing. That the Appellant’s step mother reported to the Complainant’s father who in turn looked for him and he recorded a statement.
PW5 P. C. Emanuel Osiaju of Uriri Sub-County Rapogi Police Post testified that on 25 th November 2021 at about he was at the office when the Chief called the Officer In Charge and reported that someone had been found defiling a child and was arrested by members of the public and detained at he Chief’s office. That in company of a colleague they proceeded to the chief’s office and found the suspect whom they re-arrested and escorted to the hospital and later to Uriri Police Station. He identified the Appellant in court as the suspect they collected from the chief’s office.He said that the suspect had dreadlocks at the time of arrest but had since shaved.
In cross examination, PW5 said that the child was at the hospital by the time they arrived at the chief’s office and they took her to the Police Station to record a her statement.
PW6 Silvance Owiti, Chief North Kanyamkago Location testified that on 25 th November 2021 he received a call from village elder from Komenya Sub-Location informing him that th Appellant had been caught defiling a minor and members of public were about to kill him.
PW6 advised the village elder village to escort the suspect to the Assistant Chief’s office at Ongeto to save his life. That PW6 then called police from Rapogi Police Post and in company of two officers they proceeded to the Assistant Chief’s office where they found the suspect and some elders. That they rescued the Appellant and escorted him to Uriri Police Station for further action. PW6 said he saw the girl who was taken to Otuoro Sub-Location Hospital. PW6 identified the Appellant in the dock as the suspect they re-arrested and escorted to the police station.
In cross examination, PW6 said that clan elders told him they rescued the Appellant from members of the public who were lyncing him for defiling a child. He said that the child who was defiled was in school uniform but hre did not examine her to confirm she was indeed defiled and he did not also see any blood stains on her uniform.
PW7 P. C. Luciana Akoth Moses testified that she took over investigations from P. C. Emily who went on transfer. She said that she took part in investigations of the defilement case which took place on 25 th November 2021 together with P. C. Emily. She said that on the material day at 14.00hrs a woman called Ruth went to the station in company of her daughter and reported that her daughter had been defiled by a person known to her.
That on interrogation of the child she said that some learners had been sent home for school fees at 10.00am and she also went home. That on her way she met Ochieng who was standing under a mango tree. That the said Ochieng went to her and led her under the mango tree and laid her on the ground and, pushed her dress up, removed her inner wear and took his ‘dudu’ and put it in her ’dudu’. That the child said she felt pain and cried but Ochieng told her not to cry. That when the Appellant saw Evans he stood and wore his trouser and the minor started walking back to school. That the child was taken to Uriri Sub-County Hospital where he was treated and P3 form was duly filled. PW7 said that the suspect was rescued from members of the public who wanted to lynch him and he was taken to the Police Station where he was charged. That at the Police Station, the minor identified the Appellant as the one who defiled her.
PW7 produced the birth certificate for the minor showing she was born on 13 th January 2015.PW7 also said that the Appellant was taken to hospital because he was seriously injured. She said the child was taken to the station at 2.00pm but she did nor t see any blood stains on her uniform. She said she did not witness the defilement but P.C. Emily visited the scene. She said that an eye witness saw the Appellant in the act.
When the Appellant was placed on defence he gave sworn statement and said that he was arrested by a mob and taken to motor cycle stage where a village elder called Oweka took him from the mob and took him to the chief’s office where he stayed until 1.00pm. That at around 2.00pm the Sub-Chief came with police and he was taken to Uriri and on Friday he was taken to court.
That after charges were read to him he was taken to remand. He said he was aso taken to hospital and treated. He said he was not tested for any disease. The Appellant said he did not commit the offence and the charge was fictitious.
In cross examination, the Appellant said that between 9.30 to 10.00am on 25 th November 2021, he had taken his grand mother to Ayego on a motorcycle where they had gone to pick relief food. He said that he was with the village elder known as David Abuka in the field where he was grazing after going to pick relief food. He said that his grandmother died in March 2022 when he was in remand custody. He said that the Complainants family are their neighbours and they have a grudge with them as they have a land dispute. He said the land dispute is not in court.
1. The appeal was canvassed by way of written submissions. The Appellant subsequently indicated in his submissions that he was not contesting the conviction but sought reduction of the sentence. He nevertheless challenged the medical evidence, contending that the high vaginal swab did not establish defilement and that a broken hymen was not, by itself, evidence of defilement. He also pleaded remorse and his status as a first offender. The Respondent urged the Court to dismiss the appeal and uphold the sentence.
ANALYSIS AND DETERMINATION
This being a first appeal, the Court is required to reconsider and re-evaluate the evidence tendered before the trial court and reach its own independent conclusion. It must, however, bear in mind that it neither saw nor heard the witnesses and should therefore give due allowance for that fact. The principles were settled in Okeno v Republic [1972] EA 32 and have consistently been applied by the appellate courts.
This court has accordingly subjected the entire evidence to a fresh and exhaustive evaluation and has considered the Appellant's defence, the grounds of appeal and the respective submissions. The issues that arise for determination are:-
i. Whether the trial court complied with the constitutional and statutory requirements governing the reception of the complainant's evidence;
ii. Whether the prosecution proved the essential ingredients of the offence of defilement beyond reasonable doubt;
v. Whether the Appellant's rights under Article 50(2)(g) and (h) of the Constitution were violated;
v. Whether the Appellant's defence raised a reasonable doubt; and
vi. Whether the sentence of thirty (30) years imprisonment ought to be interfered with.
On the 1 st issue as to whether the ingredients of the offence of defilement were proved beyond reasonable doubt, Section 8(1) of the Sexual Offences Act provides that a person who commits an act which causes penetration with a child is guilty of defilement.
Section 2 of the Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
It is settled that the prosecution in a charge of defilement must establish three essential elements: the age of the complainant, penetration and the identity of the perpetrator .
In the case of George Opondo Olunga v Republic [2016] eKLR the Court of Appeal held:-
“the ingredients of the offence of defilement as provided for under Section 8(1) one of the Sexual Offences Act , which must be established are the age of the victim, penetration, and proper identification of the perpetrator.”
The complainant's age was an important ingredient, particularly because the charge was brought under section 8(2), which applies where the child is eleven years or less.
PW7 produced the Complainant's birth certificate showing that she was born on 13th January 2015. The offence was alleged to have occurred on 25th November 2021. The complainant was therefore six years old at the material time.
The birth certificate constituted cogent documentary evidence of age. In Edwin Nyambogo Onsongo v Republic [2016] eKLR it was held that the law does not require age in a defilement case to be proved by one particular type of evidence. It may be proved by a birth certificate, baptismal card, medical evidence, evidence of a parent or guardian, or credible oral evidence. What is required is reliable evidence establishing the age.
This court therefore finds that the prosecution proved beyond reasonable doubt that the Complainant was a child aged six years at the time of the offence.
The second ingredient is penetration. The Complainant testified that the Appellant put his genital organ into her vagina while they were under a mango tree. She stated that she was lying on her back, the Appellant was on top of her and that she felt pain. She further stated that the Appellant stopped when he saw PW4.
That testimony was materially corroborated by PW4, Evans Ochieng Otieno, who testified that at about 9.00 a.m. he found the Appellant on top of the Complainant under a mango tree. He observed the Appellant's trousers at his knees and saw his exposed genitalia before the Appellant returned his genital organ into his trousers and zipped up.
There was further medical evidence. PW1, the Clinical Officer, examined the complainant and observed bruises in her vagina, a broken hymen and active bleeding. He further testified that laboratory analysis of the high vaginal swab revealed the presence of sperm. He produced the treatment notes, P3 form and PRC form as exhibits.
The Appellant submitted that there was no proof of defilement because, according to him, the high vaginal swab did not reveal spermatozoa and a broken hymen is not necessarily proof of defilement. That submission does not accord with the evidence as recorded. PW1 expressly testified that the high vaginal swab revealed the presence of sperms. In any event, the prosecution was not required to prove penetration exclusively through medical evidence.
In Wamukoya Karani v Republic , the Court of Appeal recognised penetration as one of the critical ingredients of defilement and held:-
“On the aspect of penetration , the two courts relied on the evidence of PW1 and PW 4 to conclude that the same was proved in line with section 2 of the Sexual Offences Act . Furthermore, from the pregnancy test results, there was nothing to suggest that the pregnancy was artificially implanted other than through penetration .”
The Court of Appeal further held:-
“ In Williamson Sowa Mbwanga v Republi c (2016) eKLR this Court stated that;“...it is patently clear to us that whilst paternity of PM's child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence, does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM's child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See Twehangane Alfred v Uganda, Cr. App. No. 139 of 2001)."Clearly then, the absence of a DNA test does not negate the prosecution’s case. See also IMA v Republic [2019] eKLR.”
Similarly, in Ambrose Mwawindo Ngwatu v Republic [2016] KECA 157 (KLR), the Court of Appeal emphasised that penetration may be established from the evidence of the complainant, with medical evidence providing corroboration where available.
In the present case, the evidence went beyond the complainant's testimony. There was the eyewitness evidence of PW4 and the medical findings of bruising, broken hymen and bleeding. Taken together, that evidence provided compelling proof that penetration occurred.
This court therefore finds that the second ingredient was proved beyond reasonable doubt.
The third ingredient is proof that it was the Appellant who committed the act. This was not a case of identification of a stranger under difficult circumstances. The Complainant testified that the Appellant was their neighbour and identified him by name. The incident occurred during daylight hours. PW4 independently placed the Appellant on top of the Complainant under the mango tree and observed his exposed genitalia. The Appellant was subsequently arrested by members of the public and handed over to the Administration Police and thereafter to the police. PW5 and PW6 both identified him in court as the person who had been rescued and taken into police custody following the report that he had been caught defiling a child.
The circumstances were therefore highly favourable to recognition. The incident occurred in daylight and the Complainant knew the Appellant as a neighbour. PW4 also had an opportunity to observe the Appellant at close range. There was consequently no realistic possibility of mistaken identity.
The Court of Appeal in Mwendwa v Republic [2022] KECA 588 (KLR) reaffirmed that in defilement cases the prosecution must prove positive identification of the offender and noted that where the Complainant knew the Appellant and the incident occurred in broad daylight, the possibility of mistaken identity may be effectively excluded.
Similarly, in Joseph Mwangi v Republic [2015] KEHC 2177 (KLR), the High Court held that where the circumstances of identification are favourable and the Complainant knows the perpetrator, an identification parade may not be necessary.
This court is satisfied that the Appellant was positively identified and that his identity as the perpetrator was established beyond reasonable doubt.
On the evidence of the child and voire dire examination, the record shows that the trial court examined the complainant to establish her intelligence and whether she understood the nature of an oath. The court found that she was too young to understand the oath but was confident and directed that she gives an unsworn statement.
Section 19 of the Oaths and Statutory Declarations Act permits the evidence of a child of tender years to be received without oath where the court is satisfied that the child possesses sufficient intelligence to justify reception of the evidence and understands the duty of speaking the truth.
The purpose of the preliminary examination is therefore not merely to establish the age of the witness. The court must satisfy itself concerning the child's capacity to understand the nature of an oath and, where the child does not understand the oath, whether the child nevertheless possesses sufficient intelligence and understands the duty to speak the truth.
In the present case, the record indicates that the trial court conducted the requisite inquiry before receiving the child's evidence. The court's conclusion was that she was too young to give sworn evidence but sufficiently competent to give an unsworn statement. There is nothing on the material before this court demonstrating that the procedure adopted was defective. It is therefore this court finding that the complainant's evidence was properly received
The Appellant's submissions suggest that the Complainant's evidence required corroboration. The position under section 124 of the Evidence Act must, however, be properly understood.
Section 124 contains a proviso applicable to sexual offences. Where the only evidence is that of the alleged victim, the court may convict on that evidence if, for reasons to be recorded, it is satisfied that the victim is telling the truth. Thus, corroboration is not an absolute statutory requirement in a sexual offence. The court must nevertheless carefully scrutinize the evidence and be satisfied as to its truthfulness. The proviso was enacted to remove the former rigid requirement that the evidence of a child victim in a sexual offence could not sustain a conviction unless corroborated.
In Robert Kabwere Kiti v Republic [2012] eKLR it was held:-
“ Turning to corroboration as a requirement for the minor’s evidence as complained by the appellant, in the Mohamed versus Republic case (Supra) this Court made the following observations :-
“By legal notice NO.5 of 2005 which introduced the provisoto Section 124 of the Evidence Act, Parliament drastically qualified Section 124 of the Evidence Act to enable a court in a sexual offence case to convict on the sole evidence of a child of tender years if satisfied that the child was telling the truth so that corroboration was no longer required as a matter of law making it now settled that the courts shall no longer be humstrung by requirements of corroboration where the witness of a sexual offence is a child of tender years if it is satisfied that the child is truthful.”
In line with the aforesaid reasoning in the two cited cases above, we find that no corroboration was required for the testimony of “H”“K”, the complaint herein. We note that the trial magistrate was satisfied she was a truthful witness but all the same sought other supporting evidence and found it in the evidence of PW2 who noticed the child walking with difficulty and upon interrogation of the child and being told of what the child had undergone and going further to examine the child, observed injuries on the child’s private parts. PW2’s observations were confirmed by medical evidence adduced through PW5 and the production of the P3. On this challenge we observe that the two courts below having made concurrent findings of fact, no legal basis was established for our intervention at all.”
In this case, however, the issue is even less difficult because the Complainant's evidence was not standing alone. PW4 gave direct eyewitness evidence placing the Appellant on top of the child, while PW1 provided medical evidence consistent with penetration. PW3 also testified concerning the immediate report and condition of the child.
The totality of that evidence materially corroborated the complainant's account. This court therefore finds no basis upon which the trial court's acceptance of the Complainant's evidence can properly be faulted.
The Appellant also complained that his right to a fair trial under Article 50(2)(g) and (h) of the Constitution was violated.
Article 50(2)(g) guarantees an accused person the right to choose and be represented by an advocate and to be informed of that right promptly. Article 50(2)(h) provides for an advocate to be assigned by the State and at State expense where substantial injustice would otherwise result.
The courts have emphasized that the trial court has a duty to inform an accused person of these rights, particularly at the earliest stage of the proceedings. The question on appeal, however, is not simply whether an abstract constitutional right exists. The Court must examine the trial record and determine whether the Appellant was denied a fair trial and whether any failure occasioned substantial injustice or prejudice.
In KO v Republic [2023] KEHC 18310 (KLR), the High Court considered the right to legal representation in a sexual offence carrying a severe sentence and emphasised the obligations imposed upon trial courts under Article 50(2)(g) and (h) and section 43 of the Legal Aid Act.
This court has carefully considered the material placed before this Court. The Appellant has not identified from the record the particular stage at which he was denied an opportunity to obtain counsel, nor has he demonstrated that he requested legal representation and that the request was declined. Neither has he demonstrated what aspect of his defence was compromised by the alleged violation. More importantly, the record shows that when placed on his defence the Appellant gave sworn evidence and was cross-examined. He was therefore afforded an opportunity to challenge the prosecution evidence and present his defence.
In the absence of evidence demonstrating actual prejudice or substantial injustice, this court is unable to conclude that the trial was rendered a nullity on the basis of the bare assertion contained in the ground of appeal. This ground has not been established.
In his defence the Appellant denied committing the offence. He stated that on the material morning he had taken his grandmother to Ayego on a motorcycle to collect relief food and thereafter was in a field grazing with a village elder. He also alleged that the Complainant's family had a land dispute with his family.
The defence has been duly considered alongside the prosecution evidence. The alleged alibi was not supported by the village elder whom the Appellant named. More importantly, it did not satisfactorily account for the evidence of PW4, who placed the Appellant at the scene at about 9.00 a.m.
The alleged land dispute was also not demonstrated to be of such nature as would reasonably explain why the Complainant, an exceptionally young child, would falsely implicate the Appellant, particularly in circumstances where her evidence was materially corroborated by an eyewitness and medical evidence.
This court therefore finds that the Appellant's defence did not raise a reasonable doubt in the prosecution case.
Having reconsidered the entire evidence, this court finds that the prosecution established beyond reasonable doubt:
a. that the complainant was a child aged six years;
b. that penetration occurred; and
c. that the person who caused the penetration was the Appellant.
The evidence of the complainant was cogent and materially consistent. It was corroborated by PW4's eyewitness account and the medical findings. The identification was one of recognition in broad daylight of a person known to the complainant. In the circumstances the conviction was safe and properly entered.
The Appellant was sentenced to thirty (30) years imprisonment under section 8(2) of the Sexual Offences Act. The Appellant seeks leniency on the basis that he is a first offender, has been remorseful and has learnt his lesson. Section 8(2) provides that a person who commits defilement with a child aged eleven years or less shall, upon conviction, be sentenced to imprisonment for life.
The sentencing question must now be considered in light of the authoritative decision of the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) , Petition E018 of 2023, [2024] KESC 34 (KLR), delivered on 12th July 2024. The Supreme Court held that the statutory sentencing provisions under the Sexual Offences Act remain valid and that courts cannot simply substitute a lesser sentence on the basis that a statutory sentence is harsh or disproportionate.
The Supreme Court further clarified the distinction between a mandatory sentence and a minimum sentence. A mandatory sentence leaves no discretion as to the sentence prescribed, whereas a minimum sentence establishes the floor below which a court cannot go, while allowing a harsher sentence where the statute permits it. In the present case, the complainant was six years old. The applicable statutory provision was therefore Section 8(2), which prescribes life imprisonment.
The trial court nevertheless imposed a term of thirty years imprisonment. The prosecution has not filed a cross-appeal challenging the sentence or asking this Court
[...truncated]