(Being an appeal from the conviction and sentence of Hon. Sandra Ogot in Msambweni Magistrates Court Sexual Offence (SO) Case No. 56 of 2020 delivered on 28/4/2023)
J U D G M E N T
1. The appellant, Robert Musembi Maweu was convicted on two counts of the offence of defilement contrary to section 8(1) as read with section 8(3) in the first count and section 8(2) in the second count of the Sexual Offences Act (Cap. 63A) Laws of Kenya, the complainants being aged 13 years and 7 years respectively. Other than the two complainants, the rest of the particulars are the same that that on 9/9/2020n at round 1300 Hours at Kipambani village of Majimboni location in Kwale County within Coast region, intentionally and unlawfully caused his penis to penetrate the vagina of B.M., a child aged 13 years, in the 1st count and F.M., a child aged 7 years, in the second count.
2. He was also charged with alternative charge to each of the two principal charges of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same day, place and time as in the principal charges the appellant intentionally and unlawfully touched with his penis the vagina of B.M. a child aged 13 years in respect of the first principal charge and F.M., a child aged 7 years in respect of the second principal charge.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 6 witnesses to support its case. PW 1, F.M., was the first complainant, PW 4, M.M., was the second complainant. PW 3, S.M.M., is the complainants’ mother. PW 3, K.M., saw the appellant with the two complainants at their parents’ house on the material day. PW 5 PC Moses Lemuton was the investigating officer from Msambweni police station. PW 6, Peti Ngeti is a nurse holding a Bachelor’s degree in nursing. She attended to the complainants at Shimba Hills Health centre on 9/9/2020.
4. The appellant DW 1, gave sworn evidence in defence and did not call a witness.
5. At the end of the trial, the appellant was found guilty of the principal charge of defilement on both counts and he was convicted and sentenced to serve 20 years imprisonment on the first principal charge and life imprisonment on the second principal charge. The 20 years sentence of imprisonment was ordered held in abeyance due to the life imprisonment imposed on the second principal charge.
6. The appellant was aggrieved by the decision of the trial court and has set out to challenge the decision based on the following amended grounds of appeal, that the trial court erred in law and in fact:
a. for not appreciating the issue of visual identification was firmly pined on the great danger of mistaken identity circumstances.
b. for not considering that the prosecution evidence was best sketchy rendering it so inconsistent to be relied upon for a safe conviction.
c. for not observing that the prosecution party was the one indebted to prove their case.
d. failed to consider the appellant’s mitigation which too formed part of the trial process.
e. for not considering that the imposition of the sentence was not to be premised on the outlaw of mandatory, which was declared by the Supreme Court to be unconstitutional.
f. failed to consider the defence evidence which was not vitiated by the prosecution party.
7. The respondent opposed the appeal through written submissions.
8. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
9. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
10. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
11. The prosecution’s case was rather straightforward. PW 2, S.M.M. left her two children PW 1 and PW 4 at home alone as she went to work. She gave their dates of birth as 31/1/2013 for PW 1 and 8/3/2007 for PW 4. Their respective certificates of birth were produced as exhibits 1 and 2 respectively. PW 3, is a herdsman for the complainants’ family as well as those for their neighbor, Mutinda. Besides his duties of herding cattle, PW 3 also usually checks on the girls at their home.
12. The evidence of the incident was largely recounted by the two minors, PW 1 and PW 4. PW 4 has a mental disability. However, the trial court was satisfied that she could testify without the aid of an intermediary and she gave her evidence. Both PW 1 and PW 4 gave unsworn testimonies, recounting what happened on the material day.
13. PW 1 said the appellant Robert went to their home where there were only the two of them and asked her for water and afterwards called her to the road and went to purchase for her potatoes. He came back, went to the house, called PW 4 inside, removed her clothes by force and did bad manners to her. When he was done, he called PW 1 inside, removed her clothes by force and engaged in sexual intercourse with her for long. He then dressed her. He then ate all the food, two platefuls, without leaving anything for the two of them. He told them not to inform their mother or father or else their mother would beat them up if they did.
14. PW 1 said that the appellant repeated the same thing a second time.
15. PW 1 said that when their mother came back in the evening, they told her everything. She took them to the police station and then to hospital.
16. PW 4 was brief in her testimony. She said she knew Robert by name but not appearance. She said that Robert entered their house in their bedroom and did bad manners to her and her cousin F.M. She said he removed her panties and did bad manners to her.
17. In cross-examination she confirmed that she did not know Robert by appearance or voice. She said the appellant entered their house and slept on their bed. She said she knows Kamanza, the herdsman by appearance. She said that Robert had done the bad manners to her once and to F. once. They had been left alone when he did the bad manners to them. She said further that in the past, they were being left alone and Kamanza would look after them but now their grandmother was staying with them. PW 4 said that F. cried on that and she also cried. She said she felt pain and that she told Kamanza and their mother that Robert had done bad manners to her. She also said that Robert had taken F. to the shops and purchased potatoes for F. which PW 4 did not eat and that he was a friend of F. but not her friend. She said that he did the bad manners to her in their bedroom.
18. PW 3, Kamanza Mbeja said that he had changed the cows’ grazing spot when he went to check on the two girls. She found PW 4 standing at the door and another child crying from inside the house. He entered the house and found the appellant standing at the bedroom door. He asked the appellant what he was doing there and he answered that he was soothing the crying child. PW 3 told him to leave. He went away. PW 3 checked the bedroom and saw PW 1 on the bed crying. In the evening as he brought the cows home, he reported to the girls’ parents what he had seen in the day.
19. In cross-examination, PW 3 said that stays at the girls’ parents’ home. He usually checked on the children every two hours. He said that PW 4 was not crying but PW 1 was. When he asked them what the matter was, they did not say.
20. PW 2 said that when she came back in the evening, she found the girls had not taken a birth. She demanded to know why but they did not tell her so she beat them up. PW 1 opened up and said she would tell the truth and explained to her what the appellant had done to them.
21. PW 2 said PW 1 was bleeding from her vagina and she bled for two days.
22. PW 5, the nurse received the complainants on the same day 9/9/2020 and attended to them. With respect to PW 1 she found that in her genitalia, she had a tear running half length of the vestibular right side of hymen. It was torn on one side. The cut was fresh and appeared to have been inflicted on the same day but not actively bleeding at the time of examination.
23. With respect to PW 4, her inner wear was blood stained. Her genitalia had lacerations on the 6 o’clock and 7 o’clock of the entrance of the vagina. The injuries were fresh and still actively bleeding at the time of examination.
24. PW 5 said the injuries suggested active penetration.
25. In his defence, the appellant denied that he committed the offence. He said he was walking going to Shimba Hills on a market day using a short-cut when he met a girl, whom he later saw in court as PW 1 on the road crying. He spoke to her asking what was wrong but she did not respond. PW 3, who was known to him, showed up and appeared like he wanted to beat up the girl when she wanted to speak. He also appeared to be hurrying her. The appellant left them and went his way. He said Mwai was known to him as a boda boda operator as he used to ferry him.
26. The appellant said he was accosted the following day by Mwai, the girls’ father with other people after what appeared to be a trap laid for him. He was beaten up and taken to the police station.
27. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the appellant and the grounds of opposition by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
28. Sections 8(1), 8(2) and 8(3) of the Sexual Offences Act under which the appellant was convicted provide as follows:
S. 8:
(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.
29. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
30. In his submissions, the appellant says that he is not contesting the issue of the victims being defiled. That means the issue of penetration is not for consideration.
31. The age of the complainants was proved by their mother’s evidence who gave their respective dates of birth and supported it with the evidence of the certificates of birth produced as Exhibits 1 and 2.
32. The only issue remaining is whether or not the identification of the appellant as the culprit was proved beyond a reasonable doubt and therefore whether the trial court reached a correct conclusion on that issue.
33. It is the appellant’s contention that he was not properly identified as the perpetrator of the offence and the dock identification was worthless. He asserts that according to the evidence, the complainants’ parents did not know his name and so wonders how the victims could have known his name as Robert. However, that is a misapprehension of the evidence tendered by PW 2, the victims’ mother and PW 1, the first complainant because both of them said that they knew him well as Robert. In the case of PW 1, she said she had seen him before the material day and not once, being the material day as contended by the appellant. In the case of PW 2, she had seen him severally before as he used to work at Mama Mboga’s stall at Shimba Hills. She had also seen him in church. There is then the evidence of PW 3 who knew him for long and very well and there is no dispute that his name was Robert. The appellant conceded in defence that indeed he was well known to PW 3. PW 2 said that he was the only Robert within that area and this was not disputed. PW 4 said that she knew Robert by name but not appearance. Her mother, PW 2 explained her disability both in sight and mental. But she came through at the trial as someone who appreciated her environment properly.
34. I therefore find that the appellant was not a stranger to the two girls and they were able to identify him as Robert. He was also not a stranger to their mother and PW 3 knew him even much better. He was therefore not identified from the dock as he alleges. PW 1, PW 2 and PW 3 all recognized him as someone known to each of them before. In that case, there was no need for an identification parade as contended by the appellant.
35. But even assuming that they did not know his name or even appearance, which is not the case, there is evidence that they met him on the material day in broad daylight. According to PW 1 and PW 4, they had a long time with him, from the time he arrived, took PW 1 to purchase the potatoes and came back with her; then all the time the incident happened. Besides them, PW 3 found him with at least, one of the girls, PW 1.
36. I find it to be the case as contended by the appellant that PW 3 did not exactly find the appellant in the house but on the road. It is true that they met on the road while the appellant was talking to PW 1 as was testified by the appellant in his defence because neither PW 1 nor PW 4 said that Kamanza found Robert in their house with PW 1 crying. But PW 1 in cross-examination said that afterwards, Robert found her on the road crying and then Kamanza, PW 4 showed up from herding the cattle and that at the time, she was crying. Kamanza then asked her why she was crying and she denied that there was anything wrong.
37. The appellant confirmed in his defence that at least PW 1 was with him alone on the road that day and that he stayed with her for about 30 minutes. Even if his story was to be believed only to that extend and which I do, it would mean that PW 1 had sufficient time to identify him. His story that he was with PW 1 is however true to that extend and also that she was in a distraught condition, crying, which is confirmed by PW 3 that when she found them, she was crying and PW 4 that indeed PW 1 was crying on that day. However, his attempt to change the narrative to allege that PW 3 could have been the one who was causing her to cry is incredible and I do not accept it.
38. The evidence of PW 1 and PW 4 was consistent that Robert, the appellant brought potatoes for PW 1 but he did not bring for PW 4. It was also consistent that he had sexual intercourse with each of them in their parents’ house on the bed and that he first had sexual intercourse with PW 4 before he did it to PW 1. These issues could not have been conjured up by the girls and yet be so consistent.
39. The appellant’s contention is that the evidence of PW 4 is inconceivable with regard to the appellant’s identity because she did not know him by appearance or voice. That is quite possible though given the limited ability of PW 4 in sight and mind. She was candid about her identification of the culprit, only by name. The name Robert was not strange to PW 4. Her mother said there was no other Robert in that area. The appellant, who was known to PW 1 by name stayed with them for a long time. In those circumstances, I am satisfied that PW 4 would have been and was able to know that the person who had done bad manners to them went by the name of Robert.
40. I have found that the evidence of PW 3 that he found the appellant in the house with PW 1 on the bed and PW 4 at the door was not honest. That leaves the complainants as the only witnesses to testify that the appellant engaged in sexual intercourse with each of them in turn. They were thus the only eye witnesses on the issue of penetration. Both of them gave unsworn evidence.
41. The manner in which the court should proceed to assess the unsworn evidence of a child victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 19(1). Oaths and Statutory Declarations Act:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”
S. 124. Evidence Act:
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
42. I am satisfied that the trial court complied with the requirements of section 19 of the Oaths and Statutory Declarations Act and that the complainants gave unsworn evidence.
43. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence as provided for under the above provisions of the law was explained by the Court of Appeal in the case of Sahali Omar vs. Republic [2017] eKLR held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
44. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
45. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
46. In this case, I am satisfied that each of the complainant’s was an honest and truthful witness and her evidence was believable. I have further found above that the evidence of identification of the appellant as the perpetrator of the offence against both complainants is corroborated by that of PW 3 who found PW 1 in a distraught condition with the appellant. The appellant’s explanation of how she came to be with her is incredible and I reject it.
47. The appellant’s defence that he was framed for the offences by some unidentifiable person was unbelievable and the learned trial magistrate correctly rejected it. There was nothing in that evidence to challenge the strong evidence tendered by the prosecution witnesses.
48. Consequently, this court affirms the decision of the trial court convicting the appellant of defilement on the two principal charges under section 8(1) of the SoA.
49. The final ground raised by the appellant was on sentence, that his mitigation was not considered by the trial court and that he ought to have been given a lesser sentence in view of decisions from the Court of Appeal that minimum mandatory sentences under the Sexual Offences Act were unconstitutional.
50. The learned trial magistrate correctly imposed the minimum sentence for defilement under sections 8(2) and 8(3) of the Sexual Offences Act. The appellant’s submission that minimum sentences have been declared unconstitutional by the Court of Appeal has been overtaken by events in view of the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that minimum sentences under the Sexual Offences Act are not unconstitutional.
51. On sentence section 8(2) of SoA provides that 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. The learned trial magistrate therefore passed the correct sentence upon the appellant.
52. However, the learned trial magistrate imposed an indefinite term of life imprisonment upon the appellant. She did not take his mitigation into account terming it as inconsequential. It is important that mitigation be taken and considered even where the court is constrained to pass a minimum sentence. The offender may still benefit from the Presidential Power of Mercy or any other from of early release available.
53. Considering the emerging jurisprudence from the Court of Appeal on indeterminate life sentence, I find it appropriate for this court to review the sentence on the second count to be in line thereof. I would therefore impose a determinate term of life imprisonment in line with recent Court of Appeal decisions determining that an indeterminate term of life imprisonment is unconstitutional (see the cases of and Manyeso v Republic [2023] KECA 827 (KLR), Ayako v Republic [2023] KECA 1563 (KLR) and MB v Republic [2024] KECA 324 (KLR). In the cases of in Evans Nyamari Ayako v Republic (supra), and MB v Republic (supra) the Court of Appeal substituted indeterminate life imprisonment terms with a term sentence of 30 years’ imprisonment.
54. Consequently, the indeterminate sentence of life imprisonment meted upon the appellant on the second count is reviewed to provide that the same shall translate to a period of 30 years imprisonment. Considering that this should be the longest term the appellant should serve in prison, it follows that the sentence of 20 years imprisonment on the first count will remain and will now run concurrent to the sentence of 30 years’ imprisonment in the second count. The sentence will run from the date of arrest on 10/9/2020 in line with section 333(2) CPC.
55. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 14th day of March 2025 in the presence of:
The appellant in person from Shimo La Tewa prison.
Ms Vallerie h/b for Mr. Ngiri for the respondent
Johnson: Court assistant.
J U D G M E N T
1. The appellant, Robert Musembi Maweu was convicted on two counts of the offence of defilement contrary to section 8(1) as read with section 8(3) in the first count and section 8(2) in the second count of the Sexual Offences Act (Cap. 63A) Laws of Kenya, the complainants being aged 13 years and 7 years respectively. Other than the two complainants, the rest of the particulars are the same that that on 9/9/2020n at round 1300 Hours at Kipambani village of Majimboni location in Kwale County within Coast region, intentionally and unlawfully caused his penis to penetrate the vagina of B.M., a child aged 13 years, in the 1st count and F.M., a child aged 7 years, in the second count.
2. He was also charged with alternative charge to each of the two principal charges of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same day, place and time as in the principal charges the appellant intentionally and unlawfully touched with his penis the vagina of B.M. a child aged 13 years in respect of the first principal charge and F.M., a child aged 7 years in respect of the second principal charge.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 6 witnesses to support its case. PW 1, F.M., was the first complainant, PW 4, M.M., was the second complainant. PW 3, S.M.M., is the complainants’ mother. PW 3, K.M., saw the appellant with the two complainants at their parents’ house on the material day. PW 5 PC Moses Lemuton was the investigating officer from Msambweni police station. PW 6, Peti Ngeti is a nurse holding a Bachelor’s degree in nursing. She attended to the complainants at Shimba Hills Health centre on 9/9/2020.
4. The appellant DW 1, gave sworn evidence in defence and did not call a witness.
5. At the end of the trial, the appellant was found guilty of the principal charge of defilement on both counts and he was convicted and sentenced to serve 20 years imprisonment on the first principal charge and life imprisonment on the second principal charge. The 20 years sentence of imprisonment was ordered held in abeyance due to the life imprisonment imposed on the second principal charge.
6. The appellant was aggrieved by the decision of the trial court and has set out to challenge the decision based on the following amended grounds of appeal, that the trial court erred in law and in fact:
a. for not appreciating the issue of visual identification was firmly pined on the great danger of mistaken identity circumstances.
b. for not considering that the prosecution evidence was best sketchy rendering it so inconsistent to be relied upon for a safe conviction.
c. for not observing that the prosecution party was the one indebted to prove their case.
d. failed to consider the appellant’s mitigation which too formed part of the trial process.
e. for not considering that the imposition of the sentence was not to be premised on the outlaw of mandatory, which was declared by the Supreme Court to be unconstitutional.
f. failed to consider the defence evidence which was not vitiated by the prosecution party.
7. The respondent opposed the appeal through written submissions.
8. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
9. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
10. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
11. The prosecution’s case was rather straightforward. PW 2, S.M.M. left her two children PW 1 and PW 4 at home alone as she went to work. She gave their dates of birth as 31/1/2013 for PW 1 and 8/3/2007 for PW 4. Their respective certificates of birth were produced as exhibits 1 and 2 respectively. PW 3, is a herdsman for the complainants’ family as well as those for their neighbor, Mutinda. Besides his duties of herding cattle, PW 3 also usually checks on the girls at their home.
12. The evidence of the incident was largely recounted by the two minors, PW 1 and PW 4. PW 4 has a mental disability. However, the trial court was satisfied that she could testify without the aid of an intermediary and she gave her evidence. Both PW 1 and PW 4 gave unsworn testimonies, recounting what happened on the material day.
13. PW 1 said the appellant Robert went to their home where there were only the two of them and asked her for water and afterwards called her to the road and went to purchase for her potatoes. He came back, went to the house, called PW 4 inside, removed her clothes by force and did bad manners to her. When he was done, he called PW 1 inside, removed her clothes by force and engaged in sexual intercourse with her for long. He then dressed her. He then ate all the food, two platefuls, without leaving anything for the two of them. He told them not to inform their mother or father or else their mother would beat them up if they did.
14. PW 1 said that the appellant repeated the same thing a second time.
15. PW 1 said that when their mother came back in the evening, they told her everything. She took them to the police station and then to hospital.
16. PW 4 was brief in her testimony. She said she knew Robert by name but not appearance. She said that Robert entered their house in their bedroom and did bad manners to her and her cousin F.M. She said he removed her panties and did bad manners to her.
17. In cross-examination she confirmed that she did not know Robert by appearance or voice. She said the appellant entered their house and slept on their bed. She said she knows Kamanza, the herdsman by appearance. She said that Robert had done the bad manners to her once and to F. once. They had been left alone when he did the bad manners to them. She said further that in the past, they were being left alone and Kamanza would look after them but now their grandmother was staying with them. PW 4 said that F. cried on that and she also cried. She said she felt pain and that she told Kamanza and their mother that Robert had done bad manners to her. She also said that Robert had taken F. to the shops and purchased potatoes for F. which PW 4 did not eat and that he was a friend of F. but not her friend. She said that he did the bad manners to her in their bedroom.
18. PW 3, Kamanza Mbeja said that he had changed the cows’ grazing spot when he went to check on the two girls. She found PW 4 standing at the door and another child crying from inside the house. He entered the house and found the appellant standing at the bedroom door. He asked the appellant what he was doing there and he answered that he was soothing the crying child. PW 3 told him to leave. He went away. PW 3 checked the bedroom and saw PW 1 on the bed crying. In the evening as he brought the cows home, he reported to the girls’ parents what he had seen in the day.
19. In cross-examination, PW 3 said that stays at the girls’ parents’ home. He usually checked on the children every two hours. He said that PW 4 was not crying but PW 1 was. When he asked them what the matter was, they did not say.
20. PW 2 said that when she came back in the evening, she found the girls had not taken a birth. She demanded to know why but they did not tell her so she beat them up. PW 1 opened up and said she would tell the truth and explained to her what the appellant had done to them.
21. PW 2 said PW 1 was bleeding from her vagina and she bled for two days.
22. PW 5, the nurse received the complainants on the same day 9/9/2020 and attended to them. With respect to PW 1 she found that in her genitalia, she had a tear running half length of the vestibular right side of hymen. It was torn on one side. The cut was fresh and appeared to have been inflicted on the same day but not actively bleeding at the time of examination.
23. With respect to PW 4, her inner wear was blood stained. Her genitalia had lacerations on the 6 o’clock and 7 o’clock of the entrance of the vagina. The injuries were fresh and still actively bleeding at the time of examination.
24. PW 5 said the injuries suggested active penetration.
25. In his defence, the appellant denied that he committed the offence. He said he was walking going to Shimba Hills on a market day using a short-cut when he met a girl, whom he later saw in court as PW 1 on the road crying. He spoke to her asking what was wrong but she did not respond. PW 3, who was known to him, showed up and appeared like he wanted to beat up the girl when she wanted to speak. He also appeared to be hurrying her. The appellant left them and went his way. He said Mwai was known to him as a boda boda operator as he used to ferry him.
26. The appellant said he was accosted the following day by Mwai, the girls’ father with other people after what appeared to be a trap laid for him. He was beaten up and taken to the police station.
27. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the appellant and the grounds of opposition by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
28. Sections 8(1), 8(2) and 8(3) of the Sexual Offences Act under which the appellant was convicted provide as follows:
S. 8:
(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.
29. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
30. In his submissions, the appellant says that he is not contesting the issue of the victims being defiled. That means the issue of penetration is not for consideration.
31. The age of the complainants was proved by their mother’s evidence who gave their respective dates of birth and supported it with the evidence of the certificates of birth produced as Exhibits 1 and 2.
32. The only issue remaining is whether or not the identification of the appellant as the culprit was proved beyond a reasonable doubt and therefore whether the trial court reached a correct conclusion on that issue.
33. It is the appellant’s contention that he was not properly identified as the perpetrator of the offence and the dock identification was worthless. He asserts that according to the evidence, the complainants’ parents did not know his name and so wonders how the victims could have known his name as Robert. However, that is a misapprehension of the evidence tendered by PW 2, the victims’ mother and PW 1, the first complainant because both of them said that they knew him well as Robert. In the case of PW 1, she said she had seen him before the material day and not once, being the material day as contended by the appellant. In the case of PW 2, she had seen him severally before as he used to work at Mama Mboga’s stall at Shimba Hills. She had also seen him in church. There is then the evidence of PW 3 who knew him for long and very well and there is no dispute that his name was Robert. The appellant conceded in defence that indeed he was well known to PW 3. PW 2 said that he was the only Robert within that area and this was not disputed. PW 4 said that she knew Robert by name but not appearance. Her mother, PW 2 explained her disability both in sight and mental. But she came through at the trial as someone who appreciated her environment properly.
34. I therefore find that the appellant was not a stranger to the two girls and they were able to identify him as Robert. He was also not a stranger to their mother and PW 3 knew him even much better. He was therefore not identified from the dock as he alleges. PW 1, PW 2 and PW 3 all recognized him as someone known to each of them before. In that case, there was no need for an identification parade as contended by the appellant.
35. But even assuming that they did not know his name or even appearance, which is not the case, there is evidence that they met him on the material day in broad daylight. According to PW 1 and PW 4, they had a long time with him, from the time he arrived, took PW 1 to purchase the potatoes and came back with her; then all the time the incident happened. Besides them, PW 3 found him with at least, one of the girls, PW 1.
36. I find it to be the case as contended by the appellant that PW 3 did not exactly find the appellant in the house but on the road. It is true that they met on the road while the appellant was talking to PW 1 as was testified by the appellant in his defence because neither PW 1 nor PW 4 said that Kamanza found Robert in their house with PW 1 crying. But PW 1 in cross-examination said that afterwards, Robert found her on the road crying and then Kamanza, PW 4 showed up from herding the cattle and that at the time, she was crying. Kamanza then asked her why she was crying and she denied that there was anything wrong.
37. The appellant confirmed in his defence that at least PW 1 was with him alone on the road that day and that he stayed with her for about 30 minutes. Even if his story was to be believed only to that extend and which I do, it would mean that PW 1 had sufficient time to identify him. His story that he was with PW 1 is however true to that extend and also that she was in a distraught condition, crying, which is confirmed by PW 3 that when she found them, she was crying and PW 4 that indeed PW 1 was crying on that day. However, his attempt to change the narrative to allege that PW 3 could have been the one who was causing her to cry is incredible and I do not accept it.
38. The evidence of PW 1 and PW 4 was consistent that Robert, the appellant brought potatoes for PW 1 but he did not bring for PW 4. It was also consistent that he had sexual intercourse with each of them in their parents’ house on the bed and that he first had sexual intercourse with PW 4 before he did it to PW 1. These issues could not have been conjured up by the girls and yet be so consistent.
39. The appellant’s contention is that the evidence of PW 4 is inconceivable with regard to the appellant’s identity because she did not know him by appearance or voice. That is quite possible though given the limited ability of PW 4 in sight and mind. She was candid about her identification of the culprit, only by name. The name Robert was not strange to PW 4. Her mother said there was no other Robert in that area. The appellant, who was known to PW 1 by name stayed with them for a long time. In those circumstances, I am satisfied that PW 4 would have been and was able to know that the person who had done bad manners to them went by the name of Robert.
40. I have found that the evidence of PW 3 that he found the appellant in the house with PW 1 on the bed and PW 4 at the door was not honest. That leaves the complainants as the only witnesses to testify that the appellant engaged in sexual intercourse with each of them in turn. They were thus the only eye witnesses on the issue of penetration. Both of them gave unsworn evidence.
41. The manner in which the court should proceed to assess the unsworn evidence of a child victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 19(1). Oaths and Statutory Declarations Act:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”
S. 124. Evidence Act:
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
42. I am satisfied that the trial court complied with the requirements of section 19 of the Oaths and Statutory Declarations Act and that the complainants gave unsworn evidence.
43. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence as provided for under the above provisions of the law was explained by the Court of Appeal in the case of Sahali Omar vs. Republic [2017] eKLR held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
44. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
45. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
46. In this case, I am satisfied that each of the complainant’s was an honest and truthful witness and her evidence was believable. I have further found above that the evidence of identification of the appellant as the perpetrator of the offence against both complainants is corroborated by that of PW 3 who found PW 1 in a distraught condition with the appellant. The appellant’s explanation of how she came to be with her is incredible and I reject it.
47. The appellant’s defence that he was framed for the offences by some unidentifiable person was unbelievable and the learned trial magistrate correctly rejected it. There was nothing in that evidence to challenge the strong evidence tendered by the prosecution witnesses.
48. Consequently, this court affirms the decision of the trial court convicting the appellant of defilement on the two principal charges under section 8(1) of the SoA.
49. The final ground raised by the appellant was on sentence, that his mitigation was not considered by the trial court and that he ought to have been given a lesser sentence in view of decisions from the Court of Appeal that minimum mandatory sentences under the Sexual Offences Act were unconstitutional.
50. The learned trial magistrate correctly imposed the minimum sentence for defilement under sections 8(2) and 8(3) of the Sexual Offences Act. The appellant’s submission that minimum sentences have been declared unconstitutional by the Court of Appeal has been overtaken by events in view of the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that minimum sentences under the Sexual Offences Act are not unconstitutional.
51. On sentence section 8(2) of SoA provides that 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. The learned trial magistrate therefore passed the correct sentence upon the appellant.
52. However, the learned trial magistrate imposed an indefinite term of life imprisonment upon the appellant. She did not take his mitigation into account terming it as inconsequential. It is important that mitigation be taken and considered even where the court is constrained to pass a minimum sentence. The offender may still benefit from the Presidential Power of Mercy or any other from of early release available.
53. Considering the emerging jurisprudence from the Court of Appeal on indeterminate life sentence, I find it appropriate for this court to review the sentence on the second count to be in line thereof. I would therefore impose a determinate term of life imprisonment in line with recent Court of Appeal decisions determining that an indeterminate term of life imprisonment is unconstitutional (see the cases of and Manyeso v Republic [2023] KECA 827 (KLR), Ayako v Republic [2023] KECA 1563 (KLR) and MB v Republic [2024] KECA 324 (KLR). In the cases of in Evans Nyamari Ayako v Republic (supra), and MB v Republic (supra) the Court of Appeal substituted indeterminate life imprisonment terms with a term sentence of 30 years’ imprisonment.
54. Consequently, the indeterminate sentence of life imprisonment meted upon the appellant on the second count is reviewed to provide that the same shall translate to a period of 30 years imprisonment. Considering that this should be the longest term the appellant should serve in prison, it follows that the sentence of 20 years imprisonment on the first count will remain and will now run concurrent to the sentence of 30 years’ imprisonment in the second count. The sentence will run from the date of arrest on 10/9/2020 in line with section 333(2) CPC.
55. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 14th day of March 2025 in the presence of:
The appellant in person from Shimo La Tewa prison.
Ms Vallerie h/b for Mr. Ngiri for the respondent
Johnson: Court assistant.