(Being an appeal against both conviction and sentence to 23 years imprisonment for the offence of Defilement contrary to Section 8(1) ( 2 ) of the Sexual Offences act at Kiambu Law Court delivered on 10/1/2020 by Hon. Orora- SRM
Coram W.K. Micheni – Judge
Background
1. ROBINSON NDARI WACHERA hereinafter referred to as the appellant was convicted and sentenced to 23 years’ imprisonment for the offence of defilement contrary to Section 8(1) (2) of the Sexual Offences Act No. 3 of 2006.
2. The particulars being that:-
“On the 28th day of April, 2018 at Maziwa Estate, Kasarani Sub- Location within Nairobi County, he intentionally caused his penis to penetrate the vagina of V W a child aged 5 years.
3. In the alternative he was charged with Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 with the particulars being that on the 28th day of April, 2018 at Maziwa Estate Kasarani Sub County within Nairobi County intentionally touched the buttocks/vagina of V.W. a child aged 5 years with his penis.
4. The appellant pleaded not guilty to the charge and the case proceed to full hearing and determination. The prosecution called 6 witnesses. The appellant gave a sworn testimony and did not call witnesses. He was convicted on the main count of defilement and sentenced to 23 years imprisonment.
5. Being dissatisfied with both the conviction and sentence the appellant lodged this appeal on the following grounds of appeal: -
a) THAT the trial magistrate erred in matters of law and fact in failing to analyze and evaluate the whole evidence and come to his own independent conclusion as required by the law.
b) THAT the trial magistrate erred in matters of law and fact in convicting the appellant on the evidence which was so contradictory and dangerous to convict on such evidence.
c) THAT the trial magistrate erred in matters of law and fact in failing to find that, essential elements in a case of defilement were not proved.
Duty of the first appellate court
6. It is the duty of the first appellate court to re-evaluate and reconsider afresh the evidence on record so as to arrive at its own conclusion while bearing in mind that it did not have the opportunity to observe the demeanor of the witnesses . These Guiding principles are found in the cases of Okeno versus R (1972) EA 32 , Njoroge Versus R (1987) eKLR 19 and Kiilu and another versus R 2005 1 KLR 174.
THE EVIDENCE ON RECORD
7. PW1 V.W.M, a minor gave unsworn evidence. She stated that she is 5 years old. She knows the accused as her uncle. He resides with his grandmother at Githurai 44. She further said that the accused is in court because he did “tabia mbaya” to her. She explained that on the particular day she went to visit her grandmother and she was taking chicken food. That she found the accused, whom she asked where her grandmother is. She testified that the accused person carried her to his house, he removed her clothes and he touched her private parts. The complainant showed the court her private parts by touching. She further explained that the accused removed the shorts that she was wearing. Her evidence was that he put his “dudu” on her susus. She showed the court by touching her vagina. She said she felt something watery on her vagina. That the appellant threatened her that if she told anyone of what had happened he would cut her finger. The next Saturday while her mother was washing her ,she looked at her private parts and took her to hospital. On cross examination, she confirmed that there was no one in the house when the incident occurred and she did not scream for help.
8. PW2 Eva Wanjiru Ndirangu, testified that on 28th/4/2018 while she was washing her daughter PW1, and she found wounds in her private parts. She asked her what had happened. That PW1 said nothing but she insisted and finally PW1 said that Ndari had done “tabia mbaya” to her. She asked which Ndari since they were two Ndaris in their family and PW1 confirmed that it was the younger Ndari. That she told her aunt Lucy who told her to wait for the appellant. That the appellant finally arrived but he denied the allegation. They reported at the police station. That later when they passed through the appellant’s house, he had already escaped. They were issued with a P3 form which was marked as MFI, a report from medical sans frontiers as MF2. The birth certificates showing the age of the Complainant was marked as MFI 3. The appellant was arrested at Nyeri Technical University, after he had posted a photograph on Facebook which Pw2 saw and reported to the police officers.
9. PW3 FATUMA MOHAMMED, a medical officer, produced a P3 form dated 5/07/2018 on behalf of her colleague Doctor Hassan. It shows that the child reported that she had gone to her grandmother’s house but only found her uncle. He placed her on the bed, removed her clothes and lay on top of her, he threatened to cut her finger if she told anyone. She had bruises on both Labia Majora with marked reddening and tenderness. Hymen was pink, anular and intact. Lab tests were done. HIV was negative, urine microscopy was also negative. The P3 form was produced as Exhibit 1. On cross examination, she confirmed that the hymen was intact but the fact that the area around the hymen was pinkish, shows that someone or something was trying to penetrate.
10. PW4, Celina Nyambu, was a clinical officer from medical Sans Frontiers. She explained that on 2nd May 2018 she examined the complainant who was with her mother. Her external genitalia was red and had bruises. The hymen was pink. She gave the complainant PEP, Tetanus and hepatitis B medication. She made a report signed it, and she produced the same as prosecution exhibit 4. She also prepared the PRC form which she produced as exhibit 2. Her conclusion was the accused had undergone sexual violence. There were no questions on cross examination.
11. PW5, No. 62583 Cpl Magdaline Mbula, the investigating officer testified that she issued the complainant with a P3 form, and she recorded the statements of the witnesses. She produced the birth certificate of the complainant as exhibit 3. On cross examination, she confirmed that the Appellant was arrested by officer’s form Nyeri and the complainant was able to identify him.
12. PW6, No. 69748PC Dan Olunzi stated that on 20/7/18 he received an arresting order for a person by the name Robinson Ndari Wacera alleged to have defiled a girl. The reportee was the mother to the complainant. She said that the Appellant was at Nyeri Polytechnic. He went to the school and arrested the Appellant. The complaint’s mother was present during the arrest.
Defence case
13. When put on his defence, the Appellant opted to give sworn evidence. While denying the offence, he stated that he was arrested on 20/7/18. He was taken to Nyeri Police Station then transferred to Kiambu police station. The complainant is his niece and he does not know anything about the offence.
Analysis and findings
14. Section 8(1) and (2) of Sexual Offences Act No. 3 of 2006 provides: -
“(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 aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
For the alternative count, the act provides under Section 11(1): -
(1) any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
15. The trial court properly identified and set at the 3 critical ingredients needed to prove a charge of Defilement. They are:-
1. Age of the complainant
2. Identification of the appellant.
3. Penetration.
These are set out in the case of Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013 where it was held that “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
16, Age of the Complainant
PW5 produced a birth certificate of the complainant showing that the date of birth is 2nd October, 2012. This shows that at the time of the offence she was 5 years 6 months. In Hillary Nyongesa Vs Republic (Eldoret Criminal Appeal No. 123 of 2009) where Mwilu J (as she then was) stated that:-
“Age is such a critical aspect in Sexual Offences that it has to be conclusively proved … and this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.”
There was no dispute on this and the Trial court’s finding on age is upheld.
Identification of the accused
16. PW1 identified the person who did tabia mbaya to her as Ndari. Further, she stated that he was the uncle. When PW2 asked her who had defiled her she was specific to say that it was Ndari “Mdogo”. PW2 had informed the court that there were 2 Ndaris in the family, so she asked the complainant which one had defiled her. The P3 also shows that PWI informed the doctor that it’s her uncle who defiled her. It is noteworthy that the Appellant was well known to the victim as they are related and the offence took place during the day time in a homestead well known to her, the grandmother’s home. So it cannot be a case of mistaken identity. Further no motive was brought forth by the appellant on why anyone, more so a child of tender age would implicate him falsely .The victim knew the Appellant very well. They are related. she identified him by giving his name and even differentiated which Ndari it was.
Accordingly, the court upholds the trial courts finding.
Proof of penetration
17. Section 2 of the Sexual Offence’s Act defines “Penetration” as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
18. In this case, the P3 form and PRC Form clearly indicates that there were bruises on both labia majora with marked reddening and tenderness. They show that the hymen was pink. The doctor further stated under cross-examination that the fact that the hymen was pinkish shows that someone or something was trying penetrate. The fact that the hymen had not been broken does not in itself imply that there was no penetration of the genitalia organ of person by genitalia organ of another person in view of the provisions of Section 2(1) of the Sexual Offence Act No. 3 of 2006.
19. The trial court PROPERLY relied on the case of Erick Onyango Ondeng v Republic CRA No. 5 of 2013 (2014) eKLR where Court of Appeal addressed itself as follows: -
“We do not share the Appellant’s suggestion that Dr. Muhombe’s report concluded that there was no hymen whilst that of Dr. Kamau concluded that the hymen was intact. Dr. Muhombe’s report was that the hymen had some old tears on the lateral and anterior side, suggesting that it was still there. We agree with the first appellate Court that to establish defilement, it is not necessary that the hymen must be broken; even partial penetration of the female genital by male genital will suffice to constitute the offence.
20.There are several other cases on this aspect.They include :
TWEHANGANE ALFRED VS UGANDA in which the Uganda Court of Appeal expressed the same view as follow:
“In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that they hymen be rupture.
“Hymen, also known as virginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, Masturbation, injury and medical examinations can also rapture hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding and gymnastics, there can also be natural tearing of the hymen.”
21. We also see the same position expressed in E E v Republic [2015] eKLR where the court expressed itself on the question of penetration as follows: -
penetration is defined in Section 2 of the Sexual Offences Act as
“Penetration’ means the partial or complete insertion of the genital organ of a person in the genital organ of another person.
22. In Bassitsa Hussein -vs - Uganda, Supreme Court Criminal Appeal No. 35 of 1995, the court stated,
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims over evidence and corroborated by medial evidence or other evidence.”
22. In this case, the court is satisfied that the trial court properly analyzed both the facts and the law on this aspect. The victim child stated what transpired. That the accused person put his” dudu into her susu.” This was a little 5 year old girl and by law a child of a tender age. Her evidence as per section 124 of the evidence act, alone, would have been adequate if the court believed her and recorded the reasons for doing so. The evidence was however corroborated with the medical reports which shows that labia majora had bruises and reddening. As stated above , even partial penetration is adequate to prove the charge. From the authorities above , the presence of the hymen does not rule out penetration as by law established.
23. The court has considered all the grounds of Appeal and finds that they have no merit. The trial court analyzed the evidence and the law properly and there were no glaring contradictions as stated in ground 2.
24. Further all the 3 ingredients of the charge of defilement rwee properly proved as outlined above. For those reasons the appeal on the conviction fails.
On sentence
25. It is noted that the appellant was sentenced to 23 years’ imprisonment. Section 8(2) of the Sexual Offences Act provides for a sentence of life imprisonment. So the trial court was in fact lenient. The Supreme court has recently clarified that the courts have no jurisdiction to give lesser sentences but owing to the lack of clarity that existed at the time of the sentence, the court will not disturb the sentence.
26. The Appeal on both the conviction and sentence is dismissed. The Appellant to continue serving his lawful sentence. It is so ordered.
DELIVERED, DATED and SIGNED at MOMBASA on this ……30th. day of July, 2024.
Judgment delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of:-
………….. for the Appellant
…………………. for the Respondent.
Court Assistant - ………………………..